EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements (except as set forth below), franchise agreements, General Intangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (a) more than sixty-five percent (65.0%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter; (b) any Intellectual Property; or (c) the Excluded Licenses; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property and the Excluded Licenses. EXHIBIT B COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: APELLIS PHARMACEUTICALS, INC. The undersigned authorized officer of APELLIS PHARMACEUTICALS, INC. (“Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”):
Appears in 1 contract
Samples: Loan and Security Agreement (Apellis Pharmaceuticals, Inc.)
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements (except as set forth below)agreements, franchise agreements, General Intangibles (except as provided below)Intangibles, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral “Collateral” does not include (a) more than sixty-five percent (65.0%) 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter; . EXHIBIT B Loan Payment/Advance Request Form DEADLINE FOR SAME DAY PROCESSING IS NOON P.S.T.* Fax To: Date: LOAN PAYMENT: INTERNET BRANDS, INC., on behalf of all Borrowers From Account # To Account # (bDeposit Account #) any Intellectual Property; (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # To Account # (cLoan Account #) (Deposit Account #) Amount of Advance $ All Borrowers’ representations and warranties in the Excluded LicensesLoan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the Collateral text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall include be true, accurate and complete in all Accounts material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: OUTGOING WIRE REQUEST: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, P.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and all proceeds of Intellectual Property State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): (For International Wire Only) Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the Excluded Licensesterms and conditions set forth in the agreements(s) covering funds transfer service(s), which agreements(s) were previously received and executed by me (us). Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: * Unless otherwise provided for an Advance bearing interest at LIBOR. EXHIBIT B COMPLIANCE CERTIFICATE C FORM OF NOTICE OF BORROWING INTERNET BRANDS, INC., on behalf of all Borrowers Date: TO: SILICON VALLEY BANK Date0000 Xxxxxx Xxxxx Xxxxx Xxxxx, XX 00000 Attention: FROMCorporate Services Department RE: APELLIS PHARMACEUTICALSLoan and Security Agreement dated as of October 7, 2008 (as amended, modified, supplemented or restated from time to time, the “Loan Agreement”), by and between INTERNET BRANDS, INC., AUTODATA, INC., AUTODATA SOLUTIONS, INC., CARSDIRECT MORTGAGE SERVICES, INC., XX0XXXXXXXXX.XXX, LLC, INTERNET MEDIA SOLUTIONS, INC. The undersigned authorized officer of APELLIS PHARMACEUTICALSAND LOANAPP, INC. (each a “Borrower” and, collectively, “Borrowers”) certifies that under the terms ), and conditions of the Loan and Security Agreement between Borrower and Silicon Valley Bank (the “Bank”) Ladies and Gentlemen: The undersigned refers to the Loan Agreement”):, the terms defined therein and used herein as so defined, and hereby gives you notice irrevocably, pursuant to Section 3.4(a) of the Loan Agreement, of the borrowing of an Advance.
Appears in 1 contract
Samples: Loan and Security Agreement (Internet Brands, Inc.)
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest of Borrower in and to the following personal property: All goodsall Equipment financed by Bank, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment the following: Description of money, leases, license agreements (except as set forth below), franchise agreements, General Intangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; Equipment Make Model Serial # and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding Pursuant to the foregoingterms of a certain negative pledge arrangement with Bank, the Collateral does Borrower has agreed not include (a) more than sixty-five percent (65.0%) to encumber any of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors its assets or any other matter; (b) any property, including without limitation Intellectual Property; or (c) the Excluded Licenses; provided, howeverwithout Bank’s prior written consent, the Collateral shall include all Accounts and all proceeds of Intellectual Property and the Excluded Licenses. EXHIBIT B COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: APELLIS PHARMACEUTICALS, INC. The undersigned authorized officer of APELLIS PHARMACEUTICALS, INC. (“Borrower”) certifies other than Liens that are specifically permitted under the terms and conditions of the Loan and Security Agreement between Bank and Borrower dated as of the Effective Date, as it may be amended from time to time. EXHIBIT B — LOAN PAYMENT/ADVANCE REQUEST FORM DEADLINE FOR SAME DAY PROCESSING IS NOON PACIFIC TIME* Fax To: Date: LOAN PAYMENT: Proofpoint, Inc. From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ All Borrower’s representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof, and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: OUTGOING WIRE REQUEST: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, Pacific Time Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA)#: Beneficiary Bank Code (Swift, Sort, Chip, etc.): (For International Wire Only) Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the “Agreement”):terms and conditions set forth in the agreements(s) covering funds transfer service(s), which agreements(s) were previously received and executed by me (us). Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: * Unless otherwise provided for an Equipment Advance bearing interest at LIBOR. EXHIBIT C BORROWING RESOLUTIONS SVBSilicon Valley Bank A Member of SVB Financial Group CORPORATE BORROWING CERTIFICATE BORROWER: Proofpoint, Inc. DATE: April 19, 2011 BANK: Silicon Valley Bank I hereby certify as follows, as of the date set forth above:
Appears in 1 contract
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leasescash, license agreements (except as set forth below)Cash Equivalents, franchise agreementsDeposit Accounts, General Intangibles (except as provided below)Commodities Accounts and Securities Accounts whether now owned or hereafter acquired, commercial tort claims, documentswherever located; and all Borrower’s Books, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, ) and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books obligations relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Inventory or Intellectual Property (except for Permitted Liens), and any claims for damage by way of any past, present, or future infringement of any of the foregoing, without Bank’s prior written consent. All defined terms above shall have the Collateral does not include (a) more than sixty-five percent (65.0%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof meanings ascribed to vote for directors or any other matter; (b) any Intellectual Property; or (c) the Excluded Licenses; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property and the Excluded Licenses. EXHIBIT B COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: APELLIS PHARMACEUTICALS, INC. The undersigned authorized officer of APELLIS PHARMACEUTICALS, INC. (“Borrower”) certifies such terms in that under the terms and conditions of the certain Loan and Security Agreement between Borrower and Silicon Valley Bank dated as of July 21, 2008, as may be amended from time to time. Exhibit B — Loan Payment/Advance Request Form Deadline for same day processing is Noon P.S.T. Fax To: Date: LOAN PAYMENT: DOT HILL SYSTEMS CORP. From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: Loan Advance: Complete Outgoing Wire Request section below if all or a portion of the “Agreement”):funds from this loan advance are for an outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ All Borrower’s representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title:
Appears in 1 contract
Samples: Loan and Security Agreement (Dot Hill Systems Corp)
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal propertyproperty wherever located, whether now owned or existing or hereafter acquired, created or arising: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements (except as set forth below)agreements, franchise agreements, General Intangibles (except as provided belowincluding all Intellectual Property), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (a) more than sixty-five percent (65.0%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter; (b) any Intellectual Property; or (c) the Excluded Licenses; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property and the Excluded Licenses. EXHIBIT 10.1 EXHIBIT B COMPLIANCE CERTIFICATE Date: ___________ TO: SILICON VALLEY BANK Date: CALLA LILY HOLDINGS LLC, a Delaware limited liability company FROM: APELLIS PHARMACEUTICALSZOVIO INC, a Delaware corporation Reference is made to that certain Loan and Security Agreement, dated September __, 2022 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among ZOVIO INC, a Delaware corporation (“Borrower Representative”), and each other Person party thereto as a borrower from time to time (collectively, “Borrowers”, and each, a “Borrower”), and CALLA LILY HOLDINGS LLC, a Delaware limited liability company (“Lender”). Capitalized terms have meanings as defined in the Agreement. The undersigned authorized officer of APELLIS PHARMACEUTICALSBorrower Representative, INC. (“Borrower”) hereby certifies that under in accordance with the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”):as follows:
Appears in 1 contract
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables)Accounts, Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements (except as set forth below)agreements, franchise agreements, General Intangibles (except as provided below)Intangibles, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral “Collateral” does not include (a) more than sixty-five percent (65.0%) 66% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter; . The security interest granted by Debtor to Secured Party in the Axcelis Licensed Intellectual Property (bas defined in the SEN License) any Intellectual Property; or (c) is subject to the Excluded Licenses; providedlicense granted to SEN Corporation pursuant to the terms of the SEN License in accordance with that certain Consent and Agreement dated as of March 30, however2009 among the Debtor, the Collateral shall include all Accounts Secured Party, SEN Corporation and all proceeds of Intellectual Property and the Excluded Licensesothers. EXHIBIT B - COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: APELLIS PHARMACEUTICALSAxcelis Technologies, INC. Inc. and Axcelis Technologies CCS Corporation The undersigned authorized officer of APELLIS PHARMACEUTICALSAxcelis Technologies, INC. Inc. and Axcelis Technologies CCS Corporation (“Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between between, inter alia, Borrower and Bank (the “Agreement”):), (1) Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Domestic Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Domestic Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Quarterly consolidated and consolidating and financial statements with Compliance Certificate Quarterly within 45 days Yes No Annual financial statement (CPA Audited) + XX XXX within 120 days Yes No A/R & A/P Agings (including EXIM), Inventory reports Monthly within 30 days Yes No Transaction Report Monthly within 30 days (bi-weekly if borrowing) Yes No Monthly consolidated financial statements Monthly within 45 days (if borrowing) Yes No The following Intellectual Property was registered (or a registration application submitted) after the Effective Date (if no registrations, state “None”)
Appears in 1 contract
Samples: Loan and Security Agreement (Axcelis Technologies Inc)
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables)Accounts, Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements (except as set forth below)agreements, franchise agreements, General Intangibles (except as provided below)Intangibles, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral “Collateral” does not include (a) more than sixty-five percent (65.0%) 66% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter; . The security interest granted by Debtor to Secured Party in the Axcelis Licensed Intellectual Property (bas defined in the SEN License) any Intellectual Property; or (c) is subject to the Excluded Licenses; providedlicense granted to SEN Corporation pursuant to the terms of the SEN License in accordance with that certain Consent and Agreement dated as of March 30, however2009 among the Debtor, the Collateral shall include all Accounts Secured Party, SEN Corporation and all proceeds of Intellectual Property and the Excluded Licensesothers. EXHIBIT B - COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: APELLIS PHARMACEUTICALSAxcelis Technologies, INC. Inc. and Axcelis Technologies CCS Corporation The undersigned authorized officer of APELLIS PHARMACEUTICALSAxcelis Technologies, INC. Inc. and Axcelis Technologies CCS Corporation (“Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between between, inter alia, Borrower and Bank (the “Agreement”):), (1) Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Domestic Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Domestic Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Quarterly consolidated and consolidating and financial statements with Compliance Certificate Quarterly within 45 days Yes No Annual financial statement (CPA Audited) + XX XXX within 120 days Yes No A/R & A/P Agings, Inventory reports, Backlog Reports Monthly within 30 days Yes No Transaction Report Monthly within 30 days (bi-weekly if borrowing based on formula) Yes No Monthly consolidated financial statements and Compliance Certificate Monthly within 45 days (if borrowing based on formula) Yes No The following Intellectual Property was registered (or a registration application submitted) after the Effective Date (if no registrations, state “None”)
Appears in 1 contract
Samples: Loan and Security Agreement (Axcelis Technologies Inc)
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables)Accounts, Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements (except as set forth below)agreements, franchise agreements, General Intangibles (except as provided below)Intangibles, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral “Collateral” does not include (a) more than sixty-five percent (65.0%) 66% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter; , (b) any Intellectual Property; or monies on deposit in the Interest Reserve Escrow Account (to the extent amounts on deposit therein do not exceed $825,000), (c) monies on deposit in the Tax Payments Suspense Account (to the extent amounts on deposit therein do not exceed the amount necessary to pay Borrower’s next due installment of real estate taxes) or (d) the Excluded Licenses; providedDeposits. The security interest granted by Borrower to Secured Party in the Axcelis Licensed Intellectual Property (as defined in the SEN License) is subject to the license granted to SEN Corporation pursuant to the terms of the SEN License in accordance with that certain Consent and Agreement dated as of March 30, however2009 among the Borrower, the Collateral shall include all Accounts Secured Party, SEN Corporation and all proceeds of Intellectual Property and the Excluded Licensesothers. EXHIBIT B - COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: APELLIS PHARMACEUTICALSAxcelis Technologies, INC. Inc. The undersigned authorized officer of APELLIS PHARMACEUTICALSAxcelis Technologies, INC. Inc. (“Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between between, inter alia, Borrower and Bank (the “Agreement”):), (1) Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Domestic Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Domestic Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly and Quarterly consolidated and consolidating and financial statements with Compliance Certificate Monthly within 30 days (except quarter end)/45 days following each quarter-end o Yes o No Annual financial statement (CPA Audited) + XX XXX within 120 days o Yes o No A/R & A/P Agings, Inventory reports, Backlog Reports Monthly within 30 days o Yes o No Transaction Report Monthly within 30 days for months in which Obligations were at any time outstanding (and with each request for a Credit Extension) o Yes o No The following Intellectual Property was registered (or a registration application submitted) after the Effective Date (if no registrations, state “None”)
Appears in 1 contract
Samples: Loan and Security Agreement (Axcelis Technologies Inc)
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements (except as set forth below)agreements, franchise agreements, General Intangibles (except as provided below)Intangibles, commercial tort claims, documentsDocuments, instruments Instruments (including any promissory notes), chattel paper Chattel Paper (whether tangible or electronic), cash, deposit accountsDeposit Accounts, certificates Fixtures, Letters of deposit, fixtures, letters of credit rights Credit Rights (whether or not the letter of credit is evidenced by a writing), securitiesSecurities, and all other investment propertyInvestment Property, supporting obligationsSupporting Obligations, and financial assetsFinancial Assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding any of the other provisions set forth in herein, this Agreement shall not constitute a grant of a security interest in in any Excluded Property; provided, that, notwithstanding the foregoing, the Collateral does not include a security interest shall be granted in, and shall attach to (a) more than sixty-five percent (65.0%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter; (bx) any Intellectual Property; or property immediately upon such property ceasing to be Excluded Property and (cy) the Excluded Licenses; provided, however, the Collateral shall include all Accounts any and all proceeds proceeds, products, substitutions and replacements of Intellectual Excluded Property to the extent such proceeds, products, substitutions and the replacements do not themselves constitute Excluded LicensesProperty. EXHIBIT B COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: APELLIS PHARMACEUTICALSDELCATH SYSTEMS, INC. The undersigned authorized officer of APELLIS PHARMACEUTICALSDelcath Systems, INC. Inc. (“Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”):), (1) Borrower is in complete compliance for the period ending _______________ with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column.
Appears in 1 contract
