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, 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 any of the following, whether now owned or hereafter acquired (a) any Equipment or other property subject to a Permitted Lien described in paragraphs (c) and (d) of the definition of Permitted Lien, or (b) any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; provided, however, the Collateral shall include all Accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Fax To: Date: From Account # (Deposit Account #) Principal $ To Account # (Loan Account #) and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # (Loan Account #) To Account # (Deposit Account #) Amount of Term Loan $ All Borrower’s representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: Outgoing Wire Request: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, P.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: EXHIBIT C - COMPLIANCE CERTIFICATE TO:SILICON VALLEY BANK Date: FROM: The undersigned authorized officer of TRUBION PHARMACEUTICLS, INC, (“Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (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 5.10 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 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. Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 120 days Yes No Annual Budget FYE with 45 days Yes No
Appears in 1 contract
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal propertyfollowing: All goods, Accounts (including health-care receivables)equipment, Equipment, Inventoryinventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles general intangibles (except as provided belowincluding payment intangibles) accounts (including health-care receivables), 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), 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 books relating to the foregoing, 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 shall not be deemed to include any (i) more than 65% of the followingpresently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower or any Subsidiary of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, whether now owned or hereafter acquired (aii) any Equipment or other property subject to a Permitted Lien described in paragraphs copyrights (c) including computer programs, blueprints and (d) of the definition of Permitted Lien, or (b) any copyright rightsdrawings), copyright applications, copyright registrations registration and like protections protection in each work of authorship and derivative workwork thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections, protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions, extensions and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any servicemarks and applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; provided, however, except that the Collateral shall include all Accountsaccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing, or (iii) any interest of Borrower as a lessee or licensee under a lease, license, sublicense or any agreement if Borrower is prohibited by the terms of such lease, license, sublicense or agreement from granting a security interest in such interest (and such prohibition is legally enforceable) or under which such an assignment or Lien would cause a legally enforceable default to occur under such lease, license, sublicense or any agreement. Borrower and Bank are parties to that certain negative pledge arrangement whereby Borrower, in connection with Bank’s loan(s) to Borrower, has agreed not to sell, transfer, assign, mortgage, pledge, lease grant a security interest in, or encumber any of its intellectual property without Bank’s prior written consent. DEADLINE FOR SAME DAY PROCESSING IS NOON PACIFIC TIME* Fax To: Date: LOAN PAYMENT: ULTHERA, INC. From Account # (Deposit To Account #) Principal $ To Account # (Loan Account #) and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # (Loan Account #) To Account # (Deposit Account #) Amount of Term Loan $ All Borrower’s representations and warranties in the Second Amended and Restated Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: Outgoing Wire RequestOUTGOING WIRE REQUEST: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, P.S.T. Pacific Time Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: EXHIBIT C - COMPLIANCE CERTIFICATE TO:SILICON VALLEY BANK Date: FROM: The undersigned authorized officer of TRUBION PHARMACEUTICLS, INC, (“Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is in complete compliance * Unless otherwise provided 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 5.10 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 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 Advance bearing interest 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. Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 120 days Yes No Annual Budget FYE with 45 days Yes NoLIBOR.
Appears in 1 contract
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables)equipment, Equipment, Inventoryinventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles general intangibles (except as provided belowincluding payment intangibles) accounts (including health-care receivables), 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), 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 books relating to the foregoing, 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 shall not be deemed to include any of the following, whether now owned or hereafter acquired (a) any Equipment or other property subject to a Permitted Lien described ownership interest in paragraphs (c) and (d) of the definition of Permitted LienEveryday Health India Private Limited, or (b) any copyright rights, copyright applications, copyright registrations and like protections ownership interest in each work any other Foreign Subsidiary in excess of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part 65% of the sametotal outstanding voting interest in such Foreign Subsidiary, trademarksor (c) the Security Deposits (as defined in the Subordinated Loan and Security Agreement among Borrower, service marks and, Agent and the Lenders) but only to the extent permitted that the granting of a lien to Agent in the Security Deposits would result in a default by Borrower under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; provided, however, the Collateral shall include all Accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoingdocuments evidencing such Security Deposits. Fax To: Date: From Account # (Deposit Account #) Principal $ __________________________ To Account # (Loan Account #) _______________________________ Principal $ ______________________________ and/or Interest $ ______________________________ Authorized Signature: :__________________________ Phone Number: _____________________________ Print Name/Title: _____________________________ Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # (Loan Account #) __________________________ To Account # (Deposit Account #) __________________________ Amount of Term Loan Credit Extension: $ _____________________________ All Borrower’s representations and warranties in the Subordinated Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: __________________________ Phone Number: __________________________ Print Name/Title: Outgoing Wire Request: Complete only if all or a portion of funds from the loan advance above is to be wired. __________________________ Deadline for same day processing is noon, P.S.T. Eastern Time Beneficiary Name: __________________________ Amount of Wire: $ _____________________________ Beneficiary Bank: __________________________ Account Number: ______________________________ City and State: ____________________________ Beneficiary Bank Transit (ABA) #: _____________ Beneficiary Bank Code (Swift, Sort, Chip, etc.): ________ Intermediary Bank: __________________________ Transit (ABA) #: __________________________ For Further Credit to: ___________________________________________________________________________________ Special Instruction: _____________________________________________________________________________________ Authorized Signature: __________________________ 2nd Signature (if required): __________________________ Print Name/Title: ______________________________ Print Name/Title: ______________________________ Telephone #: __________________________________ Telephone #: EXHIBIT C - COMPLIANCE CERTIFICATE __________________________________ TO:: SILICON VALLEY BANK Date: _______________ FROM: EVERYDAY HEALTH, INC.; EVERYDAY HEALTH MEDIA, LLC; and MEDPAGE TODAY, L.L.C. The undersigned authorized officer of TRUBION PHARMACEUTICLSEVERYDAY HEALTH, INC.; EVERYDAY HEALTH MEDIA, LLC; and MEDPAGE TODAY, L.L.C. (jointly and severally, individually and collectively, “Borrower”) certifies that under the terms and conditions of the Subordinated Loan and Security Agreement between Borrower among Borrower, Agent and Bank Lenders (as amended, the “Agreement”), (1) Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its 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 5.10 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 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. Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 120 days Yes No Annual Budget FYE with 45 days Yes No):
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Everyday Health, Inc.)
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, 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, 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 any of the following, whether now owned or hereafter acquired acquired: (a) presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Equipment Subsidiary which is organized under the laws of a jurisdiction other than the United States or other property subject to a Permitted Lien described in paragraphs (c) and (d) any state or territory thereof or the District of the definition of Permitted LienColumbia, or (b) any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; provided, however, the Collateral shall include all Accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the intellectual property described in clause (b). Borrower has agreed not to encumber any of its copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing, without Bank’s prior written consent; provided that Borrower may sell, transfer or otherwise dispose of non-core patents that are not material to the business of Borrower and may license intellectual property in the ordinary course of business consistent with the past business practices of Borrower. Fax ToTO: SILICON VALLEY BANK Date: From Account # FROM: MINDSPEED TECHNOLOGIES, INC. The undersigned authorized officer of MINDSPEED TECHNOLOGIES, INC., a Delaware corporation (Deposit Account #) Principal $ To Account # (Loan Account #) and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: Complete Outgoing Wire Request section below if all or a portion “Borrower”), certifies that under the terms and conditions of the funds from this loan advance Loan and Security Agreement dated as of September 30, 2008 (the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”), (1) Borrower is in compliance for the period ended with all required covenants except as noted below, (2) there are for an outgoing wire. From Account # no Events of Default, (Loan Account #3) To Account # (Deposit Account #) Amount of Term Loan $ All Borrower’s all representations and warranties in the Loan and Security Agreement are true, true and correct and complete in all material respects on this date except as noted below (with any such exception not constituting an Event of Default hereunder in and of itself solely in connection with the date delivery of this Compliance Certificate unless the fact or occurrence giving rise to any such exception otherwise constitutes an Event of Default under the Loan Agreement pursuant to any other term, condition, covenant or provision of the Agreement, including without limitation in connection with the request for an advanceand the making of a Credit Extension pursuant to Section 3.2 of the Agreement); provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: Outgoing Wire Request: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, P.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: EXHIBIT C - COMPLIANCE CERTIFICATE TO:SILICON VALLEY BANK Date: FROM: The undersigned authorized officer of TRUBION PHARMACEUTICLS, INC, (“Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has Subsidiaries have 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 in each case as otherwise permitted pursuant to the terms of Section 5.10 6.5 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, other than those Liens or claims that constitute Permitted Liens. Attached are the required documents supporting the certificationcertifications relating to compliance with the specific financial covenants and financial measurements as set forth specifically below. The undersigned certifies that these the financial statements pertaining thereto are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotesfootnotes (if any). 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. Monthly financial statements with Compliance Certificate for each month Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX Quarterly compliance certificates Quarterly within 120 30 days Yes No 10-Q (including Quarterly financial statements), 10-K (including Annual Budget FYE financial statements), and 8-K Within 5 days after so filing with 45 the SEC Yes No A/R & A/P Agings, outstanding or held check registers (if any), monthly reconciliations, general ledger, per Section 6.2(a)(ii) Monthly within 15 days Yes No Transaction Report If Borrower has not met the Net Cash Test as of the end of the fiscal quarter most recently ended and/or if there is Excess Credit Exposure, Weekly and when an Advance request is made, in each case per §6.2(a)(i). Otherwise: within 15 days of each month end and when an Advance request is made. Yes No Annual Projections Within 90 days of the beginning of each fiscal year Yes No The following copyrights of Borrower were registered after the Effective Date (if no registrations, state “None”) To be Tested on a Quarterly Basis: Minimum Tangible Net Worth The sum of: $12,500,000; plus 50% of Net Income on a quarterly basis commencing with Net Income in the quarter ending after October 3, 2008 and continuing with respect to each fiscal quarter thereafter; plus 50% of issuances of equity and 50% of the principal amount of Subordinated Debt, issued after October 3, 2008, effective on the date of such issuances, other than for issuances of Subordinated Debt the proceeds of which are used to refinance outstanding Subordinated Debt substantially concurrently with the issuance thereof, up to the amount of the original principal amount the Subordinated Debt being so replaced; which sum equals: $ $ Yes No Total Credit Extensions $ minus Cash and Cash Equivalents in Deposit Accounts at Bank or Securities Accounts at a Bank Affiliate as of the last day of the preceding fiscal quarter per the requirements of the Agreement $ equals $ Amount on preceding line not to be greater than $4,000,000 Complies Does not comply Quick Ratio as of the quarter most recently ended to 1.00 Greater than 1.00 to 1.00 Less than 1.00 to 1.00 but greater than or equal to 0.85 to 1.00 Less than 0.85 to 1.00 The following financial covenant and performance pricing analyses and information set forth in Schedule 1 attached hereto are true and accurate as of the date identified in clause (1) above. The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”) MINDSPEED TECHNOLOGIES, INC. BANK USE ONLY Received by: By: AUTHORIZED SIGNER Name: Date: Title: Verified: Date: Compliance Status: Yes No
Appears in 1 contract
Samples: Loan and Security Agreement (Mindspeed Technologies, Inc)
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal propertyproperty wherever located, whether now owned or existing or hereafter acquired, created or arising: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided belowincluding all Intellectual Property), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoingTO: CALLA LILY HOLDINGS LLC, the Collateral does not include any of the followinga Delaware limited liability company FROM: ZOVIO INC, whether now owned or hereafter acquired (a) any Equipment or other property subject a Delaware corporation Reference is made to a Permitted Lien described in paragraphs (c) and (d) of the definition of Permitted Lien, or (b) any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; provided, however, the Collateral shall include all Accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Fax To: Date: From Account # (Deposit Account #) Principal $ To Account # (Loan Account #) and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # (Loan Account #) To Account # (Deposit Account #) Amount of Term Loan $ All Borrower’s representations and warranties in the that certain Loan and Security Agreement are trueAgreement, correct and complete in all material respects on the date of the request for an advance; provideddated September __, however2022 (as amended, that such materiality qualifier shall not be applicable restated, supplemented or otherwise modified, from time to any representations and warranties that already are qualified or modified by materiality in the text thereof; and providedtime, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: Outgoing Wire Request: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, P.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: EXHIBIT C - COMPLIANCE CERTIFICATE TO:SILICON VALLEY BANK Date: FROM: The undersigned authorized officer of TRUBION PHARMACEUTICLS, INC, (“Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), among ZOVIO INC, a Delaware corporation (1) “Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) BorrowerRepresentative”), and each of its Subsidiariesother Person party thereto as a borrower from time to time (collectively, has timely filed all required tax returns and reports“Borrowers”, and Borrower has timely paid all foreigneach, federala “Borrower”), state and local taxesCALLA LILY HOLDINGS LLC, assessments, deposits and contributions owed by Borrower except a Delaware limited liability company (“Lender”). Capitalized terms have meanings as otherwise permitted pursuant to the terms of Section 5.10 of defined in 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 authorized officer of Borrower Representative, hereby 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. Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 120 days Yes No Annual Budget FYE with 45 days Yes NoAgreement as follows:
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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, 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 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 any of the following, whether now owned or hereafter acquired acquired: (a) any Equipment or other property subject to a Permitted Lien described in paragraphs (c) that certain Exclusive License Agreement dated May 17, 2005 between Borrower and (d) of the definition of Permitted LienThe General Hospital Corporation as amended by Amendment No. 1 dated January 23, 2006 or (b) any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; provided, however, the Collateral shall include all Accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing, without Bank’s prior written consent. DEADLINE FOR SAME DAY PROCESSING IS NOON P.S.T.* Fax To: Date: 1/23/09 ZELTIQ AESTHETICS, INC. From Account # (Deposit Account #) Principal $ To Account # (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # (Loan Account #) To Account # (Deposit Account #) 3300456428 Amount of Term Loan $ Advance $1,500,000.00 All Borrower’s representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: /s/Xxxxxxxx Xxxxxxxx Phone Number: 000-000-0000 Print Name/Title: Outgoing Wire RequestXXXXXXXX XXXXXXXX PRESIDENT AND CEO OUTGOING WIRE REQUEST: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, P.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: EXHIBIT C - COMPLIANCE CERTIFICATE TO:SILICON VALLEY BANK Date* Unless otherwise provided for an Advance bearing interest at LIBOR. BORROWER: FROMZeltiq Aesthetics, Inc. DATE: The undersigned authorized officer of TRUBION PHARMACEUTICLSJanuary 14, INC2009 BANK: Silicon Valley Bank I hereby certify as follows, (“Borrower”) certifies that under the terms and conditions as of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (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 5.10 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 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. Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 120 days Yes No Annual Budget FYE with 45 days Yes Noset forth above:
Appears in 1 contract
Samples: Loan and Security Agreement (Zeltiq Aesthetics Inc)
