COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.
Appears in 2 contracts
Samples: Second Loan Modification Agreement (SPIRE Corp), Third Loan Modification Agreement (SPIRE Corp)
COUNTERSIGNATURE. This Loan and Security Modification Agreement shall become effective only when it shall have been executed by Borrower each Lender and BankBorrower. This BORROWER: COLLATERAL AGENT AND LENDER: ENPHASE ENERGY, INC. BRIDGE BANK, NATIONAL ASSOCIATION By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxxx Name: Name: Xxxxxxx Xxxxxxxx Title: Title: SVP LENDER: COMERICA BANK By: /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: SVP [Signature Page to First Loan and Security Modification Agreement Agreement] CORPORATE RESOLUTIONS TO BORROW Borrower: ENPHASE ENERGY, INC. I, the undersigned Secretary or Assistant Secretary of ENPHASE ENERGY, INC. (the “Corporation”), HEREBY CERTIFY that the Corporation is executed as a sealed instrument organized and existing under and by virtue of the laws of the Commonwealth State of Massachusetts Delaware. I FURTHER CERTIFY that attached hereto as Attachments 1 and 2 are true and complete copies of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO Certificate of Incorporation, as amended, and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire the Restated Bylaws of the Corporation, a Massachusetts corporationeach of which is in full force and effect on the date hereof. I FURTHER CERTIFY that pursuant to the Unanimous Written Consent of the Directors of the Corporation, its sole Member and Manager Bythe following resolutions (the “Resolutions”) were adopted. BE IT RESOLVED, that any one (1) of the following named officers, employees, or agents of this Corporation, whose actual signatures are shown below: NAMES POSITION ACTUAL SIGNATURES Xxxx Nahi Chief Executive Officer /s/ Xxxx Nahi Xxxxxxx Xxxxx X. Chief Financial Officer /s/ Xxxxxxx Xxxxx Xxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: Controller /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending ____________ __________________________________________ acting for and on behalf of this Corporation and as its act and deed be, and they hereby are, authorized and empowered: Borrow Money. To borrow from time to time from Bridge Bank, National Association and Comerica Bank (all capitalized collectively, the “Lenders”), on such terms used herein shall have as may be agreed upon between the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sellofficers, transferemployees, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as agents of the Advance Request Corporation and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery the Lenders, such sum or sums of goods and/or services renderedmoney as in their reasonable judgment should be borrowed, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Defaultwithout limitation.
Appears in 2 contracts
Samples: Loan and Security Agreement (Enphase Energy, Inc.), Loan and Security Agreement (Enphase Energy, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWERHOLDINGS: SPIRE CORPORATION ByENDOCHOICE, INC., as a Borrower ECPM HOLDINGS, LLC. By /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx By /s/ Xxxxx Xxxxxxx X. Xxxxxx ByXxxxxxx Title: CFO Name: Xxxxxxx X. Xxxxxxx Title: CFO XXXXXX X. XXXXX, M.D., INC., as a Borrower ENDOCHOICE INTERNATIONAL, LLC, as a Borrower By /s/ Xxxxxx Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx By /s/ Xxxxxxx X. Xxxxxx Xxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxxxx Chairman & CEO Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: CFO and Treasurer SPIRE SOLAR, INC ByTitle: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK ByBy /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: Vice President Acknowledgment and Agreement: The undersigned ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Unconditional Guaranty and a certain Guarantor Security Agreement, each dated as of September 9, 2013, and each document executed in connection therewith, and acknowledges, confirms and agrees that the Unconditional Guaranty, the Guarantor Security Agreement and each document executed in connection therewith shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. ECPM HOLDINGS, LLC ENDOCHOICE SCOPE SERVICES, LLC By /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 Xxxxxxx X. Xxxxxxx By /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: CFO Title: CFO PATHOPTIONS, LLC By /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: CFO Exhibit A to First Loan Modification Agreement EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLARCOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: ENDOCHOICE, INC., SPIRE BIOMEDICALet al. The undersigned authorized officer of ENDOCHOICE, INC. (for itself and SPIRE SEMICONDUCTORon behalf of each other co-borrower, LLC (jointly and severally, individually and collectively, the “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 Subsidiaries, if any, 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 there 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 no existing Event not in compliance with any of Default.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 financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 180 days Yes No A/R & A/P Agings Monthly within 30 days Yes No Transaction Reports (i) with each request for an Advance, (ii) on the 15th (or the immediately preceding Business Day if the 15th is not a Business Day) and the last Business Day of each month when a Streamline Period is not in effect, and (iii) within fifteen (15) days after the end of each month when a Streamline Period is in effect Yes No Projections FYE within 30 days Yes No
Appears in 2 contracts
Samples: First Loan Modification and Waiver Agreement (ECPM Holdings, LLC), First Loan Modification and Waiver Agreement (ECPM Holdings, LLC)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: T2 BIOSYSTEMS, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx XxXxxxxxx By: /s/ Xxxxx Xxxxx Name: Xxxx Xxxxxx VP Schedule 1 XxXxxxxxx Name: Xxxxx Xxxxx Title: President & CEO Title: Relation Manager EXHIBIT A The 2007 Collateral consists of all right, title and interest of Borrower in and to all Equipment financed by Bank, including the following: Description of Equipment Make Model Serial # Invoice # 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. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: T2 BIOSYSTEMS, an INC. The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALT2 BIOSYSTEMS, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 5.8 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its 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 there 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 financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) FYE within 180 days Yes No Board approved projections FYE within 45 days Yes No The following are the exceptions with respect to the certification above: (If no existing Event of Defaultexceptions exist, state “No exceptions to note.”) T2 BIOSYSTEMS, INC. BANK USE ONLY Received by: AUTHORIZED SIGNER By: Date: Name: Title: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes No
Appears in 2 contracts
Samples: Loan and Security Agreement (T2 Biosystems, Inc.), Loan and Security Agreement (T2 Biosystems, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWERHOLDINGS: SPIRE CORPORATION ByENDOCHOICE, INC., as a Borrower ECPM HOLDINGS, LLC. By /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx By /s/ Xxxxx Xxxxxxx X. Xxxxxx ByXxxxxxx Title: CFO Name: Xxxxxxx X. Xxxxxxx Title: CFO XXXXXX X. XXXXX, M.D., INC., as a Borrower By /s/ Xxxxxx Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO Xxxxxxx Title: CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK ByBy /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: Director Acknowledgment and Agreement: The undersigned ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Unconditional Guaranty and a certain Guarantor Security Agreement, each dated as of September 9, 2013, and each document executed in connection therewith, and acknowledges, confirms and agrees that the Unconditional Guaranty, the Guarantor Security Agreement and each document executed in connection therewith shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. ECPM HOLDINGS, LLC By /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: CFO Exhibit A to Second Loan Modification Agreement EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLARCOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: ENDOCHOICE, INC., SPIRE BIOMEDICALet al. The undersigned authorized officer of ENDOCHOICE, INC. (for itself and SPIRE SEMICONDUCTORon behalf of each other co-borrower, LLC (jointly and severally, individually and collectively, the “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 Subsidiaries, if any, 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 there 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 no existing Event not in compliance with any of Default.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 financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 180 days (for FYE ended December 31, 2013, on or before August 15, 2014) Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No A/R & A/P Agings Monthly within 30 days Yes No Transaction Reports (i) with each request for an Advance, (ii) on the 15th (or the immediately preceding Business Day if the 15th is not a Business Day) and the last Business Day of each month when a Streamline Period is not in effect, and (iii) within fifteen (15) days after the end of each month when a Streamline Period is in effect Yes No Projections FYE within 30 days Yes No
Appears in 2 contracts
Samples: Second Loan Modification and Waiver Agreement (ECPM Holdings, LLC), Second Loan Modification and Waiver Agreement (ECPM Holdings, LLC)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Export-Import Bank Loan and Security Agreement (as amended, the “Exim Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Exim Agreement): Borrower represents and warrants for each Financed Receivable: Receivable (other than Financed Receivables based upon Exim Inventory Placeholder Invoices): Each Financed Receivable is an Eligible Foreign Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. All statements made and all unpaid balances appearing in all invoices, instruments and other documents evidencing the Financed Receivable are and shall be true and correct and all such invoices, instruments and other documents, and all of Borrower's Books are genuine and in all respects what they purport to be; All sales and other transactions underlying or giving rise to each Financed Receivable shall comply in all material respects with all applicable laws and governmental rules and regulations; and To the best of Borrower's knowledge, all signatures and endorsements on all documents, instruments, and agreements relating to each Financed Receivable are genuine, and all such documents, instruments and agreements are legally enforceable in accordance with their terms. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this dateWith respect to Exim Inventory Placeholder Invoices, and Borrower represents and warrants that there all of Borrower's Inventory which is no existing Event the subject of Defaultany Exim Inventory Placeholder Invoice is and will continue to be Eligible Export-Related Inventory.
Appears in 2 contracts
Samples: Third Loan Modification Agreement (SPIRE Corp), Second Loan Modification Agreement (SPIRE Corp)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: AXCELIS TECHNOLOGIES, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx X. Puma By: /s/ Xxxxxxx Xxxxx Name: Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IX. Puma Name: Xxxxxxx Xxxxx Title: Chairman, an authorized officer CEO and President Title: Vice President AXCELIS TECHNOLOGIES CCS CORPORATION By: /s/ Xxxx X. Puma Name: Xxxx X. Puma Title: President The undersigned, Fusion Technology International, Inc., ratifies, confirms and reaffirms, all and singular, the terms and conditions of SPIRE CORPORATIONa certain Amended and Restated Unconditional Guaranty dated March 12, SPIRE SOLAR2010 (the “FTI Guaranty”) and acknowledges, INC.confirms and agrees that the FTI Guaranty shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, SPIRE BIOMEDICALor any other documents, instruments and/or agreements executed and/or delivered in connection herewith. FUSION TECHNOLOGY INTERNATIONAL, INC. By: /s/ Xxxx X. Puma Name: Xxxx X. Puma Title: President The undersigned, Fusion Investments, Inc., ratifies, confirms and SPIRE SEMICONDUCTORreaffirms, LLC (jointly all and severallysingular, individually the terms and collectively, “Borrower”) certify under the Second conditions of a certain Amended and Restated Unconditional Guaranty dated March 12, 2010 (the “FI Guaranty”) and acknowledges, confirms and agrees that the FI Guaranty shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. FUSION INVESTMENTS, INC. By: /s/ Xxxx X. Puma Name: Xxxx X. Puma Title: President The undersigned, High Temperature Engineering Corporation, ratifies, confirms and Security Agreement (as amendedreaffirms, all and singular, the terms and conditions of a certain Amended and Restated Unconditional Guaranty dated March 12, 2010 (the “AgreementHTEC Guaranty”) between Borrower and Silicon Valley Bank acknowledges, confirms and agrees that the HTEC Guaranty shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. HIGH TEMPERATURE ENGINEERING CORPORATION By: /s/ Xxxx X. Puma Name: Xxxx X. Puma Title: President The undersigned, Axcelis Technologies (Israel), Inc., ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Amended and Restated Unconditional Guaranty dated March 12, 2010 (the “BankATI Guaranty”) as follows for and acknowledges, confirms and agrees that the period ending _____________________________ (all capitalized terms used herein ATI Guaranty shall have remain in full force and effect and shall in no way be limited by the meaning set forth in the execution of this Loan Modification Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is boundinstruments and/or agreements executed and/or delivered in connection herewith. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse ChangeAXCELIS TECHNOLOGIES (ISRAEL), INC. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.By: /s/ Xxxx X. Puma Name: Xxxx X. Puma Title: President
Appears in 2 contracts
Samples: First Loan Modification Agreement (Axcelis Technologies Inc), Second Loan Modification Agreement (Axcelis Technologies Inc)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWERHOLDINGS: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLARENDOCHOICE, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORINC., as a Borrower ECPM HOLDINGS, LLC ByBy /s/ Xxxxxxx X. Xxxxxxx Name: Spire CorporationXxxxxxx X. Xxxxxxx By /s/ Xxxxxxx X. Xxxxxxx Title: VP - Finance Name: Xxxxxxx X. Xxxxxxx Title: VP - Finance XXXXXX X. XXXXX, M.D., INC., as a Massachusetts corporation, its sole Member and Manager ByBorrower By /s/ Xxxxxxx X. Xxxxxxx Name: /s/ Xxxxx Xxxxxxx X. Xxxxxx ByXxxxxxx Title: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer VP - Finance BANK: SILICON VALLEY BANK ByBy /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: Director Acknowledgment and Agreement: The undersigned ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Unconditional Guaranty and a certain Guarantor Security Agreement, each dated as of September 9, 2013, and each document executed in connection therewith, and acknowledges, confirms and agrees that the Unconditional Guaranty, the Guarantor Security Agreement and each document executed in connection therewith shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. ECPM HOLDINGS, LLC By /s/ Xxxx Xxxxxx Xxxx Xxxxxx Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: VP Schedule 1 - Finance Exhibit B to Third Loan Modification Agreement EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLARCOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: ENDOCHOICE, INC., SPIRE BIOMEDICALet al. The undersigned authorized officer of ENDOCHOICE, INC. (for itself and SPIRE SEMICONDUCTORon behalf of each other co-borrower, LLC (jointly and severally, individually and collectively, the “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 Subsidiaries, if any, 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 there 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 no existing Event not in compliance with any of Default.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 financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 180 days (for FYE ended December 31, 2013, on or before August 15, 2014) Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No A/R & A/P Agings Monthly within 30 days Yes No Transaction Reports (i) with each request for an Advance, (ii) on the 15th (or the immediately preceding Business Day if the 15th is not a Business Day) and the last Business Day of each month when a Streamline Period is not in effect, and (iii) within fifteen (15) days after the end of each month when a Streamline Period is in effect Yes No Projections FYE within 30 days Yes No
Appears in 2 contracts
Samples: Third Loan Modification and Waiver Agreement (ECPM Holdings, LLC), Third Loan Modification and Waiver Agreement (ECPM Holdings, LLC)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: TRUSTWAVE HOLDINGS, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx X. XxXxxxxx By: Name: Xxxxxx VP Schedule 1 X. XxXxxxxx Name: Title: Chief Executive Officer Title: TRUSTWAVE INTERMEDIATE, INC. By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer TW VERICEPT CORPORATION By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer The undersigned, TRUSTWAVE LIMITED, a company registered in England & Wales, ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Deed of Guarantee in favor of Bank dated September 25, 2008 (the “Guarantee”) and acknowledges, confirms and agrees that the Guarantee shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection therewith. TRUSTWAVE LIMITED By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer and President The undersigned, TRUSTWAVE HOLDINGS LIMITED, a company registered in England & Wales, ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Deed of Guarantee in favor of Bank dated November 27, 2007 (the “Guarantee”) and acknowledges, confirms and agrees that the Guarantee shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection therewith. TRUSTWAVE HOLDINGS LIMITED By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer and President EXHIBIT A See attached copy of the Plan of Reorganization and Asset Purchase Agreement EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IEXHIBIT C — COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: TRUSTWAVE HOLDINGS, an INC. TRUSTWAVE INTERMEDIATE, INC. TW VERICEPT CORPORATION The undersigned authorized officer officers of SPIRE CORPORATION, SPIRE SOLARTRUSTWAVE HOLDINGS, INC., SPIRE BIOMEDICALTRUSTWAVE INTERMEDIATE, INC. and SPIRE SEMICONDUCTORTW VERICEPT CORPORATION (individually and collectively, LLC (jointly and severally, individually and collectively, the “Borrower”) certify that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 5.8 of the Agreement, and (5) no Liens have been levied or claims made against Borrower 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 certify that there these are prepared in accordance with generally GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledge that no borrowings may be requested at any time or date of determination that Borrower is no existing Event not in compliance with any of Default.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 consolidated and consolidating financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) FYE within 150 days* Yes No Board Approved Projections Annually, within 30 days after year end Yes No Borrowing Base Certificate (together with A/R & A/P Agings, and deferred revenue report) Monthly within 30 days Yes No Audit Annually Yes No Financial Covenant Required Actual Complies Maintain on a Monthly Basis: Liquidity $ 10,000,000 $ Yes No * 8/15/2009 for FY 2007; 10/31/09 for FY 2008
Appears in 1 contract
Samples: Consent and Second Loan Modification Agreement (Trustwave Holdings, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION EVERYDAY HEALTH, INC. By: /s/ Xxxxx X. Xxxxxx ByXxxx Xxxxxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman Xxxx Xxxxxxx Title: Executive Vice President & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORGeneral Counsel EVERYDAY HEALTH MEDIA, LLC By: Spire Corporation/s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Executive Vice President & General Counsel MEDPAGE TODAY, a Massachusetts corporation, its sole Member and Manager L.L.C. By: /s/ Xxxxx X. Xxxxxx ByXxxx Xxxxxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Xxxx Xxxxxxx Title: President BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Xxxxxxx XxXxxxx Name: Xxxxxxx XxXxxxx Title: Vice President Schedule 1 EXHIBIT B A Member of SVB Financial Group SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAREVERYDAY HEALTH, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOREVERYDAY HEALTH MEDIA, LLC and MEDPAGE TODAY, L.L.C. (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending ______________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Receivable based upon Eligible Accounts and Aggregate Eligible Accounts (except to the extent of any Adjustments for which the applicable Advance (or portion thereof) has been repaid): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal datedate (except with respect to Permitted Deferred Revenue); Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.
Appears in 1 contract
Samples: Third Loan Modification Agreement (Everyday Health, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and BankBank (provided, however, in no event shall this Loan Modification Agreement become effective until signed by an officer of Bank in California). [The remainder of this page is intentionally left blank] This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION BANK: ROVING SOFTWARE INCORPORATED SILICON VALLEY BANK, doing business as SILICON VALLEY EAST By: /s/ Xxxxx X. Xxxxxx Gail Goodmax By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & --------------------------------- ------------------------------------ Name: Gail Goodmax Name: -------------------------------- ---------------------------------- Title: CEO CFO and Treasurer SPIRE SOLAR, INC ByTitle: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: ------------------------------- --------------------------------- SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I------------------------------------ Name: ---------------------------------- Title: --------------------------------- (signed in Santa Clara Countx, an authorized officer California) CORPORATE RESOLUTIONS FOR AMENDING LOAN ARRANGEMENT Gail Goodmax, xxxxx xxx Secretary of SPIRE CORPORATIONROVING SOFTWARE INCORPORATED, SPIRE SOLARa Delaware corporation duly organized, INC.validly existing, SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify in good standing under the Second Amended laws of the state of Delaware, CERTIFIES that the following resolutions were adopted CHECK [xx] at a duly called and Restated Loan conducted meeting of the Directors of said ONE corporation held on July 29, 2004 at which a quorum was present and Security Agreement (as amendedvoting throughout, [ ] by the unanimous consent of the Directors of said corporation, the “Agreement”originals of which consents having been placed with the records of meetings of Directors of said corporation, and are in conformity with the Certificate of Incorporation and By-Laws of said corporation (each as amended to date) between Borrower and that each of the following resolutions presently is in full force and effect without change: AMENDMENT OF LOAN ARRANGEMENT RESOLVED, That this corporation amend its loan arrangement(s) with Silicon Valley Bank (“hereinafter, with any successor, the "Bank”") in such manner as follows for has been or is hereafter discussed and negotiated by and between the period ending ______Bank on the one hand and any of the following, acting on behalf of this corporation, on the other: Insert title, only, if Persons to act on behalf of CEO corporation have titles. Otherwise, insert names. _______________________ (all capitalized terms used herein shall have In connection with the meaning set forth foregoing, each of said officers and/or persons, acting as described above, is authorized to execute, seal, acknowledge, and deliver in the Agreement): Borrower represents name of and warrants for on behalf of this corporation such instruments, documents, and papers which relate thereto as may be appropriate, each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is in such form and upon such terms as the owner with legal right to sellofficer(s) and/or person(s) so authorized determines, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale execution and delivery to be conclusive of goods such officer'(s) and/or services rendered, is due person'(s) authority so to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained act in the certificates or statement not misleading. Additionally, Borrower represents name of and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state on behalf of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Defaultcorporation.
Appears in 1 contract
Samples: Loan Modification Agreement (Constant Contact, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: WORLD ENERGY SOLUTIONS, INC. By /s/ Xxxxx X. Xxxxxx ByXxxxxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO Xxxxxxx Title: CFO and Treasurer SPIRE SOLAR, INC By: WORLD ENERGY SECURITIES CORP. By /s/ Xxxxx X. Xxxxxx ByXxxxxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByXxxxxxx Title: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK ByBy /s/ Xxxxxx Xxxxxxxx Name: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 Xxxxxxxx Title: Relationship Manager Exhibit A EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALCOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: WORLD ENERGY SOLUTIONS, INC. AND WORLD ENERGY SECURITIES CORP. The undersigned authorized officers of World Energy Solutions, Inc., and SPIRE SEMICONDUCTORWorld Energy Securities Corp. (individually and collectively, LLC (jointly and severally, individually and collectively, “Borrower”) ), solely in their capacities as officers of their respective entities, certify that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 Subsidiaries, if any, 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 solely in their capacities as officers of their respective entities, certify 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 solely in their capacities as officers of their respective entities, acknowledge 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 financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 90 days Yes No A/R & A/P Agings, Deferred Revenue report, and schedule of expected collections Monthly within 20 days when there is are outstanding Credit Extensions under the Revolving Line Yes No Borrowing Base Certificate Monthly within 20 Days during Streamline Period Yes No Transaction Report Weekly when not Streamline Period when there are outstanding Credit Extensions under the Revolving Line and upon each request for a Credit Extension under the Revolving Line Yes No Board-approved projections Within 30 days of approval Yes No Financial Covenant Required Actual Complies Minimum Cash and Availability $ 3,000,000 $ Yes No Minimum Fixed Charge Coverage Ratio 1.25:1.00 :1.00 Yes No The following financial covenant analyses and information set forth in Schedule 1 attached hereto are true and accurate as of the date of this Certificate. The following are the exceptions with respect to the certification above: (If no existing Event exceptions exist, state “No exceptions to note.”) WORLD ENERGY SOLUTIONS, INC. BANK USE ONLY By: Received by: Name: AUTHORIZED SIGNER Title: Date: WORLD ENERGY SECURITIES CORP. Verified: AUTHORIZED SIGNER By: Date: Name: Title: Compliance Status: Yes No Schedule 1 to Compliance Certificate Financial Covenants of Default.Borrower Dated:
Appears in 1 contract
Samples: Fourth Loan Modification Agreement (World Energy Solutions, Inc.)
COUNTERSIGNATURE. This Loan Modification Waiver Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Waiver Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE BORROWER REAL GOODS ENERGY TECH, INC. REAL GOODS TRADING CORPORATION By: /s/ Xxxxx X. Xxxxxx Xxxxxxx XxXxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO Xxxxxxx XxXxxxx Name: Xxxxxxx XxXxxxx Name: Xxxxxxx XxXxxxx Title: CFO and Treasurer SPIRE SOLARTitle: CFO ALTERIS RENEWABLES, INC INC. REAL GOODS SYNDICATED, INC. By: /s/ Xxxxx X. Xxxxxx Xxxxxxx XxXxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO Xxxxxxx XxXxxxx Name: Xxxxxxx XxXxxxx Name: Xxxxxxx XxXxxxx Title: CFO and Treasurer SPIRE BIOMEDICAL,INC ByTitle: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IElisa Sun Name: Elisa Sun Title: Vice President Acknowledgment and Agreement: The undersigned ratifies, an authorized officer confirms and reaffirms, all and singular, the terms and conditions of SPIRE CORPORATIONa certain Amended and Restated Unconditional Guaranty and a certain Amended and Restated Security Agreement, SPIRE each dated as of September 26, 2013, and each document executed in connection therewith, and acknowledges, confirms and agrees that the Amended and Restated Unconditional Guaranty, Amended and Restated Security Agreement and each document executed in connection therewith shall remain in full force and effect and shall in no way be limited by the execution of this Waiver Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. REAL GOODS SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed ReceivableBy: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows/s/ Xxxxxxx XxXxxxx Name: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.Xxxxxxx XxXxxxx Title: CFO
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: TRUSTWAVE HOLDINGS, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx X. XxXxxxxx By: Name: Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALX. XxXxxxxx Name: Title: Chief Executive Officer Title: TRUSTWAVE INTERMEDIATE, INC. By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer TW VERICEPT CORPORATION By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer The undersigned, TRUSTWAVE LIMITED, a company registered in England & Wales, ratifies, confirms and SPIRE SEMICONDUCTORreaffirms, LLC all and singular, the terms and conditions of a certain Deed of Guarantee in favor of Bank dated September 25, 2008 (jointly and severally, individually and collectively, the “BorrowerGuarantee”) certify under and acknowledges, confirms and agrees that the Second Amended Guarantee shall remain in full force and Restated effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection therewith. TRUSTWAVE LIMITED By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer and Security Agreement (as amendedPresident The undersigned, TRUSTWAVE HOLDINGS LIMITED, a company registered in England & Wales, ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Deed of Guarantee in favor of Bank dated November 27, 2007 (the “AgreementGuarantee”) between Borrower and Silicon Valley Bank (“Bank”) as follows for acknowledges, confirms and agrees that the period ending _____________________________ (all capitalized terms used herein Guarantee shall have remain in full force and effect and shall in no way be limited by the meaning set forth execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in the Agreement): Borrower represents connection therewith. TRUSTWAVE HOLDINGS LIMITED By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as President EXHIBIT A See attached copy of the Advance Request Plan of Merger and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.Reorganization
Appears in 1 contract
Samples: Consent and Third Loan Modification Agreement (Trustwave Holdings, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and BankBank (provided, however, in no event shall this Loan Modification Agreement become effective until signed by an officer of Bank in California). [The remainder of this page is intentionally left blank] This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION BANK: BOTTOMLINE TECHNOLOGIES (de), Inc. SILICON VALLEY BANK, doing business as SILICON VALLEY EAST By: /s/ Xxxxx Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx -------------------------------------- ----------------------------- Name: Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC ByName: /s/ Xxxxx Xxxxxxx X. Xxxxxx ByXxxx ------------------------------------ --------------------------- Title: EVP, COO & CFO Title: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: Vice President ----------------------------------- -------------------------- SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 Xxxxxxxx Xxxxxxxx ---------------------------- Name: /s/ Xxxxxxxx Xxxxxxxx --------------------------- Title: /s/ AVP -------------------------- (signed in Santa Xxxxx County, California) EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IA COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK FROM: BOTTOMLINE TECHNOLOGIES (de), an INC. The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALBOTTOMLINE TECHNOLOGIES (de), INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”the "Agreement"), (i) as follows Borrower is in complete compliance for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns covenants except as noted below and paid, or made adequate provision to pay, (ii) all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date. Attached are the required documents supporting the certification. The Officer certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The Officer 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 Borrower represents that there compliance is no existing Event determined not just at the date this certificate is delivered. Please indicate compliance status by circling Yes/No under "Complies" column. REPORTING COVENANT REQUIRED COMPLIES Monthly financial statements with CC Quarterly within 30 days Yes No Monthly within 30 days Yes No (when Advances outstanding) Annual (CPA Audited) FYE within 90 days Yes No 10-Q, 10-K and 8-K Within 10 days after filing with SEC Yes No BBC A/R Agings Quarterly within 30 days Yes No Monthly within 30 days (when Advances outstanding) Yes No FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES Maintain on a Monthly Basis: Minimum Adjusted Quick Ratio 2.0:1.0 ___:1.0 Yes No Profitability (net loss/min profit) $_*____ $______ Yes No *See Loan and Security Agreement Comments Regarding Exceptions: See Attached. BANK USE ONLY Sincerely, Received by: -------------------- AUTHORIZED SIGNER ---------------------------- SIGNATURE Date: --------------------------- --------------------------- Verified: TITLE ----------------------- AUTHORIZED SIGNER --------------------------- Date: DATE --------------------------- BOTTOMLINE TECHNOLOGIES (de), INC. SECRETARY'S CERTIFICATE I, Xxxxxx X. Xxxxxx, in my capacity as Secretary of Default.Bottomline Technologies (de), Inc., a Delaware corporation (the "Company"), acting in connection with the First Loan Modification Agreement dated as of December 31, 2002 between the Company and Silicon Valley Bank (the "Loan Agreement"), hereby certify that I am the duly elected and acting Secretary of the Company, and further certify as follows:
Appears in 1 contract
Samples: First Loan Modification Agreement (Bottomline Technologies Inc /De/)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWERREAL GOODS ENERGY TECH, INC. REAL GOODS SYNDICATED, INC. By: SPIRE /s/ Xxxxxx Xxxxx By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer REAL GOODS ENERGY TRADING ALTERIS RENEWABLES, INC. CORPORATION By: /s/ Xxxxxx Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Name: Xxxxxx Xxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLARXxxxx Title: Chief Executive Officer Title: Chief Executive Officer MERCURY ENERGY, INC By: /s/ Xxxxx X. Xxxxxx INC. ELEMENTAL ENERGY, LLC By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Name: Xxxxxx Xxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORXxxxx Title: Chief Executive Officer Title: Chief Executive Officer REAL GOODS SOLAR, INC.—MERCURY SOLAR SUNETRIC MANAGEMENT LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. By: /s/ Xxxxxx Xxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Xxxxx Name: Xxxxxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IXxx Xxxxx Name: Xxx Xxxxx Title: Vice President Acknowledgment and Agreement: The undersigned ratifies, an authorized officer confirms and reaffirms, all and singular, the terms and conditions of SPIRE CORPORATIONa certain Second Amended and Restated Unconditional Guaranty and a certain Second Amended and Restated Security Agreement, SPIRE SOLAReach dated as of June 6, INC.2014, SPIRE BIOMEDICALand each document executed in connection therewith, INC. and SPIRE SEMICONDUCTORacknowledges, LLC (jointly confirms and severally, individually and collectively, “Borrower”) certify under agrees that the Second Amended and Restated Loan Unconditional Guaranty, Second Amended and Restated Security Agreement (as amended, and each document executed in connection therewith shall remain in full force and effect and shall in no way be limited by the “execution of this Loan Modification Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is boundinstruments and/or agreements executed and/or delivered in connection herewith. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse ChangeREAL GOODS SOLAR, INC. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Executive Officer
Appears in 1 contract
Samples: Eighth Loan Modification Agreement (Real Goods Solar, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CALIPER LIFE SCIENCES, INC. By: /s/ Xxxxx X. XxXxxx Name: Xxxxx X. XxXxxx Title: Senior Vice President and Chief Financial Officer NOVASCREEN BIOSCIENCES CORPORATION By: /s/ Xxxxx X. Xxxxxx ByXxXxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLARXxXxxx Title: Vice President, INC Finance XENOGEN CORPORATION By: /s/ Xxxxx X. Xxxxxx ByXxXxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC XxXxxx Title: Vice President, Finance CALIPER LIFE SCIENCES LTD. By: /s/ Xxxxx X. Xxxxxx ByXxXxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORXxXxxx Title: Vice President, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Finance BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxxxxxxxxx Name: Xxxx Xxxxxx VP Schedule 1 Xxxxxxxxxxx Title: Vice President EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALCOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: CALIPER LIFE SCIENCES, INC. NOVASCREEN BIOSCIENCES CORPORATION XENOGEN CORPORATION CALIPER LIFE SCIENCES, LTD. The undersigned authorized officers of Caliper Life Sciences, Inc., NovaScreen Biosciences Corporation, Xenogen Corporation, and SPIRE SEMICONDUCTORCaliper Life Sciences, LLC Ltd. (individually and collectively, jointly and severally, individually and collectively, “Borrower”) certify that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 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 there 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 financial statements with Compliance Certificate Quarterly within 45 days Yes No Annual consolidated and consolidating financial statement (CPA Audited) + XX XXX within120 days Yes No A/R & A/P Agings; Deferred Revenue report, cash report Monthly within 15 days Yes No Transaction Reports Weekly and with each Advance request Yes No Board approved projections Annually, as revised Yes No The following intellectual property was registered after the Effective Date (if no existing Event registrations, state “None”) Financial Covenant Required Actual Complies Maintain at all times, tested quarterly: Minimum Quick Ratio 0.95:1.00 :1.0 Yes No Minimum EBITDA minus Cap Ex* $ $ Yes No *See Section 6.9(b) of Defaultthe Loan and Security Agreement The following financial covenant analyses and information set forth in Schedule 1 attached hereto are true and accurate as of the date of this Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”) Caliper Life Sciences, Inc. BANK USE ONLY By: Received by: Name: AUTHORIZED SIGNER Title: Date: NovaScreen Biosciences Corporation Verified: AUTHORIZED SIGNER By: Name: Date: Title: Compliance Status: Yes No Xenogen Corporation By: Name: Title: Caliper Life Sciences, Ltd. By: Name: Title: Schedule 1 to Compliance Certificate
Appears in 1 contract
Samples: First Loan Modification Agreement (Caliper Life Sciences Inc)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and BankBank (provided, however, in no event shall this Loan Modification Agreement become effective until signed by an officer of Bank in California). [The remainder of this page is intentionally left blank] This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION BANK: PHASE FORWARD INCORPORATED SILICON VALLEY BANK, doing business as SILICON VALLEY EAST By: /s/ Xxxxx X. Xxxxxx William G. Porter By: /s/ Xxxxxx X. Xxxxxxxxx Pamela Aldsworth ---------------------------- --------------------------------------- Name: William G. Porter Name: Pamela Aldsworth Title: Vice Prxxxxxxx, Xxxxxxx Title: SVP Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: Xxxxxxd Incorporated SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IMaggie Garcia --------------------------------------- Name: Maggie Garcia Title: AVP (signed in Santa Clara County, an authorized officer of SPIRE California) The undersigned, PHASE FORWARD SECURXXXXX CORPORATION, SPIRE SOLARratifies, INC.confirms and reaffirms, SPIRE BIOMEDICALall and singular, INCthe terms and conditions of a certain Unlimited Guaranty dated May 3, 1999 (the "Guaranty") and acknowledges, confirms and agrees that the Guaranty shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. PHASE FORWARD SECURITIES CORPORATION By: /s/ John J. Schickling --------------------------------------- Name: John J. Schickling Title: Treasuxxx SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT This SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this "Agreement") dated as of April 17, 2002, to be effective as of March 31, 2002, between SILICON VALLEY BANK, a California chartered bank, with its principal place of business at 3003 Tasman Drive, Santa Clara, California 95054 and SPIRE SEMICONDUCTORwith a loan prodxxxxxx xxxxxx xxxxxxx xx Xxx Xxxxxx Xxxxxxxxx Xxrk, LLC Suite 200, 2221 Washington Street, Newton, Masxxxxxxetts 02462, doing business uxxxx xxx xxxx "Xxxxxxx Xxxxxx Xxxx" (jointly and severally"Xxxx") xxx XXASE FORWARD INCORPORATED, individually and collectivelya Delaware corporation with its principal place of business at 1440 Main Street, “Waltham, Massachusetts 02451 ("Borrower”) certify under the Second Amended and Restated "), which amxxxx xxx xxxxxxxx x xxxxxxx Xxxxxxx xxx Xxxxxxed Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank dated August 4, 2000 (“Bank”) as follows for amended from time to time), provides the period ending _____________________________ (all capitalized terms used herein on which Bank shall have the meaning set forth in the Agreement): lend to Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleadingshall repay Bank. Additionally, Borrower represents and warrants The parties agree as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.:
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: XXXXXX.XXX, INC. SILICON VALLEY BANK By: /s/ Xxxx /S/ XXXXX X. XXXXXXXX By: /S/ XXXXXX X. XXXXXXX Name: Xxxxx X. Xxxxxxxx Name: Xxxxxx Xxxx Xxxxxx VP X. Xxxxxxx Title: CFO Title: Vice-President The undersigned, XXXXXX.XXX JAMAICA LIMITED (“Xxxxxx.xxx Jamaica Guarantor”) hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Unconditional Guaranty (the “Guaranty”) dated as of December 19, 2008, executed and delivered by Xxxxxx.xxx Jamaica Guarantor, pursuant to which Xxxxxx.xxx Jamaica Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank. In addition, Xxxxxx.xxx Jamaica Guarantor acknowledges, confirms and agrees that the Guaranty shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. XXXXXX.XXX JAMAICA LIMITED By: /S/ XXXXXXXX XXXXXXX Name: Xxxxxxxx Xxxxxxx Title: Secretary The undersigned, XXXXXX.XXX SECURITIES CORPORATION (“Xxxxxx.xxx Securities Guarantor”) hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of (a) a certain Unconditional Guaranty (the “Guaranty”) dated as of October 8, 2008, executed and delivered by Xxxxxx.xxx Securities Guarantor, pursuant to which Xxxxxx.xxx Securities Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank, and (b) a certain Security Agreement (the “Security Agreement”) dated as of October 8, 2008, between Xxxxxx.xxx Securities Guarantor and Bank, pursuant to which Xxxxxx.xxx Securities Guarantor granted Bank a continuing first priority security interest in the Collateral (as the term is defined therein) to secure the payment and performance of the Obligations under the Guaranty in accordance with the terms of the Security Agreement. In addition, Xxxxxx.xxx Securities Guarantor acknowledges, confirms and agrees that the Guaranty and Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. XXXXXX.XXX SECURITIES CORPORATION By: /S/ XXXXX X. XXXXXXXX Name: Xxxxx X. Xxxxxxxx Title: Treasurer The undersigned, GENESYS SOFTWARE SYSTEMS, INC. (“Genesys Software Systems Guarantor”) hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of (a) a certain Unconditional Guaranty (the “Guaranty”) dated as of March 16, 2009, executed and delivered by Genesys Software Systems Guarantor, pursuant to which Genesys Software Systems Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank, and (b) a certain Security Agreement (the “Security Agreement”) dated March 16, 2009, between Borrower and Bank, pursuant to which Genesys Software Systems Guarantor granted Bank a continuing first priority security interest in the Collateral (as the term is defined therein) to secure the payment and performance of the Obligations under the Guaranty in accordance with the terms of the Security Agreement. In addition, Genesys Software Systems Guarantor acknowledges, confirms and agrees that the Guaranty and Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. GENESYS SOFTWARE SYSTEMS, INC. By: /S/ XXXXX X. XXXXXXXX Name: Xxxxx X. Xxxxxxxx Title: Treasurer Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ID COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: XXXXXX.XXX, an INC. The undersigned authorized officer of SPIRE CORPORATIONXxxxxx.xxx, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC Inc. (jointly and severally, individually and collectively, “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed or has validly extended all required tax returns and reports, and Borrower represents 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 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 there these are prepared in accordance with generally 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 no existing Event not in compliance with any of Default.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 financial statements with Compliance Certificate Monthly within 30/45 days Yes No Annual financial statements (CPA Audited) FYE within 120 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No A/R Quarterly within 45 days Yes No Board Projections FYE within 60 days, and as updated Yes No
Appears in 1 contract
Samples: Sixth Loan Modification Agreement (Salary. Com, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: XXXXXX.XXX, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxx Xxxxx Name: Xxxxx Xxxxxxxx Name: Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IXxxxx Title: SVP and CFO Title: Vice President The undersigned, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC XXXXXX.XXX JAMAICA LIMITED (jointly and severally, individually and collectively, “BorrowerXxxxxx.xxx Jamaica Guarantor”) certify under hereby ratifies, confirms and reaffirms, all and singular, the Second Amended terms and Restated conditions of a certain Unconditional Guaranty (the “Guaranty”) dated as of December 19, 2008, executed and delivered by Xxxxxx.xxx Jamaica Guarantor, pursuant to which Xxxxxx.xxx Jamaica Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank. In addition, Xxxxxx.xxx Jamaica Guarantor acknowledges, confirms and agrees that the Guaranty shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. XXXXXX.XXX JAMAICA LIMITED By: /s/ Xxxxxxxx Xxxxxxx Name: Xxxxxxxx Xxxxxxx Title: SVP HR The undersigned, XXXXXX.XXX SECURITIES CORPORATION (“Xxxxxx.xxx Securities Guarantor”) hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of (a) a certain Unconditional Guaranty (the “Guaranty”) dated as of October 8, 2008, executed and delivered by Xxxxxx.xxx Securities Guarantor, pursuant to which Xxxxxx.xxx Securities Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank, and (b) a certain Security Agreement (as amended, the “Security Agreement”) dated as of October 8, 2008, between Borrower Xxxxxx.xxx Securities Guarantor and Silicon Valley Bank, pursuant to which Xxxxxx.xxx Securities Guarantor granted Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth a continuing first priority security interest in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable Collateral (as the term is an Eligible Account; Borrower is defined therein) to secure the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery payment and performance of the Obligations under the Guaranty in accordance with the terms of the Security Agreement. In addition, Xxxxxx.xxx Securities Guarantor acknowledges, confirms and agrees that the Guaranty and Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Documents have been duly authorizedModification Agreement, and do not conflict with Borrower's organizational or any other documents, nor constitute an event of default under any material agreement by which Borrower is boundinstruments and/or agreements executed and/or delivered in connection herewith. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.XXXXXX.XXX SECURITIES CORPORATION By: /s/ Xxxxx X Xxxxxxxx Name: Xxxxx Xxxxxxxx Title: CFO
Appears in 1 contract
Samples: Seventh Loan Modification Agreement (Salary. Com, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE BORROWER REAL GOODS ENERGY TECH, INC. REAL GOODS TRADING CORPORATION By: /s/ Xxx Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLARName: Xxx Xxxxx Name: Xxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer ALTERIS RENEWABLES, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORINC. EARTH FRIENDLY ENERGY GROUP HOLDINGS, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager /s/ Xxx Xxxxx By: /s/ Xxx Xxxxx X. Xxxxxx Name: Xxx Xxxxx Name: Xxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer EARTH FRIENDLY ENERGY GROUP, LLC SOLAR WORKS, LLC By: /s/ Xxxxxx X. Xxxxxxxxx Xxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer By: /s/ Xxx Xxxxx Name: Xxx Xxxxx Name: Xxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer ALTERIS ISI, LLC ALTERIS RPS, LLC By: Alteris Renewables, Inc. Its: Sole Member By: Alteris Renewables, Inc. Its: Sole Member By: /s/ Xxx Xxxxx By: /s/ Xxx Xxxxx Name: Xxx Xxxxx Name: Xxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IXxx Xxxxx Name: Xxx Xxxxx Title: DEAL TEAM LEADER Acknowledgment and Agreement: The undersigned ratifies, an authorized officer confirms and reaffirms, all and singular, the terms and conditions of SPIRE CORPORATIONa certain Unconditional Guaranty and a certain Security Agreement, SPIRE each dated as of December 19, 2012, and each document executed in connection therewith, and acknowledges, confirms and agrees that the Unconditional Guaranty, Security Agreement and each document executed in connection therewith shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. REAL GOODS SOLAR, INC., SPIRE BIOMEDICAL. By: /s/ Xxx Xxxxx Name: Xxx Xxxxx Title: Chief Executive Officer Exhibit A to First Loan Modification Agreement EXHIBIT B COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: REAL GOODS ENERGY TECH, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleadingET. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of DefaultAL.
Appears in 1 contract
Samples: First Loan Modification Agreement (Real Goods Solar, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: ART TECHNOLOGY GROUP, INC. SILICON VALLEY BANK By: /s/ Jxxxx M.B. Bxxxxxx By: /s/ Mxxxxxx X. Xxxx Xxxxxx Name: Jxxxx M.B. Bxxxxxx Name: Mxxxxxx X. Xxxx Xxxxxx VP Schedule 1 Title: CFO Title: Relationship Manager The undersigned, PRIMUS KNOWLEDGE SOLUTIONS, INC. (“Guarantor”), ratifies, confirms and reaffirms, all and singular, the terms and conditions of (a) a certain Unlimited Guaranty dated December 21, 2004 executed by Guarantor in favor of Bank (the “Guaranty”), and (b) a certain Security Agreement dated as of December 21, 2004 by and between Guarantor and Bank (the “Security Agreement”), and acknowledges, confirms and agrees that the Guaranty and Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. PRIMUS KNOWLEDGE SOLUTIONS, INC. By: /s/ Jxxxx M. B. Bxxxxxx Name: Jxxxx M. B. Bxxxxxx Title: CFO EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IA COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: ART TECHNOLOGY GROUP, an INC. The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALART TECHNOLOGY GROUP, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 5.6 of the Agreement, and (5) no Liens have been levied or claims made against Borrower 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 there 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 Board approved operating plan FYE within 90 days Yes No Annual financial statement (CPA Audited) FYE within 120 days Yes No 10-Q and 10-K and CC Within 5 days after filing with SEC Yes No Financial Covenant Required Actual Complies Maintain at all times (tested): Minimum Liquidity (quarterly) $ 20,000,000 $ — Yes No Minimum Profitability (quarterly) * $ — Yes No * see Section 6.7(b) of the Loan Agreement The following are the exceptions with respect to the certification above: (If no existing Event of Defaultexceptions exist, state “No exceptions to note.”) ART TECHNOLOGY GROUP, INC. BANK USE ONLY Received by: authorized signer Date: Verified: By: authorized signer Name: Date: Title: Compliance Status: Yes No
Appears in 1 contract
Samples: Eleventh Loan Modification Agreement (Art Technology Group Inc)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION BANK: GLOBALOPTIONS, INC. SILICON VALLEY BANK By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxx Title: CFO Title: Vice President THE BODE TECHNOLOGY GROUP, INC. By: /s/ Xxxxxx Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO Xxxxxxx Title: CFO and Treasurer SPIRE SOLARThe undersigned, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALGLOBALOPTIONS GROUP, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “BorrowerGuarantor”) certify under hereby ratifies, confirms and reaffirms, all and singular, the Second Amended terms and Restated Loan conditions of (a) a certain Unconditional Guaranty (the “Guaranty”) dated as of March 31, 2008, executed and delivered by Guarantor, pursuant to which Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank, (b) a certain Security Agreement (as amended, the “Security Agreement”) dated as of March 31, 2008, between Borrower Guarantor and Silicon Valley Bank, pursuant to which Guarantor granted Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth a continuing first priority security interest in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable Collateral (as the term is an Eligible Account; Borrower is defined therein) to secure the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery payment and performance of the Loan Documents have been duly authorizedObligations under the Guaranty in accordance with the terms of the Security Agreement, and do not conflict with Borrower's organizational documents(c) a certain Intellectual Property Security Agreement (the “IP Agreement”) dated as of March 31, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement 2008, between Guarantor and Bank, pursuant to which or by which it is bound Guarantor granted Bank a continuing first priority security interest in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to Intellectual Property Collateral (as the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined therein) to secure the payment and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U performance of the Federal Reserve Board of Governors). Borrower has complied Obligations under the Guaranty in all material respects accordance with the Federal Fair Labor Standards Actterms of the IP Agreement. Borrower has not violated any lawsIn addition, ordinances or rulesGuarantor acknowledges, confirms and agrees that the violation Guaranty, Security Agreement, and IP Agreement shall remain in full force and effect and shall in no way be limited by the execution of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's this Loan Modification Agreement, or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary orother documents, to the best of Borrower's knowledgeinstruments and/or agreements executed and/or delivered in connection herewith. GLOBALOPTIONS GROUP, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legallyINC. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: CFO
Appears in 1 contract
Samples: Seventh Loan Modification Agreement (GlobalOptions Group, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION EVERYDAY HEALTH, INC. By: /s/ Xxxxx X. Xxxxxx ByXxxx Xxxxxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO Xxxx Xxxxxxx Title: EVP and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORGeneral Counsel EVERYDAY HEALTH MEDIA, LLC By: Spire Corporation/s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: EVP and General Counsel MEDPAGE TODAY, a Massachusetts corporation, its sole Member and Manager L.L.C. By: /s/ Xxxxx X. Xxxxxx ByXxxx Xxxxxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Xxxx Xxxxxxx Title: President BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxx Xxxxxx Xxxx Name: Xxxxx Xxxxxx VP Title: DTL EXHIBIT A The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles) accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; 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 shall not be deemed to include (a) any ownership interest in Everyday Health India Private Limited, (b) any ownership interest in any other Foreign Subsidiary in excess of 65% of the total outstanding voting interest in such Foreign Subsidiary, or (c) the Security Deposits (as defined in the Loan and Security Agreement between Borrower and Bank) but only to the extent that the granting of a lien to Bank in the Security Deposits would result in a default by Borrower under the documents evidencing such Security Deposits. Schedule 1 2 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an C COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK: Date: FROM: The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLAREVERYDAY HEALTH, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOREVERYDAY HEALTH MEDIA, LLC and MEDPAGE TODAY, L.L.C. (jointly and severally, individually and collectively, “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement among Borrower and Bank (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.):
Appears in 1 contract
Samples: Fourth Loan Modification Agreement (Everyday Health, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: CALIPER LIFE SCIENCES, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx Pxxxx X. XxXxxx By: /s/ Cxxxx Xxxxx Name: Pxxxx X. XxXxxx Name: Cxxxx Xxxxx Title: VP, Finance Title: Relationship Manager NOVASCREEN BIOSCIENCES CORPORATION By: /s/ Pxxxx X. XxXxxx Name: Pxxxx X. XxXxxx Title: VP Schedule 1 & Treasurer XENOGEN CORPORATION By: /s/ Pxxxx X. XxXxxx Name: Pxxxx X. XxXxxx Title: VP & Treasurer XENOGEN BIOSCIENCES CORPORATION By: /s/ Pxxxx X. XxXxxx Name: Pxxxx X. XxXxxx Title: VP & Treasurer EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALA COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: CALIPER LIFE SCIENCES, INC. NOVASCREEN BIOSCIENCES CORPORATION XENOGEN CORPORATION XENOGEN BIOSCIENCES CORPORATION The undersigned authorized officers of Caliper Life Sciences, Inc., NovaScreen Biosciences Corporation, XenogenCorporation, and SPIRE SEMICONDUCTOR, LLC Xenogen Biosciences Corporation (jointly and severally, individually and collectively, “Borrower”) certify that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 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 there 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 financial statements with Compliance Certficate Quarterly within 45 days Yes No Annual financial statement (CPA Audited) FYE within 120 days Yes No Board Approved Projections Annually, as revised Yes No Audit Annually Yes No Borrowing Base Certificate & A/R Agings Monthly within 30 days (when Unrestricted Cash < $20,000,000.00 and months in which Credit Extensions requested or outstanding) Yes No Cash Report Monthly within 15 days Yes No Financial Covenant Required Actual Complies Maintain at all times (tested quarterly): Minimum Adjusted Quick Ratio 1.25:1.0 thru 12/31/06 :1.0 Yes No 1.10:1.0 thereafter :1.0 Yes No Minimum EBITDA-Cap Ex $ * $ Yes No * As set forth in Section 6.7(b) of the Agreement. The following financial covenant analyses and information set forth in Schedule 1 attached hereto are true and accurate as of the date of this Certificate. The following are the exceptions with respect to the certification above: (If no existing Event of Defaultexceptions exist, state “No exceptions to note.”) Caliper Life Sciences, Inc. BANK USE ONLY By: Received by: Name: AUTHORIZED SIGNER Title: Date: NovaScreen Biosciences Corporation Verified: AUTHORIZED SIGNER By: Date: Name: Title: Compliance Status: Yes No Xenogen Corporation By: Name: Title: Xenogen Biosciences Corporation By: Name: Title:
Appears in 1 contract
Samples: First Loan Modification Agreement (Caliper Life Sciences Inc)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION NUMEREX CORP. By: /s/ Xxxxx X. Xxxxxx Xxxxxxxx Xxxxxxxxxx Name: Xxxxxxxx Nicolaides Title: Chief Executive Officer BROADBAND NETWORKS, INC. By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC Xxxxxxxx Xxxxxxxxxx Name: Xxxxxxxx Nicolaides Title: President CELLEMETRY LLC By: /s/ Xxxxx X. Xxxxxx Xxxxxxxx Xxxxxxxxxx Name: Xxxxxxxx Nicolaides Title: Chief Executive Officer DCX SYSTEMS INC. By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC Xxxxxxxx Xxxxxxxxxx Name: Xxxxxxxx Nicolaides Title: Chief Executive Officer DIGILOG. INC. By: /s/ Xxxxx X. Xxxxxx Xxxxxxxx Xxxxxxxxxx Name: Xxxxxxxx Nicolaides Title: Chief Executive Officer NUMEREX GOVERNMENT SERVICES LLC By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORXxxxxxxx Xxxxxxxxxx Name: Xxxxxxxx Nicolaides Title: Chief Executive Officer NUMEREX SOLUTIONS, LLC By: Spire Corporation/s/ Xxxxxxxx Xxxxxxxxxx Name: Xxxxxxxx Nicolaides Title Chief Executive Officer ORBIT ONE COMMUNICATIONS, a Massachusetts corporation, its sole Member and Manager LLC By: /s/ Xxxxx X. Xxxxxx Xxxxxxxx Xxxxxxxxxx Name: Xxxxxxxx Nicolaides Title: President UBLIP, INC. By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Xxxxxxxx Xxxxxxxxxx Name: Xxxxxxxx Nicolaides Title: Chief Executive Officer UPLINK SECURITY, LLC By: /s/ Xxxxxxxx Xxxxxxxxxx Name: Xxxxxxxx Nicolaides Title: Chief Executive Officer CELLEMETRY SERVICES, LLC By: /s/ Xxxxxxxx Xxxxxxxxxx Name: Xxxxxxxx Nicolaides Title: Chief Executive Officer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxxxxx Name: Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IXxxxxxxxx Title: Vice President The undersigned, an authorized officer Numerex Corp., ratifies, confirms and reaffirms, all and singular, the terms and conditions of SPIRE CORPORATIONa certain Securities Pledge Agreement dated April 25, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement 2011 (as amended, the “Securities Pledge Agreement”) between Borrower and acknowledges, confirms and agrees that the Security Pledge Agreement shall remain in full force and effect, in accordance therewith and herewith, and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. NUMEREX CORP. By: /s/ Xxxxxxxx Nicolaides Name: Xxxxxxxx Xxxxxxxxxx Title: Chief Executive Officer EXHIBIT A - BORROWING BASE CERTIFICATE Borrower: Numerex Corp. Lender: Silicon Valley Bank Revolving Line (“Bank”Section 2.1.1) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed ReceivableCommitment Amount: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.$5,000,000
Appears in 1 contract
Samples: First Loan Modification Agreement (Numerex Corp /Pa/)
COUNTERSIGNATURE. This First Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This First Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: WORLD ENERGY SOLUTIONS, INC. By /s/ Xxxxx X. Xxxxxx ByXxxxxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC ByXxxxxxx Title: Chief Financial Officer WORLD ENERGY SECURITIES CORP. By /s/ Xxxxx X. Xxxxxx ByXxxxxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByXxxxxxx Title: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK ByBy /s/ Xxxxx Xxxxx Name: /s/ Xxxx Xxxxxx Xxxx Xxxxxx Xxxxx Xxxxx Title: VP Schedule 1 Exhibit A EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALCOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: _______ FROM: WORLD ENERGY SOLUTIONS, INC. AND WORLD ENERGY SECURITIES CORP. The undersigned authorized officers of World Energy Solutions, Inc., and SPIRE SEMICONDUCTORWorld Energy Securities Corp. (individually and collectively, LLC (jointly and severally, individually and collectively, “Borrower”) ), solely in their capacities as officers of their respective entities, certify that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 Subsidiaries, if any, 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 solely in their capacities as officers of their respective entities, certify that there 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 solely in their capacities as officers of their respective entities, acknowledge that no borrowings may be requested at any time or date of determination that Borrower is no existing Event not in compliance with any of Default.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 financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 90 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No A/R & A/P Agings, Deferred Revenue report, and schedule of expected collections Monthly within 20 days Yes No Borrowing Base Certificate Monthly within 20 Days during Streamline Period Yes No Transaction Report Weekly when not Streamline Period and upon each request for a Credit Extension Yes No Board-approved projections Within 30 days of approval Yes No
Appears in 1 contract
Samples: First Loan Modification Agreement (World Energy Solutions, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: GLOBALOPTIONS, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxxxx Xxxxxx Xxxx Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxxxx Xxxxxx Title: CFO Title: VP THE BODE TECHNOLOGY GROUP, INC. By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: CFO The undersigned, GLOBALOPTIONS GROUP, INC. (“Guarantor”) hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of (a) a certain Unconditional Guaranty (the “Guaranty”) dated as of March 31, 2008, executed and delivered by Guarantor, pursuant to which Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank, (b) a certain Security Agreement (the “Security Agreement”) dated as of March 31, 2008, between Guarantor and Bank, pursuant to which Guarantor granted Bank a continuing first priority security interest in the Collateral (as the term is defined therein) to secure the payment and performance of the Obligations under the Guaranty in accordance with the terms of the Security Agreement, and (c) a certain Intellectual Property Security Agreement (the “IP Agreement”) dated as of March 31, 2008, between Guarantor and Bank, pursuant to which Guarantor granted Bank a continuing first priority security interest in the Intellectual Property Collateral (as the term is defined therein) to secure the payment and performance of the Obligations under the Guaranty in accordance with the terms of the IP Agreement. In addition, Guarantor acknowledges, confirms and agrees that the Guaranty, Security Agreement, and IP Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. GLOBALOPTIONS GROUP, INC. By: /s/Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx Title: Chairman and CEO Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATIONGlobalOptions, SPIRE SOLARInc. and The Bode Technology Group, INC.Inc. (individually and collectively, SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Fourth Amended and Restated Loan and Security Agreement Agreement, as amended from time to time (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's ’s organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005Act. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's ’s or any Subsidiary's ’s properties or assets has have been used by Borrower or any Subsidiary or, to t o the best of Borrower's ’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.
Appears in 1 contract
Samples: Sixth Loan Modification Agreement (GlobalOptions Group, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: WORLD ENERGY SOLUTIONS, INC. /s/ Xxxxx X. Xxxxxx ByXxxxxxx By Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO Xxxxxxx Title: CFO and Treasurer SPIRE SOLAR, INC By: WORLD ENERGY SECURITIES CORP. /s/ Xxxxx X. Xxxxxx ByXxxxxxx By Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByXxxxxxx Title: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By/s/ Xxxxx Xxxxxxxxx By Name: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 Xxxxx Xxxxxxxxx Title: SVP Exhibit A EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALCOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: WORLD ENERGY SOLUTIONS, INC. AND WORLD ENERGY SECURITIES CORP. The undersigned authorized officers of World Energy Solutions, Inc., and SPIRE SEMICONDUCTORWorld Energy Securities Corp. (individually and collectively, LLC (jointly and severally, individually and collectively, “Borrower”) ), solely in their capacities as officers of their respective entities, certify that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 Subsidiaries, if any, 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 solely in their capacities as officers of their respective entities, certify that there 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 solely in their capacities as officers of their respective entities, acknowledge that no borrowings may be requested at any time or date of determination that Borrower is no existing Event not in compliance with any of Default.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 financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 90 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No A/R & A/P Agings, Deferred Revenue report, and schedule of expected collections Monthly within 20 days Yes No Borrowing Base Certificate Monthly within 20 Days during Streamline Period Yes No Transaction Report Weekly when not Streamline Period and upon each request for a Credit Extension Yes No Board-approved projections Within 30 days of approval Yes No
Appears in 1 contract
Samples: Second Loan Modification Agreement (World Energy Solutions, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, is an original, and all taken together, constitute one agreement. Any signatures delivered by a party by facsimile transmission or by email delivery of a copy of such executed counterpart in PDF format shall be as effective as delivery of a manually executed counterpart thereof. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule Xxx Xxxxxxx Name: Xxx Xxxxxxx Title: Director BORROWER: ICAD, INC. By: /s/ Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxx Title: Chief Executive Officer XOFT, INC. By: /s/ Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxx Title: Chief Executive Officer XOFT SOLUTIONS, LLC By: /s/ Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxx Title: Chief Executive Officer SCHEDULE 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLARCOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: ICAD, INC., SPIRE BIOMEDICALXOFT, INC. and SPIRE SEMICONDUCTORXOFT SOLUTIONS, LLC The undersigned authorized officer of ICAD, INC., XOFT INC. and XOFT SOLUTIONS, LLC (individually and collectively, jointly and severally, individually and collectively, “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries has timely filed all required tax returns and reports, and Borrower represents 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, and each of its 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 there 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 no existing Event not in compliance with any of Default.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 Covenants Required Complies Monthly Financial Statements with Compliance Certificate Monthly within 30 days Yes No Form 10-Q Quarterly within 45 days (for first 3 quarters of a fiscal year) Yes No Form 10-K Annually within 90 days of the last quarter of a fiscal year Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No A/R & A/P Agings, Deferred Revenue report and Account Debtor listing Monthly within 30 days Yes No Borrowing Base Reports (i) with each request for an Advance and (ii) monthly within 30 days Yes No Board approved projections Within the earlier of 30 days of (i) Board approval or (ii) fiscal year end, together with any periodic updates Yes No
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: VOXWARE, INC. SILICON VALLEY BANK By: /s/ Xxxx Commons By: /s/ Xxxxxx X. Xxxxxx ---------------------------------- ---------------------------------- Name: Xxxx Commons Name: Xxxxxx VP Schedule 1 X. Xxxxxx -------------------------------- -------------------------------- Title: Vice President & CFO Title: Relationship Manager ------------------------------- ------------------------------- The undersigned, VERBEX ACQUISITION CORPORATION, a Delaware corporation ("Guarantor") hereby: (i) ratifies, confirms and reaffirms, all and singular, the terms and conditions of (A) a certain Unlimited Guaranty of the obligations of Borrower to Bank dated January 27, 2004 (the "Guaranty"), (B) a certain Security Agreement by Guarantor in favor of Bank dated January 27, 2004 (the "Security Agreement");(ii) acknowledges, confirms and agrees that the Guaranty, and Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement or any other documents, instruments and/or agreements executed and/or delivered in connection herewith; and (iii) acknowledges, confirms and agrees that the obligations of Borrower to Bank under the Guaranty include, without limitation, all Obligations of Borrower to Bank under the Loan Agreement, as amended by this Loan Modification Agreement. VERBEX ACQUISITION CORPORATION /s/ Xxxx Commons ------------------------------------ EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IA COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK FROM: VOXWARE, an INC. The undersigned authorized officer of SPIRE CORPORATIONVoxware, SPIRE SOLARInc., INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”the "Agreement"), (i) as follows Borrower is in complete compliance for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns covenants except as noted below and paid, or made adequate provision to pay, (ii) all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date. Attached are the required documents supporting the certification. The Officer certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The Officer 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 Borrower represents that there compliance is no existing Event of Default.determined not just at the date this certificate is delivered. PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN. REPORTING COVENANT REQUIRED COMPLIES ------------------ -------- -------- Interim financial statements with CC Monthly within 30 days Yes No Annual (CPA Audited) FYE within 120 days Yes No Board Minutes Monthly and as requested by Bank Yes No The following Intellectual Property was registered after the Closing Date (if blank, read "None") ------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------------------- ------------------------------------------------------------ ------------- ------------ ----------------- FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES ------------------------------------------------------------ ------------- ------------ ----------------- ------------------------------------------------------------ ------------- ------------ ----------------- Maintain on a Monthly Basis: ------------------------------------------------------------ ------------- ------------ ----------------- Minimum Adjusted Quick Ratio 1.5:1.0 _____:1.0 Yes No ------------------------------------------------------------ ------------- ------------ ----------------- Maintain on a Intra-Quarterly and Quarterly Basis ------------------------------------------------------------ ------------- ------------ ----------------- Minimum Tangible Net Worth $_______* $_______ Yes No ------------------------------------------------------------ ------------- ------------ ----------------- ------------------------------------------------------------ ------------- ------------ ----------------- *As set forth in Section 6.11(b) ------------------------------------------------------------ ------------- ------------ ----------------- ---------------------------------------------- COMMENTS REGARDING EXCEPTIONS: See Attached. BANK USE ONLY Received by: -------------------------------- Sincerely, AUTHORIZED SIGNER Date: -------------------------------------- --------------------------------------- SIGNATURE Verified: -------------------------------------- ----------------------------------- TITLE AUTHORIZED SIGNER Date: -------------------------------------- --------------------------------------- DATE Compliance Status: Yes No ----------------------------------------------
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COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: VOXWARE, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Commons By: /s/ Xxxxxxx Xxxxx --------------------------------- ------------------------------------ Name: Xxxx Xxxxxx VP Schedule 1 Commons Name: Xxxxxxx Xxxxx ------------------------------- ---------------------------------- Title: Chief Financial Officer Title: Relationship Manager ------------------------------ --------------------------------- The undersigned, VERBEX ACQUISITION CORPORATION, a Delaware corporation ("Guarantor") hereby: (i) ratifies, confirms and reaffirms, all and singular, the terms and conditions of (A) a certain Unlimited Guaranty of the obligations of Borrower to Bank dated January 27, 2004 (the "Guaranty"), (B) a certain Security Agreement by Guarantor in favor of Bank dated January 27, 2004 (the "Security Agreement");(ii) acknowledges, confirms and agrees that the Guaranty, and Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement or any other documents, instruments and/or agreements executed and/or delivered in connection herewith; and (iii) acknowledges, confirms and agrees that the obligations of Borrower to Bank under the Guaranty include, without limitation, all Obligations of Borrower to Bank under the Loan Agreement, as amended by this Loan Modification Agreement. VERBEX ACQUISITION CORPORATION /s/ Xxxx Commons ------------------------------- Xxxx Commons Chief Financial Officer EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IA COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: ____________________ FROM: VOXWARE, an INC. The undersigned authorized officer of SPIRE CORPORATIONVoxware, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC Inc. (jointly and severally, individually and collectively, “"Borrower”") certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”the "Agreement"), (1) as follows 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 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 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 generally 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 financial statements with Monthly within 30 days Yes No Compliance Certificate ------------------------------------------------------------- ---------------------------------------- --------------------- Annual financial statement (CPA Audited) + XX XXX within 120 days Yes No ------------------------------------------------------------- ---------------------------------------- --------------------- 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No ------------------------------------------------------------- ---------------------------------------- --------------------- Board approved projections Annually Yes No ---------------------------------------------------------------------------------------------------------------------------- The following Intellectual Property was registered after the Effective Date (if no registrations, state "None") ---------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------- --------------- --------------- ---------------------- FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES --------------------------------------------------------------------- --------------- --------------- ---------------------- --------------------------------------------------------------------- --------------- --------------- ---------------------- --------------------------------------------------------------------- --------------- --------------- ---------------------- Minimum Cash Balances $1,600,000.00 $ Yes No --------------------------------------------------------------------- --------------- --------------- ---------------------- Minimum Tangible Net Worth $______ * $ Yes No --------------------------------------------------------------------- --------------- --------------- ---------------------- * As set forth in Section 6.11(b) of the Agreement The following financial covenant analys[is][es] and information set forth in Schedule 1 attached hereto are true and accurate as of the date of this Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, state "No exceptions to note.") -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------- ----------------------------------------- Voxware, Inc. BANK USE ONLY Received by: _____________________ By:________________________________ (all capitalized terms used herein shall have AUTHORIZED SIGNER Name:______________________________ Date: _________________________ Title:_____________________________ Verified: ________________________ AUTHORIZED SIGNER Date: _________________________ Compliance Status: Yes No -------------------------------------- ----------------------------------------- SCHEDULE 1 TO COMPLIANCE CERTIFICATE FINANCIAL COVENANTS OF BORROWER Dated: ____________________ In the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement event of a material fact or omits to state a material fact necessary to make conflict between this Schedule and the statement contained in Loan Agreement, the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance terms of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Defaultshall control.
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COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Chairman & CEO Title: CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Chairman & CEO Title: CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC ByTitle: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx Title: Vice President Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., . and SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: XXXXXX.XXX, INC. SILICON VALLEY BANK By: /s/ G. Xxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx Name: G. Xxxx Xxxxxxxx Name: Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IX. Xxxxxxx Title: President and Chief Executive Officer Title: Vice President The undersigned, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC XXXXXX.XXX JAMAICA LIMITED (jointly and severally, individually and collectively, “BorrowerXxxxxx.xxx Jamaica Guarantor”) certify under hereby ratifies, confirms and reaffirms, all and singular, the Second Amended terms and Restated conditions of a certain Unconditional Guaranty (the “Guaranty”) dated as of December 19, 2008, executed and delivered by Xxxxxx.xxx Jamaica Guarantor, pursuant to which Xxxxxx.xxx Jamaica Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank. In addition, Xxxxxx.xxx Jamaica Guarantor acknowledges, confirms and agrees that the Guaranty shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. XXXXXX.XXX JAMAICA LIMITED By: /s/ G. Xxxx Xxxxxxxx Name: G. Xxxx Xxxxxxxx Title: Director The undersigned, XXXXXX.XXX SECURITIES CORPORATION (“Xxxxxx.xxx Securities Guarantor”) hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of (a) a certain Unconditional Guaranty (the “Guaranty”) dated as of October 8, 2008, executed and delivered by Xxxxxx.xxx Securities Guarantor, pursuant to which Xxxxxx.xxx Securities Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank, and (b) a certain Security Agreement (as amended, the “Security Agreement”) dated as of October 8, 2008, between Borrower Xxxxxx.xxx Securities Guarantor and Silicon Valley Bank, pursuant to which Xxxxxx.xxx Securities Guarantor granted Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth a continuing first priority security interest in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable Collateral (as the term is an Eligible Account; Borrower is defined therein) to secure the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery payment and performance of the Obligations under the Guaranty in accordance with the terms of the Security Agreement. In addition, Xxxxxx.xxx Securities Guarantor acknowledges, confirms and agrees that the Guaranty and Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Documents have been duly authorizedModification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. XXXXXX.XXX SECURITIES CORPORATION By: /s/ G. Xxxx Xxxxxxxx Name: G. Xxxx Xxxxxxxx Title: President The undersigned, GENESYS SOFTWARE SYSTEMS, INC. (“Genesys Software Systems Guarantor”) hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of (a) a certain Unconditional Guaranty (the “Guaranty”) dated as of March 16, 2009, executed and delivered by Genesys Software Systems Guarantor, pursuant to which Genesys Software Systems Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank, and do not conflict with Borrower's organizational documents(b) a certain Security Agreement (the “Security Agreement”) dated March 16, nor constitute an event of default under any material agreement by which 2009, between Borrower is bound. Borrower is not in default under any agreement and Bank, pursuant to which or by which it is bound Genesys Software Systems Guarantor granted Bank a continuing first priority security interest in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to Collateral (as the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined therein) to secure the payment and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U performance of the Federal Reserve Board of Governors). Borrower has complied Obligations under the Guaranty in all material respects accordance with the Federal Fair Labor Standards Actterms of the Security Agreement. Borrower has not violated any lawsIn addition, ordinances or rulesGenesys Software Systems Guarantor acknowledges, confirms and agrees that the violation Guaranty and Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's this Loan Modification Agreement, or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary orother documents, to the best of Borrower's knowledgeinstruments and/or agreements executed and/or delivered in connection herewith. GENESYS SOFTWARE SYSTEMS, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legallyINC. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.By: /s/ Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx
Appears in 1 contract
Samples: Fourth Loan Modification Agreement (Salary. Com, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. EXISTING BORROWER: SPIRE CORPORATION VELO3D US, INC. By: /s/ Xxxxx X. Xxxxxx Xxxx XxXxxxx Name: Xxxx XxXxxxx Title: Chief Financial officer NEW BORROWER: VELO3D, INC. By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC ByXxxx XxXxxxx Name: /s/ Xxxxx X. Xxxxxx ByXxxx XxXxxxx Title: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Chief Financial officer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxx Title: Managing Director Schedule 1 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, 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) any interest of Borrower as a lessee or sublessee under a real property lease; (b) rights held under a license that are not assignable by their terms without the consent of the licensor thereof (but only to the extent such restriction on assignment is enforceable under applicable law), provided, however, that upon termination of such prohibition, such interest shall immediately become Collateral without any action by Borrower or Bank; (c) any interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by the terms of such lease from granting a security interest in such lease or under which such an assignment or lien would cause a default to occur under such lease; provided, however, that upon termination of such prohibition, such interest shall immediately become Collateral without any action by Borrower or Bank; and (d) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. Schedule 2 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALCOMPLIANCE STATEMENT TO: SILICON VALLEY BANK Date: FROM: VELO3D, INC. VELO3D US, INC. Under the terms and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under conditions of the Second Third Amended and Restated Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”) between ), Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ (with all capitalized required covenants except as noted below. Attached are the required documents evidencing such compliance, setting forth calculations prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. Capitalized terms used but not otherwise defined herein shall have the meaning set forth meanings given them in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and . Please indicate compliance status by circling Yes/No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment companyComplies” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Defaultcolumn.
Appears in 1 contract
Samples: Joinder and Fourth Loan Modification Agreement (Velo3D, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: BRIGHTCOVE INC. SILICON VALLEY BANK By: /s/ Xxxx Cxxxxxxxxxx Xxxxxx Xxxx By: Name: Cxxxxxxxxxx Xxxxxx VP Schedule Name: Title: CFO Title: This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: BANK: BRIGHTCOVE INC. SILICON VALLEY BANK By: By: /s/ Sxx Xxxxxxx Name: Name: Sxx Xxxxxxx Title: Title: Vice President SCHEDULE 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, BRIGHTCOVE INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank in respect of a Financed Receivable contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and misleading in good standing in its state light of formation and qualified and licensed to do business in, and in good standing in, any state the circumstances in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Defaultthey were made.
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Sixth Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: TRUSTWAVE HOLDINGS, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx XxXxxxxx By: Name: Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALXxXxxxxx Name: Title: Chief Executive Officer Title: TRUSTWAVE INTERMEDIATE, INC. By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer TW VERICEPT CORPORATION By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer TRUSTWAVE GOVERNMENT SOLUTIONS, INC. By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer The undersigned, TRUSTWAVE LIMITED, a company registered in England & Wales, ratifies, confirms and SPIRE SEMICONDUCTORreaffirms, LLC all and singular, the terms and conditions of a certain Deed of Guarantee in favor of Bank dated September 25, 2008 (jointly and severally, individually and collectively, the “BorrowerGuarantee”) certify under and acknowledges, confirms and agrees that the Second Amended Guarantee shall remain in full force and Restated effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection therewith. TRUSTWAVE LIMITED By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer and Security Agreement (as amendedPresident The undersigned, TRUSTWAVE HOLDINGS LIMITED, a company registered in England & Wales, ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Deed of Guarantee in favor of Bank dated November 27, 2007 (the “AgreementGuarantee”) between Borrower and Silicon Valley Bank (“Bank”) as follows for acknowledges, confirms and agrees that the period ending _____________________________ (all capitalized terms used herein Guarantee shall have remain in full force and effect and shall in no way be limited by the meaning set forth in the execution of this Loan Modification Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is boundinstruments and/or agreements executed and/or delivered in connection therewith. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good TRUSTWAVE HOLDINGS LIMITED By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.President
Appears in 1 contract
Samples: Sixth Loan Modification Agreement (Trustwave Holdings, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and BankBank (provided, however, in no event shall this Loan Modification Agreement become effective until signed by an officer of Bank in California). This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION BANK: SYNCHRONICITY, INC. SILICON VALLEY BANK doing business a as SILICON VALLEY EAST By: /s/ Xxxxx X. Xxxxxx Eugexx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By________________________________ __________________________________ Name: /s/ Xxxxx X. Xxxxxx By________________________________ Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By______________________________ Title: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: _______________________________ Title:______________________________ SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending ________________________________ Name: ______________________________ Title:_______________________________ (all capitalized terms used herein shall have signed in Santa Clarx County, California) CORPORATE RESOLUTIONS FOR AMENDING LOAN ARRANGEMENT ________________________, being the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sellClerk of SYNCHRONICITY, transferINC., assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendereda corporation duly organized, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business invalidly existing, and in good standing in, any state in which under the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance laws of the Loan Documents have Commonwealth of Massachusetts, CERTIFIES that the following resolutions were adopted CHECK / / at a duly called and conducted meeting of the Directors of said corporation held on ________________________ at which a quorum was present and voting throughout. / / by the unanimous consent of the Directors of said corporation, the originals of which consents having been duly authorizedplaced with the records of meetings of Directors of said corporation, and do not conflict are in conformity with Borrower's organizational the Articles of incorporation and By-Laws of said corporation (each as amended to date) and that each of the following resolutions presently is in full force and effect without change: AMENDMENT OF LOAN ARRANGEMENT RESOLVED, That this corporation amend its loan arrangements) with Silicon Valley Bank (hereinafter, with any successor, the "Bank") in such manner as has been or is hereafter discussed and negotiated by and between the Bank on the one hand and any of the following, acting on behalf of this corporation, on the other: Insert title, only, if Persons to act on behalf of corporation have titles. otherwise, insert names. In connection with the foregoing, each of said officers and/or persons, acting as described above, is authorized to execute, seal, acknowledge, and deliver in the name of and on behalf of this corporation such instruments, documents, nor constitute an event and papers which relate thereto as may be appropriate, each in such form and upon such terms as the officer(s) and/or person(s) so authorized determines, such execution and delivery to be conclusive of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement such officer'(s) and/or person' (s) authority so to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used act in the Public Utility Holding Company Act name of 2005. Borrower is not engaged as one and on behalf of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Defaultcorporation.
Appears in 1 contract
Samples: First Loan Modification Agreement (Synchronicity Inc)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts Massachusetts, as of the date first written aboveSixth Loan Modification Effective Date. BORROWER: SPIRE CORPORATION BANK: BRIDGELINE DIGITAL, INC. By: /s/ /s/Xxxxxxx Xxxxx Name: Xxxxxxx X. Xxxxxx ByXxxxx Title: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: Chief Accounting Officer SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Relationship Manager BRIDGELINE INTELLIGENCE GROUP, INC. By: /s/Xxxxxxx Xxxxx Name: Xxxxxxx X. Xxxxx Title: Treasurer EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IA- COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: BRIDGELINE DIGITAL, an INC. BRIDGELINE INTELLIGENCE GROUP, INC. The undersigned authorized officer of SPIRE CORPORATIONBridgeline Digital, SPIRE SOLARInc. and Bridgeline Intelligence Group, INC.Inc. (individually and collectively, SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, the “Borrower”) certify certifies that under the Second terms and conditions of the Amended and Restated Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 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 there 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 no existing Event not in compliance with any of Default.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 financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) FYE within 150 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No A/R & A/P Agings, Transaction Reports and Deferred Revenue reports* Monthly within 30 days Yes No Board-approved projections Annually, w/in 45 days of approval and as amended Yes No Borrowing Base Certificate* Monthly within 30 days and with each request for a Credit Extension Yes No
Appears in 1 contract
Samples: Sixth Loan Modification Agreement (Bridgeline Digital, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Chief Executive Officer By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO Title: Chief Financial Officer and Treasurer SPIRE SOLAR, INC INC. By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Chief Executive Officer By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO Title: Chief Financial Officer and Treasurer SPIRE BIOMEDICAL,INC , INC. By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Chief Executive Officer By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO Title: Chief Financial Officer and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Chief Executive Officer By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO Title: Chief Financial Officer and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx VP Title: Vice President Schedule 1 EXHIBIT B SVB>Silicon Valley Bank A Member of SVB Financial Group SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's ’s organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's ’s or any Subsidiary's ’s properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's ’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: GLOBALOPTIONS, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxxxx Xxxxxx Xxxx Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxxxx Xxxxxx Title: CFO Title: VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALTHE BODE TECHNOLOGY GROUP, INC. and SPIRE SEMICONDUCTORBy: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: CFO The undersigned, LLC GLOBALOPTIONS GROUP, INC. (jointly and severally, individually and collectively, “BorrowerGuarantor”) certify under hereby ratifies, confirms and reaffirms, all and singular, the Second Amended terms and Restated Loan conditions of (a) a certain Unconditional Guaranty (the “Guaranty”) dated as of March 31, 2008, executed and delivered by Guarantor, pursuant to which Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank, (b) a certain Security Agreement (as amended, the “Security Agreement”) dated as of March 31, 2008, between Borrower Guarantor and Silicon Valley Bank, pursuant to which Guarantor granted Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth a continuing first priority security interest in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable Collateral (as the term is an Eligible Account; Borrower is defined therein) to secure the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery payment and performance of the Loan Documents have been duly authorizedObligations under the Guaranty in accordance with the terms of the Security Agreement, and do not conflict with Borrower's organizational documents(c) a certain Intellectual Property Security Agreement (the “IP Agreement”) dated as of March 31, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement 2008, between Guarantor and Bank, pursuant to which or by which it is bound Guarantor granted Bank a continuing first priority security interest in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to Intellectual Property Collateral (as the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined therein) to secure the payment and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U performance of the Federal Reserve Board of Governors). Borrower has complied Obligations under the Guaranty in all material respects accordance with the Federal Fair Labor Standards Actterms of the IP Agreement. Borrower has not violated any lawsIn addition, ordinances or rulesGuarantor acknowledges, confirms and agrees that the violation Guaranty, Security Agreement, and IP Agreement shall remain in full force and effect and shall in no way be limited by the execution of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's this Loan Modification Agreement, or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary orother documents, to the best of Borrower's knowledgeinstruments and/or agreements executed and/or delivered in connection herewith. GLOBALOPTIONS GROUP, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legallyINC. Borrower By: /s/ Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx Title: Chairman and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.CEO
Appears in 1 contract
Samples: Fifth Loan Modification Agreement (GlobalOptions Group, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: VOXWARE, INC. SILICON VALLEY BANK By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxxxxxxxx Name: Xxxxx Xxxxxx Name: Xxxx Xxxxxxxxxxx Title: CEO Title: VP The undersigned, VERBEX ACQUISITION CORPORATION, a Delaware corporation (“Guarantor”) hereby: (i) ratifies, confirms and reaffirms, all and singular, the terms and conditions of (A) a certain Unlimited Guaranty of the obligations of Borrower to Bank dated January 27, 2004 (the “Guaranty”), (B) a certain Security Agreement by Guarantor in favor of Bank dated January 27, 2004 (the “Security Agreement”);(ii) acknowledges, confirms and agrees that the Guaranty, and Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement or any other documents, instruments and/or agreements executed and/or delivered in connection herewith; and (iii) acknowledges, confirms and agrees that the obligations of Borrower to Bank under the Guaranty include, without limitation, all Obligations of Borrower to Bank under the Loan Agreement, as amended by this Loan Modification Agreement. VERBEX ACQUISITION CORPORATION By: /s/ Xxxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IName: Xxxxx Xxxxxx COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: VOXWARE, an INC. The undersigned authorized officer of SPIRE CORPORATIONVoxware, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC Inc. (jointly and severally, individually and collectively, “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows 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 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 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 generally 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 financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 120 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No Borrowing Base Certificate A/R Agings Monthly within 30 days Yes No Audit Annually and within 45 days of Effective Date Yes No Board approved projections Annually Yes No The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”) _______________________________________________________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and Financial Covenant Required Actual Complies Minimum Cash Balances $2,500,000.00 $ Yes No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant Minimum Cumulative Net Loss/Net Income $______* $ Yes No Adjusted Quick Ratio** Actual Minimum Adjusted Quick Ratio * As set forth in Section 6.7 6.7(b) of the AgreementAgreement ** Note, this is not a financial covenant. All other representations The following financial covenant analyses and warranties information set forth in the Agreement Schedule 1 attached hereto are true and correct in all material respects on accurate as of the date of this dateCertificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, and Borrower represents that there is no existing Event of Defaultstate “No exceptions to note.”) Voxware, Inc. By: Name: Title: BANK USE ONLY Received by: AUTHORIZED SIGNER Date: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes No Schedule 1 to Compliance Certificate
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and BankLender. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION REAL GOODS ENERGY TECH, INC. REAL GOODS SYNDICATED, INC. By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Dxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLARName: Dxxxxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer ALTERIS RENEWABLES, INC INC. By: /s/ Name: Dxxxxx Xxxxx X. Xxxxxx ByTitle: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORChief Executive Officer MERCURY ENERGY, INC. ELEMENTAL ENERGY, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Name: Dxxxxx Xxxxx X. Xxxxxx ByName: /s/ Xxxxxx X. Xxxxxxxxx Dxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANKTitle: SILICON VALLEY BANK ByChief Executive Officer Title: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE Chief Executive Officer REAL GOODS SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR- MERCURY SOLAR SUNETRIC MANAGEMENT LLC By: By: Name: Dxxxxx Xxxxx Name: Dxxxxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer LENDER: SOLAR SOLUTIONS AND DISTRIBUTION, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending By___________________________________ (Name:________________________________ Title:_________________________________ Acknowledgment and Agreement: The undersigned ratifies, confirms and reaffirms, all capitalized and singular, the terms used herein and conditions of a certain Second Amended and Restated Unconditional Guaranty and a certain Second Amended and Restated Security Agreement, each dated as of June 6, 2014, and each document executed in connection therewith, and acknowledges, confirms and agrees that the Second Amended and Restated Unconditional Guaranty, Second Amended and Restated Security Agreement and each document executed in connection therewith shall have remain in full force and effect and shall in no way be limited by the meaning set forth execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. REAL GOODS SOLAR, INC. By:________________________________ Name: Dxxxxx Xxxxx Title: Chief Executive Officer Eligible Inventory includes inventory accepted by Seller as eligible based on a monthly Review of Buyers Inventory. Seller agrees to include up to 75% of all inventory purchased by Buyer from Seller or Seller’s affiliates in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Defaultborrowing base.
Appears in 1 contract
Samples: Loan Modification and Waiver Agreement (Real Goods Solar, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION REAL GOODS ENERGY TECH, INC. REAL GOODS SYNDICATED, INC. By: /s/ Dxxxxx Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Dxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLARName: Dxxxxx Xxxxx Name: Dxxxxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer REAL GOODS ENERGY TRADING CORPORATION ALTERIS RENEWABLES, INC INC. By: /s/ Dxxxxx Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Dxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByName: /s/ Dxxxxx Xxxxx X. Xxxxxx ByName: /s/ Xxxxxx X. Xxxxxxxxx Dxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORTitle: Chief Executive Officer Title: Chief Executive Officer MERCURY ENERGY, INC. ELEMENTAL ENERGY, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager /s/ Dxxxxx Xxxxx By: /s/ Dxxxxx Xxxxx X. Xxxxxx Name: Dxxxxx Xxxxx Name: Dxxxxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer REAL GOODS SOLAR, INC. - MERCURY SOLAR SUNETRIC MANAGEMENT LLC By: /s/ Xxxxxx X. Xxxxxxxxx Dxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer By: /s/ Dxxxxx Xxxxx Name: Dxxxxx Xxxxx Name: Dxxxxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ITxxxxx Xxxxx Name: Txxxxx Xxxxx Title: Vice President Acknowledgment and Agreement: The undersigned ratifies, an authorized officer confirms and reaffirms, all and singular, the terms and conditions of SPIRE CORPORATIONa certain Second Amended and Restated Unconditional Guaranty and a certain Second Amended and Restated Security Agreement, SPIRE SOLAReach dated as of June 6, INC.2014, SPIRE BIOMEDICALand each document executed in connection therewith, INC. and SPIRE SEMICONDUCTORacknowledges, LLC (jointly confirms and severally, individually and collectively, “Borrower”) certify under agrees that the Second Amended and Restated Unconditional Guaranty, Second Amended and Restated Security Agreement and each document executed in connection therewith shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. REAL GOODS SOLAR, INC. By: /s/ Dxxxxx Xxxxx Name: Dxxxxx Xxxxx Title: Chief Executive Officer EXHIBIT B COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: REAL GOODS ENERGY TECH, INC. ET. AL. The undersigned authorized officer of REAL GOODS ENERGY TECH, INC., et al. (the “Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 Subsidiaries, if any, 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 there 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 financial statements with Compliance Certificate Monthly within 30 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No Annual Audited Financial Statements FYE within 120 days A/R & A/P Agings Monthly within 20 days Yes No Transaction Reports Weekly and with each request for a Credit Extension (Monthly within 20 days during a Streamline Period) Yes No Projections Within 20 days of board approval (no existing Event later than 60 days after FYE) Yes No Daily/Weekly Cash Flow Projections on the fifteenth (15th) and the last Business Day of Default.each month Yes No Deferred Revenue Report, Schedule of Assets with respect to 3rd party construction and financing arrangements (including performance bonds and bank statements For non-SVB bank accounts) Monthly within 30 days Yes No Electronic viewing access to Wxxxx Fargo Account Ongoing Yes No The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”)
Appears in 1 contract
Samples: Tenth Loan Modification and Waiver Agreement (Real Goods Solar, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. [The remainder of this page is intentionally left blank] This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: BRIGHTCOVE INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxxxxxxx Xxxxxx Xxxx By: Name: Xxxxxxxxxxx Xxxxxx VP Name: Title: CFO Title: This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: BANK: BRIGHTCOVE INC. SILICON VALLEY BANK By: By: /s/ Xxx Xxxxxxx Name: Name: Xxx Xxxxxxx Title: Title: Vice President Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, BRIGHTCOVE INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank in respect of a Financed Receivable contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and misleading in good standing in its state light of formation and qualified and licensed to do business in, and in good standing in, any state the circumstances in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Defaultthey were made.
Appears in 1 contract
Samples: Third Loan Modification Agreement
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Chairman & CEO Title: CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Chairman & CEO Title: CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Chairman & CEO Title: CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Chairman & CEO Title: CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx VP Title: Vice President Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Export-Import Bank Loan and Security Agreement (as amended, the “Exim Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Exim Agreement): Borrower represents and warrants for each Financed Receivable: Receivable (other than Financed Receivables based upon Exim Inventory Placeholder Invoices): Each Financed Receivable is an Eligible Foreign Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. All statements made and all unpaid balances appearing in all invoices, instruments and other documents evidencing the Financed Receivable are and shall be true and correct and all such invoices, instruments and other documents, and all of Borrower's Books are genuine and in all respects what they purport to be; All sales and other transactions underlying or giving rise to each Financed Receivable shall comply in all material respects with all applicable laws and governmental rules and regulations; and To the best of Borrower's knowledge, all signatures and endorsements on all documents, instruments, and agreements relating to each Financed Receivable are genuine, and all such documents, instruments and agreements are legally enforceable in accordance with their terms. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this dateWith respect to Exim Inventory Placeholder Invoices, and Borrower represents and warrants that there all of Borrower's Inventory which is no existing Event the subject of Defaultany Exim Inventory Placeholder Invoice is and will continue to be Eligible Export-Related Inventory.
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: XTANT MEDICAL HOLDINGS, INC. By /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxxxxxx Name: Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLARXxxxxxxxxx Title: Chief Executive Officer BACTERIN INTERNATIONAL, INC By: /s/ Xxxxx X. Xxxxxx By: INC. By /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxxxxxx Name: Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByXxxxxxxxxx Title: /s/ Xxxxx X. Xxxxxx By: President X-SPINE SYSTEMS, INC. By /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxxxxxx Name: Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORXxxxxxxxxx Title: Chief Executive Officer XTANT MEDICAL, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: INC. By /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxxxxxx Name: Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANKXxxxxxxxxx Title: Chief Executive Officer BANK SILICON VALLEY BANK By /s/ Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx Title: Vice President Exhibit A to First Loan Modification Agreement EXHIBIT B COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK ByDate: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ FROM: XTANT MEDICAL HOLDINGS, INC. BACTERIN INTERNATIONAL, INC. X-SPINE SYSTEMS, INC. XTANT MEDICAL, INC. The undersigned authorized officer of XTANT MEDICAL HOLDINGS, INC., a Delaware corporation (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is “Holdings”), BACTERIN INTERNATIONAL, INC., a Nevada corporation (“Bacterin”), X-SPINE SYSTEMS, INC., an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business inOhio corporation (“X-spine”), and in good standing inXTANT MEDICAL, any state in which INC., a Delaware corporation (“Xtant”, and together with Holdings, Bacterin and X-spine, individually and collectively, jointly and severally, the conduct of its business or its ownership of property requires “Borrower”) certifies that it be qualified except where under the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery terms and performance conditions of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Security Agreement between Borrower and each Subsidiary has timely filed all required tax returns and paidBank (the “Agreement”), or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. (1) Borrower is in complete compliance for the period ending _______________ with the financial covenant set forth in Section 6.7 all required covenants except as noted below, (2) there are no Events of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 Subsidiaries, if any, 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 there 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 no existing Event not in compliance with any of Defaultthe 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
Samples: First Loan Modification Agreement (Xtant Medical Holdings, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts Massachusetts, as of the date first written aboveNinth Loan Modification Effective Date. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALBRIDGELINE DIGITAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending By: __/s/ Xxxxxxx Xxxxx ________________ Name: Xxxxxxx X. Xxxxx Title: Chief Financial Officer SILICON VALLEY BANK By: ____/s/ Xxxxxxx Xxxxxxxx _________________ Name:_Jocelyn Hartmann________________ Title: _Vice President______________________ BRIDGELINE INTELLIGENCE GROUP, INC. By: __/s/ Xxxxxxx Xxxxx _____________________ Name: Xxxxxxx X. Xxxxx Title: Treasurer EXHIBIT A- COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: BRIDGELINE DIGITAL, INC. BRIDGELINE INTELLIGENCE GROUP, INC. The undersigned authorized officer of Bridgeline Digital, Inc. and Bridgeline Intelligence Group, Inc. (all capitalized individually and collectively, jointly and severally, the “Borrower”) certifies that under the terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as conditions of the Advance Request Amended and Invoice Transmittal date; Each Financed Receivable is based on an actual sale Restated Loan and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Security Agreement between Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, Bank (as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or“Agreement”), to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. (1) Borrower is in complete compliance for the period ending _______________ with the financial covenant set forth in Section 6.7 all required covenants except as noted below, (2) there are no Events of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 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 there 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 no existing Event not in compliance with any of Defaultthe 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
Samples: Ninth Loan Modification and Waiver Agreement (Bridgeline Digital, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. Portions of this Exhibit, indicated by the mxxx “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CHYRON CORPORATION By: /s/ Xxxxx X. Xxxxxx ByJxxxx Xxxxxxxxx Name: /s/ Xxxxxx X. Jxxxx Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman Title: SVP & CEO CFO CFO, Treasurer and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Corporate Secretary BANK: SILICON VALLEY BANK By: /s/ A. Bxxxxx Xxxx Xxxxxx Arrante Name: A. Bxxxxx Xxxx Xxxxxx VP Schedule Arrante Title: Vice President Portions of this Exhibit, indicated by the mxxx “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. EXHIBIT 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an D - COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: CHYRON CORPORATION The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC CHYRON CORPORATION (jointly and severally, individually and collectively, “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 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 there 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 no existing Event not in compliance with any of Defaultthe 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 financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) FYE within 90 days Yes No Transaction Reports Monthly within 30 days and with each request for an Advance Yes No A/R & A/P Agings Monthly within 20 days Yes No Board-approved projections FYE within 60 days, and contemporaneously with any updates or changes thereto Yes No Portions of this Exhibit, indicated by the mxxx “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and BankBank (provided, however, in no event shall this Loan Modification Agreement become effective until signed by an officer of Bank in California). [The remainder of this page is intentionally left blank] This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE BANK: MOLDFLOW CORPORATION SILICON VALLEY BANK, doing business as SILICON VALLEY EAST By: /s/ Xxxxx Xxxxxxx X. Xxxxxx XxxXxxxxxx By: /s/ Xxxxxx Xxxx Xxxxxxxxx ________________________________ __________________________________ Name: Xxxxxxx X. XxxXxxxxxx Name: Xxxx Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By_______________________________ _________________________________ Title: /s/ Xxxxx X. Xxxxxx ByExecutive Vice President Title: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: ______________________________ ________________________________ SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending :___________________________________ Name:_________________________________ Title:________________________________ (all capitalized signed in Santa Xxxxx County, California) EXHIBIT A COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK FROM: MOLDFLOW CORPORATION The undersigned authorized officer of Moldflow Corporation certifies that under the terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance conditions of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Agreement between Borrower and each Subsidiary has timely filed all required tax returns and paidBank (the "Agreement"), or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. (i) Borrower is in complete compliance for the period ending _____ _____ _____ with the financial covenant set forth in Section 6.7 of the Agreement. All other all required covenants except as noted below and (ii) all representations and warranties in the Agreement are true and correct in all material respects on this date. Attached are the required documents supporting the certification. The Officer certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The Officer 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 Borrower represents that there compliance is no existing Event of Default.determined not just at the date this certificate is delivered. PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN. REPORTING COVENANT REQUIRED COMPLIES ------------------ -------- -------- Interim financial statements with CC Quarterly within 30 days Yes No Monthly if Advances outstanding Annual (CPA Audited) FYE within 120 days Yes No BBC with A/R Agings Monthly within 25 in which Advances Yes No outstanding Quarterly within 45 days in which Credit Extension (other than Advances) outstanding
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. [The remainder of this page is intentionally left blank] This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION BANK: CONSTANT CONTACT, INC. SILICON VALLEY BANK By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxx By--------------------------- --------------------------- Name: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman ------------------------- ------------------------- Title: VP & CEO CFO and & Treasurer SPIRE SOLAR, INC ByTitle: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANKVice President ------------------------ ------------------------ EXHIBIT A COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK ByFROM: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICONSTANT CONTACT, an INC. The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALCONSTANT CONTACT, INC. hereby certifies that in accordance with the terms and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under conditions of the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”the "Agreement"), (i) as follows Borrower is in complete compliance for the period ending ________________ with all required covenants except as noted below and (ii) all representations and warranties of Borrower stated in the Agreement are true and correct in all material respects as of the date hereof. Attached herewith are the required documents supporting the certification. The Officer further certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The Officer expressly acknowledges that no borrowings may be requested by the Borrower at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that such compliance is determined not just at the date this certificate is delivered. PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN. REPORTING COVENANT REQUIRED COMPLIES ------------------ -------- -------- Monthly financial statements with CC Monthly within 30 days Yes No Annual (CPA Audited) FYE within 180 days Yes No Board Approved Operating Plan FYE within 10 days Yes No The following Intellectual Property was registered after the Closing Date (if blank, read "None") ____________________________________________________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.____________________________________________________________________
Appears in 1 contract
Samples: Loan Modification Agreement (Constant Contact, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE BORROWER REAL GOODS ENERGY TECH, INC. REAL GOODS TRADING CORPORATION By: Name: Title: /s/ Xxx Xxxxx X. Xxxxxx Xxx Xxxxx CEO By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC ByName: Title: /s/ Xxx Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORALTERIS RENEWABLES, INC. EARTH FRIENDLY ENERGY GROUP HOLDINGS, LLC By: Spire CorporationName: Title: /s/ Xxx Xxxxx Xxx Xxxxx CEO By: Name: Title: /s/ Xxx Xxxxx Xxx Xxxxx CEO EARTH FRIENDLY ENERGY GROUP, a Massachusetts corporationLLC SOLAR WORKS, its sole LLC By: Name: Title: /s/ Xxx Xxxxx Xxx Xxxxx CEO By: Name: Title: /s/ Xxx Xxxxx Xxx Xxxxx CEO ALTERIS ISI, LLC ALTERIS RPS, LLC By: Alteris Renewables, Inc. Its: Sole Member and Manager By: Alteris Renewables, Inc. Its: Sole Member By: Name: Title: /s/ Xxx Xxxxx Xxx Xxxxx CEO By: Name: Title: /s/ Xxx Xxxxx Xxx Xxxxx CEO REAL GOODS SOLAR, INC. (solely for purposes of Section 6) By: /s/ Xxx Xxxxx X. Xxxxxx ByName: /s/ Xxxxxx X. Xxxxxxxxx Title: Xxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 Elisa Sun Name: Title: Elisa Sun Relationship Manager Acknowledgment and Agreement: The undersigned ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Unconditional Guaranty and a certain Security Agreement, each dated as of December 19, 2012, and each document executed in connection therewith, and acknowledges, confirms and agrees that the Unconditional Guaranty, Security Agreement and each document executed in connection therewith shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. REAL GOODS SOLAR, INC. By: /s/ Xxx Xxxxx Name: Title: Xxx Xxxxx CEO Exhibit A to Second Loan Modification Agreement EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: REAL GOODS ENERGY TECH, an INC. ET. AL. The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLARREAL GOODS ENERGY TECH, INC., SPIRE BIOMEDICAL, INCet al. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, the “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 Subsidiaries, if any, 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 there 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 financial statements with Compliance Certificate Monthly within 30 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No A/R & A/P Agings Monthly within 20 days Yes No Transaction Reports Weekly and with each request for a Credit Extension (Monthly within 20 days during a Streamline Period) Yes No Projections Within 20 days of board approval (no existing Event later than 60 days after FYE – for FY 2013, on or before December 31, 2012) Yes No Deferred Revenue Report, Schedule of DefaultAssets with respect to 3rd party construction and financing arrangements (including performance bonds and bank statements for non-SVB bank accounts) Monthly within 30 days Yes No The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”) Financial Covenant Required Actual Complies/Streamline Maintain as indicated: Liquidity Ratio (monthly) 1:50:1.00 :1.00 Yes No Borrower’s unrestricted cash at Bank $ 500,000 $ Yes No Streamline Period (Qualified Cash minus the total outstanding Obligations of Borrower owed to Bank) $ 2,000,000 $ Yes No The following financial covenant analyses and information set forth in Schedule 1 attached hereto are true and accurate as of the date of this Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”) REAL GOODS ENERGY TECH, INC. BANK USE ONLY By: Received by: Name: AUTHORIZED SIGNER Title: Date: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes No
Appears in 1 contract
Samples: Second Loan Modification and Reinstatement Agreement (Real Goods Solar, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower Xxxxxxxx and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. EXISTING BORROWER: SPIRE CORPORATION ByEDGIO, INC. By /s/ Xxx Xxxxx Name: Xxx Xxxxx Title: CEO NEW BORROWER LIMELIGHT MIDCO, INC. By /s/ Xxxxx X. Xxxxxxx XxXxxxx Name: Xxxxxxx XxXxxxx Title: Director, President, Secretary & Treasurer LIMELIGHT ACQUISITIONCO, INC. By /s/ Xxxxxxx XxXxxxx Name: Xxxxxxx XxXxxxx Title: Director, President, Secretary & Treasurer EDGECAST INC. By /s/ Xxxxxxx Xxxxxx ByName: /s/ Xxxxxxx Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman Title: Director, President & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Secretary BANK: SILICON VALLEY BANK By: By /s/ Xxxx Xxxxxx Xxxxxxx Name: Xxxx Xxxxxx VP Xxxxxxx Title: Director Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALCOMPLIANCE STATEMENT TO: SILICON VALLEY BANK Date: FROM: EDGIO, INC. LIMELIGHT MIDCO, INC. LIMELIGHT ACQUISITIONCO, INC. EDGECAST INC. Under the terms and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under conditions of the Second Amended and Restated Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ (with all capitalized required covenants except as noted below. Attached are the required documents evidencing such compliance, setting forth calculations prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. Capitalized terms used but not otherwise defined herein shall have the meaning set forth meanings given them in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and . Please indicate compliance status by circling Yes/No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment companyComplies” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Defaultcolumn.
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: :SPIRE CORPORATION By: /s/ CORPORATIONBy:___/s/ Xxxxx X. Xxxxxx ByLittle___Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx LittleTitle: Chairman & CEO By:___/s/ Xxxxxx X. Lieberman___Name: Xxxxxx X. LiebermanTitle: CFO and & Treasurer SPIRE SOLAR, INC By: /s/ XXX.Xx:___/s/ Xxxxx X. Xxxxxx ByLittle___Name: /s/ Xxxxx X. LittleTitle: Director & President By:___/s/ Xxxxxx X. Xxxxxxxxx Lieberman___Name: Xxxxxx X. LiebermanTitle: CFO & Treasurer SPIRE OPTOELECTRONICS, XXX.Xx:___/s/ Xxxxx X. Xxxxxx Little___Name: Xxxxx X. LittleTitle: Director & President By:___/s/ Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByLieberman___Name: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman LiebermanTitle: CFO & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Xxxxx Sperling____ Name: Xxxxx Xxxxxxxx Title: Vice President Schedule 1 EXHIBIT B SVB - Silicon Valley Bank A Member of SVB Financial Group SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., . and SPIRE BIOMEDICALOPTOELECTRONICS, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's ’s organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's ’s or any Subsidiary's ’s properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's ’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Chairman & CEO Title: CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Chairman & CEO Title: CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC ByTitle: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx Title: Vice President Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., . and SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Export-Import Bank Loan and Security Agreement (as amended, the “Exim Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Exim Agreement): Borrower represents and warrants for each Financed Receivable: Receivable (other than Financed Receivables based upon Exim Inventory Placeholder Invoices): Each Financed Receivable is an Eligible Foreign Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. All statements made and all unpaid balances appearing in all invoices, instruments and other documents evidencing the Financed Receivable are and shall be true and correct and all such invoices, instruments and other documents, and all of Borrower's Books are genuine and in all respects what they purport to be; All sales and other transactions underlying or giving rise to each Financed Receivable shall comply in all material respects with all applicable laws and governmental rules and regulations; and To the best of Borrower's knowledge, all signatures and endorsements on all documents, instruments, and agreements relating to each Financed Receivable are genuine, and all such documents, instruments and agreements are legally enforceable in accordance with their terms. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this dateWith respect to Exim Inventory Placeholder Invoices, and Borrower represents and warrants that there all of Borrower's Inventory which is no existing Event the subject of Defaultany Exim Inventory Placeholder Invoice is and will continue to be Eligible Export-Related Inventory.
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE BORROWER REAL GOODS ENERGY TECH, INC. REAL GOODS TRADING CORPORATION By: /s/ Xxxxx Xxxxxxx X. Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx Xxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLARXxxxxxx Title: Chief Financial Officer Title: Chief Financial Officer ALTERIS RENEWABLES, INC INC. By: /s/ Xxxxx Xxxxxxx X. Xxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Chief Financial Officer REAL GOODS SOLAR, INC. (solely for purposes of Section 7) By: /s/ Xxxxxx Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByXxxxxxx Title: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Chief Financial Officer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IElisa Sun Name: Elisa Sun Title: Vice President Acknowledgment and Agreement: The undersigned ratifies, an authorized officer confirms and reaffirms, all and singular, the terms and conditions of SPIRE CORPORATIONa certain Unconditional Guaranty and a certain Security Agreement, SPIRE each dated as of December 19, 2011, and each document executed in connection therewith, and acknowledges, confirms and agrees that the Unconditional Guaranty, Security Agreement and each document executed in connection therewith shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. REAL GOODS SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed ReceivableBy: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows/s/ Xxxxxxx X. Xxxxxxx Name: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.Xxxxxxx X. Xxxxxxx Title: Chief Financial Officer
Appears in 1 contract
Samples: Third Loan Modification Agreement (Real Goods Solar, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Joinder and Fourth Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: TRUSTWAVE HOLDINGS, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx XxXxxxxx By: /s/ Xxx Wetez Name: Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALXxXxxxxx Name: Xxx Wetez Title: Chief Executive Officer Title: Relationship Manager TRUSTWAVE INTERMEDIATE, INC. By: /s/ Xxxxxx XxXxxxxx Name: Xxxxxx XxXxxxxx Title: Chief Executive Officer TW VERICEPT CORPORATION By: /s/ Xxxxxx XxXxxxxx Name: Xxxxxx XxXxxxxx Title: Chief Executive Officer TRUSTWAVE GOVERNMENT SOLUTIONS, INC. By: /s/ Xxxxxx XxXxxxxx Name: Xxxxxx XxXxxxxx Title: Chief Executive Officer The undersigned, TRUSTWAVE LIMITED, a company registered in England & Wales, ratifies, confirms and SPIRE SEMICONDUCTORreaffirms, LLC all and singular, the terms and conditions of a certain Deed of Guarantee in favor of Bank dated September 25, 2008 (jointly and severally, individually and collectively, the “BorrowerGuarantee”) certify under and acknowledges, confirms and agrees that the Second Amended Guarantee shall remain in full force and Restated effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection therewith. TRUSTWAVE LIMITED By: /s/ Xxxxxx XxXxxxxx Name: Xxxxxx XxXxxxxx Title: Director The undersigned, TRUSTWAVE HOLDINGS LIMITED, a company registered in England & Wales, ratifies, confirms and Security Agreement (as amendedreaffirms, all and singular, the terms and conditions of a certain Deed of Guarantee in favor of Bank dated November 27, 2007 (the “AgreementGuarantee”) between Borrower and Silicon Valley Bank (“Bank”) as follows for acknowledges, confirms and agrees that the period ending _____________________________ (all capitalized terms used herein Guarantee shall have remain in full force and effect and shall in no way be limited by the meaning set forth in the execution of this Loan Modification Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is boundinstruments and/or agreements executed and/or delivered in connection therewith. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.TRUSTWAVE HOLDINGS LIMITED By: /s/ Xxxxxx XxXxxxxx Name: Xxxxxx XxXxxxxx Title: Director
Appears in 1 contract
Samples: Joinder and Fourth Loan Modification Agreement (Trustwave Holdings, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION REAL GOODS ENERGY TECH, INC. REAL GOODS SYNDICATED, INC. By: /s/ Xxxxx X. Xxxxxx Xxxxxxx XxXxxxx By: /s/ Xxxxxx Xxxxxxx XxXxxxx Name: Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLARXxxxxxx Title: Chief Financial Officer Title: Chief Financial Officer REAL GOODS ENERGY TRADING CORPORATION ALTERIS RENEWABLES, INC INC. By: /s/ Xxxxx X. Xxxxxx Xxxxxxx XxXxxxx By: /s/ Xxxxxx Xxxxxxx XxXxxxx Name: Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByXxxxxxx Title: /s/ Xxxxx X. Xxxxxx ByChief Financial Officer Title: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORChief Financial Officer MERCURY ENERGY, INC. ELEMENTAL ENERGY, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager /s/ Xxxxxxx XxXxxxx By: /s/ Xxxxx Xxxxxxx XxXxxxx Name: Xxxxxxx X. Xxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Chief Financial Officer Title: Chief Financial Officer REAL GOODS SOLAR, INC. - MERCURY SOLAR SUNETRIC MANAGEMENT LLC By: /s/ Xxxxxx Xxxxxxx XxXxxxx By: /s/ Xxxxxxx XxXxxxx Name: Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Xxxxxxx Title: Chief Financial Officer Title: Chief Financial Officer BANK: SILICON VALLEY BANK ByBy /s/ Elisa Sun Name: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 Elisa Sun Title: Vice President Exhibit A to Sixth Loan Modification Agreement EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: REAL GOODS ENERGY TECH, an INC. ET. AL. The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLARREAL GOODS ENERGY TECH, INC., SPIRE BIOMEDICAL, INCet al. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, the “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 Subsidiaries, if any, 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 there 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 financial statements with Compliance Certificate Monthly within 30 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No Annual Audited Financial Statements FYE within 120 days A/R & A/P Agings Monthly within 20 days Yes No Transaction Reports Weekly and with each request for a Credit Extension (Monthly within 20 days during a Streamline Period) Yes No Projections Within 20 days of board approval (no existing Event later than 60 days after FYE) Yes No Deferred Revenue Report, Schedule of Default.Assets with respect to 3rd party construction and financing arrangements (including performance bonds and bank statements For non-SVB bank accounts) Monthly within 30 days Yes No Electronic viewing access to Xxxxx Fargo Account Ongoing Yes No The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”)
Appears in 1 contract
Samples: Joinder and Sixth Loan Modification Agreement (Real Goods Solar, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Seventh Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: TRUSTWAVE HOLDINGS, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx XxXxxxxx By: Name: Xxxxxx VP Schedule 1 XxXxxxxx Name: Title: Chief Executive Officer Title: TRUSTWAVE INTERMEDIATE, INC. By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer TW VERICEPT CORPORATION By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer TRUSTWAVE GOVERNMENT SOLUTIONS, INC. By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer The undersigned, TRUSTWAVE LIMITED, a company registered in England & Wales, ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Deed of Guarantee in favor of Bank dated September 25, 2008 (the “Guarantee”) and acknowledges, confirms and agrees that the Guarantee shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection therewith. TRUSTWAVE LIMITED By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer and President The undersigned, TRUSTWAVE HOLDINGS LIMITED, a company registered in England & Wales, ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Deed of Guarantee in favor of Bank dated November 27, 2007 (the “Guarantee”) and acknowledges, confirms and agrees that the Guarantee shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection therewith. TRUSTWAVE HOLDINGS LIMITED By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer and President EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IA TO SEVENTH LOAN MODIFICATION AGREEMENT EXHIBIT C COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: TRUSTWAVE HOLDINGS, an INC. TRUSTWAVE INTERMEDIATE, INC. TW VERICEPT CORPORATION TRUSTWAVE GOVERNMENT SOLUTIONS, INC. The undersigned authorized officer officers of SPIRE CORPORATION, SPIRE SOLARTRUSTWAVE HOLDINGS, INC., SPIRE BIOMEDICALTRUSTWAVE INTERMEDIATE, INC., TW VERICEPT CORPORATION and TRUSTWAVE GOVERNMENT SOLUTIONS, INC. (individually and SPIRE SEMICONDUCTORcollectively, LLC (jointly and severally, individually and collectively, the “Borrower”) certify that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 5.8 of the Agreement, and (5) no Liens have been levied or claims made against Borrower 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 certify that there these are prepared in accordance with generally GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledge that no borrowings may be requested at any time or date of determination that Borrower is no existing Event not in compliance with any of Default.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 consolidated and consolidating financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) FYE within 150 days Yes No Board Approved Projections Annually, within 30 days after year end Yes No Borrowing Base Certificate (together with A/R & A/P Agings, and deferred revenue report) Monthly within 30 days Yes No Audit Annually Yes No
Appears in 1 contract
Samples: Seventh Loan Modification Agreement (Trustwave Holdings, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and BankBank (provided, however, in no event shall this Loan Modification Agreement become effective until signed by an officer of Bank in California). This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWERBORROWERS: SPIRE CORPORATION ByBANK: VISUAL NETWORKS, INC. SILICON VALLEY BANK, doing business as SILICON VALLEY EAST By /s/ Xxxxx X. Xxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx XxXxxxxxxx Title Executive Vice President Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLARXxXxxxxxxx Title: Vice President VISUAL NETWORKS OPERATIONS, INC By: INC. By /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: Xxxxxxxx Title Executive Vice President VISUAL NETWORKS INVESTMENTS, INC. By /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORXxxxxxxx Title Executive Vice President VISUAL NETWORKS TECHNOLOGIES, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: INC. By /s/ Xxxxx X. Xxxxxx By: Xxxxxxxx Title Executive Vice President VISUAL NETWORKS OF TEXAS, L.P. by Visual Networks Texas Operations, Inc., its General Partner By /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx Xxxxxxxx Title Executive Vice President VISUAL NETWORKS INSURANCE, INC. By /s/ Xxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANKXxxxxxxx Title Executive Vice President INVERSE NETWORK TECHNOLOGY By /s/ Xxxxx X. Xxxxxxxx Title Executive Vice President AVESTA TECHNOLOGIES, INC. By /s/ Xxxxx X. Xxxxxxxx Title Executive Vice President EXHIBIT A COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK ByFROM: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALVISUAL NETWORKS, INC. The undersigned Responsible Officer of Visual Networks, Inc. hereby certifies that in accordance with the terms and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under conditions of the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”the "Agreement"), (i) as follows Borrower is in complete compliance for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns covenants except as noted below and paid, or made adequate provision to pay, (ii) all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties of Borrower stated in the Agreement are true and correct in all material respects on this dateas of the date hereof. Attached herewith are the required documents supporting the certification. The Officer further certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The Officer expressly acknowledges that no borrowings may be requested by the Borrower at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and Borrower represents that there such compliance is no existing Event determined not just at the date this certificate is delivered. Please indicate compliance status by circling Yes/No under Complies column. Reporting Covenant Required Complies Monthly financial statements with CC Monthly within 30 days Yes No Deferred Revenue Schedules with CC Monthly within 30 days Yes No 10K, 10Q and 8K Within 5 days after filing w/ SEC Yes No A/R Aging with CC Monthly within 30 days Yes No Annual (CPA Audited) with XX XXX within 90 days Yes No Financial Covenant Required Actual Complies Maintain on Monthly Basis (unless otherwise noted): Minimum Quick Ratio .70:1.0 _____:1.0 Yes No Maximum (Net Loss) Profit (quarterly): ($* ) ($_________) Yes No *(i) ($19,500,000.00) for the quarter ending 12/31/00; *(ii) ($7,250,000.00) for the quarter ending 3/31/01; *(iii) ($4,500,000.00) for the quarter ending 6/30/01; *(iv) ($1,250,000.00) for the quarter ending 9/30/01; *(v) $100,000.00 for the quarter ending 12/31/01; *(vi) a quarterly net profit of Default.$1.00 thereafter. Debt Service Coverage Ratio ** ** See First Loan Modification Agreement to the Accounts Receivable Financing Agreement BANK USE ONLY
Appears in 1 contract
Samples: Accounts Receivable Financing Agreement (Visual Networks Inc)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by each Borrower and Bank. This Loan Modification Agreement is executed as of the First Loan Modification Effective Date. BORROWER: ATRICURE, INC. ATRICURE, LLC By: /s/ M. Xxxxxx Xxxx By: /s/ M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Title: SVP and Chief Financial Officer Title: SVP and Chief Financial Officer ENDOSCOPIC TECHNOLOGIES, LLC nCONTACT SURGICAL, LLC By: /s/ M. Xxxxxx Xxxx By: /s/ M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Title: SVP and Chief Financial Officer Title: SVP and Chief Financial Officer BANK: SILICON VALLEY BANK By: /s/ Xxx Xxxxxxxxx Name: Xxx Xxxxxxxxx Title: Director The undersigned, M. Xxxxxx Xxxx, Director of ATRICURE EUROPE, B.V., a sealed instrument company organized under the laws of The Netherlands and a wholly owned Subsidiary of Borrower, ratifies, confirms and reaffirms, all and singular, the Commonwealth terms and conditions of Massachusetts (i) a certain Unconditional Guaranty dated as of September 26, 2012 (the “Guaranty”) (ii) a certain Guarantor Security Agreement, dated as of September 26, 2012 (the “Guarantor Security Agreement”), and (iii) the Dutch Security Documents (as in effect on the date first written abovehereof, the “Dutch Security Documents”), and acknowledges, confirms and agrees that the Guaranty, the Guarantor Security Agreement and the Dutch Security Documents shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. BORROWER: SPIRE CORPORATION ATRICURE EUROPE, B.V. By: /s/ Xxxxx X. M. Xxxxxx ByXxxx Name: /s/ M. Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC ByXxxx Title: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: Managing Director Exhibit A to First Loan Modification Agreement EXHIBIT B COMPLIANCE CERTIFICATE TO:SILICON VALLEY BANK ByBANKDate: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLARFROM: ATRICURE, INC., SPIRE BIOMEDICALATRICURE, INC. and SPIRE SEMICONDUCTORLLC, ENDOSCOPIC TECHNOLOGIES, LLC and nCONTACT SURGICAL, LLC The undersigned authorized officer of Atricure, Inc. (jointly and severally, individually and collectively, “Borrower”) certify certifies for itself and each other Borrower that under the terms and conditions of the Second Amended and Restated Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.):
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx REAL GOODS ENERGY TECH, INC. REAL GOODS SYNDICATED, INC. By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Name: Xxxxxx Xxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByXxxxx Title: /s/ Xxxxx X. Xxxxxx Chief Executive Officer Title: Chief Executive Officer REAL GOODS ENERGY TRADING CORPORATION ALTERIS RENEWABLES, INC. By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. By: /s/ Xxxxxx Xxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORXxxxx Name: Xxxxxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer MERCURY ENERGY, INC. ELEMENTAL ENERGY, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxxx Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Name: Xxxxxx Xxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer REAL GOODS SOLAR, INC. - MERCURY SOLAR SUNETRIC MANAGEMENT LLC By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxxx Name: Xxxx Xxxxxx VP Schedule 1 Xxxxx Title: Managing Director Exhibit A to Seventh Loan Modification Agreement EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date FROM: REAL GOODS ENERGY TECH, an INC. ET. AL. The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLARREAL GOODS ENERGY TECH, INC., SPIRE BIOMEDICAL, INCet al. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, the “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 Subsidiaries, if any, 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 there 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 financial statements with Compliance Certificate Monthly within 30 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No Annual Audited Financial Statements FYE within 120 days A/R & A/P Agings Monthly within 20 days Yes No Transaction Reports Weekly and with each request for a Credit Extension (Monthly within 20 days during a Streamline Period) Yes No Projections Within 20 days of board approval (no existing Event later than 60 days after FYE) Yes No Daily/Weekly Cash Flow Projections on the fifteenth (15th) and the last Business Day of Default.each month Yes No Deferred Revenue Report, Schedule of Assets with respect to 3rd party construction and financing arrangements (including performance bonds and bank statements For non-SVB bank accounts) Monthly within 30 days Yes No Electronic viewing access to Xxxxx Fargo Account Ongoing Yes No The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”)
Appears in 1 contract
Samples: Seventh Loan Modification and Waiver Agreement (Real Goods Solar, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and BankBank (provided, however, in no event shall this Loan Modification Agreement become effective until signed by an officer of Bank in California). This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION BANK: SONUS NETWORKS, INC. SILICON VALLEY BANK, doing business as SILICON VALLEY EAST By: /s/ Xxxxx XXXXX X. Xxxxxx XXXXX By: /s/ Xxxxxx XXXXXXXX X. Xxxxxxxxx Xxxxx XXXX -------------------------------- ----------------------------------- Name: XXXXX X. Xxxxxx Xxxxxx XXXXX Name: XXXXXXXX X. Xxxxxxxxx Chairman XXXX ------------------------------ --------------------------------- Title: VP & CEO CFO and Treasurer SPIRE SOLAR, INC ByCORPORATE CONTROLLER Title: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SVP ----------------------------- -------------------------------- SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 XXXXXX XXXXXX ----------------------------------- Name: XXXXXX XXXXXX --------------------------------- Title: AVP -------------------------------- (signed in Santa Xxxxx County, California) EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IA COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK FROM: SONUS NETWORKS, an INC. The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALSONUS NETWORKS, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”the "Agreement"), (i) as follows Borrower is in complete compliance for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns covenants except as noted below and paid, or made adequate provision to pay, (ii) all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date. Attached are the required documents supporting the certification. The Officer certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The Officer 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 Borrower represents that there compliance is no existing Event determined not just at the date this certificate is delivered. PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN. REPORTING COVENANT REQUIRED COMPLIES ------------------ -------- -------- 10-Q with CC Quarterly, earlier of Default.45 days of QE, or 5 days of filing w/ SEC Yes No 10-K Annually, earlier of 120 days of YE, or 5 days of filing w/ SEC Yes No 8-K Within 5 days after filing with SEC Yes No Balance Sheet, Income Statement Annually, w/in 45 days of YE and Cash Flow projections (and upon revisions approved by BoD) Yes No
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: APPIAN CORPORATION SILICON VALLEY BANK By: /s/ Xxxxxxx Xxxxxxx By: /s/ Will Xxxxx Name: Xxxxxxx Xxxxxxx Name: Will Xxxxx Title: President and Chief Executive Officer Title: Vice President The undersigned, APPIAN EUROPE LIMITED, ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Charge over Account dated as of March 13, 2015, as amended by a certain Deed of Confirmation of Charge Over Account (as amended, the “Charge over Account”) and acknowledges, confirms and agrees that the Charge over Account shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. APPIAN EUROPE LIMITED By: /s/ Xxxx Xxxxxx Xxxxx Name: Xxxx Xxxxxx VP Schedule Xxxxx Title: CFO SCHEDULE 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: APPIAN CORPORATION The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC APPIAN CORPORATION (jointly and severally, individually and collectively, “Borrower”) certify certifies that under the terms and conditions of the Second Amended and Restated Loan and Security Agreement between Borrower and Bank (as amendedthe “Senior Loan Agreement”) and the Subordinated Loan and Security Agreement between Borrower and Bank (the “Subordinated Loan Agreement”) (the Senior Loan Agreement and the Subordinated Loan Agreement are, collectively, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 has timely filed all required tax returns and reports, and Borrower represents 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 Senior Loan Agreement or Section 5.8 of the Subordinated Loan Agreement, and (5) no Liens have been levied or claims made against Borrower, if any, 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 there such documents 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 no existing Event not in compliance with any of Defaultthe 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
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and BankLenders. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION LENDERS: GAIN CAPITAL HOLDINGS, INC. SILICON VALLEY BANK, as Agent and Lender By: /s/ Xxxxx X. Xxxxxx Xxxxx By: /s/ A. Xxxxxx X. Xxxxxxxxx Xxxx Name: Xxxxx X. Xxxxx Name: A. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO Xxxx Title: Chief Financial Officer Title: Vice President JPMORGAN CHASE BANK, N.A., as Lender By: /s/ Xxxxxxxx Xxxxxxx Name: Xxxxxxxx Xxxxxxx Title: Vice President The undersigned, GAIN HOLDINGS, LLC, ratifies, confirms and Treasurer SPIRE SOLARreaffirms, INC all and singular, the terms and conditions of a certain Unconditional Guaranty dated as of March 29, 2006 (the “Guaranty”) and acknowledges, confirms and agrees that (i) the Guaranty shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith, and (ii) the Guaranty shall continue to pertain to all Obligations. GAIN HOLDINGS, LLC By: /s/ Xxxxx X. Xxxxxx ByXxxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByXxxxx Title: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Chief Financial Officer Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK, an AS AGENT Date: FROM: GAIN CAPITAL HOLDINGS, INC. The undersigned authorized officer of SPIRE CORPORATIONGain Capital Holdings, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC Inc. (jointly and severally, individually and collectively, “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower, Lenders and Agent (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 5.8 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Agent. Attached are the required documents supporting the certification. The undersigned certifies that there these are prepared in accordance with generally 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 financial statements with Compliance Certificate Monthly within 45 days Yes No Annual financial statement (CPA Audited) FYE within 150 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No Regulatory filings (including CFTC reports) As filed/submitted Yes No NFA Audit Annually, as filed/submitted Yes No 2008 Operating Plan By 1/31/2008 Yes No 2009 Operating Plan By 1/31/2009 Yes No Financial Covenant Required Actual Complies Maintain on a Quarterly Basis: Minimum Debt Service* ³ :1.0 :1.0 Yes No Maximum Total Funded Debt/EBITDA** £ :1.0 :1.0 Yes No * As set forth in Section 6.7(a) of the Loan and Security Agreement – as of March 31, 2011, tested for the applicable twelve-month period. ** As set forth in Section 6.7(b) of the Loan and Security Agreement. The following are the exceptions with respect to the certification above: (If no existing Event of Defaultexceptions exist, state “No exceptions to note.”) Gain Capital Holdings, Inc. BANK USE ONLY By: Received by: Name: AUTHORIZED SIGNER Title: Date: Verified: AUTHORIZED SIGNER Date:
Appears in 1 contract
Samples: Seventh Loan Modification Agreement (GAIN Capital Holdings, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWERMAVENIR SYSTEMS, INC. By /s/ Xxxxxxxx Xxxxxx Name: SPIRE CORPORATION ByXxxxxxxx Xxxxxx Title: Chief Financial Officer MAVENIR HOLDINGS, INC. By /s/ Xxxxx X. Xxxxxxxx Xxxxxx ByName: /s/ Xxxxxxxx Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC ByTitle: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORChief Financial Officer MAVENIR SYSTEMS IP HOLDINGS, LLC ByBy /s/ Xxxxxxxx Xxxxxx Name: Spire Corporation, a Massachusetts corporation, its sole Member and Manager ByXxxxxxxx Xxxxxx Title: Vice President MAVENIR SYSTEMS HOLDINGS LIMITED By /s/ Xxxxx X. Xxxxxxxx Xxxxxx ByName: Xxxxxxxx Xxxxxx Title: Director MAVENIR SYSTEMS UK LTD. By /s/ Xxxxxxxx Xxxxxx X. Xxxxxxxxx Xxxxx X. Name: Xxxxxxxx Xxxxxx Title: Director MAVENIR SYSTEMS PTE LTD. By /s/ Xxxxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Name: Xxxxxxxx Xxxxxx Title: Director BANK: SILICON VALLEY BANK ByBy /s/ Xxxxxxxx Xxxxxxx Name: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Xxxxxxxx Xxxxxxx Title: Relationship Manager [Signature page to Joinder and First Loan Modification to Senior Loan and Security Agreement] Schedule 1 List of Ineligible Jurisdictions Afganistan Antiqua and Barbuda Argentina Burma Cambodia Cuba East Timor Ecuador Guinea Guinea-Bassau Haiti Iran North Korea Laos Libya Nauru Nepal Somalia Sudan Suriname Syria Turkmenistan Venezuela Yemen Zimbabwe EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: MAVENIR SYSTEMS, an INC. The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALMAVENIR SYSTEMS, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Senior Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 has timely filed all required tax returns and reports, and Borrower represents 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 Subsidiaries, if any, 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 there 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 financial statements (including income statement and statement of cash flows) with Compliance Certificate and Deferred Revenue Report Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within150 days Yes No A/R & A/P Agings Monthly within 20 days Yes No Transaction Reports Weekly and with each Credit Extension (Monthly within 30 days under Streamline) Yes No Projections/Operating Budgets Earlier of (i) 15 days after approval by board of directors or (ii) January 31st of each fiscal year Yes No The following Intellectual Property was registered after the Effective Date (if no existing Event registrations, state “None”) Financial Covenant Required Actual Complies Maintain as indicated: Minimum Tangible Net Worth ($ 7,000,000 ) $ ____ Yes No Streamline Reporting Applies Tangible Net Worth ³ ($3,500,000) Yes No Tangible Net Worth < ($3,500,000) Yes No The following financial covenant analyses and information set forth in Schedule 1 attached hereto are true and accurate as of Defaultthe date of this Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”) MAVENIR SYSTEMS, INC. BANK USE ONLY By: Received by: Name: AUTHORIZED SIGNER Title: Date: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes No
Appears in 1 contract
Samples: Senior Loan and Security Agreement (Mavenir Systems Inc)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: DATAWATCH CORPORATION SILICON VALLEY BANK By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxx Name: Xxxxxx Xxxxxx Name: Xxxxxxx X. Xxxx Title: President and CEO Title: Relationship Manager By: /s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Secretary, SVP DATAWATCH TECHNOLOGIES CORPORATION By: /s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: President By: /s/ Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IXxxxxx Name: Xxxxxx Xxxxxx Title: Director The undersigned, an authorized officer DATAWATCH INTERNATIONAL LIMITED, ratifies, confirms and reaffirms, all and singular, the terms and conditions of SPIRE CORPORATIONa certain Deed of Guarantee dated July 11, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC 2006 (jointly and severally, individually and collectively, the “BorrowerGuaranty”) certify under and acknowledges, confirms and agrees that the Second Amended Guaranty shall remain in full force and Restated effect and shall in no way be limited by the execution of this Loan and Security Agreement (as amendedModification Agreement, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. DATAWATCH INTERNATIONAL LIMITED By: /s/ Xxxxxx Hagger__________________ Name: Xxxxxx Xxxxxx Title: Director 56120/496 EXHIBIT A COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date:____________________________ FROM: DATAWATCH CORPORATION DATAWATCH TECHNOLOGIES CORPORATION The undersigned authorized officer of DATAWATCH CORPORATION and DATAWATCH TECHNOLOGIES CORPORATION (all capitalized “Borrower”) certifies that under the terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance conditions of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Security Agreement between Borrower and each Subsidiary has timely filed all required tax returns and paidBank (the “Agreement”), or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. (1) Borrower is in complete compliance for the period ending _______________ with the financial covenant set forth in Section 6.7 all required covenants except as noted below, (2) there are no Events of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 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 there 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 no existing Event not in compliance with any of Defaultthe 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
Samples: Second Loan Modification Agreement (Datawatch Corp)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written aboveFourth Loan Modification Effective Date. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: IBASIS, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxx X. Xxxxxx III Name: Xxxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxx III Title: Sr. VP Schedule 1 Finance & Admin. & CFO Title: Vice President Fourth Loan Modification Effective Date: September 30, 2009 Each of the undersigned hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of each of its Unconditional Guaranty, Security Agreement, IP Security Agreement (if applicable) and Perfection Certificate, in each case executed in connection with the Loan Agreement, and each acknowledges, confirms and agrees that each such document shall remain in full force and effect and in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. IBASIS GLOBAL, INC. IBASIS RETAIL, INC. By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx Title: Sr. VP Finance, Treasurer & CFO Title: CFO IBASIS SECURITIES CORPORATION KPN INTERNATIONAL NETWORK SERVICES, INC. By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx Title: Sr. VP Finance, Treasurer & CFO Title: CFO EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IA COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: IBASIS, an INC. The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALIBASIS, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 Subsidiaries, if any, 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 there 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 no existing Event not in compliance with any of Defaultthe 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
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Chairman & CEO Title: CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Chairman & CEO Title: CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Chairman & CEO Title: CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Chairman & CEO Title: CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx VP Title: Vice President Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written aboveSixth Loan Modification Effective Date. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: ATRICURE, INC. SILICON VALLEY BANK By: /s/ Xxxx M. Xxxxxx Xxxx By: /s/ Xxx Xxxxxxxxx Name: M. Xxxxxx VP Schedule 1 Xxxx Name: Xxx Xxxxxxxxx Title: Chief Financial Officer Title: Vice President II ATRICURE, LLC By: /s/ M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Title: Chief Financial Officer The undersigned, a Director of ATRICURE EUROPE, B.V., a company organized under the laws of The Netherlands and a wholly owned Subsidiary of Borrower, ratifies, confirms and reaffirms, all and singular, the terms and conditions of (i) a certain Unconditional Guaranty dated as of September 26, 2012 (the “Guaranty”) and (ii) a certain Guarantor Security Agreement, dated as of September 26, 2012 (the “Guarantor Security Agreement”), and acknowledges, confirms and agrees that the Guaranty and the Guarantor Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. ATRICURE EUROPE, B.V. By: /s/ M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Title: Director Exhibit A to Sixth Loan Modification Agreement EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALCOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: ATRICURE, INC. and SPIRE SEMICONDUCTORATRICURE, LLC The undersigned authorized officer of Atricure, Inc. (jointly and severally, individually and collectively, “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.):
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Export-Import Bank Joinder and Third Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written aboveThird Loan Modification Effective Date. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: ATRICURE, INC. SILICON VALLEY BANK By: /s/ Xxxx M. Xxxxxx Xxxx By: /s/ Xxx Xxxxxxxxx Name: M. Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. Xxxx Name: Xxx Xxxxxxxxx Title: Vice President and SPIRE SEMICONDUCTORChief Financial Officer Title: Relationship Manager ATRICURE, LLC By: /s/ M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Title: Vice President and Chief Financial Officer The undersigned, Vice President and Chief Financial Officer of ATRICURE EUROPE, B.V., a company organized under the laws of The Netherlands and a wholly owned Subsidiary of Borrower, ratifies, confirms and reaffirms, all and singular, the terms and conditions of (jointly and severallyi) a certain Unconditional Guarantee dated as of September 26, individually and collectively, 2012 (the “BorrowerGuaranty”) certify under and (ii) a certain Guarantor Security Agreement, dated as of September 26, 2012 (the Second Amended “Guarantor Security Agreement”), and Restated Loan acknowledges, confirms and agrees that the Guaranty and the Guarantor Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. ATRICURE EUROPE, B.V. By /s/ M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Title: Vice President and Chief Financial Officer 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 (as amendedincluding health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, 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 “Agreement”Collateral does not include more than sixty-five percent (65%) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request presently existing and Invoice Transmittal date; Each Financed Receivable is based on an actual sale hereafter arising issued and delivery outstanding shares of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free capital stock owned by Borrower of any liens, security interests and encumbrances Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter (other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds capital stock of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary orAtricure B.V., to the best of Borrower's knowledge, extent contemplated by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of DefaultDutch Security Documents).
Appears in 1 contract
Samples: Joinder and Third Loan Modification Agreement (AtriCure, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE BORROWER REAL GOODS ENERGY TECH, INC. REAL GOODS TRADING CORPORATION By: /s/ Xxxxx Xxxxxxx X. Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx Xxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLARXxxxxxx Title: Chief Financial Officer Title: Chief Financial Officer ALTERIS RENEWABLES, INC INC. REAL GOODS SYNDICATED, INC. By: /s/ Xxxxx Xxxxxxx X. Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx Xxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByXxxxxxx Title: /s/ Xxxxx X. Xxxxxx ByChief Financial Officer Title: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Chief Financial Officer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 Elisa Sun Name: Elisa Sun Title: Vice President Exhibit A to Fourth Loan Modification Agreement EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: REAL GOODS ENERGY TECH, an INC. ET. AL. The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLARREAL GOODS ENERGY TECH, INC., SPIRE BIOMEDICAL, INCet al. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, the “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 Subsidiaries, if any, 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 there 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 financial statements with Compliance Certificate Monthly within 30 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No Annual Audited Financial Statements FYE within 120 days A/R & A/P Agings Monthly within 20 days Yes No Transaction Reports Weekly and with each request for a Credit Extension (Monthly within 20 days during a Streamline Period) Yes No Projections Within 20 days of board approval (no existing Event later than 60 days after FYE) Yes No Deferred Revenue Report, Schedule of Default.Assets with respect to 3rd party construction and financing arrangements (including performance bonds and bank statements For non-SVB bank accounts) Monthly within 30 days Yes No Electronic viewing access to Xxxxx Fargo Account From and after the Third Loan Modification Effective Date Yes No The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”)
Appears in 1 contract
Samples: Joinder and Fourth Loan Modification Agreement (Real Goods Solar, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Joinder and Fourth Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: TRUSTWAVE HOLDINGS, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx XxXxxxxx By: Name: Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALXxXxxxxx Name: Title: Chief Executive Officer Title: TRUSTWAVE INTERMEDIATE, INC. By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer TW VERICEPT CORPORATION By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer TRUSTWAVE GOVERNMENT SOLUTIONS, INC. By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer The undersigned, TRUSTWAVE LIMITED, a company registered in England & Wales, ratifies, confirms and SPIRE SEMICONDUCTORreaffirms, LLC all and singular, the terms and conditions of a certain Deed of Guarantee in favor of Bank dated September 25, 2008 (jointly and severally, individually and collectively, the “BorrowerGuarantee”) certify under and acknowledges, confirms and agrees that the Second Amended Guarantee shall remain in full force and Restated effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection therewith. TRUSTWAVE LIMITED By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer and Security Agreement (as amendedPresident The undersigned, TRUSTWAVE HOLDINGS LIMITED, a company registered in England & Wales, ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Deed of Guarantee in favor of Bank dated November 27, 2007 (the “AgreementGuarantee”) between Borrower and Silicon Valley Bank (“Bank”) as follows for acknowledges, confirms and agrees that the period ending _____________________________ (all capitalized terms used herein Guarantee shall have remain in full force and effect and shall in no way be limited by the meaning set forth in the execution of this Loan Modification Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is boundinstruments and/or agreements executed and/or delivered in connection therewith. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good TRUSTWAVE HOLDINGS LIMITED By: /s/ Xxxxxx X. XxXxxxxx Name: Xxxxxx X. XxXxxxxx Title: Chief Executive Officer and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.President
Appears in 1 contract
Samples: Waiver and Fifth Loan Modification Agreement (Trustwave Holdings, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALEXCHANGE APPLICATIONS, INC. and SPIRE SEMICONDUCTORSILICON VALLEY BANK, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending d/b/a SILICON VALLEY EAST By______________________________ By___________________________ President or Vice President Title________________________ By______________________________ Secretary or Ass't Secretary EXSTATIC SOFTWARE, INC., formerly known as GINO BORLAND, INC. By_______________________________ President xx Xxxx Xxxsident By_______________________________ Secretary or Ass't Secretary The undersigned each ratify confirm and reaffirm, all and singular, the terms and conditions of certain Unconditional Guaranties each dated April 24, 2001 (all capitalized terms used herein collectively, the "Guaranty") and a certain Security Agreement dated April 24, 2001 (the "Security Agreement") and acknowledge, confirm and agree that the Guaranty and the Security Agreement remain in full force and effect and shall have in no way be limited by the meaning set forth in the execution of this Loan Modification Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged any other documents, instruments and/or agreements executed and/or delivered in connection herewith. Further, the undersigned each hereby grant to Bank, and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which reaffirm the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given grant to Bank contains any untrue statement of of, a material fact or omits to state a material fact necessary to make the statement contained continuing security interest in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, property listed on Exhibit A to the best of Borrower's knowledgeSecurity Agreement to secure the Obligations. ACTION SYSTEMS, by previous PersonsINC. By:___________________________ Name: Title: CUSTOMER ANALYTICS HOLDINGS, in disposingINC. By:___________________________ Name: Title: CUSTOMER ANALYTICS, producingINC. By:___________________________ Name: Title: EXCHANGE APPLICATIONS SECURITIES CORPORATION By:___________________________ Name: Title: KNOWLEDGE STREAM PARTNERS, storing, treating, or transporting any hazardous substance other than legallyINC. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.By:___________________________ Name:
Appears in 1 contract
Samples: Loan Modification Agreement (Exchange Applications Inc)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SKILLSOFT CORPORATION (as Agent and Borrower) SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ITxxxxx X. XxXxxxxx By: /s/ Jxxxxxxxx Le Name: Txxxxx X. XxXxxxxx Name: Jxxxxxxxx Le Title: Chief Financial Officer Title: Operations Supervisor SMARTCERTIFY DIRECT, an authorized officer INC By: /s/ Txxxxx X. XxXxxxxx Name: Txxxxx X. XxXxxxxx Title: Chief Financial Officer BXXXX00X0.XXX, INC By: /s/ Txxxxx X. XxXxxxxx Name: Txxxxx X. XxXxxxxx Title: Chief Financial Officer The undersigned, SkillSoft Finance Ltd, hereby: (i) ratifies, confirms and reaffirms, all and singular, the terms and conditions of SPIRE CORPORATION(A) a certain Unlimited Guaranty dated July 23, SPIRE SOLAR2004 (the “Guaranty”), INC.and (B) a certain Pledge Agreement by Guarantor in favor of Bank dated July 23, SPIRE BIOMEDICAL2004 (the “Pledge Agreement”); (ii) acknowledges, INC. confirms and SPIRE SEMICONDUCTORagrees that the Guaranty and Pledge Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, LLC or any other documents, instruments and/or agreements executed and/or delivered in connection herewith; and (jointly iii) acknowledges, confirms and severally, individually and collectively, “Borrower”) certify agrees that the obligations of Borrower to Bank under the Second Amended Guaranty include, without limitation, all Obligations of Borrower to Bank under the Loan Agreement, as amended by this Loan Modification Agreement. SKILLSOFT FINANCE LTD. By: /s/ Txxxxx X. XxXxxxxx Name: Txxxxx X. XxXxxxxx Title: Chief Financial Officer The undersigned, Skillsoft Plc, hereby: (i) ratifies, confirms and Restated Loan reaffirms, all and Security Agreement (as amendedsingular, the terms and conditions of a certain Unlimited Guaranty dated July 23, 2004 (the “Guaranty”); (ii) acknowledges, confirms and agrees that the Guaranty shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged any other documents, instruments and/or agreements executed and/or delivered in connection herewith; and is free (iii) acknowledges, confirms and agrees that the obligations of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse Bank under the Guaranty include, without limitation, all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement Obligations of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of under the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940Agreement, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used amended by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the this Loan Modification Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.SKILLSOFT PLC By: /s/ Txxxxx X. XxXxxxxx Name: Txxxxx X. XxXxxxxx Title: Chief Financial Officer
Appears in 1 contract
Samples: First Loan Modification Agreement (Skillsoft Public Limited Co)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower Lender and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written aboveBorrower. BORROWER: SPIRE LENDER: BIOLASE, INC. WESTERN ALLIANCE BANK, AN ARIZONA CORPORATION By: /s/ Xxxxx Jxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx Name: Jxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman Name: Title: EVP & CEO CFO and Treasurer SPIRE SOLAR, INC Title: 9/28/18 BL ACQUISITION CORP. By: /s/ Xxxxx Jxxx X. Xxxxxx Name: Jxxx X. Xxxxxx Title: EVP & CFO 9/28/18 BL ACQUISITION II INC. By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx Jxxx X. Xxxxxx Name: Jxxx X. Xxxxxx X. Xxxxxxxxx Chairman Title: EVP & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC 9/28/18 BORROWER: LENDER: BIOLASE, INC. WESTERN ALLIANCE BANK, AN ARIZONA CORPORATION By: By: /s/ Xxxxx X. Xxxxxx Vxxxxx Le Name: Name: Vxxxxx Le Title: Title: SVP BL ACQUISITION CORP. By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC Name: Title: BL ACQUISITION II INC. By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager ByName: /s/ Xxxxx X. Xxxxxx ByTitle: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer EXHIBIT A COMPLIANCE CERTIFICATE TO: WESTERN ALLIANCE BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALArizona corporation (“Lender”) FROM: BIOLASE, INC. (“Parent”), BL ACQUISITION CORP. (“BL Acquisition”), and SPIRE SEMICONDUCTORBL ACQUISITION II INC. (“BL Acquisition II”, LLC (jointly and severallytogether with Parent and BL Acquisition, individually and collectively, jointly and severally, “Borrower”) certify under The undersigned authorized officer of Biolase, Inc., on behalf of all Borrowers, hereby certifies that in accordance with the Second Amended terms and Restated Loan conditions of the Business Financing Agreement between Borrower and Security Agreement Lender (as amended, the “Agreement”), (i) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns covenants except as noted below and paid, or made adequate provision to pay, (ii) all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties of Borrower stated in the Agreement are true and correct as of the date hereof. Attached herewith are the required documents supporting the above certification. The Officer further certifies that these are prepared in all material respects on this date, accordance with Generally Accepted Accounting Principles (GAAP) and Borrower represents that there is no existing Event of Defaultare consistently applied from one period to the next except as explained in an accompanying letter or footnotes. Please Indicate compliance status by circling Yes/No under “Complies” column.
Appears in 1 contract
Samples: Business Financing Modification Agreement (Biolase, Inc)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: :SPIRE CORPORATION By: /s/ CORPORATIONBy:___/s/ Xxxxx X. Xxxxxx ByLittle__Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx LittleTitle: Chairman & CEO By:___/s/ Xxxxxx X. Lieberman__Name: Xxxxxx X. LiebermanTitle: CFO and & Treasurer SPIRE SOLAR, INC By: /s/ XXX.Xx:___/s/ Xxxxx X. Xxxxxx ByLittle__Name: /s/ Xxxxx X. LittleTitle: Director & President By:___/s/ Xxxxxx X. Xxxxxxxxx Lieberman__Name: Xxxxxx X. LiebermanTitle: CFO & Treasurer SPIRE OPTOELECTRONICS, XXX.Xx:___/s/ Xxxxx X. Xxxxxx Little__Name: Xxxxx X. LittleTitle: Director & President By:___/s/ Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByLieberman__Name: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman LiebermanTitle: CFO & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Xxxxx Sperling_____ Name: Xxxxx Xxxxxxxx Title: Vice President Schedule 1 EXHIBIT B SVB - Silicon Valley Bank A Member of SVB Financial Group SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., . and SPIRE BIOMEDICALOPTOELECTRONICS, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Export-Import Bank Loan and Security Agreement (as amended, the “Exim Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Exim Agreement): Borrower represents and warrants for each Financed Receivable: Receivable (other than Financed Receivables based upon Exim Inventory Placeholder Invoices): Each Financed Receivable is an Eligible Foreign Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. All statements made and all unpaid balances appearing in all invoices, instruments and other documents evidencing the Financed Receivable are and shall be true and correct and all such invoices, instruments and other documents, and all of Borrower's Books are genuine and in all respects what they purport to be; All sales and other transactions underlying or giving rise to each Financed Receivable shall comply in all material respects with all applicable laws and governmental rules and regulations; and To the best of Borrower’s knowledge, all signatures and endorsements on all documents, instruments, and agreements relating to each Financed Receivable are genuine, and all such documents, instruments and agreements are legally enforceable in accordance with their terms. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's ’s organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's ’s or any Subsidiary's ’s properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's ’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. With respect to Exim Inventory Placeholder Invoices, Borrower represents and warrants that all of Borrower’s Inventory which is the subject of any Exim Inventory Placeholder Invoice is and will continue to be Eligible Export-Related Inventory. The undersigned represents and warrants that as of the date hereof the foregoing is true, complete and correct, that the information reflected in compliance this Compliance Certificate complies with the financial covenant representations and warranties set forth in Section 6.7 the Exim Agreement and the Borrower Agreement dated December 20, 2012, as may be amended, modified, restated, replaced or supplemented from time to time, as if all representations and warranties were made as of the Agreementdate hereof, and that Borrower is, and shall remain, in full compliance with its agreements, covenants, and obligations under such agreements. Such representations and warranties include, without limitation, the following: Borrower is using disbursements only for the purpose of enabling Borrower to finance the cost of manufacturing, purchasing or selling items intended for export. Borrower is not using disbursements for the purpose of: (a) servicing any of Borrower’s unrelated pre-existing or future indebtedness; (b) acquiring fixed assets or capital goods for the use of Borrower’s business; (c) acquiring, equipping, or renting commercial space outside the United States; or (d) paying salaries of non-U.S. citizens or non-U.S. permanent residents who are located in the offices of the United States. Additionally, disbursements are not being used to finance the manufacture, purchase or sale of all of the following: (a) Items to be sold to a buyer located in a country in which the Export Import Bank of the United States is legally prohibited from doing business; (b) that part of the cost of the items which is not U.S. Content unless such part is not greater than fifty percent (50.0%) of the cost of the items and is incorporated into the items in the United States; (c) defense articles or defense services or items directly or indirectly destined for use by military organizations designed primarily for military use (regardless of the nature or actual use of the items); or (d) any items to be used in the construction, alteration, operation or maintenance of nuclear power, enrichment, reprocessing, research or heavy water production facilities. All other representations and warranties in the Exim Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by each Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written aboveEighth Loan Modification Effective Date. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: ATRICURE, INC. SILICON VALLEY BANK By: /s/ Xxxx M. Xxxxxx Xxxx By: /s/ Xxx Xxxxxxxxx Name: M. Xxxxxx VP Schedule 1 Xxxx Name: Xxx Xxxxxxxxx Title: Chief Financial Officer Title: Vice President ATRICURE, LLC By: /s/ M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Title: Chief Financial Officer ENDOSCOPIC TECHNOLOGIES, LLC By: /s/ M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Title: Chief Financial Officer The undersigned, M. Xxxxxx Xxxx, Director of ATRICURE EUROPE, B.V., a company organized under the laws of The Netherlands and a wholly owned Subsidiary of Borrower, ratifies, confirms and reaffirms, all and singular, the terms and conditions of (i) a certain Unconditional Guaranty dated as of September 26, 2012 (the “Guaranty”) and (ii) a certain Guarantor Security Agreement, dated as of September 26, 2012 (the “Guarantor Security Agreement”), and acknowledges, confirms and agrees that the Guaranty and the Guarantor Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. ATRICURE EUROPE, B.V. By /s/ M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Title: Director Exhibit A to Eighth Loan Modification Agreement EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: ATRICURE, an INC. ATRICURE, LLC ENDOSCOPIC TECHNOLOGIES, LLC The undersigned authorized officer of SPIRE CORPORATIONAtricure, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC Inc. (jointly and severally, individually and collectively, “Borrower”) certify certifies for itself and each other Borrower that under the Second terms and conditions of the Amended and Restated Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.):
Appears in 1 contract
Samples: Eighth Loan Modification Agreement (AtriCure, Inc.)
COUNTERSIGNATURE. This Loan Modification Waiver Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Waiver Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION REAL GOODS ENERGY TECH, INC. REAL GOODS SYNDICATED, INC. By: /s/ Xxxxx X. Xxxxxx Xxxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLARXxxxxxx Title: Chief Financial Officer Title: Chief Financial Officer REAL GOODS ENERGY TRADING CORPORATION ALTERIS RENEWABLES, INC INC. By: /s/ Xxxxx X. Xxxxxx Xxxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByXxxxxxx Title: /s/ Xxxxx X. Xxxxxx ByChief Financial Officer Title: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORChief Financial Officer MERCURY ENERGY, INC. ELEMENTAL ENERGY, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Chief Financial Officer Title: Chief Financial Officer REAL GOODS SOLAR, INC. – MERCURY SOLAR SUNETRIC MANAGEMENT LLC By: /s/ Xxxxxx Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Xxxxxxx Title: Chief Financial Officer Title: Chief Financial Officer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IElisa Sun Name: Elisa Sun Title: Vice President Acknowledgment and Agreement: The undersigned ratifies, an authorized officer confirms and reaffirms, all and singular, the terms and conditions of SPIRE CORPORATIONa certain Second Amended and Restated Unconditional Guaranty and a certain Second Amended and Restated Security Agreement, SPIRE SOLAReach dated as of June 6, INC.2013, SPIRE BIOMEDICALand each document executed in connection therewith, INC. and SPIRE SEMICONDUCTORacknowledges, LLC (jointly confirms and severally, individually and collectively, “Borrower”) certify under agrees that the Second Amended and Restated Loan Unconditional Guaranty, Second Amended and Restated Security Agreement (as amended, and each document executed in connection therewith shall remain in full force and effect and shall in no way be limited by the “execution of this Waiver Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is boundinstruments and/or agreements executed and/or delivered in connection herewith. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse ChangeREAL GOODS SOLAR, INC. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.By: /s/ Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Chief Financial Officer
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: XXXXXX.XXX, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxx X. Xxxxxxx Name: Xxxxx Xxxxxxxx Name: Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IX. Xxxxxxx Title: Chief Financial Officer Title: Vice President The undersigned, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC XXXXXX.XXX JAMAICA LIMITED (jointly and severally, individually and collectively, “BorrowerXxxxxx.xxx Jamaica Guarantor”) certify under hereby ratifies, confirms and reaffirms, all and singular, the Second Amended terms and Restated conditions of a certain Unconditional Guaranty (the “Guaranty”) dated as of December 19, 2008, executed and delivered by Xxxxxx.xxx Jamaica Guarantor, pursuant to which Xxxxxx.xxx Jamaica Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank. In addition, Xxxxxx.xxx Jamaica Guarantor acknowledges, confirms and agrees that the Guaranty shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. XXXXXX.XXX JAMAICA LIMITED By: /s/ Xxxxxxxx Xxxxxxx Name: Xxxxxxxx Xxxxxxx Title: Director and Secretary The undersigned, XXXXXX.XXX SECURITIES CORPORATION (“Xxxxxx.xxx Securities Guarantor”) hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of (a) a certain Unconditional Guaranty (the “Guaranty”) dated as of October 8, 2008, executed and delivered by Xxxxxx.xxx Securities Guarantor, pursuant to which Xxxxxx.xxx Securities Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank, and (b) a certain Security Agreement (as amended, the “Security Agreement”) dated as of October 8, 2008, between Borrower Xxxxxx.xxx Securities Guarantor and Silicon Valley Bank, pursuant to which Xxxxxx.xxx Securities Guarantor granted Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth a continuing first priority security interest in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable Collateral (as the term is an Eligible Account; Borrower is defined therein) to secure the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery payment and performance of the Obligations under the Guaranty in accordance with the terms of the Security Agreement. In addition, Xxxxxx.xxx Securities Guarantor acknowledges, confirms and agrees that the Guaranty and Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Documents have been duly authorizedModification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. XXXXXX.XXX SECURITIES CORPORATION By: /s/ Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx Title: Treasurer The undersigned, GENESYS SOFTWARE SYSTEMS, INC. (“Genesys Software Systems Guarantor”) hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of (a) a certain Unconditional Guaranty (the “Guaranty”) dated as of March 16, 2009, executed and delivered by Genesys Software Systems Guarantor, pursuant to which Genesys Software Systems Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank, and do not conflict with Borrower's organizational documents(b) a certain Security Agreement (the “Security Agreement”) dated March 16, nor constitute an event of default under any material agreement by which 2009, between Borrower is bound. Borrower is not in default under any agreement and Bank, pursuant to which or by which it is bound Genesys Software Systems Guarantor granted Bank a continuing first priority security interest in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to Collateral (as the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined therein) to secure the payment and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U performance of the Federal Reserve Board of Governors). Borrower has complied Obligations under the Guaranty in all material respects accordance with the Federal Fair Labor Standards Actterms of the Security Agreement. Borrower has not violated any lawsIn addition, ordinances or rulesGenesys Software Systems Guarantor acknowledges, confirms and agrees that the violation Guaranty and Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's this Loan Modification Agreement, or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary orother documents, to instruments and/or agreements executed and/or delivered in connection herewith. GENESYS SOFTWARE SYSTEMS, INC. By: /s/ Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx Title: Treasurer Schedule 1 EXHIBIT C BORROWING BASE CERTIFICATE Borrower: Xxxxxx.xxx, Inc. Lender: Silicon Valley Bank Commitment Amount: $10,000,000 ACCOUNTS RECEIVABLE (based on the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.invoice date aging)
Appears in 1 contract
Samples: Fifth Loan Modification Agreement (Salary. Com, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. [The remainder of this page is intentionally left blank] This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: PHASE FORWARD INCORPORATED SILICON VALLEY BANK By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXXX XXXX Name: Xxxxxx Xxxxxx Name: Xxxxxxx Xxxx Title: President Title: Relationship Manager The undersigned, PHASE FORWARD SECURITIES CORPORATION, ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Unlimited Guaranty dated May 3, 1999 (the “Guaranty”) and acknowledges, confirms and agrees that the Guaranty shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. PHASE FORWARD SECURITIES CORPORATION By: /s/ XXXXXX XXXXXXXX Name: Xxxxxx Xxxx Xxxxxx VP Schedule 1 Xxxxxxxx Title: Treasurer EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an A COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK FROM: PHASE FORWARD INCORPORATED The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify PHASE FORWARD INCORPORATED certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (i) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns covenants except as noted below and paid, or made adequate provision to pay, (ii) all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date. Attached are the required documents supporting the certification. The Officer certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The Officer 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 Borrower represents that there compliance is no existing Event determined not just at the date this certificate is delivered. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Financial statements with CC Quarterly within 45 days* Yes No Annual financial statement (CPA Audited) FYE within 120 days Yes No 10-Q, 10-K and 8-K (or electronic notice to links thereto) Within 5 days after filing with SEC Yes No Annual Projections Later of: 45 days of Defaultprior FYE and 5 days after Board of Director approval Yes No *January 2004 and February 2004 financial statements and compliance certificate due April 15, 2004.
Appears in 1 contract
Samples: Seventh Loan Modification Agreement (Phase Forward Inc)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAREXCHANGE APPLICATIONS, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IBANK, an authorized officer of SPIRE CORPORATION, SPIRE SOLARd/b/a SILICON VALLEY EAST By By ---------------------------- ---------------------------- President or Vice President Title ---------------------------- By ---------------------------- Secretary or Ass't Secretary EXSTATIC SOFTWARE, INC., SPIRE BIOMEDICALformerly known as GINO BORLAND, INC. By ---------------------------- Presidenx xx Xxxx Xxesident By ---------------------------- Secretary or Ass't Secretary The undersigned each ratify confirm and SPIRE SEMICONDUCTORreaffirm, LLC all and singular, the terms and conditions of certain Unconditional Guaranties each dated April 24, 2001 (jointly and severally, individually and collectively, “Borrower”the "Guaranty") certify under the Second Amended and Restated Loan and a certain Security Agreement dated April 24, 2001 (as amendedthe "Security Agreement") and acknowledge, confirm and agree that the Guaranty and the Security Agreement remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. Further, the “Agreement”) between Borrower undersigned each hereby grant to Bank, and Silicon Valley Bank (“Bank”) as follows for reaffirm the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given grant to Bank contains any untrue statement of of, a material fact or omits to state a material fact necessary to make the statement contained continuing security interest in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, property listed on Exhibit A to the best of Borrower's knowledgeSecurity Agreement to secure the Obligations. ACTION SYSTEMS, by previous PersonsINC. By: ---------------------------- Name: Title: CUSTOMER ANALYTICS HOLDINGS, in disposingINC. By: ---------------------------- Name: Title: CUSTOMER ANALYTICS, producingINC. By: ---------------------------- Name: Title: EXCHANGE APPLICATIONS SECURITIES CORPORATION By: ---------------------------- Name: Title: KNOWLEDGE STREAM PARTNERS, storing, treating, or transporting any hazardous substance other than legallyINC. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.By: ---------------------------- Name: Title:
Appears in 1 contract
Samples: Second Loan Modification Agreement (Exchange Applications Inc)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. [The remainder of this page is intentionally left blank] This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: IBASIS, INC. SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 Richard Tennant By: /s/ Michael Tramack ------------------- ------------------- Name: Richard Tennant Name: Michael Tramack --------------- --------------- Title: CFO Title: Senior Vice President --- --------------------- Each of the undersigned hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of each of its Unconditional Guaranty, Security Agreement, IP Security Agreement (if applicable) and Perfection Certificate, in each case executed in connection with the Loan Agreement, and each acknowledges, confirms and agrees that each such document shall remain in full force and effect and in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. IBASIS GLOBAL, INC. IBASIS RETAIL, INC. By: /s/ Richard Tennant By: /s/ Richard Tennanx ------------------- --------------- Name: Richard Tennant Name: Richard Tennanx --------------- --------------- Title: CFO Title: CFO --- --- IBASIS SECURITIES CORPORATION KPN INTERNATIONAL NETWORK SERVICES, INC. By: /s/ Richard Tennant By: /s/ Richard Tennanx ------------------- ------------------- Name: Richard Tennant Name: Richard Tennanx --------------- --------------- Title: CFO Title: CFO --- --- EXHIBIT A --------- BORROWING BASE CERTIFICATE EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: ----------------------- FROM: IBASIS, an INC. The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALIBASIS, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “"Borrower”") certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”the "Agreement"), (1) as follows 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 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 Subsidiaries, if any, 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 Quarterly within 45 days Yes No financial statements with Compliance Certificate ------------------------------------------------ -------------------------------- ------------------ Annual financial statement (CPA Audited) + CC FYE within 120 days Yes No ------------------------------------------------ -------------------------------- ------------------ 10-Q, 10-K and 8-K Within 5 days after filing with Yes No SEC ------------------------------------------------ -------------------------------- ------------------ A/R & A/P Agings, Borrowing Base and Transaction Monthly within 30 days Yes No Reports ------------------------------------------------ -------------------------------- ------------------ Other filings with the SEC or any other Within 10 days after filing Yes No regulatory agency ------------------------------------------------ -------------------------------- ------------------ A/R Agings and unbilled revenue reports (if On the 15th and the 30th of each Yes No required by month, Bank) as required ------------------------------------------------ -------------------------------- ------------------ The following Intellectual Property was registered after the Effective Date and since the last Compliance Certificate was provided to the Bank (if no registrations, state "None") ---------------------------------------------------------------------------------------------------- Financial Covenant Required Actual Complies ================================================ ============== ============== ================= ------------------------------------------------ -------------- -------------- ----------------- Maintain on a Quarterly Basis: ------------------------------------------------ -------------- -------------- ----------------- Minimum Adjusted Quick Ratio _____:1.0 _____:1.0 Yes No ------------------------------------------------ -------------- -------------- ----------------- Minimum Consolidated EBITDA $_______ $_______ Yes No ------------------------------------------------ -------------- -------------- ----------------- Minimum Cash Flow of Borrower (if required) $_____ $_____ Yes No ------------------------------------------------ -------------- -------------- ----------------- The following financial covenant analyses and information set forth in Schedule 1 attached hereto are true and accurate as of the date of this Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, state "No exceptions to note.") -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- IBASIS, INC. BANK USE ONLY By: ______________________ Received by: _____________________ Name:_____________________ AUTHORIZED SIGNER Title: __________________ Date: ____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed ReceivableVerified: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right ________________________ AUTHORIZED SIGNER Date: ____________________________ Compliance Status: Yes No Schedule 1 to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement Compliance Certificate ------------------------------------ Financial Covenants of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows------------------------------- Dated: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.____________________
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION EVERYDAY HEALTH, INC. By: /s/ Xxxxx X. Xxxxxx ByXxxx Xxxxxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman Xxxx Xxxxxxx Title: Executive Vice President & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORGeneral Counsel EVERYDAY HEALTH MEDIA, LLC By: Spire Corporation/s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Executive Vice President & General Counsel MEDPAGE TODAY, a Massachusetts corporation, its sole Member and Manager L.L.C. By: /s/ Xxxxx X. Xxxxxx ByXxxx Xxxxxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman Xxxx Xxxxxxx Title: Executive Vice President & CEO CFO and Treasurer General Counsel BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 Xxxxxxx XxXxxxx Name: Xxxxxxx XxXxxxx Title: Vice President Exhibit A EXHIBIT B A Member of SVB Financial Group SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAREVERYDAY HEALTH, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOREVERYDAY HEALTH MEDIA, LLC and MEDPAGE TODAY, L.L.C. (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Receivable based upon Eligible Accounts and Aggregate Eligible Accounts (except to the extent of any Adjustments for which the applicable Advance (or portion thereof) has been repaid): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal datedate (except with respect to Permitted Deferred Revenue); Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.
Appears in 1 contract
Samples: Second Loan Modification Agreement (Everyday Health, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts Massachusetts, as of the date first written aboveSeventh Loan Modification Effective Date. BORROWER: SPIRE CORPORATION BANK: BRIDGELINE DIGITAL, INC. By: /s/ /s/Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxx ByXxxxx Title: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: Chief Financial Officer SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 /s/Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Vice President BRIDGELINE INTELLIGENCE GROUP, INC. By: /s/Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx Title: Treasurer EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IA- COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: BRIDGELINE DIGITAL, an INC. BRIDGELINE INTELLIGENCE GROUP, INC. The undersigned authorized officer of SPIRE CORPORATIONBridgeline Digital, SPIRE SOLARInc. and Bridgeline Intelligence Group, INC.Inc. (individually and collectively, SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, the “Borrower”) certify certifies that under the Second terms and conditions of the Amended and Restated Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 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 there 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 no existing Event not in compliance with any of Defaultthe 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
Samples: Seventh Loan Modification Agreement (Bridgeline Digital, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx REAL GOODS ENERGY TECH, INC. REAL GOODS SYNDICATED, INC. By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Name: Xxxxxx Xxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByXxxxx Title: /s/ Xxxxx X. Xxxxxx Chief Executive Officer Title: Chief Executive Officer REAL GOODS ENERGY TRADING CORPORATION ALTERIS RENEWABLES, INC. By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. By: /s/ Xxxxxx Xxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORXxxxx Name: Xxxxxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer MERCURY ENERGY, INC. ELEMENTAL ENERGY, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxxx Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Name: Xxxxxx Xxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer REAL GOODS SOLAR, INC. - MERCURY SOLAR SUNETRIC MANAGEMENT LLC By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IXxx Xxxxx Name: Xxx Xxxxx Title: Director Acknowledgment and Agreement: The undersigned ratifies, an authorized officer confirms and reaffirms, all and singular, the terms and conditions of SPIRE CORPORATIONa certain Second Amended and Restated Unconditional Guaranty and a certain Second Amended and Restated Security Agreement, SPIRE SOLAReach dated as of June 6, INC.2014, SPIRE BIOMEDICALand each document executed in connection therewith, INC. and SPIRE SEMICONDUCTORacknowledges, LLC (jointly confirms and severally, individually and collectively, “Borrower”) certify under agrees that the Second Amended and Restated Unconditional Guaranty, Second Amended and Restated Security Agreement and each document executed in connection therewith shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. REAL GOODS SOLAR, INC. By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Executive Officer Exhibit A to Ninth Loan Modification Agreement EXHIBIT B COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: REAL GOODS ENERGY TECH, INC. ET. AL. The undersigned authorized officer of REAL GOODS ENERGY TECH, INC., et al. (the “Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _____________________________ with all required covenants except as noted below, (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There 2) there are no defensesEvents of Default, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 Subsidiaries, if any, 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 there 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 financial statements with Compliance Certificate Monthly within 30 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No Annual Audited Financial Statements FYE within 120 days A/R & A/P Agings Monthly within 20 days Yes No Transaction Reports Weekly and with each request for a Credit Extension (Monthly within 20 days during a Streamline Period) Yes No Projections Within 20 days of board approval (no existing Event later than 60 days after FYE) Yes No Daily/Weekly Cash Flow Projections on the fifteenth (15th) and the last Business Day of Default.each month Yes No Deferred Revenue Report, Schedule of Assets with respect to 3rd party construction and financing arrangements (including performance bonds and bank statements For non-SVB bank accounts) Monthly within 30 days Yes No Electronic viewing access to Xxxxx Fargo Account Ongoing Yes No The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”)
Appears in 1 contract
Samples: Ninth Loan Modification Agreement (Real Goods Solar, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written aboveFifth Loan Modification Effective Date. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: ATRICURE, INC. SILICON VALLEY BANK By: /s/ Xxxx M. Xxxxxx Xxxx By: /s/ Xxx Xxxxxxxxx Name: M. Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. Xxxx Name: Xxx Xxxxxxxxx Title: Vice President and SPIRE SEMICONDUCTORChief Financial Officer Title: Relationship Manager ATRICURE, LLC By: /s/ M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Title: Vice President and Chief Financial Officer The undersigned, Vice President and Chief Financial Officer of ATRICURE EUROPE, B.V., a company organized under the laws of The Netherlands and a wholly owned Subsidiary of Borrower, ratifies, confirms and reaffirms, all and singular, the terms and conditions of (jointly and severallyi) a certain Unconditional Guarantee dated as of September 26, individually and collectively, 2012 (the “BorrowerGuaranty”) certify under and (ii) a certain Guarantor Security Agreement, dated as of September 26, 2012 (the Second Amended “Guarantor Security Agreement”), and Restated Loan acknowledges, confirms and agrees that the Guaranty and the Guarantor Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. ATRICURE EUROPE, B.V. By /s/ M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Title: Vice President and Chief Financial Officer 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 (as amendedincluding health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, 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 “Agreement”Collateral does not include more than sixty-five percent (65%) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request presently existing and Invoice Transmittal date; Each Financed Receivable is based on an actual sale hereafter arising issued and delivery outstanding shares of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free capital stock owned by Borrower of any liens, security interests and encumbrances Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter (other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds capital stock of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary orAtricure B.V., to the best of Borrower's knowledge, extent contemplated by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legallythe Dutch Security Documents). Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.EXHIBIT B
Appears in 1 contract
Samples: Joinder and Fifth Loan Modification Agreement (AtriCure, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and BankBank (provided, however, in no event shall this Loan Modification Agreement become effective until signed by an officer of Bank in California). This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION BANK: GTC BIOTHERAPEUTICS, INC., SILICON VALLEY BANK, formerly known as Genzyme Transgenics Corporation doing business as SILICON VALLEY EAST By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxxxxx ------------------------------------- -------------------------------------- Name: Xxxx X. Xxxxx Name: Xxxxxx Xxxxxxxxx ------------------------------------ -------------------------------------- Title: Senior Vice President Title: SCO ----------------------------------- ------------------------------------- SILICON VALLEY BANK By: /s/ Xxxxx X. Xxxxxx By---------------------------------------- Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR-------------------------------------- Title: Division Manager ------------------------------------- (signed in Santa Xxxxx County, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANKCalifornia) EXHIBIT A COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK ByFROM: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IGTC BIOTHERAPEUTICS, an INC. The undersigned authorized officer of SPIRE CORPORATIONGTC Biotherapeutics, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify Inc. certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”the "Agreement"), (i) as follows Borrower is in complete compliance for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns covenants except as noted below and paid, or made adequate provision to pay, (ii) all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date. Attached are the required documents supporting the certification. The Officer certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The Officer 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 Borrower represents that there compliance is no existing Event determined not just at the date this certificate is delivered. PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN. REPORTING COVENANT REQUIRED COMPLIES ------------------ ------------------------------------------------ Quarterly financial statements with CC Within 5 days after filing with SEC Yes No Annual (CPA Audited) With 5 days after filing with SEC Yes No Projects approved by Board of Default.Directors Annually, and as updated Yes No FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES ------------------ -------- ------ -------- MAINTAIN ON A QUARTERLY BASIS: Minimum Liquidity $ 18,000,000.00 $ _______ Yes No COMMENTS REGARDING EXCEPTIONS: See Attached. BANK USE ONLY Sincerely, Received by: ----------------------- AUTHORIZED SIGNER ----------------------- SIGNATURE Date: ----------------------- ----------------------- TITLE Verified: -------------------- AUTHORIZED SIGNER ----------------------- DATE Date: -----------------------------
Appears in 1 contract
Samples: Loan Modification Agreement (GTC Biotherapeutics Inc)
COUNTERSIGNATURE. This Third Loan Modification Agreement shall become ---------------- effective only when it shall have been executed by Borrower and BankBank (provided, however, in no event shall this Third Loan Modification Agreement become effective until signed by an officer of Bank in California). This Third Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALCENTRA SOFTWARE, INC. and SPIRE SEMICONDUCTORSILICON VALLEY BANK, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (doing business as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending SILICON VALLEY EAST By:__________________________ By:____________________________ Name:________________________ Name:__________________________ Title:_______________________ Title:_________________________ SILICON VALLEY BANK By:__________________________ Name:________________________ Title:_______________________ (all capitalized terms used herein shall have the meaning set forth signed in the Agreement): Borrower represents and warrants for each Financed ReceivableSanta Xxxxx County, California) EXHIBIT A COMPLIANCE CERTIFICATE TO: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sellSILICON VALLEY BANK FROM: CENTRA SOFTWARE, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse ChangeINC. The executionundersigned authorized officer of CENTRA SOFTWARE, delivery INC. hereby certifies that in accordance with the terms and performance conditions of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Security Agreement between Borrower and each Subsidiary has timely filed all required tax returns and paidBank (the "Agreement"), or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. (i) Borrower is in complete compliance for the period ending ______________ with the financial covenant set forth in Section 6.7 of the Agreement. All other all required covenants except as noted below and (ii) all representations and warranties of Borrower stated in the Agreement are true and correct in all material respects on this dateas of the date hereof. Attached herewith are the required documents supporting the above certification. The Officer further certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The Officer expressly acknowledges that no borrowings may be requested by the Borrower at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and Borrower represents that there such compliance is no existing Event of Defaultdetermined not just at the date this certificate is delivered. Please indicate compliance status by circling Yes/No under "Complies" column.
Appears in 1 contract
Samples: Third Loan Modification Agreement (Centra Software Inc)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION NSI SOFTWARE, INC., successor by merger with NETWORK SPECIALISTS, INCORPORATED By: /s/ Xxxxx X. Xxxxxx ByS. Cxxxx Xxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC ByS. Cxxxx Xxxx Title: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Chief Financial Officer BANK: SILICON VALLEY BANK BANK, d/b/a SILICON VALLEY EAST By: /s/ Xxxx Jxxx X. Atenasoff Name: Jxxx X. Atenasoff Title: Vice President CORPORATE RESOLUTIONS FOR AMENDING LOAN ARRANGEMENT Sxxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I____, an authorized officer being the Secretary of SPIRE CORPORATION, SPIRE SOLARNSI SOFTWARE, INC., SPIRE BIOMEDICALa corporation duly organized, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business invalidly existing, and in good standing in, any state in which under the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance laws of the Loan Documents have State of Delaware CERTIFIES that the following resolutions were adopted CHECK ONE þ at a duly called and conducted meeting of the Directors of said corporation held on at which a quorum was present and voting throughout, o by the unanimous consent of the Directors of said corporation, the originals of which consents having been duly authorizedplaced with the records of meetings of Directors of said corporation, and do not conflict are in conformity with Borrower's organizational the Certificate of Incorporation and By-Laws of said corporation (each as amended to date) and that each of the following resolutions presently is in full force and effect without change: AMENDMENT OF LOAN ARRANGEMENT RESOLVED, That this corporation amend its loan arrangements with Silicon Valley Bank (hereinafter, with any successor, the “Bank”) in such manner as has been or is hereinafter discussed and negotiated by and between the Bank on the one hand and any of the following, acting on behalf of this corporation, on the other: Insert title, only, if Persons to act on behalf of corporation have titles. Otherwise, insert names. S. Cxxxx Xxxx Chief Financial Officer In connection with the foregoing, each of said officers and/or persons, acting as described above, is authorized to execute, seal, acknowledge, and deliver in the name of and on behalf of this corporation such instruments, documents, nor constitute an event and papers which relate thereto as may be appropriate, each in such form and upon such terms as the officer(s) and/or person(s) so authorized determines, such execution and delivery to be conclusive of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement such officer’(s) and/or person’(s) authority so to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used act in the Public Utility Holding Company Act name of 2005. Borrower is not engaged as one and on behalf of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Defaultcorporation.
Appears in 1 contract
Samples: Third Loan Modification Agreement (Double-Take Software, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. [The remainder of this page is intentionally left blank] This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written aboveSeventh Loan Modification Effective Date. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLARATRICURE, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer INC. BANK: SILICON VALLEY BANK By: /s/ Xxxx M. Xxxxxx Xxxx By: /s/ Xxx Xxxxxxxxx Name: M. Xxxxxx VP Schedule 1 Xxxx Name: Xxx Xxxxxxxxx Title: Chief Financial Officer Title: Vice President II ATRICURE, LLC By: /s/ M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Title: Chief Financial Officer ENDOSCOPIC TECHNOLOGIES, LLC By: /s/ M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Title: Chief Financial Officer The undersigned, of ATRICURE EUROPE, B.V., a company organized under the laws of The Netherlands and a wholly owned Subsidiary of Borrower, ratifies, confirms and reaffirms, all and singular, the terms and conditions of (i) a certain Unconditional Guaranty dated as of September 26, 2012 (the “Guaranty”) and (ii) a certain Guarantor Security Agreement, dated as of September 26, 2012 (the “Guarantor Security Agreement”), and acknowledges, confirms and agrees that the Guaranty and the Guarantor Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. ATRICURE EUROPE, B.V. By /s/ M. Xxxxxx Xxxx Name: M. Xxxxxx Xxxx Title: Director 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, franchise agreements, General Intangibles, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, 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 more than sixty-five percent (65%) 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. Exhibit B to Seventh Loan Modification Agreement EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: ATRICURE, an INC. ATRICURE, LLC ENDOSCOPIC TECHNOLOGIES, LLC The undersigned authorized officer of SPIRE CORPORATIONAtricure, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC Inc. (jointly and severally, individually and collectively, “Borrower”) certify certifies for itself and each other Borrower that under the Second Amended terms and Restated conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.):
Appears in 1 contract
Samples: Modification Agreement
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALEXCHANGE APPLICATIONS, INC. and SPIRE SEMICONDUCTORSILICON VALLEY BANK, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending d/b/a SILICON VALLEY EAST By______________________________ By___________________________ President or Vice President Title________________________ By______________________________ Secretary or Ass't Secretary EXSTATIC SOFTWARE, INC., formerly known as GINO BORLAND, INC. By______________________________ President xx Xxxx Xxxxident By______________________________ Secretary or Ass't Secretary The undersigned each ratify confirm and reaffirm, all and singular, the terms and conditions of certain Unconditional Guaranties each dated April 24, 2001 (all capitalized terms used herein collectively, the "Guaranty") and a certain Security Agreement dated April 24, 2001 (the "Security Agreement") and acknowledge, confirm and agree that the Guaranty and the Security Agreement remain in full force and effect and shall have in no way be limited by the meaning set forth execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. Further, the undersigned each hereby grant to Bank, and reaffirm the grant to Bank of, a continuing security interest in and to the property listed on Exhibit A to the Security Agreement to secure the Obligations. ACTION SYSTEMS, INC. By:___________________________ Name: Title: CUSTOMER ANALYTICS HOLDINGS, INC. By:___________________________ Name: Title: CUSTOMER ANALYTICS, INC. By:___________________________ Name: Title: EXCHANGE APPLICATIONS SECURITIES CORPORATION By:___________________________ Name: Title: KNOWLEDGE STREAM PARTNERS, INC. By:___________________________ Name: Title: This First Loan Modification Agreement (this "Loan Modification Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable ') is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations entered into as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered_______________, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge2001, by previous Personsand between SILICON VALLEY BANK, in disposinga California-chartered bank, producingwith its principal place of business at 3003 Tasman Drive, storingSanta Clara, treatingCalifornia 95054 and with a loan proxxxxxxx xxxxxx xxxxxxx xx Xxx Xxxxxx Xxxxxxxxx Xark, or transporting any hazardous substance other than legallySuite 200, 2221 Washington Street, Newton, Massachusetts 02462, doing business xxxxx xxx xxxx "Xxxxxxx Xxxxxx Xxxx" ("Xxxx") xxx XXCHANGE APPLICATIONS, INC. Borrower d/b/a Xchange, Inc., One Lincoln Plaza, 89 South Street, Boston, Massachusetts 02110 and each Subsidiary has timely filed all required tax returns and paidXXXXXXXX XXXXXXXX, or made adequate provision to payXXX., all material taxesxxxxxxxx xxxxx xx Xxxx Xxxxxxx, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consentsXxx., approvals and authorizations of4555 Roosevelt Way Seattle, made all declarations or filings withWashington 98105(herxxxxxxxx, and given all notices toxxllectivexx, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Defaultxxx "Xxxxxxxx").
Appears in 1 contract
Samples: Loan Modification Agreement (Exchange Applications Inc)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective ---------------- only when it shall have been executed by Borrower and BankBank (provided, however, in no event shall this Loan Modification Agreement become effective until signed by an officer of Bank in California). This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. ("BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx ") LIGHTBRIDGE, INC. By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxxxx, Xx. --------------------------- Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLARXxxxxxxx, INC Xx. --------------------------- Title: Chief Financial Officer --------------------------- (BANK) SILICON VALLEY BANK, doing business as SILICON VALLEY EAST By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: :______________________________________ Name:____________________________________ Title:___________________________________ SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending :______________________________________ Name:____________________________________ Title:___________________________________ (all capitalized terms used herein shall have the meaning set forth signed in the Agreement): Borrower represents and warrants for each Financed ReceivableSanta Xxxxx County, California) EXHIBIT A COMPLIANCE CERTIFICATE TO: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sellSILICON VALLEY BANK FROM: LIGHTBRIDGE, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse ChangeINC. The executionundersigned authorized officer of LIGHTBRIDGE, delivery INC. hereby certifies that in accordance with the terms and performance conditions of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Security Agreement between Borrower and each Subsidiary has timely filed all required tax returns and paidBank (the "Agreement"), or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. (i) Borrower is in compliance for the period ending ____________________ with the financial covenant set forth in Section 6.7 of the Agreement. All other all required covenants except as noted below and (ii) all representations and warranties of Borrower stated in the Agreement are true and correct in all material respects on this dateas of the date hereof. Attached herewith are the required documents supporting the above certification. The Officer further certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The Officer expressly acknowledges that no borrowings may be requested by the Borrower at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and Borrower represents that there such compliance is no existing Event of Defaultdetermined not just at the date this certificate is delivered. Please indicate compliance status by circling Yes/No under "Complies" column.
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Chief Executive Officer By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO Title: Chief Financial Officer and Treasurer SPIRE SOLAR, INC INC. By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Chief Executive Officer By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO Title: Chief Financial Officer and Treasurer SPIRE BIOMEDICAL,INC , INC. By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Chief Executive Officer By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO Title: Chief Financial Officer and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Chief Executive Officer By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO Title: Chief Financial Officer and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx VP Title: Vice President Schedule 1 EXHIBIT B SVB>Silicon Valley Bank A Member of SVB Financial Group SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Export-Import Bank Loan and Security Agreement (as amended, the “Exim Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Exim Agreement): Borrower represents and warrants for each Financed Receivable: Receivable (other than Financed Receivables based upon Exim Inventory Placeholder Invoices): Each Financed Receivable is an Eligible Foreign Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. All statements made and all unpaid balances appearing in all invoices, instruments and other documents evidencing the Financed Receivable are and shall be true and correct and all such invoices, instruments and other documents, and all of Borrower's Books are genuine and in all respects what they purport to be; All sales and other transactions underlying or giving rise to each Financed Receivable shall comply in all material respects with all applicable laws and governmental rules and regulations; and To the best of Borrower’s knowledge, all signatures and endorsements on all documents, instruments, and agreements relating to each Financed Receivable are genuine, and all such documents, instruments and agreements are legally enforceable in accordance with their terms. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's ’s organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's ’s or any Subsidiary's ’s properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's ’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. With respect to Exim Inventory Placeholder Invoices, Borrower represents and warrants that all of Borrower’s Inventory which is the subject of any Exim Inventory Placeholder Invoice is and will continue to be Eligible Export-Related Inventory. The undersigned represents and warrants that as of the date hereof the foregoing is true, complete and correct, that the information reflected in compliance this Compliance Certificate complies with the financial covenant representations and warranties set forth in Section 6.7 the Exim Agreement and the Borrower Agreement each dated ______________, 2009, as may be amended from time to time, as if all representations and warranties were made as of the Agreementdate hereof, and that Borrower is, and shall remain, in full compliance with its agreements, covenants, and obligations under such agreements. Such representations and warranties include, without limitation, the following: Borrower is using disbursements only for the purpose of enabling Borrower to finance the cost of manufacturing, purchasing or selling items intended for export. Borrower is not using disbursements for the purpose of: (a) servicing any of Borrower’s unrelated pre-existing or future indebtedness; (b) acquiring fixed assets or capital goods for the use of Borrower’s business; (c) acquiring, equipping, or renting commercial space outside the United States; or (d) paying salaries of non-U.S. citizens or non-U.S. permanent residents who are located in the offices of the United States. Additionally, disbursements are not being used to finance the manufacture, purchase or sale of all of the following: (a) Items to be sold to a buyer located in a country in which the Export Import Bank of the United States is legally prohibited from doing business; (b) that part of the cost of the items which is not U.S. Content unless such part is not greater than fifty percent (50.0%) of the cost of the items and is incorporated into the items in the United States; (c) defense articles or defense services or items directly or indirectly destined for use by military organizations designed primarily for military use (regardless of the nature or actual use of the items); or (d) any items to be used in the construction, alteration, operation or maintenance of nuclear power, enrichment, reprocessing, research or heavy water production facilities. All other representations and warranties in the Exim Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.
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COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and BankBank (provided, however, in no event shall this Loan Modification Agreement become effective until signed by an officer of Bank in California). [The remainder of this page is intentionally left blank] This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION BANK: ART TECHNOLOGY GROUP, INC. SILICON VALLEY BANK, doing business as SILICON VALLEY EAST By: /s/ Xxxxx X. Xxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxxxx ---------------------------- ----------------------------------- Name: Xxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC ByXxxxxxxx ---------------------------- ----------------------------------- Title: /s/ Xxxxx X. Xxxxxx ByChief Financial Officer Title: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: Vice President ---------------------------- ----------------------------------- SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 ----------------------------------- Name: ----------------------------------- Title: ----------------------------------- (signed in Santa Xxxxx County, California) EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IA COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK FROM: ART TECHNO LOGY GROUP , an INC. The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALART TECHNOLOGY GROUP, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify certifies that under the Second terms and conditions of the Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”the "Agreement"), (i) as follows Borrower is in complete compliance for the period ending __ ___ ___ ___ ___ _ with all required covenants except as noted below and (ii) all representations and warranties in the Agreement are true and correct in all material respects on this date. Attached are the required documents supporting the certification. The Officer certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The Officer acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the term s of the Agreement, and that compliance is determined not just at the date this certificate is delivered. PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN. REPORTING COVENANT REQUIRED COMPLIES ------------------ -------- -------- Annual (CPA Audited) FYE within 120 days Yes No FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES ------------------ -------- ------ -------- Maintain on a Monthly Basis: Minimum Liquidity $* $________ Yes No Maintain on a Quarterly Basis: Profitability: $** $________ Yes No *See Section 6.7(a) of the Agreement **See Section 6.7(b) of the Agreement COMMENTS REGARDING EXCEPTIONS: See Attached. BANK USE ONLY Sincerely, Received by: _____________________ AUTHORIZED SIGNER _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed ReceivableSIGNATURE Date: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows____________________________ _____________________________ Verified: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.________________________ TITLE AUTHORIZED SIGNER _____________________________ Date: ____________________________ DATE 802168
Appears in 1 contract
Samples: Fourth Loan Modification Agreement (Art Technology Group Inc)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and BankLender. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION REAL GOODS ENERGY TECH, INC. REAL GOODS SYNDICATED, INC. By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Dxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLARName: Dxxxxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer REAL GOODS SOLOAR, INC INC. ALTERIS RENEWABLES, INC. By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Name: Dxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByName: /s/ Dxxxxx Xxxxx X. Xxxxxx ByTitle: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTORChief Executive Officer Title: Chief Executive Officer MERCURY ENERGY, INC. ELEMENTAL ENERGY, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Name: Dxxxxx Xxxxx X. Xxxxxx ByName: /s/ Xxxxxx X. Xxxxxxxxx Dxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANKTitle: SILICON VALLEY BANK ByChief Executive Officer Title: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE Chief Executive Officer REAL GOODS SOLAR, INC., SPIRE BIOMEDICAL. - MERCURY SOLAR SUNETRIC MANAGEMENT LLC By: By: Name: Dxxxxx Xxxxx Name: Dxxxxx Xxxxx Title: Chief Executive Officer Title: Chief Executive Officer RGS FINANCING, INC. and SPIRE SEMICONDUCTORBy: Name: Dxxxxx Xxxxx Title: Chief Executive Officer LENDER: SOLAR SOLUTIONS AND DISTRIBUTION, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending By___________________________________ (Name:________________________________ Title:_________________________________ Acknowledgment and Agreement: The undersigned ratifies, confirms and reaffirms, all capitalized and singular, the terms used herein shall have the meaning set forth in the and conditions of a certain Second Amended and Restated Unconditional Guaranty and a certain Second Amended and Restated Security Agreement): Borrower represents and warrants for , each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations dated as of June 6, 2014, and each document executed in connection therewith, and acknowledges, confirms and agrees that the Advance Request Second Amended and Invoice Transmittal date; Each Financed Receivable is based on an actual sale Restated Unconditional Guaranty, Second Amended and delivery Restated Security Agreement and each document executed in connection therewith shall remain in full force and effect and shall in no way be limited by the execution of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferredthis Loan Modification Agreement, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is boundinstruments and/or agreements executed and/or delivered in connection herewith. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse ChangeREAL GOODS SOLAR, INC. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.By:________________________________ Name: Dxxxxx Xxxxx Title: Chief Executive Officer
Appears in 1 contract
Samples: Loan Modification and Waiver Agreement (Real Goods Solar, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and BankBank (provided, however, in no event shall this Loan Modification Agreement become effective until signed by an officer of Bank in California). [The remainder of this page is intentionally left blank] This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION BANK: PHASE FORWARD INCORPORATED SILICON VALLEY BANK, doing business as SILICON VALLEY EAST By: /s/ Xxxxx X. Xxxxxx Ari Buchler By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC ByMichael J Tromack -------------------------- ---------------------------------------- Name: /s/ Xxxxx X. Xxxxxx ByAri Buchler Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC ByMichael J Tromack Title: /s/ Xxxxx X. Xxxxxx ByVice Prxxxxxxx xxx General Title: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: Vice Prxxxxxxx Counsel Phase Forward Incorporated SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IMICHELLE D. GIANNINI ---------------------------------------- Name: MICHELLE D. GIANNINI Title: ASST. XXXX XXXX. (signed in Santa Clara County, an authorized officer of SPIRE California) The undersigned, PHASE FORWARD SECURXXXXX CORPORATION, SPIRE SOLARratifies, INC.confirms and reaffirms, SPIRE BIOMEDICALall and singular, INCthe terms and conditions of a certain Unlimited Guaranty dated May 3, 1999 (the "Guaranty") and acknowledges, confirms and agrees that the Guaranty shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the PHASE FORWARD SECURITIES CORPORATION By: /s/ John J. Schickling ---------------------------------------- Name: John J. Schickling Title: Treasurxx SECOND LOAN MODIFICATION AGREEMENT This Second Amended and Restated Loan and Security Modification Agreement (as amendedthis "Loan Modification Agreement') is entered into us of February 28, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge2003, by previous Personsand between SILICON VALLEY BANK, in disposinga California-chartered bank, producingwith its principal place of business at 3003 Tasman Drive, storingSanta Clara, treatingCalifornia 95054 and with a loan prodxxxxxx xxxxxx xxxxxxx xx Xxx Xxxxxx Xxxxxxxxx Xxrk, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paidSuite 200, or made adequate provision to pay2221 Washington Street, all material taxesNewton, except those being contested in good faith Masxxxxxxetts 02462, doing business uxxxx xxx xxxx "Xxxxxxx Xxxxxx Xxxx" ("Xxxx") xxx XXASE FORWARD INCORPORATED, a Delaware corporation with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consentsits principal place of business at 1440 Main Street, approvals and authorizations ofWaltham, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of DefaultMassachusetts 02451 ("Borrower").
Appears in 1 contract
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx ARI NETWORK SERVICES, INC. By Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxx Name Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx Title Vice President, Chief Financial Officer and Secretary PROJECT VIKING II ACQUISITION, INC. By Xxxxxxx X. Xxxxxx Xxxxxx Nuthen Name Xxxxxxx X. Xxxxxxxxx Chairman & CEO CFO Xxxxxxx Title Chief Financial Officer and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer Secretary BANK: SILICON VALLEY BANK ByBy Xxxxxx Xxxxxxx Name Xxxxxx Xxxxxxx Title Vice President Exhibit A to Second Loan Modification Agreement EXHIBIT D COMPLIANCE CERTIFICATE TO: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ISILICON VALLEY BANK Date: _______________ FROM: ARI NETWORK SERVICES, an INC. PROJECT VIKING II ACQUISITION, INC. The undersigned authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALARI NETWORK SERVICES, INC. (“ARI”), PROJECT VIKING II ACQUISITION, INC. (“Viking”, and SPIRE SEMICONDUCTOR, LLC (jointly and severallytogether with ARI, individually and collectively, jointly and severally, the “Borrower”) certify certifies that under the Second Amended terms and Restated conditions of the Loan and Security Agreement (as amended, the “Agreement”) ), between Borrower and Silicon Valley Bank (“Bank”): (1) as follows Borrower is in complete compliance for the period ending _____________________________ with all required covenants except as noted below; (all capitalized terms used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell2) unless noted below, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There there are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discountEvents of Default; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse (3) all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other 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 Subsidiaries, has timely filed all required tax returns and reports, and Borrower represents 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 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 there these supporting documents have been 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 the “Complies” column. Reporting Covenants Required Complies Monthly financial statements Monthly within 30 days Yes No Compliance Certificates Monthly within 30 days Yes No Annual financial statement (CPA Audited) FYE within 120 days Yes No 10-Q, 10-K and 8-K, if applicable Within 5 days after filing with SEC Yes No A/R & A/P Agings Monthly within 30 days Yes No The following Intellectual Property was registered (or a registration application submitted) after the Effective Date (if no existing Event of Default.registrations, state “None”)
Appears in 1 contract
Samples: Second Loan Modification Agreement (Ari Network Services Inc /Wi)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and BankLenders. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION LENDERS: GAIN CAPITAL HOLDINGS, INC. SILICON VALLEY BANK, as Agent and Lender By: /s/ Xxxxx X. Xxxxxx Xxxxx By: /s/ A. Xxxxxx X. Xxxxxxxxx Xxxx Name: Xxxxx X. Xxxxx Name: A. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO Xxxx Title: CFO Title: Vice President JPMORGAN CHASE BANK, N.A., as Lender By: /s/ Xxxxxxxx Xxxxxxx Name: Xxxxxxxx Xxxxxxx Title: Vice President The undersigned, GAIN HOLDINGS, LLC, ratifies, confirms and Treasurer SPIRE SOLARreaffirms, INC all and singular, the terms and conditions of a certain Unconditional Guaranty dated as of March 29, 2006 (the “Guaranty”) and acknowledges, confirms and agrees that (i) the Guaranty shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith, and (ii) the Guaranty shall continue to pertain to all Obligations. GAIN HOLDINGS, LLC By: /s/ Xxxxx X. Xxxxxx ByXxxxxxx Name: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & Xxxxxxx Title: CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: SILICON VALLEY BANK By: /s/ Xxxx Xxxxxx Xxxx Xxxxxx VP Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICALC FORM OF NOTICE OF BORROWING GAIN CAPITAL HOLDINGS, INC. and SPIRE SEMICONDUCTORDate: To: Silicon Valley Bank 0000 Xxxxxx Xxxxx Xxxxx Xxxxx, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated XX 00000 Attention: Corporate Services Department Re: Loan and Security Agreement dated as of March 29, 2006 (as amended, modified, supplemented or restated from time to time, the “Loan Agreement”) between Borrower ), by and among Gain Capital Holdings, Inc. (“Borrower”), Silicon Valley Bank (“SVB”), as agent (the “Agent”), and JPMorgan Chase Bank, N.A. (“JPMorgan”) (SVB and JPMorgan and collectively referred to as follows for the period ending _____________________________ (all capitalized “Lenders”) Ladies and Gentlemen: The undersigned refers to the Loan Agreement, the terms defined therein and used herein shall have the meaning set forth in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business inso defined, and in good standing inhereby gives you notice irrevocably, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure pursuant to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance Section 3.4(a) of the Loan Documents have been duly authorizedAgreement, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” borrowing of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of DefaultCredit Extension.
Appears in 1 contract
Samples: Sixth Loan Modification Agreement (GAIN Capital Holdings, Inc.)
COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank. This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above. BORROWER: SPIRE CORPORATION By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SOLAR, INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE BIOMEDICAL,INC By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer SPIRE SEMICONDUCTOR, LLC By: Spire Corporation, a Massachusetts corporation, its sole Member and Manager By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx Chairman & CEO CFO and Treasurer BANK: CONTROL4 CORPORATION SILICON VALLEY BANK By: /s/Xxxx Xxxxxxxxxx By: /s/ Xxxxx Xxxxx Name: Xxxx Xxxxxx Xxxx Xxxxxx VP Xxxxxxxxxx Name: Xxxxx Xxxxx Title: CFO Title: Vice President Schedule 1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IFORM OF NOTICE OF BORROWING CONTROL 4 CORPORATION Date: ______________ To:Silicon Valley Bank 0000 Xxxxxx Xxxxx Xxxxx Xxxxx, an authorized officer of SPIRE CORPORATION, SPIRE SOLAR, INC., SPIRE BIOMEDICAL, INC. and SPIRE SEMICONDUCTOR, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Second XX 00000 Attention: Corporate Services Department Re:Amended and Restated Loan and Security Agreement dated as of June 26, 2013 (as amended, modified, supplemented or restated from time to time, the “Loan Agreement”) ), by and between Borrower and Silicon Valley Bank SILICON VALLEY BANK, a California corporation with a loan production office located at 0000 Xxxx Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000 (“Bank”), and CONTROL 4 CORPORATION, a Delaware corporation (“Borrower”) Ladies and Gentlemen: The undersigned refers to the Loan Agreement, the terms defined therein and used herein as follows for so defined, and hereby gives you notice irrevocably, pursuant to Section 3.4 of the period ending Loan Agreement, of the borrowing of a 2016 Advance. The Funding Date1, which shall be a Business Day, of the requested borrowing is _______________. The aggregate amount of the requested 2016 Advance is $_____________. The requested 2016 Advance shall consist of $___________ (all capitalized terms used herein shall have of Prime Rate Advances and $__________ of LIBOR Advances. The duration of the meaning set forth Interest Period for the LIBOR Advances included in the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is requested 2016 Advance shall be __________ months. The undersigned hereby certifies that the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is following statements are true on the Advance Request date hereof, and Invoice Transmittal and is not disputed; Payment is not contingent will be true on any obligation or contract and Borrower has fulfilled all its obligations as the date of the proposed 2016 Advance Request before and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business inafter giving effect thereto, and in good standing in, any state in which to the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance application of the Loan Documents have been duly authorized, and do not conflict with Borrower's organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940proceeds therefrom, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower's or any Subsidiary's properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant set forth in Section 6.7 of the Agreement. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.applicable:
Appears in 1 contract
