Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 4 contracts
Samples: Senior Loan and Security Agreement (Mavenir Systems Inc), Subordinated Loan and Security Agreement (Mavenir Systems Inc), Subordinated Loan and Security Agreement (Mavenir Systems Inc)
Collateral. Borrower has good title to, has rights in, The Administrative Agent (or its counsel) shall have received (i) certificates evidencing Equity Interests of wholly-owned Domestic Subsidiaries that are Material Subsidiaries of Holdings (to the extent available to Holdings) and the power to transfer each item Target and its Domestic Subsidiaries (in the case of the Collateral upon which it purports Target and its Domestic Subsidiaries, to xxxxx x Xxxx hereunderthe extent delivered to Holdings by the Target prior to the Closing Date), free to the extent certificated and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described required to be pledged as set out in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the publicLoan Documents, and (cii) material Intellectual Property licensed copies of UCC financing statements for entities organized in the United States. Notwithstanding anything in this Agreement to Borrower the contrary, it is understood that only Holdings, the Borrowers and noted the other Loan Parties organized under the laws of the United States shall be required to provide guarantees and Collateral (subject to the terms set forth in this paragraph) on the Perfection Certificate. Each Patent which it owns or purports Closing Date and the other Loan Parties may instead provide guarantees and Collateral within forty-five (45) Business Days after the Closing Date (subject to own and which is material extensions to Borrower’s business, taken as a whole, is valid and enforceablebe reasonably agreed upon by the Administrative Agent), and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would any Collateral (including the grant or perfection of any security interest, other than (x) the delivery of certificates evidencing Equity Interests of wholly-owned Domestic Subsidiaries that are Material Subsidiaries of Holdings (to the extent available to Holdings) and the Target and its Domestic Subsidiaries (in the case of the Target and its Domestic Subsidiaries, to the extent delivered to Holdings by the Target prior to the Closing Date), to the extent certificated and required to be pledged as set out in the Loan Documents, and (y) any Collateral the security interest in which may be perfected by the filing of a UCC financing statement for entities organized in the United States) is not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted or cannot reasonably be provided on the Perfection CertificateClosing Date after Holdings’ use of commercially reasonable efforts to do so or without undue burden or expense, Borrower is then the provision of such collateral and perfection therein shall not constitute a party condition precedent to the availability of the Loans on the Closing Date, but may instead be provided or perfected within ninety (90) days after the Closing Date (in each case, subject to extensions to be reasonably agreed upon by the Administrative Agent). Without limiting the generality of the provisions of Section 9.03(b), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, nor is it bound byapproved or accepted or the be satisfied with, any Restricted Licenseeach document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 3 contracts
Samples: Credit Agreement (Icon PLC), Credit Agreement (PRA Health Sciences, Inc.), Credit Agreement (Icon PLC)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral Effective upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank Subsidiary becoming a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, Guarantor after the date hereof, intends the Borrower shall cause such Guarantor within fifteen Business Days after becoming a Guarantor (or such later date as the Administrative Agent may agree) to store or otherwise deliver any portion grant to the Collateral Agent for the benefit of the Collateral with an aggregate value Secured Parties a first (subject to Permitted Liens) priority security interest in excess all assets (including real property and the Capital Stock of $50,000 its Subsidiaries) of such Guarantor pursuant to a baileedocumentation (including related certificates and opinions) reasonably acceptable to the Administrative Agent. The Borrower will, and will cause each of the Guarantors to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Administrative Agent from time to time such bailee schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, reports and Bank are not already parties other assurances or instruments and take such further steps relating to a bailee agreement covering both the Collateral and as the location where Administrative Agent may reasonably require. Notwithstanding any of the foregoing, (i) neither the Borrower nor any Guarantor shall be obligated hereby to grant a security interest in any asset if the granting of such security interest would result in the violation of any applicable law or regulation, (ii) the Collateral will shall not include a security interest in any asset if the granting of such security interest would be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The prohibited by enforceable anti-assignment provisions of this paragraph contracts or applicable law (after giving effect to relevant provisions of the Uniform Commercial Code), (iii) fee-owned real property having an individual fair market value of less than $2,500,000 or aggregate fair market value of less than $10,000,000 shall be excluded from the Collateral, (iv) the Collateral shall not apply to Demonstration Systems delivered to Borrower’s customers include cash and cash equivalents, accounts receivable or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable qualityPortfolio Securities, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for deposit or security accounts (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent that the foregoing are proceeds of Collateral; provided, that in no event shall any control agreements be required) containing any of the foregoing, other assets requiring perfection through control agreements, letter-of-credit rights, leasehold real property, motor vehicles and other assets subject to certificates of title (other than any corporate aircraft), interests in certain joint ventures and non-Wholly-Owned Subsidiaries which cannot be pledged without the consent of one or more third parties and obligations the interest on which is wholly exempt from the taxes imposed by subtitle A of the Code, (v) the pledge of the Capital Stock of Foreign Subsidiaries shall be limited to 65% of the Capital Stock of material first-tier Foreign Subsidiaries, (vi) the Administrative Agent shall have the discretion to exclude from the Collateral immaterial assets, assets as to which it and the Borrower determine that the cost of obtaining such claim security interest would outweigh the benefit to the Lenders and other assets in which it may determine that the taking of a security interest would not have a material adverse effect on Borrower’s businessbe advisable, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenseand (vii) no foreign law security or pledge agreements shall be required.
Appears in 3 contracts
Samples: Credit Agreement (Moneygram International Inc), Credit Agreement (Moneygram International Inc), Credit Agreement (Moneygram International Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with BankAgent, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank Agent and Lenders in connection herewith, or of which Borrower has given Bank Agent notice and taken such actions as are necessary to give Bank Lenders a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) ), except as otherwise provided for Inventory in the Perfection CertificateUnited States, held by Extron, 00000 Xxxx Xx., Xxxxxxx, XX 00000 (the “U.S. Fulfillment Center”), and Inventory outside the United States held by a foreign fulfillment center, which Borrower shall identify by written notice to Agent within 30 days after the date it is selected by Borrower (the “Non-U.S. Fulfillment Center”). None Within 60 days after the date hereof, Borrower shall cause the U.S. Fulfillment Center and the Non-U.S. Fulfillment Center to execute and deliver a Bailee Agreement in the form previously provided by Xxxx to Borrower. Except as hereafter disclosed to Agent in writing by Borrower, and other than Collateral which by its very nature is intended to be used at places other than the Borrowers place of business (such as manufacturing test equipment, laptop computers, marketing materials, cell phones, and the like), none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Agent and such bailee must execute acknowledge in writing that the bailee is holding such Collateral for the benefit of Lenders, provided that such consent and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph acknowledgement shall not apply be required with respect to Demonstration Systems delivered to Borrower’s customers or prospective customers (i) Collateral having an aggregate value, for all locations in the ordinary course of businessUnited States, not exceeding the Threshold Amount, or (ii) Collateral having an aggregate value, for all locations outside the United States, not exceeding $500,000. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available and except for licenses granted to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificateby third parties. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would is not have reasonably expected to cause a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Change. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Agent within thirty (30) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Agent requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Agent and Lenders to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Agent if Agent determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 3 contracts
Samples: Loan Modification Agreement, Loan Modification Agreement (Meru Networks Inc), Loan Modification Agreement (Meru Networks Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects, except normal and customary quality issues occurring in the ordinary course of business, in amounts consistent with past practices. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part, except to the extent in each of the above such invalidity or unenforceability would not have a material adverse effect on Borrower’s business, taken as a whole. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 3 contracts
Samples: Loan Modification Agreement (Aspen Aerogels Inc), Loan Modification Agreement (Aspen Aerogels Inc), Loan Modification Agreement (Aspen Aerogels Inc)
Collateral. Each Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. As of the Effective Date, each Borrower has no deposit accounts account other than (a) the deposit accounts with BankUnion Bank of California specified in the Union Bank Control Agreement, (b) the deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, herewith and (c) other deposit accounts located in the United States so long as the aggregate cash balances contained therein do not exceed $25,000 per account or of which Borrower has given Bank notice and taken $100,000 in the aggregate with respect to all such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtorsaccounts. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by Borrowers, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that any Borrower, after the date hereof, intends to store or otherwise deliver any material portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and then such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Each Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of each Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except as noted on the Perfection Certificate, no Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which such Borrower is the licensee that prohibits or otherwise restricts such Borrower from granting a security interest in such Borrower’s interest in such license or agreement or any other property. Each Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on such Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Each Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 3 contracts
Samples: Loan and Security Agreement (Ultra Clean Holdings Inc), Loan and Security Agreement (Ultra Clean Holdings Inc), Loan and Security Agreement (Ultra Clean Holdings Inc)
Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s 's knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Change. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower's interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within thirty days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower's business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed "Collateral" and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor's agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 2 contracts
Samples: Loan and Security Agreement (Lantronix Inc), Loan and Security Agreement (Lantronix Inc)
Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Without prior consent from Bank, Borrower shall not enter into, or become bound by, any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition. Borrower shall take such reasonable steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.
Appears in 2 contracts
Samples: Loan and Security Agreement (Forescout Technologies, Inc), Loan and Security Agreement (Forescout Technologies, Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate, unless Borrower has given Bank written notice of such other locations. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Except as described in its Perfection Certificate, Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within thirty (30) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.
Appears in 2 contracts
Samples: Loan and Security Agreement (Otix Global, Inc.), Loan and Security Agreement (Sonic Innovations Inc)
Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, herewith or of which Borrower has given Bank notice (any such notice shall be deemed to automatically update the disclosure regarding deposit accounts in the Perfection Certificate) and taken such actions as are necessary to give Bank a perfected security interest therein, pursuant to documentation reasonably acceptable to Bank. The Accounts are bona fide, existing obligations of the Account Debtors. The Except for any Inventory with third party contract manufacturers or customers outside of the United States, the Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate or as permitted pursuant to Section 7.2 (such notice shall be deemed to automatically update such disclosure in the Perfection Certificate). None of the components of the Collateral shall be maintained at locations other than (i) as provided in the Perfection Certificate or Certificate, (ii) as permitted pursuant to Section 7.27.2 (any such notice shall be deemed to automatically update such disclosure in the Perfection Certificate) or (iii) and with respect to Inventory, with third party contract manufacturers or customers outside of the United States or in transit. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral (other than Inventory with an aggregate value in excess third party contract manufacturers or customers outside of $50,000 the United States) to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 2 contracts
Samples: Loan and Security Agreement, Loan and Security Agreement (Iwatt Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with BankSenior Lender, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank Agent in connection herewith, or of which Borrower has given Bank Agent notice and taken such actions as are necessary to give Bank Agent a perfected security interest thereintherein (subject to the Required Foreign Filings). The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of One Hundred Thirty Thousand Dollars ($50,000 130,000) in the aggregate to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Agent and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank Agent in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s businessbusiness is to the knowledge of Borrower, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Effect. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 2 contracts
Samples: Note Purchase Agreement (Global Telecom & Technology, Inc.), Note Purchase Agreement (Global Telecom & Technology, Inc.)
Collateral. US Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by US Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that US Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then US Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Net Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, US Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 2 contracts
Samples: Loan and Security Agreement (Airspan Networks Inc), Loan and Security Agreement (Airspan Networks Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.”
Appears in 2 contracts
Samples: First Loan Modification Agreement (Bridgeline Software, Inc.), First Loan Modification Agreement (Bridgeline Software, Inc.)
Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The To Borrower’s knowledge (provided, however, such knowledge qualifier shall not apply to Eligible Accounts which are Financed Receivables), the Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate or as otherwise permitted under this Agreement. None of the components of the Collateral with a value in excess of One Hundred Fifty Thousand Dollars ($150,000.00) in the aggregate shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate a value in excess of One Hundred Fifty Thousand Dollars ($50,000 to a bailee, and such bailee and Bank are not already parties 150,000.00) in the aggregate to a bailee agreement covering both other than those listed on the Collateral and the location where the Collateral will be storedPerfection Certificate, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which patent that is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which intellectual property that is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.
Appears in 2 contracts
Samples: Loan Modification Agreement (Cyoptics Inc), First Loan Modification Agreement (Cyoptics Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None Other than mobile equipment in the possession of Borrower’s employees or agents, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of Five Hundred Thousand Dollars ($50,000 500,000.00) to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within thirty (30) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank reasonably requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.
Appears in 2 contracts
Samples: Loan Modification Agreement (Enernoc Inc), Loan and Security Agreement (Enernoc Inc)
Collateral. The Borrower has good title to, has rights inwill cause, and will cause each other Credit Party to cause, all of its owned Property (other than Exempt Property) to be subject at all times to first priority (except in case of Liens permitted in Section 6.15.15 and cash deposited with General Electric Capital Corporation, or an agent or affiliate thereof, to secure Letter of Credit reimbursement obligations under the power Existing Credit Agreement), perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to transfer each item secure the Secured Obligations in accordance with the terms and conditions of the Collateral upon which it purports Documents, subject in any case to xxxxx x Xxxx hereunder, free and clear Liens permitted by Section 6.15 hereof. Without limiting the generality of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bankforegoing, the deposit accounts, if any described in Borrower will (i) cause the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations Applicable Pledge Percentage of the Account Debtors. The Collateral is not issued and outstanding equity interests of each Pledge Subsidiary) directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None favor of the components Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other security documents as the Administrative Agent shall reasonably request and (ii) will, and will cause each Guarantor to, deliver Mortgages and Mortgage Instruments with respect to the Mortgaged Properties owned by the Borrower or such Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing, (1) no pledge agreement in respect of the equity interests of a Foreign Subsidiary shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except required hereunder to the extent such claim pledge thereunder is prohibited by applicable law or its counsel reasonably determines that such pledge would not have provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable pledge agreements and (2) no such Mortgages, Mortgage Instruments and pledge agreements are required to be delivered hereunder until May 30, 2004 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion after consultation with the Lenders (it being understood and agreed that the failure to deliver such Mortgages, Mortgage Instruments and pledge agreements by May 30, 2004 or such later date shall constitute a material adverse effect on Borrower’s business, taken as a whole. Except as noted Default under Section 7.3) with respect to (a) the Mortgaged Properties on the Perfection CertificateClosing Date in the case of Mortgages and Mortgage Instruments and (b) the pledge of the equity interests in each Foreign Subsidiary in the case of such pledge agreements; provided that the Borrower hereby agrees to use its reasonable efforts to cause the delivery of such Mortgages, Borrower is not a party toMortgage Instruments, nor is it bound by, any Restricted Licenseand pledge agreements as soon as practicable after the Closing Date.
Appears in 2 contracts
Samples: Credit Agreement (Headwaters Inc), Credit Agreement (Headwaters Inc)
Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The To Borrower’s knowledge, the Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate or as otherwise permitted under this Agreement. None of the components of the Collateral with a value in excess of One Hundred Fifty Thousand Dollars ($150,000.00) in the aggregate shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate a value in excess of One Hundred Fifty Thousand Dollars ($50,000 to a bailee, and such bailee and Bank are not already parties 150,000.00) in the aggregate to a bailee agreement covering both other than those listed on the Collateral and the location where the Collateral will be storedPerfection Certificate, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which patent that is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which intellectual property that is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the- counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.
Appears in 2 contracts
Samples: Loan and Security Agreement (Cyoptics Inc), Loan and Security Agreement (Cyoptics Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts Collateral Accounts at or with any bank or financial institution other than Bank or Bank’s Affiliates except for the deposit accounts with Bank, the deposit accounts, if any Collateral Accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of herewith and which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein, pursuant to the terms of Section 6.8(b). The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral (other than Offsite Collateral) is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral (other than Offsite Collateral) shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 2 contracts
Samples: Loan and Security Agreement (Beyond Meat, Inc.), Loan and Security Agreement (Beyond Meat, Inc.)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, herewith or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except (x) as otherwise provided in the Perfection CertificateCertificate and (y) Equipment or Inventory in the possession of third party carriers in the ordinary course of business for delivery to Borrower or to customers of Borrower and its Subsidiaries. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with in an aggregate value amount in excess of Two Hundred Fifty Thousand Dollars ($50,000 250,000) in the aggregate at any time, to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Bank, such consent not to be unreasonably withheld, and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (ai) non-exclusive licenses granted to its customers and/or licensees in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (cii) material Intellectual Property licensed to certain patents that are jointly owned by the Borrower and noted other third parties who have collaborated with the Borrower on technical development projects. As of the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s businessdate hereof, taken as a whole, each patent is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such material license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.
Appears in 2 contracts
Samples: Loan and Security Agreement (Caliper Life Sciences Inc), Loan and Security Agreement (Caliper Life Sciences Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein, to the extent required by Section 6.6(b). The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None Other than mobile equipment in the possession of Borrower’s employees or agents, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of Five Hundred Thousand Dollars ($50,000 500,000.00) to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and use its commercially reasonable efforts to cause such bailee must to execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall forgoing is not apply intended to Demonstration Systems delivered to limit Borrower’s customers obligations set forth in Section 6.13 hereof. With respect to such locations or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner warehouse space leased or owned as of the Intellectual Property which it owns Effective Date and thereafter, if Bank has not received a landlord’s agreement or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken bailee letter as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns Effective Date (or, if later, as of the date such location is acquired or purports to own and which is material to Borrower’s businessleased), taken as a whole, has been judged invalid or unenforceablethen the Eligible Fixed Assets at that location shall, in whole Bank’s Permitted Discretion, be excluded from the Borrowing Base or be subject to such Reserves as may be established by Bank in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeits Permitted Discretion. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within thirty (30) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank reasonably requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.
Appears in 2 contracts
Samples: Loan and Security Agreement (Enernoc Inc), Loan and Security Agreement (Enernoc Inc)
Collateral. Borrower has good title to, has rights in, The Administrative Agent is hereby authorized by each Lender to hold all Collateral pledged pursuant to any Loan Document and the power to transfer each item act on behalf of the Collateral upon which it purports Lender Group, in its own capacity and through other agents appointed by it, under the Security Documents; provided, that the Administrative Agent shall not agree to xxxxx x Xxxx hereunder, free and clear the release of any Collateral except in accordance with the terms of this Agreement. The Lender Group acknowledges that the Loan and all Liens except Permitted Liens. Borrower has no deposit accounts other than interest, fees and expenses hereunder constitute one Funded Debt, secured by all of the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest thereinCollateral. The Accounts are bona fideAdministrative Agent hereby appoints each Lender as its agent (and each Lender hereby accepts such appointment) for the purpose of perfecting the Administrative Agent’s Liens in assets which, existing obligations of in accordance with the Account DebtorsUCC, can be perfected by possession. The Collateral is not in the Should any Lender obtain possession of any third party bailee (such as a warehouse) except as otherwise provided Collateral, subject to the limitations set forth in the Perfection CertificateBlocked Account Agreements, such Lender shall, promptly upon the Administrative Agent’s request therefore, deliver such Collateral to the Administrative Agent or in accordance with the Administrative Agent’s instructions. None The Administrative Agent may purchase, in any public or private sale conducted under the provisions of the components UCC (including pursuant to sections 9-610 and 9-620 of the Collateral shall be maintained at locations other than as provided in UCC), the Perfection Certificate or as permitted provisions of the Bankruptcy Code (including pursuant to Section 7.2section 363 of the Bankruptcy Code) or at any sale or foreclosure conducted by the Administrative Agent (whether by judicial action or otherwise) in accordance with Applicable Law, all or any portion of the Collateral. In Each member of the event that Borrower, after Lender Group hereby irrevocably authorizes the date hereof, intends Administrative Agent to store Credit Bid (in an amount and on such terms as the Administrative Agent may determine) and purchase at any such sale (either directly or otherwise deliver through one or more acquisition vehicles) all or any portion of the Collateral on behalf of and for the benefit of the Lender Group (but not as agent for any individual Lender or Lenders, unless the Majority Lenders shall otherwise agree in writing). Each Lender hereby agrees that, except with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the prior written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory the Administrative Agent, it will not exercise any right that it might otherwise have to Bank in its sole discretion. The Credit Bid at any sales of all or any portion of the Collateral conducted under the provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers the UCC or prospective customers in the ordinary course Bankruptcy Code, foreclosure sales or other similar dispositions of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseCollateral.
Appears in 2 contracts
Collateral. On receipt of the Securities, Borrower has good shall deliver to the Lender no later than the close of the same business day (as defined in paragraph 20 hereof) collateral in an amount equal to at least 102% of the market value of the Securities and which consists of cash, and/or securities issued or guaranteed by the United States government or its agencies or instrumentalities. (The amount of any such cash or other collateral plus the aggregate of all additional amounts deposited by Borrower with Lender pursuant to paragraph 4 hereof and invested by the Lender pursuant to paragraph 7 hereof and less the aggregate of all amounts released by Lender pursuant to paragraph 4 hereof are called the “Collateral”). The market value of the Securities (including Government Securities and Debt Securities, as defined below) and of any securities accepted by the Lender as Collateral shall be determined on the basis of the last reported sales prices on the principal national securities exchange on which the Securities or such securities accepted as Collateral are traded or, if not so traded, as reasonably determined by Lender. However, if the Securities are securities which are issued or guaranteed by the United States government or its agencies (“Government Securities”) or are debt obligations of corporations, including bonds, debentures, notes, certificates or other evidence of indebtedness (“Debt Securities”), Borrower shall deliver Collateral in an amount equal to at least 102% of the market value of the Government Securities or Debt Securities plus the interest accrued on such Securities. The Collateral shall secure all obligations of Borrower to Lender hereunder, and Lender, in addition to all its other rights with respect thereto under this Agreement shall have a continuing security interest in and lien upon, or title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and shall have a right of set-off with respect to all obligations of Borrower to Lender whether arising under this Agreement or otherwise. Borrower represents and warrants that it has the location where unqualified right to sell, transfer, assign or pledge the collateral which will become Collateral and that such collateral, upon delivery to Lender will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such lien, claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenseor encumbrance.
Appears in 2 contracts
Samples: Securities Lending Agency Agreement (Barclays Global Investors Funds), Securities Lending Agency Agreement (Master Investment Portfolio)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate or as permitted pursuant to Section 7.2. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event All Financed Equipment is new, except for such Financed Equipment that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value has been disclosed in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory writing to Bank by Borrower as “used” and that Bank, in its sole discretion. The provisions of this paragraph shall not apply , has agreed to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defectsfinance. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of businessbusiness and licenses that could not result in a legal transfer of title of the licensed property but that may be exclusive in respects other than territory and that may be exclusive as to territory only as to discreet geographical areas outside of the United States, (b) over-the-counter software that is commercially available to the publicpublic and other non-material Intellectual Property licensed to Borrower, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each To the best of Borrower’s knowledge, each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made in writing that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 2 contracts
Samples: Loan and Security Agreement (TrueCar, Inc.), Loan and Security Agreement (TrueCar, Inc.)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third third-party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third third-party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within thirty (30) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 2 contracts
Samples: Loan and Security Agreement (Interlink Electronics Inc), Loan and Security Agreement (Interlink Electronics Inc)
Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, herewith or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtorspursuant to documentation reasonably acceptable to Bank. The Collateral is not in the possession of any third party bailee (such as a warehouse) except other than OneSource Distributors (from whom the Bank is not requiring a written acknowledgment that it is holding Collateral for the benefit of Bank). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver acknowledge in writing that the bailee is holding such Collateral for the benefit of Bank. For the purposes hereof, xChange Point sites do not constitute a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessbailee. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Change. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within thirty days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in the same that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.
Appears in 2 contracts
Samples: Loan and Security Agreement (Energy & Power Solutions, Inc.), Loan and Security Agreement (Energy & Power Solutions, Inc.)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit Deposit Accounts, Securities Accounts, Commodity Accounts or other investment accounts other than the deposit accounts Collateral Accounts with Bank, Borrower’s Account Banks or the deposit other investment accounts, if any any, described in the Perfection Certificate delivered to Bank Collateral Agent in connection herewith, or herewith with respect of which Borrower has given Bank Collateral Agent notice and taken such actions as are necessary to give Bank Collateral Agent a perfected security interest therein. The Accounts are bona fideOn the Effective Date, existing obligations of the Account Debtors. The Collateral (other than raw materials or unfinished products that may be in transit or located at third party manufacturing sites) is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided disclosed in the Perfection Certificate. None of the components of the Collateral (other than raw materials or unfinished products that may be in transit or located at third party manufacturing sites) shall be maintained at locations other than as provided disclosed in the Perfection Certificate on the Effective Date or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereofEffective Date, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will (other than raw materials or unfinished products that may be storedin transit or located at third party manufacturing sites), then Borrower will first receive the written consent of Bank Collateral Agent and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank Collateral Agent in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable (although not necessarily approved for sale to the public as regulated by the FDA) quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers permitted by the terms of Section 7.1 hereof and those licenses described in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, Perfection Certificate. Schedule 5.2 sets forth all patents and (c) material Intellectual Property patent applications owned or exclusively licensed to Borrower and noted on indicates which of such patents and patent applications are owned by Borrower and which are licensed by Borrower from third parties (the Perfection Certificate“Licensed IP”). The Licensed IP is not necessary for the conduct of Borrower’s Ataluren (PTC124), PTC299 and GEMS research and development programs nor the manufacture, sale and marketing of products, if any, which may be developed from such programs. Each issued Patent which it owns or purports owned by Borrower is, to own and which is material to the best of Borrower’s businessknowledge, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is a licensee that (a) prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with Collateral Agent’s right to sell any Collateral. Borrower shall provide written notice to Collateral Agent within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). In respect of such licenses or agreements, Borrower shall take such steps as Collateral Agent requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Collateral Agent to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Collateral Agent to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Collateral Agent’s rights and remedies under this Agreement and the other Loan Documents. Notwithstanding the foregoing, the terms of the preceding sentence shall not apply to exclusive and non-exclusive license agreements solely for the use of the intellectual property of a third party in which Borrower is licensee.
Appears in 2 contracts
Samples: Loan Modification Agreement (PTC Therapeutics, Inc.), Loan Modification Agreement (PTC Therapeutics, Inc.)
Collateral. Borrower has and each Guarantor have good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderits Collateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of obligations, and the Account Debtorsservice or property has been performed or delivered to the account debtor or its agent for immediate shipment to and unconditional acceptance by the account debtor. The Collateral is maintained at the locations set forth in the Perfection Certificate. The Collateral is not in the possession of any third party bailee (such as at a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that BorrowerBorrower or any Guarantor, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, then Borrower and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first Guarantor shall receive the prior written consent of Bank (such consent not to be unreasonably withheld), and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is and Guarantors are the sole owner of the its respective Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to To Borrower’s businessknowledge, taken as a whole, each Patent is valid and enforceable, and no material part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent for any such claim that would not have be expected to result in a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Change. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 2 contracts
Samples: Loan and Security Agreement (Radisys Corp), Loan and Security Agreement (Radisys Corp)
Collateral. Borrower hereby grants to Holder a security interest in all inventory, machinery, equipment, stocks, bonds, notes, accounts receivable, any rights or claims that they may have against any other person, firm, or corporation for monies, choses in action, any bank accounts, checking accounts, certificates of deposit or any financial instrument, patents and intellectual property rights or any other assets owned by Borrower as of the date of this agreement, or hereafter acquired. Borrower hereby represents that none of the collateral encumbered hereunder has good title tobeen sold or assigned since the original promissory note of Borrower to Holder of January 26, has 1999 and that the lien of the holder of this note is uninterrupted from January 26, 1999 and shall continue until this note is paid or otherwise disposed of in accordance with its terms and conditions. All collateral rights inin intellectual property is subordinated to the Borrower's current licenses and future licenses provided, that with respect to future licenses, the consent of the Holder must be obtained, but such consent will not be unreasonably withheld. The patents and intellectual property which are licensed under the cross license agreement dated September 27, 1997, among NXT plc, New Transducers Limited, being related companies, the Borrower and NCT Audio Products, Inc. (or any successor agreements) are specifically excluded from the collateral. There are approximately 20 pieces of intellectual property in which, under the cross license agreement, Borrower may not, and hence does not herein, grant a security interest. In addition, all agreements between NCT Audio Products, Inc. and the Borrower that relate to such agreement, and the power stock of NCT Audio Products, Inc. owned by the Borrower, shall similarly be excluded from the security interest granted in this Note. If Borrower does not pay the debt or other obligations under this Note when due, the collateral may be sold in order to transfer each item pay such debt and obligations, or same may be transferred to the name of the Collateral upon which it purports to xxxxx x Xxxx hereunderHolder, free and clear of any and as Holder in her discretion decides. Holder may inspect the collateral at all Liens except Permitted Liensreasonable times. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described further agrees that it will do anything reasonably requested by Holder in order to make Holder's security interest in the Perfection Certificate delivered to Bank in connection herewith, or collateral legally effective including the execution of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseUCC-1.
Appears in 2 contracts
Samples: Note Consolidation Agreement (NCT Group Inc), Convertible Note Purchase Agreement (NCT Group Inc)
Collateral. Borrower has good title shall, prior to or concurrently with the transfer of the Loaned Securities to Borrower, but in no case later than the Close of Business on the day of such transfer, hold for Lender’s benefit Collateral with a Market Value at least equal to the Margin Percentage of the Market Value of the Loaned Securities. The Collateral held by Borrower for Lender, as adjusted pursuant to Section 9, shall be security for Borrower’s obligations in respect of such Loan and for any other obligations of Borrower to Lender hereunder. Borrower hereby pledges with, assigns to, has rights and grants Lender a continuing first priority security interest in, and a lien upon, the power to Collateral, which shall attach upon the transfer each item of the Collateral Loaned Securities by Lender to Borrower and which shall cease upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations transfer of the Account DebtorsLoaned Securities by Borrower to Lender. The Collateral is not in the possession of any third party bailee (such as a warehouse) except Except as otherwise provided in the Perfection Certificate. None herein, upon transfer to Lender of the components Loaned Securities on the day a Loan is terminated pursuant to Section 6, Borrower shall no longer be obligated to hold Collateral on behalf of the Lender. If Borrower holds Collateral shall be maintained at locations other than for Lender, as provided in Section 4.1, and Lender does not transfer the Perfection Certificate or as permitted pursuant Loaned Securities to Section 7.2. In the event that Borrower, after Borrower shall have the date hereof, intends absolute right to store or otherwise deliver any portion of release the Collateral with an aggregate value in excess of $50,000 to a bailee, Collateral; and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed if Lender transfers Loaned Securities to Borrower and noted on Borrower does not hold Collateral for Lender as provided in Section 4.1, Lender shall have the Perfection Certificate. Each Patent which it owns or purports absolute right to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part the return of the Intellectual Property Loaned Securities. Borrower may substitute Collateral for Collateral securing any Loan or Loans; provided, however, that such substituted Collateral shall have a Market Value such that the aggregate Market Value of such substituted Collateral, together with all other Collateral for Loans in which Borrower owns the party substituting such Collateral is acting as Borrower, shall equal or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To exceed the best of Borrower’s knowledge, no claim has been made that any part agreed upon Margin Percentage of the Intellectual Property violates Market Value of the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseLoaned Securities.
Appears in 2 contracts
Samples: Master Securities Lending Agreement, Master Securities Lending Agreement
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with BankSVB, the Clearing Account, the Trust Account, the Borrower Account, the Investor Account, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank Administrative Agent in connection herewith, or of which Borrower has given Bank Lenders notice and taken such actions as are necessary to give Bank Administrative Agent and Lenders a perfected security interest therein. The Accounts Eligible Loans are bona fide, existing obligations of the Account Loan Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Lenders notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Lenders and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank Lenders in its their sole discretion. The provisions Upon any Transfer permitted under Section 7.1(e) hereof prior to an Event of this paragraph Default, Administrative Agent’s and Lenders’ Lien in such assets shall not apply to Demonstration Systems delivered to be released without any further act of Administrative Agent, Lenders or Borrower. Administrative Agent shall take all actions reasonably requested by Borrower, at Borrower’s customers or prospective customers in expense, to evidence such release. Administrative Agent, Lenders and Borrower hereby acknowledge and agree that, notwithstanding anything set forth to the ordinary course of business. All Inventory is in all material respects of good and marketable qualitycontrary herein, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted the Collateral shall include all amounts deposited into the Clearing Account, to its customers in the ordinary course extent that such amounts are proceeds of businessFinanced Loans, and (b) over-the-counter software that is commercially available the first priority security interest granted by Borrower to Administrative Agent and Lenders pursuant to the publicLoan Agreement shall at all times remain in full force and effect with respect to all proceeds of, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s businessany other amounts received in connection with, taken as a whole, is valid and enforceable, and no part all Financed Loans regardless of the Intellectual Property which Borrower owns or purports to own locations of such proceeds and which is material to Borrower’s businessamounts, taken as a wholeincluding, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound bywithout limitation, any Restricted Licensesuch proceeds and amounts deposited into the Clearing Account.
Appears in 2 contracts
Samples: Loan and Security Agreement (LendingClub Corp), Loan and Security Agreement (LendingClub Corp)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In Borrower shall at all times during the event that term of this Agreement maintain at least two-thirds of its Inventory (based upon the fair market value of all Inventory) at Borrower’s 000 Xxxxxx Xxxx Xxxxx, after the date hereofXxxxxxx, intends to store or otherwise deliver any portion Xxxxxxxxxxxxx location and at other locations of the Collateral with an aggregate value in excess of $50,000 to Borrower for which Bank has received a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement landlord’s waiver in form and substance reasonably satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is Axcelis Technologies, Inc. and Axcelis Technologies CCS Corporation, either individually or jointly, are the sole owner owners of the Intellectual Property intellectual property which it Borrower owns or purports to own own, including, without limitation, the intellectual property set forth on the Perfection Certificate, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property patent which Borrower owns or purports to own is valid and which is material to Borrower’s business, taken as a whole, enforceable and no part of the intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 2 contracts
Samples: Loan and Security Agreement (Axcelis Technologies Inc), Loan and Security Agreement (Axcelis Technologies Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None Other than laptop computers and other mobile Equipment in the possession of employees, consultants or agents of Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of One Hundred Thousand Dollars ($50,000 100,000.00) to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement (other than over-the-counter software that is commercially available to the public) or any other property, or (b) for which a default under or termination of which could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.
Appears in 2 contracts
Samples: Loan Modification Agreement (Eloqua, Inc.), Loan and Security Agreement (Eloqua, Inc.)
Collateral. Borrower has good title to, has rights in, to the Collateral and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderIntellectual Property, free and clear of any and all Liens except Permitted Liens. Liens and the pledge of specific patents of the Borrower (having registered patent numbers in the United States Patent and Trademark Office of 5,871,449; 5,924,997; 6,245,026; and 6,536,949) in connection with the Guaranty dated July 3, 2003 by Borrower given to Philips Electronics N.V. relating to indebtedness of Pacific Rim Medical Ventures Corp. owing to Philips Electronics N.V. (such Lien being referred to herein as the “Philips Lien” and such guaranty being the “Philips Guaranty”) Borrower has no other deposit accounts account, other than the deposit accounts described on Schedule 1. Each Account with Bankrespect to which Advances are requested by Borrower shall, on the deposit accountsdate each Advance is requested and made, if any described represent an undisputed bona fide existing unconditional obligation of the account debtor created by the sale, delivery, and acceptance of goods or the rendition of services in the Perfection Certificate delivered to Bank in connection herewith, or ordinary course of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account DebtorsBorrower’s business. The Collateral is not in the possession of any third party bailee (such as at a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2). In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to such a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the prior written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement is holding such Collateral for the benefit of Bank. Borrower has no notice of any actual or imminent Insolvency Proceeding of any account debtor whose accounts are an Eligible Account in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessany Borrowing Base Certificate. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports is, to own and which is material to the best of Borrower’s businessknowledge, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseMaterial Adverse Change.
Appears in 2 contracts
Samples: Loan and Security Agreement (Volcano CORP), Loan and Security Agreement (Volcano CORP)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with BankLender, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank Lender in connection herewith, or of which Borrower has given Bank Lender notice and taken such actions as are necessary to give Bank Lender a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate having a book value in excess of Fifty Thousand Dollars ($50,000 50,000) to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Lender and such bailee must execute and deliver a bailee agreement in form and substance reasonably satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessLender. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other material agreement with respect to which Borrower is a licensee that (a) prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with Lender’s right to sell any Collateral. Borrower shall provide written notice to Lender within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Lender reasonably requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Lender to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or, whether now existing or entered into in the future, and (y) Lender shall have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Lender’s rights and remedies under this Agreement and the other Loan Documents.
Appears in 2 contracts
Samples: Loan and Security Agreement, Loan and Security Agreement (Complete Genomics Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except (x) as otherwise provided in the Perfection CertificateCertificate and (y) Equipment or Inventory in the possession of third party carriers in the ordinary course of business for delivery to Borrower or to customers of Borrower and its Subsidiaries. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future. Notwithstanding the foregoing, the terms of the preceding sentence shall not apply to, and the Collateral shall not include, license agreements solely for the use of Intellectual Property of a third party, with respect to which license Borrower is the licensee.
Appears in 2 contracts
Samples: Loan and Security Agreement (Caliper Life Sciences Inc), Loan and Security Agreement (Caliper Life Sciences Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten ( 10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank reasonably requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 2 contracts
Samples: Loan Modification Agreement (Tremor Video Inc.), Loan Modification Agreement (Tremor Video Inc.)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. All Inventory is in all material respects of good and marketable quality, free from material defects. All Financed Equipment is new, except for such Financed Equipment that has been disclosed in writing to Bank by Borrower as “used” and that Bank, in its sole discretion, has agreed to finance. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store with, or otherwise deliver to, a bailee any portion of the Collateral with an aggregate value having a balue in excess of Fifty Thousand Dollars ($50,000 50,000.00) in any location and not to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both exceed One Hundred Thousand Dollars ($100,000.00) in the Collateral and the location where the Collateral will be storedaggregate for all locations, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to of Borrower’s business, taken as a whole, patents is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property Borrower’s intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 2 contracts
Samples: Loan and Security Agreement, Loan and Security Agreement (Audience Inc)
Collateral. Borrower Bxxxxxxx is the record and beneficial owner of, and has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, pledged by Borrower under the Pledge Agreement free and clear of any and all Liens liens whatsoever except Permitted Liens. Borrower has no deposit accounts such other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions liens as are necessary permitted pursuant to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account DebtorsLoan Documents and the liens created by the Loan Documents. The Collateral is not and will not be subject to any contractual restriction upon the transfer thereof (except for any such restriction contained in the Pledge Agreement, this Agreement and the Mortgage Loan Agreement). The Pledge Agreement, together with the delivery of any certificates evidencing the Equity Interests and the UCC Financing Statement relating to the Collateral, when properly filed in the appropriate records and/or delivered to Lender (as applicable), will create a valid, perfected first-priority security interest in the Collateral. Borrower’s delivery of the certificates, if any, to Lender as set forth in the Pledge Agreement creates a first priority valid and perfected security interest in the Collateral as defined in the Pledge Agreement. No creditor of Borrower other than Lender has in its possession any certificates or other documents that constitute or evidence the Collateral or the possession of any third party bailee (such as which would be required to perfect a warehouse) except as otherwise provided security interest in the Perfection CertificateCollateral. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, The Equity Interests have been duly authorized and such bailee validly issued and Bank are not already parties subject to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory any options to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers purchase or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the similar rights of any third party except Person. Upon the exercise of its rights and remedies under the Pledge Agreement, Lxxxxx may succeed to all of the extent such claim would not have a material adverse effect on rights, titles and interest of Borrower in Mortgage Borrower without the consent of any other Person and may, without the consent of any other Person, be admitted as the sole member of Mortgage Borrower’s business. Bxxxxxxx agrees that, taken unless expressly provided otherwise, all of the representations and warranties of Borrower set forth in this Article 3 and expressly set forth elsewhere in this Agreement and the other Loan Documents are made as a whole. Except as noted on of the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensedate hereof but shall survive until the Debt has been repaid in full.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Industrial Logistics Properties Trust), Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None Other than mobile equipment in the possession of Borrower’s employees or agents in an amount not to exceed Fifty Thousand Dollars ($50,000.00) in the aggregate, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value to a bailee in excess of Fifty Thousand Dollars ($50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored50,000.00), then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of which could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such reasonable steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.
Appears in 2 contracts
Samples: Loan and Security Agreement (Fate Therapeutics Inc), Loan and Security Agreement (Fate Therapeutics Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.” and inserting in lieu thereof the following:
Appears in 2 contracts
Samples: First Loan Modification Agreement (Bridgeline Software, Inc.), First Loan Modification Agreement (Bridgeline Software, Inc.)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate or as permitted pursuant to Section 7.2. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the publicpublic and other immaterial Intellectual Property licensed to Borrower, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made in writing that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate and except with respect to mobile equipment in possession of employees with an aggregate value not exceeding Fifty Thousand Dollars ($50,000.00). None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2, except for mobile equipment in possession of employees with an aggregate value not exceeding Fifty Thousand Dollars ($50,000.00). In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral to a bailee (except with respect to mobile equipment in possession of employees with an aggregate value in excess of not exceeding Fifty Thousand Dollars ($50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored50,000.00)), then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its reasonable business judgment), whether now existing or entered into in the future.
Appears in 1 contract
Samples: Loan and Security Agreement (NMS Communications Corp)
Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account, other than the deposit accounts with Bank, the Lenders and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank Lenders in connection herewith, or of which Borrower has given Bank notice and taken such actions except as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtorsprovided in Section 6.6(b). The Collateral is not in the possession of any third party bailee (such as a warehouse) except (not including customers of Borrower). Except as otherwise provided hereafter disclosed to the Lenders in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2(except Collateral may be maintained at customer locations in the ordinary course of business). Borrower may maintain Inventory and Equipment with third parties provided that (i) the value of such Inventory and Equipment does not exceed One Million Dollars ($1,000,000.00) at any time (not including Inventory and Equipment at customer locations), and (ii) Borrower provides Agent, within thirty (30) days of the end of each quarter, a written summary of the location of such Inventory and Equipment (not including Inventory and Equipment at customer locations). In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral (not including Inventory and the location where the Collateral will be storedEquipment at customer locations), then Borrower will first receive the written consent of Bank Lenders, which consent shall not be unreasonably withheld, and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defectsLenders. Borrower is the sole owner of the all material Intellectual Property, except for Intellectual Property which it owns or purports licensed to own except for (a) Borrower in the ordinary course of business and non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no material part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseMaterial Adverse Change.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, This Indenture and the power to transfer each item Securities are secured by a security interest, lien, charge or encumbrance on the proceeds of the Collateral upon offering (cash and investments) and various loans made by the Corporation which it purports shall be collaterally assigned to xxxxx x Xxxx hereunderthe Trustee for the benefit of the Owners of the Securities. At all times, free the Corporation agrees that the principal balance of the then outstanding Certificates will be secured by the proceeds of this offering and clear loans collaterally assigned to the Trustee in an amount (combined face value of any such cash and investments and principal balance of all Liens except Permitted Liens. Borrower has no deposit accounts other collaterally assigned loans) not less than the deposit accounts with Bankoutstanding principal balance of the then outstanding Certificates. In furtherance of the foregoing, the deposit accountsproceeds from the sale of the Certificates shall be segregated and maintained in escrow by Trustee until used in accordance with the use of proceeds provisions of the Prospectus. In allocating loans to be collaterally assigned to the Trustee, if any described the Corporation shall select loans made in accordance with its then current policies and procedures, which are fairly representative of the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest thereinCorporation's entire loan portfolio. The Accounts are bona fideCorporation shall be entitled to substitute loans which meet the foregoing requirements from time to time. The Corporation shall provide to Trustee 120 days following the close of each fiscal year or within 30 days after written request by the Trustee a certificate of an executive officer confirming that, existing obligations as of the Account Debtorsdate of response, the Corporation is in compliance with its collateral obligations hereunder and containing such other details as the Trustee may reasonably request. The Collateral is not in Additionally, the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant Corporation agrees to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver to Trustee a bailee agreement separate collateral assignment of each note and mortgage (which terms shall include deeds of trust, deeds to secure debt and other securities instruments) as each loan is made by the Corporation and execute such other and further assignments and documents as may be reasonably required by Trustee to evidence the security interest created hereby in form and substance satisfactory to Bank in its sole discretionfavor of Trustee. The provisions Trustee shall have no responsibility or obligation to determine the validity of this paragraph shall not apply any lien or Collateral assigned to Demonstration Systems delivered the Trustee to Borrower’s customers or prospective customers in secure the ordinary course of business. All Inventory is in all material respects of good and marketable qualityCertificates, free from material defects. Borrower is the sole owner priority of the Intellectual Property which it owns lien position, the value of the underlying property securing the lien, the correctness of the documentation evidencing the lien or purports to own except the assignment thereof or otherwise. Furthermore, the Trustee shall have no liability for (a) non-exclusive licenses granted to its customers any loss resulting from any invalidity or insufficiency in the ordinary course of business, (b) over-the-counter software that is commercially available regard to the publicCollateral, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns collateral documentation or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To assignment thereto by the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseCorporation.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate and except that up to seventy five (75) Devices may be located at customers’ or potential customers’ premises so long as Borrower notifies Bank at the time it delivers its monthly financial statements pursuant to Section 6.2(a) of each such location where a Device was placed the applicable month. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.27.2 and the previous sentence. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be storedexcept as provided in this section, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to To Borrower’s businessknowledge, taken as a whole, each patent owned by Borrower is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection CertificateCertificate and except for the MassGen License, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Except with respect to the MassGen License Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Zeltiq Aesthetics Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts Collateral Accounts at or with any bank or financial institution other than Bank or Bank’s Affiliates except for the deposit accounts with Bank, the deposit accounts, if any Collateral Accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of herewith and which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein, pursuant to the term of Section 6.6(b). The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None Other than mobile equipment in the possession of Borrower’s employees or agents in an amount not to exceed One Hundred Thousand Dollars ($100,000) in the aggregate, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value to a bailee in excess of One Hundred Thousand Dollars ($50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored100,000), then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of businessbusiness and licenses that could not result in a legal transfer of title of the licensed property but that may be exclusive in respects other than territory and that may be exclusive as to territory only as to discrete geographical locations outside the United States, except as otherwise approved by Bank in writing pursuant to Section 7.1 hereof, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each To Borrower’s knowledge, each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Samples: Loan and Security Agreement (Fate Therapeutics Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank Collateral Agent in connection herewith, or of which Borrower has given Bank Lenders notice and taken such actions as are necessary to give Bank Collateral Agent a perfected security interest therein. The Accounts are bona fide, existing obligations No Collateral in excess of $50,000 in the Account Debtors. The Collateral aggregate is not in the possession of any third third-party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral in excess of $50,000 in the aggregate shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Lenders notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 in the aggregate to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Lenders and such bailee must execute and deliver a bailee agreement in form and substance reasonably satisfactory to Bank Collateral Agent in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects, normal wear and tear excepted. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software business which do not result in a legal transfer of title of the licensed property but that is commercially available may be exclusive in respects other than territory and that may be exclusive as to territory only as to discreet geographical areas outside of the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection CertificateUnited States. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To the best of , and to Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with Collateral Agent’s right to sell any Collateral. Borrower shall provide written notice to Collateral Agent within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Collateral Agent reasonably requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Collateral Agent to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Collateral Agent’s rights and remedies under this Agreement and the other Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Ardea Biosciences, Inc./De)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Change. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within thirty (30) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Document Sciences Corp)
Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with BankSVB, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank Pledgors in connection herewith, or of which Borrower has given Bank Pledgors notice and taken such actions as are necessary to give Bank Pledgors a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. All Inventory is in all material respects of good and marketable quality, free from material defects. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.25.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Pledgors and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank Pledgors in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with Pledgors’ right to sell any Collateral. Without prior consent from Pledgors, Borrower shall not enter into, or become bound by, any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition. Borrower shall take such steps as Pledgors requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Pledgors to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate or as permitted pursuant to Section 7.2. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value to a bailee valued in excess of Two Hundred Fifty Thousand Dollars ($50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored250,000), then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the publicpublic and other immaterial Intellectual Property licensed to Borrower, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made in writing that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as previously disclosed to Bank or noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and the power to transfer gxxxx x Xxxx to Lender in each item of the Collateral upon which it purports to xxxxx gxxxx x Xxxx hereunderunder the Loan Documents to which it is a party, free and clear of any and all Liens except Permitted Liens. Borrower has no does not have any deposit accounts other than the deposit accounts with Silicon Valley Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank Lender in connection herewith, or of which Borrower has given Bank Lender notice and taken such actions as are necessary to give Bank Lender a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate; and the book value of any such Collateral does not exceed $250,000. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with (having an aggregate book value in excess of $50,000 250,000) to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Lender and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank Lender in its sole discretion. The provisions None of this paragraph shall the Collateral (other than office equipment and furniture having an aggregate book value not apply to Demonstration Systems delivered to in excess of $10,000) is now, or will at any time during the term hereof, be located at or in Borrower’s customers or prospective customers leased premises in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defectsNew Jersey. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) (i) non-exclusive licenses of Intellectual Property granted to its customers third parties in the ordinary course of business, and (ii) licenses of Intellectual Property that could not result in a legal transfer of title of the licensed property that may be exclusive in respects other than territory and that may be exclusive as to territory only as to discreet geographical areas outside of the United States, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and and, to the extent constituting material Intellectual Property, as noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Samples: Loan and Security Agreement (Titan Pharmaceuticals Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory (net of reserves for obsolescence) is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 1 contract
Samples: Loan and Security Agreement (International Electronics Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business. Each patent, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to best of Borrower’s business, taken as a wholeknowledge, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (which consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is reasonably necessary), whether now existing or entered into in the future.
Appears in 1 contract
Samples: Loan and Security Agreement (Crossroads Systems Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be storednot as permitted pursuant to Section 7.2, then Borrower will first receive the written consent of Bank (which consent shall not be unreasonably withheld, conditioned, or delayed) and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Collateral. Each Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. No Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which such Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that any Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and then such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Each Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of such Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on a Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, no Borrower is not a party to, nor or is it bound by, any Restricted Licensematerial license or other agreement with respect to which such Borrower is the licensee (a) that prohibits or otherwise restricts such Borrower from granting a security interest in such Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrowers shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrowers shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Internet Brands, Inc.)
Collateral. On receipt of the Securities, Borrower has good shall deliver to the Lender no later than the close of the same business day (as defined in paragraph 20 hereof) collateral in an amount equal to at least 102% of the market value of the Securities and which consists of cash, and/or securities issued or guaranteed by the United States government or its agencies or instrumentalities. (The amount of any such cash or other collateral plus the aggregate of all additional amounts deposited by Borrower with Lender pursuant to paragraph 4 hereof and invested by the Lender pursuant to paragraph 7 hereof and less the aggregate of all amounts released by Lender pursuant to paragraph 4 hereof are called the "Collateral"). The market value of the Securities (including Government Securities and Debt Securities, as defined below) and of any securities accepted by the Lender as Collateral shall be determined on the basis of the last reported sales prices on the principal national securities exchange on which the Securities or such securities accepted as Collateral are traded or, if not so traded, as reasonably determined by Lender. However, if the Securities are securities which are issued or guaranteed by the United States government or its agencies ("Government Securities") or are debt obligations of corporations, including bonds, debentures, notes, certificates or other evidence of indebtedness ("Debt Securities"), Borrower shall deliver Collateral in an amount equal to at least 102% of the market value of the Government Securities or Debt Securities plus the interest accrued on such Securities. The Collateral shall secure all obligations of Borrower to Lender hereunder, and Lender, in addition to all its other rights with respect thereto under this Agreement shall have a continuing security interest in and lien upon, or title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and shall have a right of set-off with respect to all obligations of Borrower to Lender whether arising under this Agreement or otherwise. Borrower represents and warrants that it has the location where unqualified right to sell, transfer, assign or pledge the collateral which will become Collateral and that such collateral, upon delivery to Lender will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such lien, claim would not have a material adverse effect on Borrower’s businessor encumbrance. Barclays Global Investors 45 Fremont Street Xxx Xxxxxxxxx, taken as a whole. Except as noted on the Perfection CertificateXX 00000 Xxxx: X.O. Box 7101 San Fxxxxxxxx, Borrower is not a party to, nor is it bound by, any Restricted License.XX 00000-0000
Appears in 1 contract
Samples: Letter Agreement (Ishares Trust)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, or any of its Subsidiaries, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of One Hundred Thirty Thousand Dollars ($50,000 130,000.00) in the aggregate to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s businessbusiness is to the knowledge of Borrower, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Samples: Loan and Security Agreement (Global Telecom & Technology, Inc.)
Collateral. Each Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. No Borrower has no any deposit accounts other than the deposit accounts with BankBank (other than those not prohibited under Section 6.8(b) hereof) and, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which such Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by such Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that any Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and then such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Each Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of such Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except as noted on the its Perfection Certificate, no Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which such Borrower is the licensee (a) that prohibits or otherwise restricts such Borrower from granting a security interest in such Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Each Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Each Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.
Appears in 1 contract
Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The All Inventory is in all material respects of good and marketable quality, free from material defects. On the Effective Date, the Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided disclosed in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided disclosed in the Perfection Certificate on the Effective Date or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereofEffective Date, intends to store or otherwise deliver any portion of the Collateral with an aggregate value to a bailee in excess of One Hundred Thousand Dollars ($50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored100,000.00), then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Collateral. The Borrower has good title to, has rights in, and the power to transfer each item owns all of the Franchisee Notes and all the other Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens liens, encumbrances, claims or interests of any kind whatsoever, except Permitted Liens. Borrower has no deposit accounts other than for the deposit accounts with security interest of Chase Manhattan Bank, the deposit accounts, if any described in successor by merger to Chemical Bank (to be released at the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice Closing) and taken such actions as are necessary to give Bank a perfected the security interest therein. The Accounts are bona fide, existing obligations of the Account DebtorsLender created by this Agreement. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None Each of the components Franchisee Notes is genuine and in all respects what it purports to be; has been, to the best of the Collateral shall Borrower's knowledge, duly executed by all the parties whose signatures purport to appear thereon; and is a valid and binding obligation of each such party, fully enforceable in accordance with its written terms, except to the extent that enforcement may be maintained at locations limited by applicable bankruptcy, insolvency, reorganization, moratorium or other than as provided in similar laws relating to or affecting the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion enforcement of the Collateral with an aggregate value in excess of $50,000 to a baileecreditors' rights generally, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent by principles of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in partequity. To the best of the Borrower’s 's knowledge, no claim has been made that any part none of the Intellectual Property violates the rights Franchisee Notes are subject to any defenses, offsets, counterclaims or adjustments of any third party kind. No event of default present exists under any of the Initial Notes. The amount due as of the date of this Agreement under each of the Franchisee Notes and the date of the next scheduled payment due under each Franchisee Note is accurately set forth in Schedule 1 to this Agreement. The Borrower has received no prepayments (payments due more than thirty (30) days after the date of such payment) of any amounts due under any of the Franchisee Notes except as disclosed in Schedule 1. All of the Franchisee Notes and the Franchisee Documents will, on or before the Closing, be delivered to the extent such claim would not have a material adverse effect on Borrower’s business, taken Lender and will set forth all the terms and provisions thereof; and there are no agreements or understandings of any kind between the Borrower and the obligors under the Franchisee Notes regarding the Franchisee Notes except as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenseset forth in those instruments and documents.
Appears in 1 contract
Samples: Loan Agreement (Sterling Vision Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer xxxxx x Xxxx to Lender in each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderunder the Loan Documents to which it is a party, free and clear of any and all Liens except Permitted Liens. Borrower has no does not have any deposit accounts other than the deposit accounts with Silicon Valley Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank Lender in connection herewith, or of which Borrower has given Bank Lender notice and taken such actions as are necessary to give Bank Lender a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate; and the book value of any such Collateral does not exceed $250,000. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with (having an aggregate book value in excess of $50,000 250,000) to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Lender and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank Lender in its sole discretion. The provisions None of this paragraph shall the Collateral (other than office equipment and furniture having an aggregate book value not apply to Demonstration Systems delivered to in excess of $10,000) is now, or will at any time during the term hereof, be located at or in Borrower’s customers or prospective customers leased premises in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defectsNew Jersey. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) (i) non-exclusive licenses of Intellectual Property granted to its customers third parties in the ordinary course of business, and (ii) licenses of Intellectual Property that could not result in a legal transfer of title of the licensed property that may be exclusive in respects other than territory and that may be exclusive as to territory only as to discreet geographical areas outside of the United States, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and and, to the extent constituting material Intellectual Property, as noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Samples: Loan and Security Agreement (Titan Pharmaceuticals Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None Other than demo or loaner equipment with an aggregate book value of up to $500,000 that is used in the sales and clinical trial process, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceablevalid, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no written claim has been made is pending that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Collateral. Each Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderits Collateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) ), except as otherwise provided expressly identified in the Perfection Certificate. None Except as hereafter disclosed to Bank in writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both not otherwise expressly identified (as such a bailee) in the Collateral and the location where the Collateral will be storedPerfection Certificate, then Borrower will first receive the written consent notify Bank in writing of such new bailee. With respect to any bailee of Collateral, Borrower shall, promptly upon Bank's request therefor, use commercially reasonable efforts to deliver to Bank and such bailee must execute and deliver a bailee agreement (in form and substance satisfactory to Bank) duly executed by such bailee. In the event that Bank requests such a bailee agreement and Borrower uses such efforts but does not succeed in delivering such a bailee agreement, Bank may (in its sole discretiongood faith business judgment) maintain a Reserve with respect to such bailee. The provisions With respect to any leased premises of this paragraph shall Borrower, Borrower shall, promptly upon Bank's request therefor, use commercially reasonable efforts to deliver to Bank a landlord agreement (in form and substance satisfactory to Bank) duly executed by the lessor of such leased premises. In the event that Bank requests such a landlord agreement and Borrower uses such efforts but does not apply succeed in delivering such a landlord agreement, Bank may (in its good faith business judgment) maintain a Reserve with respect to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businesssuch leased premises. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material except such other licenses and shared Intellectual Property licensed rights as expressly described in the Exhibits referred to Borrower in the most recent 10K and noted on 10Q reports of Endocare filed with the Perfection CertificateSecurities and Exchange Commission. Each To the best of Borrower's knowledge, each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no . No part of the material Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s 's knowledge, no claim has been made that any part of the Intellectual Property violates violates, in any material respect, the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenseparty.
Appears in 1 contract
Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is bound by, and license or other agreement with respect to which Borrower is licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future. Without prior consent from Bank, Borrower shall not enter into, or become bound by, any Restricted Licensesuch license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition. Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.
Appears in 1 contract
Samples: Loan and Security Agreement (Paradigm Holdings, Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts Collateral Accounts at or with any bank or financial institution other than Bank or Bank’s Affiliates except for the deposit accounts with Bank, the deposit accounts, if any Collateral Accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of herewith and which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein, in each case pursuant to the terms of Section 6.6(b). The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate or as permitted pursuant to Section 7.2. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property (other than Intellectual Property which is immaterial to Borrower’s business) which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of businesspermitted hereunder, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection CertificateCertificate or by giving notice in accordance with this Agreement. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection CertificateCertificate or as Borrower has provided written notice to Bank pursuant to Section 6.7(b), Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Samples: Loan and Security Agreement (Frequency Therapeutics, Inc.)
Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account, other than the deposit accounts with Bank, the Lenders and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank Agent in connection herewith, herewith or of which Borrower has given Bank Agent written notice and taken such actions as are necessary to give Bank Agent a perfected security interest thereinfor the benefit of Lenders. The To the extent claimed as Eligible Accounts in any Borrowing Base Certificate, the Accounts are bona fide, existing obligations obligations, and the service or property has been performed or delivered to the account debtor or its agent for immediate shipment to and unconditional acceptance by the account debtor. Borrower has no knowledge of the any actual or imminent Insolvency Proceeding of any Account DebtorsDebtor whose accounts are an Eligible Account in any Borrowing Base Certificate. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to the Lenders in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2(except Collateral may be maintained at customer locations in the ordinary course of business). Borrower may maintain Inventory and Equipment with third parties provided that (i) the value of such Inventory and Equipment does not exceed $500,000 in aggregate at any time (not including Inventory and Equipment at customer locations in the ordinary course of business), and (ii) Borrower provides Agent, within thirty (30) days of the end of each quarter, a written summary of the location of such Inventory and Equipment (not including Inventory and Equipment at customer locations in the ordinary course of business). In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Lenders and such bailee must execute acknowledge in writing that the bailee is holding such Collateral for the benefit of Agent and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defectsLenders. Borrower is the sole owner of the Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to To Borrower’s businessknowledge, taken as a whole, each Patent is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensebusiness or operations.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon in which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2; provided, however, the foregoing restriction with respect to the location of Collateral shall not apply to (i) portable items of Equipment (e.g. laptop computers and the like) that at any time may be in possession of Borrower’s employees and may be relocated in the ordinary course of Borrower’s business; or (ii) any other item of Equipment (e.g. demonstration equipment at sales offices of Borrower and its Subsidiaries, with sales representatives or at customer locations) that at any time may be located by Borrower in the ordinary course of its business at a location other than Borrower’s place of business specified in the Perfection Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no other deposit accounts accounts, other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest thereinSchedule. The Accounts are bona fide, existing obligations of obligations, and the Account Debtorsservice or property has been performed or delivered to the account debtor or its agent for immediate shipment to and unconditional acceptance by the account debtor. The Collateral is not in the possession of any third party bailee (such as at a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2). In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to such a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the prior written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement is holding such Collateral for the benefit of Bank. Borrower has no notice of any actual or imminent Insolvency Proceeding of any account debtor whose accounts are an Eligible Account in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessany Borrowing Base Certificate. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports owns. Borrower is the licensee of certain other Intellectual Property material to own except for (a) its operations and is not in default under any such licenses. In the ordinary course of Borrower's business, Borrower has granted field-limited, exclusive licenses to certain of its Intellectual Property and non-exclusive licenses granted to its customers in and marketing partners. To the ordinary course knowledge of businessBorrower, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made in writing that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseMaterial Adverse Change.
Appears in 1 contract
Samples: Loan and Security Agreement (Epoch Biosciences Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with BankPurchaser, the deposit accounts, if any described in the Perfection Certificate delivered to Bank Purchaser in connection herewith, or of which Borrower has given Bank Purchaser notice and taken such actions as are necessary to give Bank Purchaser a perfected security interest thereintherein (subject to the Required Foreign Filings). The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of One Hundred Thirty Thousand Dollars ($50,000 130,000.00) in the aggregate to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Purchaser and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank Purchaser in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s businessbusiness is to the knowledge of Borrower, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Effect. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Samples: Note Purchase Agreement (Global Telecom & Technology, Inc.)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower's interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower's business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed "Collateral" and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor's agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account, other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to the Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations obligations, and the service or property has been performed or delivered to the account debtor or its agent for immediate shipment to and unconditional acceptance by the account debtor (except to the extent of acceptance requirements in the Account Debtorsordinary course of Borrower’s business where Borrower has no reason to believe that its customer will not accept the product or service). The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to the Bank in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement is holding such Collateral for the benefit of Bank. Borrower has no knowledge of any actual or imminent Insolvency Proceeding of any account debtor whose accounts are an Eligible Account in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessany Borrowing Base Certificate. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business. To the knowledge of Borrower, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseMaterial Adverse Change.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner or a valid licensee of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To the best of , and to Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and or the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Except as permitted under Section 6.8, Borrower has no deposit accounts domestic Deposit Accounts other than the deposit accounts Deposit Accounts with Bank, Bank or the deposit accountsDeposit Accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and and, to the extent required herein, taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of One Million Dollars ($50,000 1,000,000) to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, 's business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, 's business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s 's knowledge, no claim has been made that any part of the Intellectual Property included in the Collateral violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s 's business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Collateral. Borrower has Borrowers have good title to, has have rights in, and the power to transfer each item of the Collateral upon which it purports they purport to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has Borrowers have no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has Borrowers have given Bank written notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of and the Account DebtorsExcluded Collateral Accounts. The Collateral is not in the possession of any third party bailee (such as a warehouse) ), except as otherwise provided in the Perfection CertificateCertificate and fully insured goods in transit in the ordinary course of business. None Except as hereafter disclosed to Bank in writing by Borrowers, none of the components of the Collateral shall be maintained at locations other than (a) as provided in the Perfection Certificate Certificate, (b) fully insured components of the Collateral that may be located in transit between Borrower’s locations in Belgium, Italy and Hong Kong or as permitted (c) the following locations at which no more than $100,000 in the aggregate of Collateral may be located at any time: (i) mobile equipment, including computers with employees and consultants at various locations, (ii) Collateral at locations Bank has been notified of pursuant to Section 7.2, (iii) Collateral at temporary locations for sales, testing or demonstration purposes and (iv) other locations. In the event that BorrowerBorrowers, after the date hereof, intends intend to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower Borrowers will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretionis holding such Collateral for the benefit of Bank. The provisions of this paragraph foregoing requirement for a written acknowledgement shall not apply with respect to Demonstration Systems delivered any bailee that (i) does not have an established course of business with any Borrower and (ii) holds Collateral solely as part of a “start-up” testing regimen to establish such bailee as a regular part of the Borrower’s customers supply chain, provided that the exception to the written acknowledgement requirement contained in this sentence shall only apply until such bailee has entered into a formal agreement with one or prospective customers in more of the ordinary course Borrowers. The Accounts are bona fide, existing obligations of businessthe Account Debtors. All Except for Inventory with an aggregate value, at any time, of not more than $200,000, all Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is Borrowers are the sole owner legal and beneficial owners of the their Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses of Intellectual Property granted to its customers third parties in the ordinary course of business, (b) over-the-counter software exclusive licenses of Intellectual Property that is commercially available could not result in a legal transfer of title of the licensed property that are exclusive only in respects other than territory or exclusive as to territory only as to discreet geographical areas outside of the public, and United States or (c) material other non-exclusive licenses of Intellectual Property that could not result in a legal transfer of title of the licensed to Borrower and noted on the Perfection Certificateproperty. Each Patent which it owns or purports to own and which patent that is material to Borrower’s business, taken as a whole, Borrowers’ business is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which that is material to Borrower’s business, taken as a whole, Borrowers’ business has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s Borrowers knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenseparty.
Appears in 1 contract
Samples: Loan and Security Agreement (Sciclone Pharmaceuticals Inc)
Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account, other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to the Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of obligations, and the Account Debtorsservice or property has been performed or delivered to the account debtor or its agent for immediate shipment to and unconditional acceptance by the account debtor. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to the Bank in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank (which consent shall not be unreasonably withheld) and such bailee must execute and deliver a acknowledge in writing that the bailee agreement is holding such Collateral for the benefit of Bank. Borrower has no knowledge of any actual or imminent Insolvency Proceeding of any account debtor whose accounts are an Eligible Account in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessany Borrowing Base Certificate. All Inventory is in all material respects of good and marketable quality, free from material defects. To Borrower's knowledge, Borrower is the sole owner of the Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business. To Borrower's knowledge, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseMaterial Adverse Change.
Appears in 1 contract
Collateral. Borrower has good title to, has rights inIn order to secure the full and punctual payment of the Obligations in accordance with the terms thereof, and to secure the power performance of this Agreement and the other Financing Documents, the Borrowers hereby pledge and assign to transfer each item the Bank and grants to the Bank a continuing lien and security interest in and to all of the following property of the Borrowers, both now owned and existing and hereafter created, acquired and arising and regardless of where located (all such property being herein called the “Collateral”), all to the extent owned by the Borrowers: (i) all of the Borrowers’ present and future accounts, general intangibles, chattel paper, documents and instruments as such terms are defined by the Delaware Uniform Commercial Code (except that with respect to GSE EnVision Inc.’s collateral, such terms shall be as defined by the New Jersey Uniform Commercial Code), including, without limitation, all present and future rights of the Borrowers to payment for, or monetary obligations owed to the Borrowers on account of, goods or other property sold or leased by the Borrowers or services rendered by the Borrowers or loans or extensions of credit made or granted by the Borrowers, whether or not such rights or monetary obligations are earned by performance and whether due or to become due, the foregoing being herein called the “Receivables”, (ii) all of the Borrowers’ inventory as such term is defined by the Delaware Uniform Commercial Code (except that with respect to GSE EnVision Inc.’s collateral, such term shall be as defined by the New Jersey Uniform Commercial Code) (the “Inventory”), including, without limitation, raw materials, work and goods in process, finished goods, goods or inventory returned or repossessed or stopped in transit, supplies, packaging, shipping and other materials, all other goods, merchandise and personal property used or consumed in the business of the Borrower, and all documents and documents of title relating to any of the foregoing, (iii) all of the Borrowers’ equipment as such term is defined by the Delaware Uniform Commercial Code (except that with respect to GSE EnVision Inc.’s collateral, such term shall be as defined by the New Jersey Uniform Commercial Code), together with all additions, parts, fittings, accessories, special tools, attachments, and accessions now and hereafter affixed thereto and/or used in connection therewith, and all replacements thereof and substitutions therefor, the foregoing being herein called the “Equipment”, (iv) all the Borrowers’ letters patent, applications for letters patent, trademarks, applications for trademarks, service marks, trade names and copyrights, whether registered or unregistered, together with all goodwill of the business of the Borrowers relating thereto, any and all reissues, extensions, divisions or continuations thereof, all royalties, fees and other payments made or to be made to the Borrowers with respect thereto, and all rights, interests, claims and demands that the Borrowers have or may have in existing and future profits and damages for past and future infringements thereof, (v) all of the Borrowers’ licenses, permits, franchises, technologies, methods, formulations, databases, trade secrets, know-how, inventions and other intellectual property, whether or not proprietary to the Borrowers, together with all underlying concepts, ideas, formats, descriptions, interfaces and media associated therewith, (vi) all of the Borrowers’ non-privileged correspondence, agreements, documents, documentation, papers, books, files, records and other transcribed information of any type, whether expressed in ordinary, machine or computer language pertaining to the Borrowers’ business or to any of the Collateral upon which it purports described in clauses (i), (ii), (iii), (iv) and (v) immediately above, including, without limitation, customer lists, credit files, computer programs, computer software, computer object and source codes, disks, tapes, printouts, manuals and data, sales and advertising materials, distribution and purchase correspondence and records, and all other files, documents, materials and records used in or related to xxxxx x Xxxx hereunderthe Borrowers’ business, free and clear of (vii) any and all Liens except Permitted Liens. Borrower has no moneys and funds now and hereafter on deposit accounts other than to the deposit accounts with Bank, the deposit accounts, if any described Collection Account (as hereinafter defined in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice Section 4.14 hereof) and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouseviii) except as otherwise provided in the Perfection Certificate. None of the components all cash and noncash proceeds and products of the Collateral described in clauses (i), (ii), (iii), (iv), (v), (vi) and (vii) immediately above, including, without limitation, all cash and noncash proceeds deposited in any deposit account, and all accounts, chattel paper, instruments, inventory, equipment, general intangibles and goods (as such terms are defined by the Delaware Uniform Commercial Code, except that with respect to GSE EnVision Inc.’s collateral, such terms shall be maintained at locations as defined by the New Jersey Uniform Commercial Code) or other than as provided in the Perfection Certificate property purchased or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store acquired with cash or otherwise deliver any portion noncash proceeds of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseCollateral.
Appears in 1 contract
Samples: Master Loan and Security Agreement (Gse Systems Inc)
Collateral. Borrower has and each Guarantor have good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderits Collateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of obligations, and the Account Debtorsservice or property has been performed or delivered to the account debtor or its agent for immediate shipment to and unconditional acceptance by the account debtor. The Collateral is maintained at the locations set forth in the Perfection Certificate. The Collateral is not in the possession of any third party bailee (such as at a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that BorrowerBorrower or any Guarantor, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, then Borrower and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first Guarantor shall receive the prior written consent of Bank (such consent not to be unreasonably withheld), and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is and Guarantors are the sole owner of the its respective Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business. To Borrower's knowledge, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no material part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent for any such claim that would not have be expected to result in a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Change. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower's interest in such license or agreement or any other property. Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor's agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 1 contract
Collateral. Borrower has rights in and good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account, other than the deposit accounts with Bank, the SVB and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank Lenders in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of obligations, and the Account Debtorsservice or property has been performed or delivered to the account debtor or its agent for immediate shipment to and unconditional acceptance by the account debtor. The Except as described in the Perfection Certificate, the Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to the Lenders in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Lenders and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. Collateral Agent acting for Lenders; All Inventory is in all material respects of good and marketable quality, free from material defects, other than Inventory consisting of clinical trial material which is usable as contemplated. Borrower is the sole owner or exclusive licensee of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection CertificateProperty. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseMaterial Adverse Change.
Appears in 1 contract
Samples: Loan and Security Agreement (Cadence Pharmaceuticals Inc)
Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s 's knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s 's business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower's interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank's right to sell any Collateral. Without prior consent from Bank, Borrower shall not enter into, or become bound by, any such license or agreement which is reasonably likely to have a material impact on Borrower's business or financial condition. Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed "Collateral" and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts Collateral Accounts at or with any bank or financial institution other than Bank or Bank’s Affiliates except for the deposit accounts with Bank, the deposit accounts, if any Collateral Accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of herewith and which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein, pursuant to the terms of Section 6.8(b). The Accounts are bona fide, existing obligations of the Account Debtors. The No Collateral with value in excess of Five Hundred Thousand Dollars ($500,000.00) is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In 7.2 (provided that the event that Borrower, after Perfection Certificate shall be deemed to be updated to reflect the date hereof, intends to store or otherwise deliver incorporation of any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then information disclosed by Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply writing pursuant to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessSection 7.2 hereof). All Product Inventory is in all material respects of good and marketable quality, free from material defects, except for ordinary course expiration of Product Inventory and/or defective or rejected Product lots, the volume and frequency of which is consistent with Borrower’s historical experience and normal industry practice. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of businesspermitted herein, (b) over-the-counter software and database access that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and or licenses of material Intellectual Property granted by Borrower, in each case noted on the most recent Perfection CertificateCertificate delivered to Bank pursuant to the terms hereof. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the most recent Perfection CertificateCertificate delivered to Bank pursuant to the terms hereof, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Collateral. Each Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. No Borrower has no deposit accounts other than the deposit accounts with Bankthe Agent, the deposit accounts, if any any, described in the Perfection Representations and Warranties Certificate delivered to Bank the Agent in connection herewith, or of which Borrower has Borrowers have given Bank the Agent notice and taken such actions as are necessary to give Bank the Agent a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral with an aggregate value in excess of Fifty Thousand Dollars ($50,000) is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Representations and Warranties Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Representations and Warranties Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Each Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to a Borrower and noted on the Perfection its Representations and Warranties Certificate. Each Patent which it each Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, Borrowers’ business is valid and enforceable, and no part of the Intellectual Property which any Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, Borrowers’ business has been judged invalid or unenforceable, in whole or in part. To the best of each Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s Borrowers’ business, taken as a whole. Except as noted on the Perfection Representations and Warranties Certificate, no Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Samples: Loan and Security Agreement (EnergyConnect Group Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply All Financed Equipment is new, except for such Financed Equipment that has been disclosed in writing to Demonstration Systems delivered Bank by Borrower as “used” and that Bank, in its sole discretion, has agreed to Borrower’s customers or prospective customers in the ordinary course of businessfinance. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, Bank and the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports has the right to own use the intellectual property used in its business, and except for (a) non-as set forth in the Disclosure Schedule attached hereto, Borrower has not granted any exclusive licenses granted to use its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificateintellectual property. Each Patent which it owns or purports to own and which is material to To Borrower’s businessknowledge, taken as a whole, each of its patents is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection CertificateDisclosure Schedule attached hereto, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 1 contract
Samples: Loan and Security Agreement (Technest Holdings Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with BankCollateral Agent, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank Collateral Agent in connection herewith, or of which Borrower has given Bank Collateral Agent notice and taken such actions as are necessary to give Bank Collateral Agent a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate or as otherwise permitted herein. None No portion of the components of the Collateral Collateral, except for Finished Inventory, in excess of One Hundred Thousand Dollars ($100,000), shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of One Hundred Thousand Dollars ($50,000 to a bailee100,000), and such bailee and Bank are not already parties except for Finished Inventory to a bailee agreement covering both other than those listed in the Collateral and the location where the Collateral will be storedPerfection Certificate, then Borrower will first receive the written consent of Bank Collateral Agent and at the election of Collateral Agent, such bailee must shall execute and deliver a bailee agreement in form and substance satisfactory to Bank Collateral Agent in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Commercial Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other material agreement with respect to which Borrower is the licensee that (a) prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such material license or material agreement or any other property, or (b) for which a default under or termination of could interfere with Collateral Agent’s right to sell any Collateral. Borrower shall provide written notice to Collateral Agent within thirty (30) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Collateral Agent reasonably requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such material licenses or material agreements to be deemed “Collateral” and for Collateral Agent and each Lender to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or, whether now existing or entered into in the future, and (y) Collateral Agent shall have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Collateral Agent’s rights and remedies under this Agreement and the other Loan Documents. Notwithstanding the foregoing, the terms of the previous sentence shall not apply to and the Collateral shall not include license agreements solely for the use of Intellectual Property of a third party with respect to which Borrower is the licensee.
Appears in 1 contract
Samples: Loan and Security Agreement (Somaxon Pharmaceuticals, Inc.)
Collateral. Borrower has good title to, and has rights in, and in or the power to transfer each item of the Collateral upon which it purports to xxxxx gxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. As of the Effective Date, Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions Except for any Financed Equipment which is the subject of this paragraph shall not apply the prior financing arrangements with Comerica Bank and which is being refinanced hereunder, all Financed Equipment is new, except for such Financed Equipment that has been disclosed in writing to Demonstration Systems delivered Bank by Borrower as “used” and that Bank, in its sole discretion, has agreed to Borrower’s customers or prospective customers in the ordinary course of businessfinance. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 1 contract
Samples: Loan and Security Agreement (Soundbite Communications Inc)
Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith. Except as disclosed to Bank, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business. To our knowledge, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, each patent is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within thirty (30) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 1 contract
Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts in the United States other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within 30 days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or wavier by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future. Without prior consent from Bank, Borrower shall not enter into, or become bound by, any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition. Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit The Accounts designated as eligible accounts (Eligible Accounts, Eligible Retainage Accounts, Exim Eligible Foreign Accounts and Exim Eligible Foreign Retainage Accounts) in any borrowing base certificate, or other than the deposit accounts with report submitted to Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems service or property has been performed or delivered to Borrower’s customers the account debtor or prospective customers its agent (subject only to installation and warranty obligations arising in the ordinary course of Borrower's business), for immediate shipment to and unconditional acceptance by the account debtor (except in the case of Retainage Accounts where customary acceptance terms in the ordinary course of business shall apply). Borrower has no notice of any actual or imminent Insolvency Proceeding of any account debtor whose accounts are an eligible account in any borrowing base certificate. All Inventory designated as eligible inventory (Exim Eligible Foreign Inventory) in any borrowing base certificate, or other report submitted to Borrower, is in all material respects of good and marketable quality, free from material defects, except for Inventory for which adequate reserves have been made in accordance with GAAP, which reserves have been, and at all times will be, disclosed to Bank in Borrower's borrowing base certificates. Borrower is the sole owner of the Intellectual Property which it owns or purports to own Property, except for for: (ai) non-exclusive licenses granted to its customers others in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (cii) material joint ownership rights and licensing and cross-licensing agreements with respect to Intellectual Property licensed entered into from time to time in connection with strategic relationships and development agreements, approved by Borrower's senior management, provided that such joint ownership rights, licenses and cross-licenses do not materially adversely impact Borrower's ability to conduct its business or the value of the Collateral. To the best of Borrower's knowledge and except as reported to Bank in writing, each of the Patents in which Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, has an interest is valid and enforceable, enforceable and no part of the Intellectual Property in which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has an interest has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property in which Borrower has an interest violates the rights of any third party party, except to the extent such invalidity, unenforceability or claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseMaterial Adverse Change.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx gxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank Agent in connection herewith, or of which Borrower has given Bank Agent notice and taken such actions as are necessary to give Bank Agent a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate or as disclosed to Agent in any Compliance Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Agent notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Agent and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank Agent in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of its intellectual property material to the Intellectual Property which it owns or purports to own operation of its business, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim that the foregoing would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate or as disclosed to Agent in any Compliance Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Agent within thirty (30) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Agent reasonably requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights material to the Borrower’s business to be deemed “Collateral” and for Agent and Lenders to have a security interest in it that might otherwise be restricted or prohibited by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Agent if Agent determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Borrower has given Bank written notice. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other material agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower's interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower's business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed "Collateral" and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor's agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 1 contract
Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its owned intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future. Without prior consent from Bank, Borrower shall not enter into, or become bound by, any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition. Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate, or as otherwise permitted in Section 7.2. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that BorrowerExcept as otherwise specified in written notice from Borrower to Bank, after the date hereof, intends to store or otherwise deliver any portion no material amount of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is other than, in all material respects respects, of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection CertificateCertificate and in the Compliance Certificates provided from time to time, Borrower is not a party to, nor is it bound by, any material Restricted License.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no other deposit accounts account, other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered Representations or Schedule 2. Each Account with respect to Bank in connection herewithwhich Advances are requested by Borrower shall, or of which Borrower has given Bank notice on the date each Advance is requested and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are made, represent an undisputed bona fide, fide existing obligations unconditional obligation of the Account Debtorsaccount debtor created by the sale, delivery, and acceptance of goods or the rendition of services in the ordinary course of Borrower's business. The Collateral is not in the possession of any third party bailee (such as at a warehouse) ), except as otherwise provided for Collateral consisting of Inventory located at the following warehouse in Memphis, Tennessee: 4638 E. Shelby Drive, Memphis, Tennessee 38118 (the Perfection Certificate"Tennessee Warehxxxx"). None of Xxxxxxer shall cause the components of Tennessee Warehouse to execute and deliver to Bank an agreement pursuant to which the Tennessee Warehouse waives any liens on the Collateral shall be maintained at locations other than as provided stored with it and acknowledges that it is holding such Collateral for the benefit of Bank in form acceptable to the Perfection Certificate or as permitted pursuant to Section 7.2Bank. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to such a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the prior written consent of Bank and such bailee must execute acknowledge in writing that the bailee waives any liens on the Collateral and deliver a acknowledges that the bailee agreement is holding such Collateral for the benefit of Bank in form and substance satisfactory acceptable to Bank the Bank. Borrower has no notice of any actual or imminent Insolvency Proceeding of any account debtor whose accounts are an Eligible Account in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessany Borrowing Base Certificate. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, business and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificatepermitted under this Agreement. Each Patent which it owns or purports is, to own and which is material to the best of Borrower’s business's knowledge, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseMaterial Adverse Change.
Appears in 1 contract
Samples: Loan and Security Agreement (Mobility Electronics Inc)
Collateral. Borrower has good title to, to or has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that BorrowerBorrower or Guarantor, after the date hereof, intends intend to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of Two Hundred Fifty Thousand Dollars ($50,000 250,000) per location or in the aggregate to a bailee, and then such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be storedBorrower or Guarantor, then Borrower as applicable, will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to . To the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s businessknowledge, taken as a whole, each patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except for over-the-counter software and as noted otherwise set forth on the Perfection CertificateSchedule 1 annexed hereto, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within twenty (20) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public).
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts Collateral Accounts at or with any bank or financial institution other than Bank or Bank’s Affiliates except for the deposit accounts with Bank, the deposit accounts, if any Collateral Accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of herewith and which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein, pursuant to the terms of Section 6.8(b). The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate or as notified by Borrower to Bank in accordance with Section 7.2. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of businessbusiness and licenses that could not result in a legal transfer of title of the licensed property but that may be exclusive in respects other than granting rights to a specific geographical territory and that may be exclusive as to territory and/or as to discreet geographical areas outside of the United States, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Samples: Loan and Security Agreement (Everspin Technologies Inc)
Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than (i) the deposit accounts with Bank, (ii) the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or (iii) the deposit accounts of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None Without the prior consent of the Bank, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to reasonable determination after consultation with Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted LiensLiens or Borrower has Rights to each asset that is Collateral. Borrower has no other deposit accounts account, other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest thereinSchedule. The Accounts are bona fide, existing obligations of obligations, and the Account Debtorsservice or property has been performed or delivered to the account debtor or its agent for immediate shipment to and unconditional acceptance by the account debtor. The Collateral is not in the possession of any third party bailee (such as at a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2). In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to such a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the prior written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement is holding such Collateral for the benefit of Bank. Borrower has no notice of any actual or imminent Insolvency Proceeding of any account debtor whose accounts are an Eligible Account in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessany Borrowing Base Certificate. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to business and in instances in which the public, and (c) material Borrower develops Intellectual Property licensed for a particular end user and grants an exclusive license to Borrower and noted on such end user to use the Perfection CertificateIntellectual Property as so developed. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Change. Except as noted on the Perfection CertificateSchedule to Loan and Security Agreement, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other material agreement with respect to which the Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower will provide written notice to Bank within ten days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank reasonably requests to obtain the consent of, authorization by, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if the Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) ), except that which is in transit. Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers or entered into with licensors in the ordinary course of business, (b) overand except for intellectual property that Borrower has licensed from others on a non-theexclusive basis, or except where there is a co-counter software inventor that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificateshares Borrower’s patent rights. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenseparty.
Appears in 1 contract
Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, herewith or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein, pursuant to documentation reasonably acceptable to Bank. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns has not granted any Liens against or purports licenses to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Cardiovascular Systems Inc)
Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) ), except as otherwise provided for Inventory in the Perfection CertificateUnited States, held by Extron, 00000 Xxxx Xx., Xxxxxxx, XX 00000 (the “U.S. Fulfillment Center”), and Inventory outside the United States held by a foreign fulfillment center, which Borrower shall identify by written notice to Bank within 30 days after the date it is selected by Borrower (the “Non-U.S. Fulfillment Center”). None Within 60 days after the date hereof, Borrower shall cause the U.S. Fulfillment Center and the Non-U.S. Fulfillment Center to execute and deliver a Bailee Agreement in the form previously provided by Bank to Borrower. Except as hereafter disclosed to Bank in writing by Borrower, and other than Collateral which by its very nature is intended to be used at places other than the Borrower’s place of business (such as laptop computers, marketing materials, cell phones, and the like), none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute acknowledge in writing that the bailee is holding such Collateral for the benefit of Bank, provided that such consent and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph acknowledgement shall not apply be required with respect to Demonstration Systems delivered to Borrower’s customers or prospective customers (i) Collateral having an aggregate value, for all locations in the ordinary course of businessUnited States, not exceeding the Threshold Amount, or (ii) Collateral having an aggregate value, for all locations outside the United States, not exceeding $500,000. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available and except for licenses granted to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificateby third parties. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would is not have reasonably expected to cause a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Change. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within thirty days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.
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