Common use of Exhibit A Clause in Contracts

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 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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the 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 this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.

Appears in 4 contracts

Samples: Loan and Security Agreement (Tintri, Inc.), Loan and Security Agreement (Tintri, Inc.), Loan and Security Agreement (Tintri, Inc.)

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Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, 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 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and trade names, service marks, mask works, rights of use of any name or domain names 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, clinical and non-clinical data, rights to unpatented inventions; and any claims for damage by way of any past, present, or future infringement of any of the foregoing (collectively, the “Intellectual Property”); provided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with BankCollateral Agent and Lenders, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentProperty. IThe undersigned, an authorized officer being the duly elected and acting of TINTRIVITAE PHARMACEUTICALS, INC. ., a Delaware corporation with offices located at 000 Xxxx Xxxxxx Xxxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (“Borrower”), does hereby certify to OXFORD FINANCE LLC, a Delaware limited liability company with an office located at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (“Oxford”), as collateral agent (the “Collateral Agent”), and the Lenders listed on Schedule 1.1 thereof and party hereto, including without limitation, Oxford and SILICON VALLEY BANK, a California corporation with a loan production office located at 000 Xxxxxxxxxx Xxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000 (“SVB”) certify under (the “Lenders”) in connection with that certain Loan and Security Agreement (as amendeddated on or about the date hereof by and among Borrower, the Collateral Agents and Lenders (the Loan Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all ; with other capitalized terms used herein shall have below having the meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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 meanings ascribed thereto in the certificates or statement not misleading.Loan Agreement) that:

Appears in 3 contracts

Samples: Loan and Security Agreement (Vitae Pharmaceuticals, Inc), Loan and Security Agreement (Vitae Pharmaceuticals, Inc), Loan and Security Agreement (Vitae Pharmaceuticals, Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General 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 All 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 foregoingTO: SILICON VALLEY BANK Date: ________________ FROM: Energy and Power Solutions, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an Inc. The undersigned authorized officer of TINTRIEnergy and Power Solutions, INC. Inc. (“Borrower”) certify 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, (2) there are no Events of Default, (3) all capitalized 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 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 meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. No representation, warranty or other statement of Borrower in any certificate or written statement meanings given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained them in the certificates or statement not misleadingAgreement.

Appears in 2 contracts

Samples: Loan and Security Agreement (Energy & Power Solutions, Inc.), Loan and Security Agreement (Energy & Power Solutions, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goodsAccounts (including health-care receivables), equipment, inventoryInventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, 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 All 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 shall does not be deemed to include any copyrights of the following, whether now owned or hereafter acquired: (including computer programsa) (i) the HRP Account, blueprints (ii) De Lage Collateral, (iii) Oracle Collateral, and drawings)the (iv) US Bancorp Collateral; or (b) any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the 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 this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.

Appears in 2 contracts

Samples: Loan Modification Agreement (BG Medicine, Inc.), Loan Modification Agreement (BG Medicine, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, raw materials, parts, supplies, packing and shipping materials, work in process, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, 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 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 not include (i) Borrower’s Equipment constituting collateral for the Oxford Equipment Financing and the proceeds thereof (provided that upon payment in full of Borrower’s Indebtedness under the Oxford Equipment Financing, such Equipment and the proceeds thereof shall not be deemed automatically constitute, without further action required by any Person, Collateral), or (ii) any of the following, whether now owned or hereafter acquired except to include the extent that it is necessary under applicable law to have a security interest in any copyrights (including computer programs, blueprints of the following in order to have a perfected lien and drawings)security interest in and to the “IP Proceeds” defined below: any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and trade names, service marks, mask works, rights of use of any name or domain names 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, clinical and non-clinical data, rights to unpatented inventions; or any Intellectual Property(iii) exclusive and non-exclusive license agreements solely for the use of the intellectual property of a third party in which Borrower is licensee; provided, except that however, 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. Pursuant to property described in subparts (i), (ii), and (iii) preceding (other than sales proceeds of the terms Equipment securing the Oxford Equipment Financing until payment in full of a certain negative pledge arrangement with BankBorrower’s Indebtedness under the Oxford Equipment Financing) and any claims for damage by way of any past, Borrower has agreed not to encumber present, or future infringement of any of its Intellectual Property without Bank’s prior written consentthe property described in subparts (ii) and (iii) preceding (collectively, the “IP Proceeds”). ITO: Oxford Finance Corporation, an as Collateral Agent Date: FROM: PTC Therapeutics, Inc. The undersigned authorized officer of TINTRIPTC Therapeutics, INC. Inc. (“Borrower”) certify certifies, in the capacity as an officer of the Borrower, that under the terms and conditions of the Loan and Security Agreement between Borrower, Collateral Agent and the Lenders (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 5.8 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 Collateral Agent. Attached are the required documents supporting the certification. The undersigned certifies, in the capacity as an officer of the Borrower, 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, in the capacity as an officer of Borrower, 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. Quarterly Financial Statements Quarterly within 30 days Yes o No o Monthly Cash Certificate Monthly within 5 Business Days Yes o No o Bank Statements Monthly within 30 days Yes o No o Audited Financial Statements Annually within 120 days after FYE Yes o No o Board Approved Operating and Capital Budgets As approved by Board of Directors Yes o No o Compliance Certificate Monthly within 30 days Yes o No o The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”) Received by: By: AUTHORIZED SIGNER Name: Date: Title: Verified: Date: Compliance Status: Yes o No o $ Dated: September , 2009 FOR VALUE RECEIVED, the undersigned, PTC THERAPEUTICS, INC., a Delaware corporation (“Borrower”) HEREBY PROMISES TO PAY to the order of [OXFORD/LENDER] (“Lender”) the principal amount of Dollars ($ ) or such lesser amount as shall equal the outstanding principal balance of the Term Loan made to Borrower by Lender, plus interest on the aggregate unpaid principal amount of the Term Loan, at the rates and in accordance with the terms of the Loan and Security Agreement by and between Borrower and Oxford Finance Corporation, as Collateral Agent, and the Lenders (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”) between Borrower ). If not sooner paid, the entire principal amount and Silicon Valley Bank (“Bank”) all accrued interest hereunder and under the Loan Agreement shall be due and payable on Maturity Date as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in the Loan Agreement. Borrower agrees to pay any initial partial month interest payment from the date of this Agreement): Each Financed Receivable is an Eligible Account; Borrower is Secured Promissory Note (this “Note”) to the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is first Payment Date (“Interim Interest”) on the Invoice Transmittal first Payment Date. Principal, interest and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as other amounts due with respect to the Term Loan, are payable in lawful money of the Invoice Transmittal date; Each Financed Receivable United States of America to Lender as set forth in the Loan Agreement and this Note. The principal amount of this Note and the interest rate applicable thereto, and all payments made with respect thereto, shall be recorded by Lender and, prior to any transfer hereof, endorsed on the grid attached hereto which is based on an actual sale and delivery part of goods and/or services renderedthis Note. The Loan Agreement, is due among other things, (a) provides for the making of a secured Term Loan to Borrower, and (b) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events. This Note may not be prepaid except as set forth in Section 2.2(c) and Section 2.2(d) of the Loan Agreement. This Note and the obligation of Borrower to repay the unpaid principal amount of the Term Loan, interest on the Term Loan and all other amounts due Lender under the Loan Agreement is not past due or in defaultsecured under the Loan Agreement. Presentment for payment, has not been previously solddemand, assigned, transferred, or pledged notice of protest and is free all other demands and notices of any lienskind in connection with the execution, security interests delivery, performance and encumbrances other than Permitted Liens; There enforcement of this Note are no defenseshereby waived. Borrower shall pay all reasonable fees and expenses, offsetsincluding, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings without limitation, reasonable attorneys’ fees 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. No representationcosts, 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 incurred by Lender in the certificates enforcement or statement attempt to enforce any of Borrower’s obligations hereunder not misleadingperformed when due. This Note shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York.

Appears in 2 contracts

Samples: Loan and Security Agreement (PTC Therapeutics, Inc.), Loan and Security Agreement (PTC Therapeutics, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, 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 All 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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-in part of the same, trademarks, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, domain names, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks arid, 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. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the 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 this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.

Appears in 2 contracts

Samples: Loan and Security Agreement (Tremor Video Inc.), Loan and Security Agreement (Tremor Video Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), 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 All 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired: any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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. ITO: SILICON VALLEY BANK Date: FROM: STEREOTAXIS, an INC. and STEREOTAXIS INTERNATIONAL, INC. The undersigned authorized officer of TINTRIStereoTaxis, INC. Inc., a Delaware corporation and StereoTaxis International, Inc. (collectively, jointly and severally, the “Borrower”) certify 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, (2) there are no Events of Default, (3) all capitalized 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 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 meaning 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 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No A/R & A/P Agings, Deferred Revenue and Inventory Reports Monthly within 30 days Yes No Transaction Reports Weekly, within 5 days* Yes No Projections Annually within 30 days prior to FYE Yes No * Monthly during a Streamline Period, within 5 days after the end of each month The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”) ** See Section 6.9 of the Loan Agreement The following financial covenant analyses and information set forth in this Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign Schedule 1 attached hereto are true and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations accurate as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery date of goods and/or services renderedthis Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, is due state “No exceptions to Borrowernote.”) STEREOTAXIS, is not past due or in defaultINC. BANK USE ONLY STEREOTAXIS INTERNATIONAL, 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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 CollateralINC. 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.Received by: By: AUTHORIZED SIGNER Name: Date: Title: Verified: Date: Compliance Status: Yes No

Appears in 2 contracts

Samples: Loan and Security Agreement (Stereotaxis, Inc.), Loan and Security Agreement (Stereotaxis, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing 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 (including payment intangibles)General 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 All 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 shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRIForeScout Technologies, INC. Inc. (“Borrower”) certify under the 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 this the Agreement): 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 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 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; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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. No ; and To its knowledge, 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. 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. Attached are the required documents supporting the certification (unless delivered earlier to Bank). The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column.

Appears in 2 contracts

Samples: Loan and Security Agreement (Forescout Technologies, Inc), Loan and Security Agreement (Forescout Technologies, Inc)

Exhibit A. The Collateral consists of all of Borrower’s 's right, title and interest in and to the following: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower's custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, trademarks, servicemarks, trade styles, trade names, leases, license agreements, franchise agreements, general intangibles (including blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment intangibles)of any kind; All now existing and hereafter arising accounts, accounts (including health-care receivables)contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the letter credit, certificates of credit is evidenced by a writing)deposit, commercial tort claims, securities, instruments and all other investment property, supporting obligations, and financial assets, whether chattel paper now owned or hereafter acquired, wherever locatedacquired and Borrower's Books relating to the foregoing; and All Borrower’s books '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, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, the Collateral shall security interest granted herein does not be deemed to include extend to, and the term "Collateral" does not include, any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work license or rights arising under any contract from a third party permitting Borrower's use of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the samecopyrights, trademarks, servicemarks patents, mask works, trade secrets, intellectual property rights in computer software and applications thereforcomputer software products, whether registered or not; or any and design rights (collectively, "Intellectual PropertyProperty Rights"), except in each case to the extent (and only to the extent) that (i) the Collateral shall include all accounts, license and royalty fees and other revenues, proceedsgranting of a security interest in it would be contrary to applicable law, or income arising out of or relating (ii) that such rights are nonassignable by their terms (but only to any the extent such prohibition is enforceable under applicable law, including, without limitation, Section 9318(4) of the foregoing. Pursuant Uniform Commercial Code) without the consent of the licensor or other party (but only to the terms of a extent such consent has not been obtained). BORROWER HAS AGREED NOT TO CREATE, INCUR, OR ALLOW LIENS ON ITS PROPERTY EXCEPT IN LIMITED CIRCUMSTANCES. NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN, BORROWER HAS AGREED NOT TO CREATE, INCUR, OR ALLOW ANY LIENS ON ANY OF ITS INTELLECTUAL PROPERTY RIGHTS, INCLUDING BUT NOT LIMITED TO COPYRIGHT RIGHTS, COPYRIGHT APPLICATIONS, COPYRIGHT REGISTRATIONS AND LIKE PROTECTIONS IN EACH WORK OF AUTHORSHIP AND DERIVATIVE WORK THEREOF, WHETHER PUBLISHED OR UNPUBLISHED, NOW OWNED OR HEREAFTER ACQUIRED; TRADE SECRET RIGHTS, INCLUDING ALL RIGHTS TO UNPATENTED INVENTIONS, KNOW-HOW, OPERATING MANUALS, LICENSE RIGHTS AND AGREEMENTS AND CONFIDENTIAL INFORMATION, NOW OWNED OR HEREAFTER ACQUIRED; MASK WORK OR SIMILAR RIGHTS AVAILABLE FOR THE PROTECTION OF SEMICONDUCTOR CHIPS, NOW OWNED OR HEREAFTER ACQUIRED; CLAIMS FOR DAMAGES BY WAY OF ANY PAST, PRESENT AND FUTURE INFRINGEMENT OF ANY OF THE FOREGOING. Borrower and Bank are parties to that certain negative pledge arrangement Negative Pledge Agreement, whereby Borrower, in connection with Bank's loan or loans to Borrower, Borrower has agreed agreed, among other things, not to sell, transfer, assign, mortgage, pledge, lease, grant a security interest in or encumber any of its Intellectual Property without Bank’s 's prior written consent. I, an authorized officer of TINTRI, INC. TO: CENTRAL CLIENT SERVICE DIVISION DATE: FAX#: (000) 000-0000 TIME: CLIENT NAME (BORROWER) AUTHORIZED SIGNER'S NAME TO ACCOUNT # PRINCIPAL INCREASE (ADVANCE) $ PRINCIPAL PAYMENT (ONLY) $ INTEREST PAYMENT (ONLY) $ PRINCIPAL AND INTEREST (PAYMENT) $ All Borrower”) certify under 's representations and warranties in the Loan and Security Agreement (as amendedare true, the “Agreement”) between Borrower correct and Silicon Valley Bank (“Bank”) as follows for the period ending (complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 material respects on the Invoice Transmittal date of the telephone request for and is not disputedAdvance confirmed by this Borrowing Certificate; Payment is not contingent on any obligation or contract but those representations and Borrower has fulfilled warranties expressly referring to another date shall be true, correct and complete in all its obligations material respects as of the Invoice Transmittal that 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Preview Systems Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, 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 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. The Collateral does not include Certificate of Deposit, account No. 00000000 maintained with Square 1 Bank (the “Cash Collateral Account”) at any time that (i) obligations of Borrower owing to Square 1 Bank in connection with the loan facility secured by the Cash Collateral Account are outstanding or (ii) Square 1 Bank has any obligation to make any credit extensions to Borrower under such loan facility. The Collateral includes the Cash Collateral Account at all other times. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights (including computer programsof the following, blueprints whether now owned or hereafter acquired except to the extent that it is necessary under applicable law to have a security interest in any of the following in order to have a perfected lien and drawings)security interest in and to the “IP Proceeds” defined below: any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and trade names, service marks, mask works, rights of use of any name or domain names and, to the extent permitted under applicable law, any applications therefor, whether registered or not; or any Intellectual Propertyand the goodwill of the business of Borrower connected with and symbolized by such trademarks and service marks, except that know-how, operating manuals, trade secret rights, clinical and non-clinical data, rights to unpatented inventions; provided, however, 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 foregoingforegoing and any claims for damage by way of any past, present, or future infringement of any of the foregoing (collectively, the “IP Proceeds”). Pursuant to the terms of a certain negative pledge arrangement with BankLender, Borrower has agreed not to encumber any of its Intellectual Property 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 BankLender’s prior written consent. I, an authorized officer For avoidance of TINTRI, INC. (“Borrower”) certify under doubt: the 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 foregoing sentence is subject to certain exceptions set forth in this Agreement): Each Financed Receivable is an Eligible Account; Borrower is such negative pledge arrangement with Lender, including without limitation the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on granting of non-exclusive licenses (or exclusive field-of-use licenses) for the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as use of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale Intellectual Property in the ordinary course of business in connection with joint ventures and delivery of goods and/or services renderedcorporate collaborations to the extent permitted, 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. No representationterms of, 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 misleadingsuch arrangement.

Appears in 1 contract

Samples: Loan and Security Agreement (Ligand Pharmaceuticals Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing whether owned now or hereafter arising and whether the Borrower has rights now or hereafter has rights therein and wherever located: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles (as such definitions may be amended from time to time according to the Code), now owned or rights hereafter acquired, including, without limitation, but subject to payment of moneythe applicable provisions below regarding Intellectual Property, goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment of any kind; All now existing and hereafter arising accounts, contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower (as such definitions may be amended from time to time according to the Code) whether or not earned by performance, and any and all credit insurance, insurance (including payment intangibles)refund) claims and proceeds, accounts (including health-care receivables)guaranties, and other security thereof, as well as all merchandise returned to or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the credit, letter of credit is evidenced by a writing)rights, commercial tort claimscertificates of deposit, securitiesinstruments and chattel paper and electronic chattel paper now owned or hereafter acquired and Borrower’s Books relating to the foregoing; All copyright rights, copyright applications, copyright registrations and all other investment property, supporting obligations, like protections in each work of authorship and financial assetsderivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all 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 and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, the Collateral shall not be deemed to include (a) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any copyrights Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, (b) any equipment (including computer programsany accessions, blueprints additions and drawingsreplacements thereof), the purchase or acquisition of which was financed by a third party that has a Permitted Lien on such equipment, and was not financed by the Bank, to the extent the grant of a security interest therein is prohibited by or would constitute a default under the third party’s loan, lease or other financing documents, provided that upon the termination or lapsing of any such prohibition or payment in full of such third party, such property will at all times constitute Collateral, or (c) any copyrights, copyright applications, copyright registration registrations and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized by such trademarks, any proprietary software, including all source code and object code, all design rights, 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 damage by way of any past, present and future infringement of any of the foregoing (collectively, the “Intellectual Property”), except that the Collateral shall include the proceeds of all the Intellectual Property that are accounts, license and royalty fees and other revenues, proceeds(i.e. accounts receivable) of Borrower, or income arising out general intangibles consisting of or relating rights to any payment, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in such accounts and general intangibles of Borrower that are proceeds of the foregoing. Pursuant Intellectual Property, then the Collateral shall automatically, and effective as of the Closing Date, include the Intellectual Property to the terms extent necessary to permit perfection of a Bank’s security interest in such accounts and general intangibles of Borrower that are proceeds of the Intellectual Property. Borrower and Bank are parties to that certain negative pledge arrangement Negative Pledge Agreement, whereby Borrower, in connection with Bank’s loan or loans to Borrower, Borrower has agreed agreed, among other things, not to sell, transfer, assign, mortgage, pledge, lease grant a security interest in, or encumber any of its Intellectual Property Property, without Bank’s prior written consent. IBorrower: Omniture, an authorized officer of TINTRI, INC. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Inc. Lender: Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.Commitment Amount: $10,000,000 ACCOUNTS RECEIVABLE

Appears in 1 contract

Samples: Loan and Security Agreement (Omniture, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General 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 All 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 shall “Collateral” does not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part more than 65% of the same, trademarks, servicemarks presently existing and applications therefor, whether registered or not; 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 Intellectual Propertyother matter. EXHIBIT B COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: Glu Mobile Inc., except that the Collateral shall include all accountsGlu Games Inc. and Superscape Inc. The undersigned authorized officer[s] of Glu Mobile Inc., license Glu Games Inc. 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. Superscape Inc. (collectively “Borrower”) certify certif[ies][y] 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, (2) there are no Events of Default, (3) all capitalized 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 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 meaning set forth meanings given them in this the Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner . Monthly financial statements with legal right to sellCompliance Certificate (Consolidating Financials) Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 95 days Yes No 10-Q, transfer10-K and 8-K + CC Within 5 days after filing with SEC, assign but not later than 50 days after quarter end, and encumber such Financed Receivable; The correct amount is on the 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 Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered95 days after FYE, 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings extensions pursuant to Rule 12b-25 Yes No Transaction Report, A/R & A/P Agings, held check list, reconciliations, transaction reports, GL and does not anticipate any filing; Bank has Deferred Revenue report Monthly within 20 days Yes No Operating Budgets and Forecasts 45 days after FYE Yes No Transaction Report For Advances and weekly when Advances are outstanding Yes No The following Intellectual Property was registered after the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representationEffective Date (if no registrations, 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.“None”):

Appears in 1 contract

Samples: Loan and Security Agreement (Glu Mobile Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), 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 All 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired: any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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. IDEADLINE FOR SAME DAY PROCESSING IS NOON P.S.T.* Fax To: Date: Jive Software, Inc. From Account # To 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 authorized officer outgoing wire. From Account # To Account # Amount of TINTRI, INC. (“Advance $ All Borrower”) certify under ’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: 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 (as amendedABA) #: Beneficiary Bank Code (Swift, the “Agreement”Sort, Chip, etc.): Intermediary Bank: Transit (ABA) between Borrower and #: For Further Credit to: Special Instruction: Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: * Unless otherwise provided for an Advance bearing interest at LIBOR. Borrower: Jive Software, Inc. Lender: Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.Commitment Amount $6,000,000 ACCOUNTS RECEIVABLE

Appears in 1 contract

Samples: Loan and Security Agreement (Jive Software, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s 's right, title and interest in and to the following: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is held for sale or lease, or to be furnished under a contract of service or is temporarily out of Borrower's custody or possession or in transit and including any returns or repossession upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, leases, license agreements, franchise agreements, general intangibles (including blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance, payment intangibles), and rights to payment of any kind; All now existing and hereafter arising accounts (including health-care insurance receivables), documentscontract rights, instruments royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents (including any promissory notes), chattel paper (whether tangible or electronicnegotiable documents), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the credit, letter of credit is evidenced by a writing)rights, commercial tort claimsmoney, securitiescertificates of deposit, instruments (including promissory notes) and all other investment propertychattel paper (including tangible and electronic chattel paper) now owned or hereafter acquired and Borrower's Books relating to the foregoing; All copyright rights, supporting obligationscopyright applications, copyright registrations and financial assetslike protections in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books 's Books relating to the foregoing foregoing, and the computers and equipment containing said books and records, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, the Collateral shall not be deemed to include any: (a) such property that (1) is nonassignable by its terms without the consent of the licensor thereof or another party (but only to the extent such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9406 and 9408 of the Code), or (2) the granting of a security interest therein is contrary to applicable law, provided that upon the cessation of any copyrights such restriction or prohibition, such property shall automatically become part of the Collateral; (including computer programs, blueprints and drawings)b) copyrights, copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized by such trademarks, 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 damage by way of any past, present and future infringement of any of the foregoing (collectively, the "Intellectual Property"), except that the Collateral shall include the proceeds of all the Intellectual Property that are accounts, license and royalty fees and other revenues, proceeds(i.e. accounts receivable) of Borrower, or income arising out general intangibles consisting of or relating rights to any payment, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in such accounts and general intangibles of Borrower that are proceeds of the foregoing. Pursuant Intellectual Property, then the Collateral shall automatically, and effective as of the Closing Date, include the Intellectual Property to the terms extent necessary to permit perfection of a certain negative pledge arrangement with Bank's security interest in such accounts and general intangibles of Borrower that are proceeds of the Intellectual Property; (c) interest in real property (including and any fixtures thereon, Borrower has agreed not to encumber accessions thereto, and rents, issues and profits thereof); (d) any of its Intellectual Property without Bank’s prior written consent. Ileased equipment or equipment owned by the United States government; or (e) any equity investment interest in subsidiaries, an authorized officer of TINTRIOrasense Ltd, Hepasense Ltd, Hybridon Inc., Antisense Therapeutics Limited (ATL), Ercole Biotech, Santaris Pharma A/S and Ocongenex Technologies Inc. EXHIBIT B TO: CENTRAL CLIENT SERVICE DIVISION DATE: FAX #: (000) 000-0000 TIME: FROM: ISIS PHARMACEUTICALS, INC. AUTHORIZED SIGNER'S NAME TO ACCOUNT # PRINCIPAL INCREASE (ADVANCE) $ PRINCIPAL PAYMENT (ONLY) $ INTEREST PAYMENT (ONLY) $ PRINCIPAL AND INTEREST (PAYMENT) $ All Borrower”) certify under 's representations and warranties in the Loan and Security Agreement (as amendedare true, correct and complete in all material respects on the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows date of the telephone request for the period ending (Term Loan confirmed by this Borrowing Certificate; but those representations and warranties expressly referring to another date shall be true, correct and complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations material respects as of the Invoice Transmittal that 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Isis Pharmaceuticals Inc)

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 does not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereofinclude, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations(a) more than sixty-in-part five percent (65.0%) of the same, trademarks, servicemarks presently existing and applications therefor, whether registered or not; hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Subsidiary not organized in the United States or any Intellectual Propertystate thereof which shares entitle the holder thereof to vote for directors or any other matter, except (b) certificates of deposit maintained solely to secure letters of credit issued in connection with leases, and (c) Equipment subject to a lien described in clause (c) of the definition of Permitted Liens (but only until such lien is released and only to the extent that Borrower is prohibited from granting Bank a lien in such Equipment). Fax To: Date: From Account # To 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 Collateral funds this loan advance are for an outgoing wire. From Account # To Account # Amount of Advance $ All Borrower’s representations and warranties in the Loan and Security Agreement (Growth Capital Facility) 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 include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating not be applicable to any representations and warranties that already are qualified or modified in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true in all material respects as of the foregoingsuch date: Authorized Signature: Phone Number: Print Name/Title: Deadline for same day processing is noon, E.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 #: TO: SILICON VALLEY BANK Date: FROM: CYOPTICS, INC. 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. I, an The undersigned authorized officer of TINTRICYOPTICS, INC. (“Borrower”) certify certifies that under the terms and conditions of the Loan and Security Agreement (as amended, Growth Capital Facility) 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 and correct 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 5.8 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 the attached financial statements are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes and except, in the case of unaudited financial statements, for the absence of footnotes and subject to year-end adjustments. 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 statements (CPA Audited) FYE within 150 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No Board projections Within 30 days before FYE Yes No The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”) The following financial covenant analysis 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.”) CYOPTICS, INC. BANK USE ONLY Received By: By: AUTHORIZED SIGNER Name: Title: Date: Verified: Date: Compliance Status: Yes No This First Loan Modification Agreement (this “Loan Modification Agreement”) is entered into as of , 2008, by and between Borrower SILICON VALLEY BANK, a California corporation, with its principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and Silicon Valley Bank with a loan production office located at One Xxxxxx Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (“Bank”) as follows for the period ending and CYOPTICS, INC., a Delaware corporation with its chief executive office located at 0000 Xxxxxxxx Xxxxxxxxx, Breinigsville, Pennsylvania 18031 (all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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”).

Appears in 1 contract

Samples: Loan and Security Agreement (Cyoptics Inc)

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, all certificates of deposit, 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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRISOLAREDGE TECHNOLOGIES, LTD., SOLAREDGE TECHNOLOGIES, INC. ., and SOLAREDGE TECHNOLOGIES GMBH (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 this the Agreement): 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 c]aim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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 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 pursuant to this Agreement and the Loan Documents 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, with respect to Ltd, not in a status of a “breaching company”) 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 organizationa] 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. Inc 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. Inc 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 have 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 covenants set forth in Section 6.7 of the Agreement. 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 Liquidity ;:>: $6,750,000 $ Yes No Adjusted EBITDA (quarterly) $ * $ Yes No Liquidity ;:>: $8,750,000 $ Yes No

Appears in 1 contract

Samples: Loan and Security Agreement (SolarEdge Technologies Inc)

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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Notwithstanding anything herein to the terms contrary, the Collateral shall exclude 7,800,000 shares of a common stock of Options Media Group Holdings, Inc. currently held by Borrower (the “Permitted Pledged Shares”). The Permitted Pledged Shares may be pledged to Bxxxx Xxxxx and/or GRQ Consultants, Inc., or any affiliates thereof, in connection with any and all loans to Borrower. Borrower and Bank are parties to that certain negative pledge arrangement whereby Borrower, in connection with Bank’s loan(s) to Borrower, Borrower has agreed not to sell, transfer, assign, mortgage, pledge, lease, grant a security interest in, or encumber any of its Intellectual Property intellectual property without Bank’s prior written consent. I, an authorized officer of TINTRIINTERCLICK, INC. and DESKTOP ACQUISITION SUB, INC. (jointly and severally, individually and collectively, “Borrower”) certify under the 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 this the Agreement): 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 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 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; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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. 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. 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 covenants set forth in Section 6.7 of the Agreement. All 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 and Security Agreement (interCLICK, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing whether owned now or hereafter arising and whether the Borrower has rights now or hereafter has rights therein and wherever located: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles (as such definitions may be amended from time to time according to the Code), now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment of any kind; All now existing and hereafter arising accounts, contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower (as such definitions may be amended from time to time according to the Code) whether or not earned by performance, and any and all credit insurance, insurance (including payment intangibles)refund) claims and proceeds, accounts (including health-care receivables)guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the credit, letter of credit is evidenced by a writing)rights, commercial tort claimscertificates of deposit, securitiesinstruments and chattel paper and electronic chattel paper now owned or hereafter acquired and Borrower’s Books relating to the foregoing; All copyright rights, copyright applications, copyright registrations and all other investment property, supporting obligations, like protections in each work of authorship and financial assetsderivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all 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 and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, upon the earlier of (1) the IPO, or (2) Bank’s determination that Borrower has had two (2) consecutive fiscal quarters with a net profit, as determined in accordance with GAAP, the Collateral shall not include (and the following shall automatically be deemed released from the security interest granted to include Bank) (i) any copyrights (including computer programscopyrights, blueprints trademarks, servicemarks, patents and drawings), copyright mask works and applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuationsamendments, renewals, reissuesextensions, extensions and continuations-in-part all licenses or other rights to use and all license fees and royalties from the use, (ii) any trade secrets and any intellectual property rights in computer software and computer software products now or later existing, created, acquired or held, (iii) any design rights which may be available to Debtor now or later created, acquired or held, and (iv) any claims for damages by way of any past, present and future infringement of any of the sameforegoing (collectively, trademarks, servicemarks and applications therefor, whether registered or not; or any the “Intellectual Property”); provided, except however, that the Collateral shall include all accountsaccounts and general intangibles that consist of rights to payment and proceeds from the sale, license and royalty fees and other revenues, proceedslicensing or disposition of all or any part, or income arising out of or relating rights in, the foregoing (the “Rights to any of Payment”). Notwithstanding the foregoing. Pursuant , if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically and at all times include the Intellectual Property to the terms extent necessary to permit perfection of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentsecurity interest in the Rights to Payment. I, an authorized officer of TINTRI, INC. (“LOAN PAYMENT/ADVANCE REQUEST FORM DEADLINE FOR SAME DAY PROCESSING IS 12:00 P.S.T. ¨ LOAN PAYMENT: From Account # ___________________________ To Account # ___________________________ Principal $ ________________________________ and/or Interest $ ___________________________ All Borrower”) certify under ’s representation and warranties in the Loan and Security Agreement (as amendedare true, the “Agreement”) between Borrower correct and Silicon Valley Bank (“Bank”) as follows for the period ending (complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right material respects to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal date of the telephone transfer request for and is not disputed; Payment is not contingent on any obligation or contract advance, but those representations and Borrower has fulfilled warranties expressly referring to another date shall be true, correct and complete in all its obligations material respects as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale : Authorized Signature: ____________________________________________________ Phone Number: ___________________________ ¨ LOAN ADVANCE: From Account # _______________________________ To Account # ___________________________ Amount of Advance $ ___________________________ All Borrower’s representation 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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 warranties in the certificates or statement not misleading.Loan and Security Agreement are true, correct and complete in all material respects to on the date of the telephone transfer request for and advance, but those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of the date: Authorized Signature: ____________________________________________________ Phone Number: ___________________________ OUTGOING WIRE REQUEST Deadline for same day processing is 12:00pm, P.S.T.

Appears in 1 contract

Samples: Loan and Security Agreement (Netlogic Microsystems Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), 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 All 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired: any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with BankAgent and Lenders, Borrower has agreed not to encumber any of its Intellectual Property 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 BankAgent’s and each Lender’s prior written consent. ITO: SILICON VALLEY BANK, an AS AGENT Date: FROM: GAIN CAPITAL HOLDINGS, INC. The undersigned authorized officer of TINTRIGain Capital Holdings, INC. Inc. (“Borrower”) certify certifies that under the terms and conditions of the Amended and Restated 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, (2) there are no Events of Default, (3) all capitalized 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 5.8 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to any material amount of 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 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 meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. No representation, warranty or other statement of Borrower in any certificate or written statement meanings given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained them in the certificates or Agreement. Monthly financial statements with Compliance Certificate Monthly within 45 days Yes No Annual financial statement not misleading.(CPA Audited) FYE within 150 days Yes No

Appears in 1 contract

Samples: Loan and Security Agreement (GAIN Capital Holdings, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)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), commercial tort claims, 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 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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. ITO: SILICON VALLEY BANK Date: FROM: ENERNOC, an INC. and ENERNOC SECURITIES CORPORATION The undersigned authorized officer of TINTRIENERNOC, INC. and ENERNOC SECURITIES CORPORATION (individually and collectively, jointly and severally, “Borrower”) certify 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, (2) there are no Events of Default, (3) all capitalized 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 5.8 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 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 meaning meanings given them in the Agreement. Quarterly Financial Statements on Form 10-Q Quarterly within 45 days Yes No Monthly Compliance Certificate Monthly within 45 days Yes No Annual financial statements (CPA Audited) on 10-K together with an unqualified audited opinion FYE within 90 days Yes No 8-K, 10-Q and 10-K filings Within 5 days after SEC filing Yes No A/R and A/P agings and statement of account balances As requested by Bank Yes No Board projections 60 days after FYE Yes No Quick Ratio (monthly) 1.85 : 1.0 : 1.0 Yes No Tangible Net Worth (quarterly) $ * $ Yes No *As set forth in this Section 6.7(b) of the Loan and Security Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign . The following financial covenant analyses and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal information set forth in Schedule 1 attached hereto are true and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations accurate as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery date of goods and/or services renderedthis Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, is due state “No exceptions to Borrowernote.”) ENERNOC, 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 INC. BANK USE ONLY ENERNOC SECURITIES CORPORATION Received by: By: AUTHORIZED SIGNER Name: Date: Title: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes No In the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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 misleadingterms of the Loan Agreement shall control.

Appears in 1 contract

Samples: Loan and Security Agreement (Enernoc Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing whether owned now or hereafter arising and whether the Borrower has rights now or hereafter has rights therein and wherever located: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles (as such definitions may be amended from time to time according to the Code), now owned or rights to payment of moneyhereafter acquired, including, without limitation, leases, license agreements, franchise agreements, general intangibles blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance, payment intangibles, and rights to payment of any kind; All now existing and hereafter arising accounts, contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower (as such definitions may be amended from time to time according to the Code) whether or not earned by performance, and any and all credit insurance, insurance (including payment intangibles)refund) claims and proceeds, accounts guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents (including health-care receivables), negotiable documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the credit, letter of credit is evidenced by a writing)rights, commercial tort claimscertificates of deposit, securities, instruments (including promissory notes) and all other investment property, supporting obligations, chattel paper (including tangible and financial assets, whether electronic chattel paper) now owned or hereafter acquired, wherever locatedacquired and Borrower’s Books relating to the foregoing; and All Borrower’s books 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, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, the The Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings)copyrights, copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized by such trademarks, 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 damage by way of any past, present and future infringement of any of the foregoing (collectively, the “Intellectual Property”), except that the Collateral shall include the proceeds of all the Intellectual Property that are accounts, license and royalty fees and other revenues, proceeds(i.e. accounts receivable) of Borrower, or income arising out general intangibles consisting of or relating rights to any payment, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in such accounts and general intangibles of Borrower that are proceeds of the foregoing. Pursuant Intellectual Property, then the Collateral shall automatically, and effective as of the Closing Date, include the Intellectual Property to the terms extent necessary to permit perfection of a Bank’s security interest in such accounts and general intangibles of Borrower that are proceeds of the Intellectual Property. Borrower and Bank are parties to that certain negative pledge arrangement Negative Pledge Agreement, whereby Borrower, in connection with Bank’s loan or loans to Borrower, Borrower has agreed agreed, among other things, not to sell, transfer, assign, mortgage, pledge, lease grant a security interest in, or encumber any of its Intellectual Property intellectual property, without Bank’s prior written consent. IFurther, an authorized officer Borrower has agreed not to grant such negative pledge in favor of TINTRIany other party. Notwithstanding the foregoing, INCCollateral shall not be deemed to include leasehold interests where the Borrower is a lessee under any real property lease. TO: CENTRAL CLIENT SERVICE DIVISION DATE: FAX#: (000) 000-0000 TIME: FROM: Lexar Media, Inc. REQUESTED BY: ________________________________________________________________________________ AUTHORIZED SIGNATURE: _______________________________________________________________________ PHONE NUMBER: ________________________________________________________________________________ FROM ACCOUNT # TO ACCOUNT # PRINCIPAL INCREASE (ADVANCE) $_________________________________________________________________ PRINCIPAL PAYMENT (ONLY) $_________________________________________________________________ INTEREST PAYMENT (ONLY) $_________________________________________________________________ PRINCIPAL AND INTEREST (PAYMENT) $_________________________________________________________________ OTHER INSTRUCTIONS: __________________________________________________________________________ ___________________________________________________________________________________________________ All Borrower”) certify under ’s representations and warranties in the Loan and Security Agreement (as amendedare true, the “Agreement”) between Borrower correct and Silicon Valley Bank (“Bank”) as follows for the period ending (complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 material respects on the Invoice Transmittal date of the telephone request for and is not disputedAdvance confirmed by this Borrowing Certificate; Payment is not contingent on any obligation or contract but those representations and Borrower has fulfilled warranties expressly referring to another date shall be true, correct and complete in all its obligations material respects as of the Invoice Transmittal that 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Lexar Media Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing whether owned now or hereafter arising and whether the Borrower has rights now or hereafter has rights therein and wherever located: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles (as such definitions may be amended from time to time according to the Code), now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment of any kind; All now existing and hereafter arising accounts, contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower (as such definitions may be amended from time to time according to the Code) whether or not earned by performance, and any and all credit insurance, insurance (including payment intangibles)refund) claims and proceeds, accounts (including health-care receivables)guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the credit, letter of credit is evidenced by a writing)rights, commercial tort claimscertificates of deposit, securitiesinstruments and chattel paper and electronic chattel paper now owned or hereafter acquired and Borrower’s Books relating to the foregoing; All copyright rights, copyright applications, copyright registrations and all other investment property, supporting obligations, like protections in each work of authorship and financial assetsderivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all 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 and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, upon the earlier of (1) the IPO, or (2) Bank’s determination that Borrower has had two (2) consecutive fiscal quarters with a net profit, as determined in accordance with GAAP, the Collateral shall not include (and the following shall automatically be deemed released from the security interest granted to include Bank) (i) any copyrights (including computer programscopyrights, blueprints trademarks, servicemarks, patents and drawings), copyright mask works and applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuationsamendments, renewals, reissuesextensions, extensions and continuations-in-part all licenses or other rights to use and all license fees and royalties from the use, (ii) any trade secrets and any intellectual property rights in computer software and computer software products now or later existing, created, acquired or held, (iii) any design rights which may be available to Debtor now or later created, acquired or held, and (iv) any claims for damages by way of any past, present and future infringement of any of the sameforegoing (collectively, trademarks, servicemarks and applications therefor, whether registered or not; or any the “Intellectual Property”); provided, except however, that the Collateral shall include all accountsaccounts and general intangibles that consist of rights to payment and proceeds from the sale, license and royalty fees and other revenues, proceedslicensing or disposition of all or any part, or income arising out of or relating rights in, the foregoing (the “Rights to any of Payment”). Notwithstanding the foregoing. Pursuant , if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically and at all times include the Intellectual Property to the terms extent necessary to permit perfection of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentsecurity interest in the Rights to Payment. I, an authorized officer of TINTRI, INC. LOAN PAYMENT/ADVANCE REQUEST FORM DEADLINE FOR SAME DAY PROCESSING IS 12:00 P.S.T. ¨ LOAN PAYMENT: Client Name (Borrower) certify under From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ All Borrower’s representation and warranties in the Loan and Security Agreement (as amendedare true, the “Agreement”) between Borrower correct and Silicon Valley Bank (“Bank”) as follows for the period ending (complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right material respects to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal date of the telephone transfer request for and is not disputed; Payment is not contingent on any obligation or contract advance, but those representations and Borrower has fulfilled warranties expressly referring to another date shall be true, correct and complete in all its obligations material respects as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale : Authorized Signature: Phone Number: ¨ LOAN ADVANCE: From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ All Borrower’s representation 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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 warranties in the certificates or statement not misleadingLoan and Security Agreement are true, correct and complete in all material respects to on the date of the telephone transfer request for and advance, but those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of the date: Authorized Signature: Phone Number: OUTGOING WIRE REQUEST Deadline for same day processing is 12:00pm, P.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and Sate: 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 #

Appears in 1 contract

Samples: Loan and Security Agreement (Netlogic Microsystems Inc)

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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. 28059520v3 I, an an/the authorized officer officer(s) of TINTRIMOBIVITY, INC. and MOBIVITY HOLDINGS CORP. (collectively, “Borrower”) certify certify(ies) under the 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 this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.. 28059520v3

Appears in 1 contract

Samples: Loan and Security Agreement (Mobivity Holdings Corp.)

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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRIAdept Technology, INC. Inc. (“Borrower”) certify under the Amended and Restated Loan and Security Agreement Agreement, dated as of March __, 2013 (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 this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank with respect to such 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Adept Technology Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General 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 All 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 shall does not be deemed to include any copyrights of the following: (including computer programsi) intellectual property, blueprints and drawings)whether now owned or hereafter acquired, consisting of copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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 (collectively, the “Intellectual Property”); provided, except that however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to such Intellectual Property; (ii) the Excluded O&G Collateral; (iii) any capital stock of a controlled foreign corporation (as defined in the Internal Revenue Code of 1986, as amended), in excess of 65% of the foregoingvoting power of all classes of capital stock of such controlled foreign corporation entitled to vote; and (iv) the Excluded Patriot Equity Interest Collateral. Pursuant to the terms of a certain negative pledge arrangement with Bank, Loan and Security Agreement between Bank and Borrower (the “Loan Agreement”) Borrower has agreed not to encumber create, incur or allow any Lien on any of the Collateral or its Intellectual Property Property, except for Permitted Liens, as defined in the Loan Agreement, without Bank’s prior written consent. I, an authorized officer of TINTRI, BORROWER: LUCA TECHNOLOGIES INC. (“Borrower”) certify under the Loan and Security Agreement (as amendedDATE: December 29, the “Agreement”) between Borrower and 2011 BANK: Silicon Valley Bank (“Bank”) I hereby certify as follows for the period ending (all capitalized terms used herein shall have the meaning set forth follows, in this Agreement): Each Financed Receivable is my capacity as an Eligible Account; Borrower is the owner with legal right to sellofficer of Borrower, transfer, assign and encumber such Financed Receivable; The correct amount is on the 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.date set forth above:

Appears in 1 contract

Samples: Loan and Security Agreement (Luca Technologies Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General 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 All 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 foregoingTO: SILICON VALLEY BANK Date: FROM: GLOWPOINT, the Collateral shall not be deemed to include any copyrights (including computer programsINC. and GP COMMUNICATIONS, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an LLC The undersigned authorized officer of TINTRIGlowpoint, INC. Inc. and GP Communications, LLC (individually and collectively, jointly and severally, the “Borrower”) certify 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, (2) there are no Events of Default, (3) all capitalized 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 meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. No representation, warranty or other statement of Borrower in any certificate or written statement meanings given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained them in the certificates or Agreement. Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement not misleading.(CPA Audited) + XX XXX within120 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 Reports and bank statements Monthly within 15 days Yes No Transaction Reports Bi-weekly and with each request for a Credit Extension (Monthly within 15 days when no outstanding Credit Extensions Yes No Projections Within 30 days of FYE and as amended Yes No The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”) ____________________________________________________________________________

Appears in 1 contract

Samples: Loan and Security Agreement (Glowpoint Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), 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 All 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired: any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with BankAgent and Lenders, Borrower has agreed not to encumber any of its Intellectual Property 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 BankAgent’s and each Lender’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the 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 this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (GAIN Capital Holdings, Inc.)

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 All 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 infingement 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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an as authorized officer of TINTRI, INC. Versant Corporation (“Borrower”) certify under the 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 this the Agreement): 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 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 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; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Versant Corp)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), 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 All 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 not include any of the following, whether now owned or hereafter acquired: (a) to the extent a pledge of the capital stock owned by Borrower or any Guarantor of any Foreign Subsidiary results in material adverse tax circumstances, such pledge shall not be deemed exceed 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower or any Guarantor of any Foreign Subsidiary which shares entitle the holder thereof to include vote for directors or any copyrights other matter or (including computer programs, blueprints and drawings)b) any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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. I, an authorized officer of TINTRI, Fax To: Date: From Account # Principal $ Print Name/Title: [RAE SYSTEMS INC. (“Borrower”) certify under the 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 this Agreement): 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 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 Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods .] To Account # 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.Interest $ Phone Number:

Appears in 1 contract

Samples: Loan and Security Agreement (Rae Systems Inc)

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, all certificates of deposit, 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 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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; , or any other Intellectual Property, Property except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRIVIRTUALSCOPICS, INC. and VIRTUALSCOPICS NEW YORK, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the 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 this the Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with of and has the legal right to sell, transfer, assign and encumber such Financed Receivable; The correct gross amount of each Financed Receivable is set forth 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; Borrower reasonably believes (a) the fair salable value of each Account Debtor’s assets (including goodwill minus disposition costs) exceeds the fair value of its liabilities, (b) each Account Debtor is able to pay its debts (including trade debts) as they mature and (c) no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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 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.

Appears in 1 contract

Samples: Loan and Security Agreement (VirtualScopics, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest of Borrower 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, property supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books 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 The Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings)include: Any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter later acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks service marks and applications therefor; any trade secret rights, whether registered including any rights to unpatented inventions, now owned or not; or any Intellectual Propertyhereafter acquired. Notwithstanding the foregoing, except that 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 foregoingforegoing intellectual property. Pursuant To the extent a court of competent jurisdiction holds that a security interest in any Intellectual Property is necessary to have a security interest in any accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing Intellectual Property, then the Collateral shall, effective as of the Closing Date, include the Intellectual Property, to the terms extent necessary to permit perfection of a certain negative pledge arrangement with the Bank’s security interest in such accounts, Borrower has agreed not license and royalty fees and other revenues, proceeds, or income arising out of or relating to encumber any of its the Intellectual Property without Property. Fax To: (617) 969–5965 Date: From Account # To Account # Principal $ and/or Interest $ Authorized Signature: Phone Number: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # To Account # Amount of Advance $ Authorized Signature: Phone Number: Complete only if all or a portion of funds from the loan advance above are to be wired. Deadline for same day processing is 3:00pm, E.S.T. Beneficiary Name: Amount of Wire: $ ­ Beneficiary Bank’s prior written consent. I: Account Number: City and Sate: Beneficiary Bank Transit (ABA) #: __ __ __ __ __ __ __ Beneficiary Bank Code (Swift, an authorized officer of TINTRISort, INC. 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 # Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and : NMS Communications Corporation Lender: Silicon Valley Bank (“Bank”) as follows for Commitment Amount: $5,000,000.00 under the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.Formula Line

Appears in 1 contract

Samples: Loan and Security Agreement (NMS Communications Corp)

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 any copyrights (including computer programs, blueprints and drawings)copyrights, copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefortherefore, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized by such trademarks, 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 damage by way of any past, present and future infringement of any of the foregoing (collectively, the “Intellectual Property”), except that the Collateral shall include the proceeds of all the Intellectual Property that are accounts, license and royalty fees and other revenues, proceeds(i.e. accounts receivable) of Borrower, or income arising out general intangibles consisting of or relating rights to any payment, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in such accounts and general intangibles of Borrower that are proceeds of the foregoing. Pursuant Intellectual Property, then the Collateral shall automatically, and effective as of the Effective Date, include the Intellectual Property to the terms extent necessary to permit perfection of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentsecurity interest in such accounts and general intangibles of Borrower that are proceeds of the Intellectual Property. I, an as authorized officer of TINTRI[ WALNUT VENTURES, INC. / CORPORATE CONSULTING SERVICES, INC. / INTERSEARCH GROUP, INC. ], (“Borrower”) certify under the 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 this the Agreement): 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 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 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; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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. 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. 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. 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. All representations and warranties in the Agreement are true and correct in all material respects on this date, and the Borrower represents that there is no existing Event of Default. Sincerely, Xxxx X. Xxxxxxx, Xx. Signature Title CFO – Sec/Treasurer Date 10/10/04 I, as Secretary of WALNUT VENTURES, INC. / CORPORATE CONSULTING SERVICES, INC. / INTERSEARCH GROUP, INC., a Nevada/Nevada/Florida corporation, respectively (collectively, the “Corporation”), certify that at a meeting duly convened at which a quorum was present the following resolutions were adopted by the Board of Directors of the Corporation and that these resolutions have not been modified, amended, or rescinded and remain effective as of today’s date. It is resolved that any one of the following officers of the Corporation, whose name, title and signature is below: Xxxxxx X. X’Xxxxxxx Chief Executive Officer /s/ Xxxxxx X. X’Xxxxxxx Xxxx X. Xxxxxxx, Xx. Chief Financial Officer /s/ Xxxx X. Xxxxxxx, Xx. may act for Borrower and: Sell the corporation’s accounts receivable to Bank Borrow money from Bank Grant to Bank a security interest in any of the corporation’s assets Execute and deliver certain agreements in connection with the sale of receivables, and granting of security interests. Designate other individuals to request advances, pay fees and costs and execute other documents or agreements (including documents or agreement that waive the Corporation’s right to a jury trial) they think necessary to effectuate these Resolutions. Further resolved that all acts authorized by these Resolutions and performed before they were adopted are ratified. These Resolutions remain in effect and Bank may rely on them until Bank receives written notice of their revocation. I certify that the persons listed above are the Corporation’s officers with the titles and signatures shown following their names and that these resolutions have not been modified are currently effective. X /s/ Xxxxxx X’Xxxxxxx 12/20/04 *Secretary or Assistant Secretary Date X Xxxx X. Xxxxxxx, Xx. 12/10/04 * If the certifying officer is designated as a signer in these resolutions then another corporate officer must also sign. This Loan Modification Agreement is entered into as of April 5, 2005 by and among Walnut Ventures, Inc. (“Walnut”), Corporate Consulting Services, Inc. (“CCS”), Intersearch Group, Inc. (“Intersearch”), La Jolla Internet Properties, Inc. (“La Jolla”) and Silicon Valley Bank (“Bank”).

Appears in 1 contract

Samples: Loan and Security Agreement (Intersearch Group Inc)

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 All 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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an as authorized officer of TINTRIIntrusion, INC. Inc. (“Borrower”) certify under the 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 this the Agreement): 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 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 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; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Intrusion Inc)

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, all certificates of deposit, 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, “Collateral” expressly excludes the Collateral shall not be deemed to include any copyrights (including computer programsreal property located at 900 Xxxxxx Xxxxxx Xxxx, blueprints and drawings)Xxxxxx, copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consentXxx York 12110. I, an authorized officer of TINTRI, PLUG POWER INC. (“Borrower”) certify under the 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 this the Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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 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 connection with the Loan Documents 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 misleadingmisleading in light of the circumstances in which it was made.

Appears in 1 contract

Samples: Loan Agreement (Plug Power Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to all of Borrower’s personal property, including without limitation the following: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles (including blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment intangibles)of any kind; All now existing and hereafter arising accounts, accounts (including health-care receivables)contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit, letter-of-credit rights (whether or not the letter of credit is evidenced by a writing)rights, commercial tort claims, securitiescertificates of deposit, instruments and all other investment propertychattel paper now owned or hereafter acquired and Borrower’s Books relating to the foregoing; and All copyright rights, supporting obligationscopyright applications, copyright registrations and financial assetslike protections in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all 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 and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, additions and accessions and improvements to and replacements, products, proceeds thereof. DEADLINE FOR SAME DAY PROCESSING IS 12:00 P.S.T. FAX TO: DATE: • LOAN PAYMENT: From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ All Borrower’s representation and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection warranties in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the Loan and Security Agreement (as amendedare true, the “Agreement”) between Borrower correct and Silicon Valley Bank (“Bank”) as follows for the period ending (complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right material respects to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal date of the telephone transfer request for and is not disputed; Payment is not contingent on any obligation or contract advance, but those representations and Borrower has fulfilled warranties expressly referring to another date shall be true, correct and complete in all its obligations material respects as of the 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.: Authorized Signature: Phone Number: • LOAN ADVANCE:

Appears in 1 contract

Samples: Loan and Security Agreement (Occam Networks Inc/De)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)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), commercial tort claims, 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 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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. I, an TO: SILICON VALLEY BANK Date: FROM: FINISAR CORPORATION The undersigned authorized officer of TINTRI, INC. FINISAR CORPORATION (“Borrower”) certify 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, (2) there are no Events of Default, (3) all capitalized 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 5.8 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 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 meaning meanings given them in the Agreement. Monthly Financial Statements and compliance Certificate Monthly within 30 days Yes No Annual financial statements (CPA Audited) on 10-K FYE within 90 days Yes No 10-Q Quarterly, within 5 days after filing with SEC or 45 days after quarter Yes No 8-K Within 5 days after SEC filing Yes No Board approved projections As requested by Bank Yes No Adjusted Quick Ratio (montly) : 1.0 * : 1.0 Yes No EBITDA (quarterly) $ ** $ Yes No *As set forth in this Section 6.7(a) of the Loan and Security Agreement): Each Financed Receivable is an Eligible Account; Borrower is . **As set forth in Section 6.7(b) of the owner with legal right to sell, transfer, assign Loan and encumber such Financed Receivable; Security Agreement. The correct amount is on the Invoice Transmittal following financial covenant analyses and is not disputed; Payment is not contingent on any obligation or contract information set forth in Schedule 1 attached hereto are true and Borrower has fulfilled all its obligations accurate as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery date of goods and/or services renderedthis Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, is due state “No exceptions 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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 misleadingnote.”) FINISAR CORPORATION BANK USE ONLY By: Received by: Name: AUTHORIZED SIGNER Title: Date: Verified: Date: Compliance Status: Yes No

Appears in 1 contract

Samples: Loan and Security Agreement (Finisar Corp)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing whether owned now or hereafter arising and whether the Borrower has rights now or hereafter has rights therein and wherever located: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles (as such definitions may be amended from time to time according to the Code), now owned or rights to payment of moneyhereafter acquired;, including, without limitation, goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment of any kind; All now existing and hereafter arising accounts, contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower (as such definitions may be amended from time to time according to the Code) whether or not earned by performance, and any and all credit insurance, insurance (including payment intangibles)refund) claims and proceeds, accounts (including health-care receivables)guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the credit, letter of credit is evidenced by a writing)rights, commercial tort claimscertificates of deposit, securitiesinstruments and chattel paper and electronic chattel paper now owned or hereafter acquired and Borrower’s Books relating to the foregoing; All copyright rights, copyright applications, copyright registrations and all other investment property, supporting obligations, like protections in each work of authorship and financial assetsderivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all 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 and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, upon Bank’s determination that Borrower has had two (2) consecutive fiscal quarters with a net profit, as determined in accordance with GAAP, the Collateral shall not include (and the following shall automatically be deemed released from the security interest granted to include Bank) (i) any copyrights (including computer programscopyrights, blueprints trademarks, servicemarks, patents and drawings), copyright mask works and applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuationsamendments, renewals, reissuesextensions, extensions and continuations-in-part all licenses or other rights to use and all license fees and royalties from the use, (ii) any trade secrets and any intellectual property rights in computer software and computer software products now or later existing, created, acquired or held, (iii) any design rights which may be available to Debtor now or later created, acquired or held, and (iv) any claims for damages by way of any past, present and future infringement of any of the sameforegoing (collectively, trademarks, servicemarks and applications therefor, whether registered or not; or any the “Intellectual Property”); provided, except however, that the Collateral shall include all accountsaccounts and general intangibles that consist of rights to payment and proceeds from the sale, license and royalty fees and other revenues, proceedslicensing or disposition of all or any part, or income arising out of or relating rights in, the foregoing (the “Rights to any of Payment”). Notwithstanding the foregoing. Pursuant , if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically and at all times include the Intellectual Property to the terms extent necessary to permit perfection of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentsecurity interest in the Rights to Payment. I, an as authorized officer of TINTRINETLOGIC MICROSYSTEMS, INC. (“Borrower”) certify under the AR Financing 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 this Agreement): follows: 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 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 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 Liensencumbrances; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower It has not filed or had filed against it Insolvency Proceedings 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. 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.. Borrower 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. The execution, delivery and performance of this Agreement has been duly authorized, and do not conflict with Borrower’s formations 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. Borrower has good title to the Collateral. 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. 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 with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules. None of Borrower’s properties or assets has been used by Borrower, to the best of Borrower’s knowledge, by previous persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower has timely filed all required tax returns and paid, or made adequate provision to pay, all taxes. Borrower 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. With respect to Placeholder Invoices, Borrower represents and warrants, as of the date the Advance is made based upon such Placeholder Invoice, that the estimated purchase order value determined by Borrower is based upon the best information available to Borrower and accurately and fully (considering all known discounts available to each such customer) reflects same and Borrower represents and warrants that, based upon the best information available to Borrower, an invoice for such purchase order is expected to be issued within 112 days from the date of the purchase order. All representations and warranties in the Agreement are true and correct in all material respects on this date. Sincerely, SIGNATURE TITLE DATE

Appears in 1 contract

Samples: Ar Financing Loan Agreement (Netlogic Microsystems Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General 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 All 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 shall does not be deemed to include any copyrights of the following: (including computer programsi) intellectual property, blueprints and drawings)whether now owned or hereafter acquired, consisting of copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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 (collectively, the “Intellectual Property”); provided, except that however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to such Intellectual Property; (ii) the Excluded O&G Collateral; (iii) any capital stock of a controlled foreign corporation (as defined in the Internal Revenue Code of 1986, as amended), in excess of 65% of the foregoingvoting power of all classes of capital stock of such controlled foreign corporation entitled to vote; and (iv) the Excluded Patriot Equity Interest Collateral. Pursuant to the terms of a certain negative pledge arrangement with Bank, Loan and Security Agreement between Bank and Borrower (the “Loan Agreement”) Borrower has agreed not to encumber create, incur or allow any Lien on any of the Collateral or its Intellectual Property Property, except for Permitted Liens, as defined in the Loan Agreement, without Bank’s prior written consent. I, DEADLINE FOR SAME DAY PROCESSING IS NOON PACIFIC TIME Fax To: Date: From Account # To 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 authorized officer outgoing wire. From Account # To Account # Amount of TINTRI, INC. (“Advance $ All Borrower”) certify under ’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: Deadline for same day processing is noon, Pacific Time Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (as amendedABA) #: Beneficiary Bank Code (Swift, the “Agreement”Sort, Chip, etc.): Intermediary Bank: Transit (ABA) between Borrower and #: For Further Credit to: Special Instruction: Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: BORROWER: LUCA TECHNOLOGIES INC. DATE: April , 2008 BANK: Silicon Valley Bank (“Bank”) I hereby certify as follows for the period ending (all capitalized terms used herein shall have the meaning set forth follows, in this Agreement): Each Financed Receivable is my capacity as an Eligible Account; Borrower is the owner with legal right to sellofficer of Borrower, transfer, assign and encumber such Financed Receivable; The correct amount is on the 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.date set forth above:

Appears in 1 contract

Samples: Loan and Security Agreement (Luca Technologies Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), 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 All 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired; any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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. ITO: SILICON VALLEY BANK Date: FROM: INTERNATIONAL ELECTRONICS, an INC. The undersigned authorized officer of TINTRIInternational Electronics, INC. Inc. (“Borrower”) certify 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, (2) there are no Events of Default, (3) all capitalized 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 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 meaning 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 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No A/R & A/P Agings Monthly within 15 days Yes No ] The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”) The following financial covenant analyses and information set forth in this Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign Schedule 1 attached hereto are true and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations accurate as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery date of goods and/or services renderedthis Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, is due state “No exceptions to Borrowernote.”) International Electronics, 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. Inc. BANK USE ONLY By: Received by: Name: AUTHORIZED SIGNER Title: Date: Verified: AUTHORIZED SIGNER Date: Compliance Status: 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.Dated:

Appears in 1 contract

Samples: Loan and Security Agreement (International Electronics Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), 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 All 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 shall does not be deemed to include (i) any copyrights of the following, whether now owned or hereafter acquired (including computer programscollectively, blueprints and drawings)the “Intellectual Property”): any inbound licenses, copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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 foregoingforegoing or (ii) any ownership interests in any foreign subsidiary of Borrower to the extent such ownership interest exceeds 65% of the total outstanding voting interests in such foreign subsidiary, whether now owned or hereafter acquired. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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. I, an TO: SILICON VALLEY BANK Date: FROM: ENTROPIC COMMUNICATIONS. INC. The undersigned authorized officer of TINTRIENTROPIC COMMUNICATIONS, INC. (“Borrower”) certify certifies that under the terms and conditions of the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bankthe 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 capitalized 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 (except as otherwise noted) 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 meaning meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 180 days Yes No Board Projections Within 30 days after start of FY Yes No 10-Q, 10-K, and 8-K, if applicable Within 5 days after filing with SEC Yes No Transaction Report Monthly within 15 days and with each Advance, but if Borrower’s Liquidity Ratio falls below 1.75 to 1.0, then week and with each Advance Yes No A/R & A/P Agings and A/R Reconciliations Monthly within 15 days Yes No The following Intellectual property was registered after the Effective Sate (if no registrations, state “None”) Not Applicable $________ $________ Yes No The following financial covenant analysis and information set forth in this Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign Schedule 1 attached hereto are true and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations accurate as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery date of goods and/or services renderedthis Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, is due state “No exceptions to Borrowernote.”) Entropic Communications, 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.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 (Entropic Communications Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), 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 claimsall Pledged Collateral, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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. IAll other terms contained in this Exhibit, an authorized officer of TINTRIunless otherwise indicated, INC. (“Borrower”) certify under the 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 this Agreement): Each Financed Receivable is an Eligible Account; Borrower is meanings provided by the owner with legal right Code (as defined herein), to sell, transfer, assign and encumber the extent such Financed Receivable; The correct amount is on the 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 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 terms are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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 defined in the certificates or statement not misleading.Code. For purposes hereof, the following terms shall have the following meanings:

Appears in 1 contract

Samples: Loan and Security Agreement (Motricity Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)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), commercial tort claims, 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 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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. ITO: SILICON VALLEY BANK Date: FROM:ENERNOC, an INC. and ENERNOC SECURITIES CORPORATION The undersigned authorized officer of TINTRIENERNOC, INC. and ENERNOC SECURITIES CORPORATION (individually and collectively, jointly and severally, “Borrower”) certify 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, (2) there are no Events of Default, (3) all capitalized 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 5.8 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 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 meaning meanings given them in the Agreement. Quarterly Financial Statements on Form 10-Q Quarterly within 45 days Yes No Monthly Compliance Certificate Monthly within 45 days Yes No Annual financial statements (CPA Audited) on 10-K together with an unqualified audited opinion FYE within 90 days Yes No 8-K, 10-Q and 10-K filings Within 5 days after SEC filing Yes No A/R and A/P agings and statement of account balances As requested by Bank Yes No Board projections 60 days after FYE Yes No Quick Ratio (monthly) 1.85 : 1.0 : 1.0 Yes No Tangible Net Worth (quarterly) $ * $ Yes No * As set forth in this Section 6.7(b) of the Loan and Security Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign . The following financial covenant analyses and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal information set forth in Schedule 1 attached hereto are true and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations accurate as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery date of goods and/or services renderedthis Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, is due state “No exceptions to Borrowernote.”) ENERNOC, 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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 CollateralINC. 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.BANK USE ONLY ENERNOC SECURITIES CORPORATION Received by: By: AUTHORIZED SIGNER Name: Date: Title: Verified: Date: Compliance Status: Yes No

Appears in 1 contract

Samples: Loan and Security Agreement (Enernoc Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General 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 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 shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRITO: SILICON VALLEY BANK DATE: FROM: MEDECISION, INC. (“Borrower”) certify and MEDECISION INVESTMENTS, INC. The undersigned authorized officer certifies that under the terms and conditions of the Loan and Security Agreement between MEDdecision Investments, Inc., MEDecision, Inc. (as amendedeach a “Borrower” and collectively, the “Borrowers”) and Bank (the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows Borrowers are in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all capitalized 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) each Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and each Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by such 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 any Borrower relating to unpaid employee payroll or benefits of which such 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 any 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 meaning set forth meanings given them in this the Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner . Monthly financial statements with legal right to sell, transfer, assign CC Monthly within 30 days Yes No Annual financial statement (CPA Audited) FYE within 120 days Yes No Field Audits Within Bank’s discretion Yes No 10-Q Within 45 days after filing with SEC Yes No 10-K and encumber such Financed Receivable; The correct amount is on the 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 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, transferred8-K Within 90 days after filing with SEC Yes No Borrowing Base Certificate A/R & A/P Agings Monthly within 30 days Yes No Board Projections (Annual internal operating plans) Annually, or pledged and is free of any liensas updated Yes No Deferred Revenue report Monthly within 30 days Yes No Transaction Report Weekly Yes No The following intellectual property was registered after the Effective Date (if no registrations, 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.“None”)

Appears in 1 contract

Samples: Loan and Security Agreement (MEDecision, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s 's right, title and interest in and to the following: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower's custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles (including blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment intangibles)of any kind; All now existing and hereafter arising accounts, accounts (including health-care receivables)contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, guaranties and other security therefor, as well as all merchandise returned in or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether credit, certificates of deposit, instruments and chattel paper now owned or not hereafter acquired and Borrower's Books relating to the letter foregoing; All copyright rights, copyright applications, copyright registrations and like protections in each work of credit is evidenced by a writing), commercial tort claims, securities, authorship and all other investment property, supporting obligations, and financial assetsderivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books '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, additions and accessions and improvements to and replacementsproceeds thereof. 24 EXHIBIT B LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM DEADLINE FOR SAME DAY PROCESSING IS 3:00 P.M., products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights P.S.T. TO: CENTRAL CLIENT SERVICE DIVISION DATE: _______________ FAXS: (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations408) 000-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI0000 TIME: _______________ FROM: WEBRIDGE, INC. .________________________________________________________ CLIENT NAME (“Borrower”) certify under the 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 this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.BORROWER)

Appears in 1 contract

Samples: Loan and Security Agreement (Webridge Inc)

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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRIProcera Networks, INC. Inc. (“Borrower”) certify under the 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 this the Agreement): 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 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 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; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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. 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. 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(s) set forth in Section 6.7 of the Agreement.

Appears in 1 contract

Samples: Loan and Security Agreement (Procera Networks Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following, whether now owned or hereafter existing: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles now owned or rights to hereafter acquired, including, without limitation, payment of moneyintangibles, goodwill, trademarks, service marks, trade styles, trade names, patents, patent applications, leases, contracts, licenses, license agreements, franchise agreements, general intangibles blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, software, computer discs, computer tapes, literature, reports, catalogs, design rights, tax and other types of refunds, payments of insurance and rights to payment of any kind; All now existing and hereafter arising rights to payment of any kind, including accounts, contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, insurance (including payment intangibles)refund) claims and proceeds, accounts guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronicwarehouse receipts), cash, cash equivalents, deposit accounts, fixturessecurities, securities entitlements, securities accounts (including health care insurance receivables and credit card receivables), investment property, financial assets, letters of credit, letter of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claimscertificates of deposit, securitiesinstruments, chattel paper and all other investment propertyelectronic chattel paper rights now owned or hereafter acquired and Borrower’s Books relating to the foregoing; All copyright rights, supporting obligationscopyright applications, copyright registrations and financial assetslike protections in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all claims for damages by way of any past, present and future infringement of any of the foregoing; All investment property, whether held directly or as a security entitlement, securities account, commodity contract or a commodity account, maintained with any securities intermediary or commodity intermediary; and All Borrower’s books 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, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings)copyrights, copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized by such trademarks, any trade secret rights, including any rights to unpatented inventions, knowhow, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damage by way of any past, present and future infringement of any of the foregoing (collectively, the “Intellectual Property”), except that the Collateral shall include the proceeds of all the Intellectual Property that are accounts, license and royalty fees and other revenues, proceeds(i.e. accounts receivable) of Borrower, or income arising out general intangibles consisting of or relating rights to any payment, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in such accounts and general intangibles of Borrower that are proceeds of the foregoing. Pursuant to Intellectual Property, then the terms of a certain negative pledge arrangement with BankCollateral shall automatically, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the 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 this Agreement): 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 Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations effective as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale date hereof, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such accounts and delivery general intangibles 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 Borrower that are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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 misleadingIntellectual Property.

Appears in 1 contract

Samples: Loan and Security Agreement (Legato Systems Inc)

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, all certificates of deposit, 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 license rights and agreements, now owned or hereafter acquired; 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; and 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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRIWIXPRESS LTD. and XXX.XXX, INC. (jointly and severally, individually and collectively, “Borrower”) certify under the 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 this the Agreement): Each Financed Receivable is an For any Account related to any of the Eligible Account; Collections, all statements made and all unpaid balances appearing in all invoices, instruments and other documents evidencing such Accounts 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 statements and items on each Borrowing Base Certificate and in the financial statements delivered pursuant to Section 6.2(a)(i) and the statements of Borrower's Eligible Collections delivered pursuant to Section 6.2(d) are and shall be true and correct in all respects. All sales and other transactions underlying or giving rise to each such Account shall comply in all material respects with all applicable laws and governmental rules and regulations. Borrower has no knowledge of any actual or imminent Insolvency Proceeding of any Account Debtor whose Accounts are related to any Eligible Collections. To the best of Borrower’s knowledge, all signatures and endorsements on all documents, instruments, and agreements relating to all such Account are genuine, and all such documents, instruments and agreements are legally enforceable in accordance with their terms. Borrower is the owner with of and has the legal right to sell, transfer, assign and encumber each such Financed Receivable; The correct amount is on the Invoice Transmittal Account, and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the 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 discount; . 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 believes no Account Debtor 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 insolvent bound. Borrower is not in default under any agreement to which or subject by which it is bound in which the default could reasonably be expected to any Insolvency Proceedings; cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory, if applicable, is in all material respects of good and marketable quality, free from material defects. Inc is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Inc 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 have 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 had filed against it Insolvency Proceedings made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and does not anticipate any filing; Bank each Subsidiary has the right to endorse and/ obtained all consents, approvals and authorizations of, made all declarations or require Borrower to endorse filings with, and given all payments received on Financed Receivables and notices to, all proceeds of Collateral. 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 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. 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 statement contained terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. All other representations and warranties in the certificates or statement not misleading.Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default. Sincerely, WIXPRESS LTD. XXX.XXX, INC. Signature Signature Title Title Date Date Date SVB DDA # AM Approval Wire To PM/TL Approval ABA # SCO Approval Account #

Appears in 1 contract

Samples: Loan and Security Agreement (Wix.com Ltd.)

Exhibit A. The Collateral consists of all of Borrower’s 's right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)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), commercial tort claims, 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 's 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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 's prior written consent. IEXHIBIT B LOAN PAYMENT/ADVANCE REQUEST FORM DEADLINE FOR SAME DAY PROCESSING IS NOON E.S.T.* Fax To: Date: __________________ ================================================================================ LOAN PAYMENT: Spire Corporation and Bandwidth Semiconductor, LLC -------------------------------------------------- From Account #_________________________ To Account #________________________ (Deposit Account #) (Loan Account #) Principal $____________________________ and/or Interest $___________________ AUTHORIZED SIGNATURE:__________________ Phone Number: ______________________ Print Name/Title: _____________________ ================================================================================ ================================================================================ LOAN ADVANCE: Complete OUTGOING WIRE REQUEST section below if all or a portion of the funds from this loan advance are for an authorized officer outgoing wire. From Account #_________________________ To Account #________________________ (Loan Account #) (Deposit Account #) Amount of TINTRI, INC. (“Advance $____________________ All Borrower”) certify under '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, E.S.T. Beneficiary Name: _____________________ Amount of Wire: $___________________ Beneficiary Bank: _____________________ Account Number: ____________________ City and State: _____________________ Beneficiary Bank Transit (as amendedABA) #:______ Beneficiary Bank Code (Swift, Sort, Chip, etc.):__________ (FOR INTERNATIONAL WIRE ONLY) Intermediary Bank: ____________________ Transit (ABA) #: ___________________ For Further Credit to:__________________________________________________________ Special Instruction: ___________________________________________________________ BY SIGNING BELOW, I (WE) ACKNOWLEDGE AND AGREE THAT MY (OUR) FUNDS TRANSFER REQUEST SHALL BE PROCESSED IN ACCORDANCE WITH AND SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENTS(S) COVERING FUNDS TRANSFER SERVICE(S), WHICH AGREEMENTS(S) WERE PREVIOUSLY RECEIVED AND EXECUTED BY ME (US). Authorized Signature: _________________ 2nd Signature (if required):______________________ Print Name/Title: _____________________ Print Name/Title:___________________ Telephone #:___________________________ Telephone #:________________________ ================================================================================ * Unless otherwise provided for an Advance bearing interest at LIBOR. EXHIBIT C --------- COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date:_______________ FROM: SPIRE CORPORATION AND BANDWIDTH SEMICONDUCTOR, LLC The undersigned authorized officer of Spire Corporation or Bandwidth Semiconductor, LLC ("Borrower") certifies that under the “Agreement”) terms and conditions of the Loan and Security 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 capitalized 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 5.8 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 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 meaning meanings given them in the Agreement. PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN. -------------------------------------------- ---------------------------------------- --------------- REPORTING COVENANT REQUIRED COMPLIES -------------------------------------------- ---------------------------------------- --------------- -------------------------------------------- ---------------------------------------- --------------- Monthly financial statements Monthly within 30 days Yes No with Compliance Certificate -------------------------------------------- ---------------------------------------- --------------- 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 -------------------------------------------- ---------------------------------------- --------------- Board Approved Projections Annually, within 45 days of approval Yes No ----------------------------------------------------------------------------------------------------- -------------------------------------------- ----------------- --------------- ---------------------- FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES -------------------------------------------- ----------------- --------------- ---------------------- Maintain on a Monthly Basis: -------------------------------------------- ----------------- --------------- ---------------------- Minimum Adjusted Quick Ratio ____* :1.0 _____:1.0 Yes No -------------------------------------------- ----------------- --------------- ---------------------- Maintain on a Quarterly Basis: -------------------------------------------- ----------------- --------------- ---------------------- Minimum Net Revenue $______** $______ Yes No ----------------------------------------------------------------------------------------------------- * As set forth in this Agreement): Each Financed Receivable is an Eligible Account; Borrower is Section 6.7(a) of the owner with legal right to sell, transfer, assign Agreement ** As set forth in Section 6.7(b) of the Agreement The following financial covenant analysis and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal information set forth in Schedule 1 attached hereto are true and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations accurate as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery date of goods and/or services renderedthis Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, is due state "No exceptions to Borrowernote.") -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- Spire Corporation BANK USE ONLY By: Received by: ----------------------------------- ----------------------- Name: AUTHORIZED SIGNER --------------------------------- Title: Date: -------------------------------- ------------------------------- Bandwidth Semiconductor, 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 LLC Verified: -------------------------- AUTHORIZED SIGNER By: Date: ----------------------------------- ------------------------------ Name: -------------------------------- Title: Compliance Status: Yes No -------------------------------- SCHEDULE 1 TO COMPLIANCE CERTIFICATE ------------------------------------ FINANCIAL COVENANTS OF BORROWER ------------------------------- Dated: __________ In the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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 misleadingterms of the Loan Agreement shall control.

Appears in 1 contract

Samples: Loan and Security Agreement (Spire Corp)

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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRIMICROFLUIDICS INTERNATIONAL CORPORATION and MICROFLUIDICS CORPORATION (individually and collectively, INC. (jointly and severally, “Borrower”) certify under the 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 this the Agreement): 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 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 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; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Microfluidics International Corp)

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 any copyrights Fax To: (including computer programs, blueprints 000) 000-0000 Date: From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ All Borrower’s representation and drawings), copyright applications, copyright registration and like protection warranties in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the Loan and Security Agreement are true, correct and complete in all material respects on the date of the telephone transfer request for an advance, but those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of such date: Authorized Signature: Phone Number: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ All Borrower’s representation and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the telephone transfer request for an advance, but those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as amendedof such date: Authorized Signature: Phone Number: Complete only if all or a portion of funds from the loan advance above are to be wired. Deadline for same day processing is 3:00pm, the “Agreement”E.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and Sate: Beneficiary Bank Transit (ABA) between Borrower and #: 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 # Borrower: Lender: Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.Commitment Amount: $5,000,000

Appears in 1 contract

Samples: Loan and Security Agreement (American Science & Engineering Inc)

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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an as authorized officer of TINTRI, INC. Infinera Corporation (“Borrower”) certify under the 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 this the Agreement): 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 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 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; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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 and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. 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. 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. 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. With respect to Placeholder Invoices, Borrower represents and warrants that the estimated face value amount determined by Borrower is based upon the best information available to Borrower and accurately and fully (considering all known discounts available to each such Account Debtor) reflects same and that a receivable will be generated within 120 days of the issuance of such purchase order. In addition, Borrower represents and warrants that there are no discounts, offsets or other rights of any Account Debtor under any Placeholder Invoice other than as disclosed to Bank at the time such Placeholder Invoice was financed hereunder. All representations and warranties in the Agreement are true and correct in all material respects on this date, and the Borrower represents that there is no existing Event of Default. Sincerely, Signature Title Date This First Loan Modification Agreement (this “Loan Modification Agreement”) is entered into as of June 21, 2005, by and between SILICON VALLEY BANK, a California-chartered bank, with its principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 (“Bank”) and INFINERA CORPORATION, a Delaware corporation with its chief executive office located at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 (“Borrower”).

Appears in 1 contract

Samples: Loan and Security Agreement (Infinera Corp)

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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRIMICROFLUIDICS INTERNATIONAL CORPORATION and MICROFLUIDICS CORPORATION (individually and collectively, INC. (jointly and severally, “Borrower”) certify under the 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 this the Agreement): 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 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 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; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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. 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. 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.

Appears in 1 contract

Samples: Export Import Bank Loan and Security Agreement (Microfluidics International Corp)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), 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 All 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired: any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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, and any personal property in which a purchase money creditor has or obtains a purchase money security interest, but only (a) to the extent such purchase money creditor prohibits the Borrower from further encumbering such personal property; or any Intellectual Propertyand (b) for as long as such purchase money security interest exists in such personal property; provided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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. I, an authorized officer of TINTRITO: SILICON VALLEY BANK FROM: WORLD ENERGY SOLUTIONS, INC. AND WORLD ENERGY SECURITIES CORP. Date: The undersigned authorized officers of World Energy Solutions, Inc., and World Energy Securities Corp. (individually and collectively, jointly and severally, “Borrower”) ), solely in their capacities as officers of their respective entities, certify 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, (2) there are no Events of Default, (3) all capitalized 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 solely in their capacities as officers of their respective entities, certify 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 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 meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. No representation, warranty or other statement of Borrower in any certificate or written statement meanings given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained them in the certificates or statement not misleadingAgreement.

Appears in 1 contract

Samples: Loan and Security Agreement (World Energy Solutions, Inc.)

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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an as authorized officer of TINTRI, INC. Xxxxxxxxxx (“Borrower”) certify under the 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 this the Agreement): 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 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 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; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Strasbaugh)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest of Borrower 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, property supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever locatedlocated in the United States; and All Borrower’s books 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 The Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings)include: Any copyright rights, copyright applications, copyright registration registrations mask works, and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter later acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks service marks and applications therefor; any trade secret rights, whether registered including any rights to unpatented inventions, now owned or not; or any Intellectual Propertyhereafter acquired. Notwithstanding the foregoing, except that 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 extent a court of competent jurisdiction holds that a security interest in any Intellectual Property is necessary to have a security interest in any accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing Intellectual Property, then the Collateral shall, effective as of the Closing Date, include the Intellectual Property, to the terms extent necessary to permit perfection of a certain negative pledge arrangement with Bank’s security interest in such accounts, Borrower has agreed not license and royalty fees and other revenues, proceeds, or income arising out of or relating to encumber any of its the Intellectual Property without Bank’s prior written consentProperty; and The State Street Account, provided that the amount that Borrower shall maintain in the State Street Account at any one time shall be no greater than Twenty Million Dollars ($20,000,000.00). I, an TO: SILICON VALLEY BANK FROM: LTX CORPORATION The undersigned authorized officer of TINTRI, INC. (“Borrower”) certify LTX CORPORATION certifies that under the terms and 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 with all required covenants except as noted below and (ii) there are no Events of Default, and all capitalized terms used herein shall have representations and warranties in the meaning set forth Agreement are true and correct in all material respects on this Agreement): Each Financed Receivable is 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 Eligible Account; accompanying letter or footnotes. The Officer acknowledges that no borrowings may be requested at any time or date of determination that Borrower is the owner not in compliance with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the 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 Invoice Transmittal date; Each Financed Receivable terms of the Agreement, and that compliance is based on an actual sale determined not just at the date this certificate is delivered. Monthly financial statements with CC Monthly within 30 days Yes No Annual Board projections FYE within 5 days of approval Yes No 10-Q, 10-K 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.8-K Within 5 days after filing with SEC Yes No

Appears in 1 contract

Samples: Loan Agreement (LTX Corp)

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Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), 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 All 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 not include any of the following, whether now owned or hereafter acquired: (a) to the extent a pledge of the capital stock owned by Borrower or any Guarantor of any Foreign Subsidiary results in material adverse tax circumstances, such pledge shall not be deemed exceed 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower or any Guarantor of any Foreign Subsidiary which shares entitle the holder thereof to include vote for directors or any copyrights other matter or (including computer programs, blueprints and drawings)b) any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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. I, Fax To: Date: From Account # To 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 authorized officer outgoing wire. From Account # To Account # Amount of TINTRI, INC. (“Advance $ All Borrower”) certify under ’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: 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 (as amendedABA) #: Beneficiary Bank Code (Swift, the “Agreement”Sort, Chip, etc.): Intermediary Bank: (For International Wire Only) between Borrower and Transit (ABA) #: For Further Credit to: Special Instruction: Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: Borrower: RAE Systems Inc. Lender:Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.Commitment Amount: $15,000,000 ACCOUNTS RECEIVABLE

Appears in 1 contract

Samples: Loan and Security Agreement (Rae Systems Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing whether owned now or hereafter arising and whether the Borrower has rights now or hereafter has rights therein and wherever located: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, (except for those processed and stored at the facilities outside of the United States), now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles (as such definitions may be amended from time to time according to the Code), now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment of any kind,; All now existing and hereafter arising accounts, contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower (as such definitions may be amended from time to time according to the Code) whether or not earned by performance, and any and all credit insurance, insurance (including payment intangibles)refund) claims and proceeds, accounts (including health-care receivables)guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the credit, letter of credit is evidenced by a writing)rights, commercial tort claimscertificates of deposit, securitiesinstruments and chattel paper and electronic chattel paper now owned or hereafter acquired and Borrower’s Books relating to the foregoing; All copyright rights, copyright applications, copyright registrations and all other investment property, supporting obligations, like protections in each work of authorship and financial assetsderivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all 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 and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, additions and accessions and improvements to and replacementsproceeds thereof. Notwithstanding anything herein to the contrary, products, proceeds and insurance proceeds of in no event shall the Collateral include in any or all of the foregoingoutstanding capital stock of a controlled foreign corporation (as such term is defined in the Internal Revenue Code of 1986, as amended) in excess of 65% of the voting power of all classes of capital stock of such controlled foreign corporation entitled to vote. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings)copyrights, copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized by such trademarks, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and any confidential information, now owned or hereafter acquired; or any claims for damage by way of any past, present and future infringement of any of the foregoing (collectively, the “Intellectual Property”), except that the Collateral shall include the Proceeds of all the Intellectual Property that are accounts, license and royalty fees and other revenues, proceeds(i.e. accounts receivable) of Borrower, or income arising out general intangibles consisting of or relating rights to any payment, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in such accounts and general intangibles of Borrower that are Proceeds of the foregoing. Pursuant to Intellectual Property, then the terms of a certain negative pledge arrangement with BankCollateral shall automatically, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the 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 this Agreement): 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 Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations effective as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale Closing Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such accounts 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. No representation, warranty or other statement general intangibles of Borrower in any certificate or written statement given to Bank contains any untrue statement that are Proceeds of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleadingIntellectual Property.

Appears in 1 contract

Samples: Loan and Security Agreement (Advanced Analogic Technologies Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), 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 All 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired: any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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. ITO: SILICON VALLEY BANK Date: FROM: OCZ Technology Group, an Inc. The undersigned authorized officer of TINTRIOCZ Technology Group, INC. Inc. (“Borrower”) certify 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, (2) there are no Events of Default, (3) all capitalized 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 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 meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. No representation, warranty or other statement of Borrower in any certificate or written statement meanings given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained them in the certificates or Agreement. Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement not misleading.(CPA Audited) + XX XXX within 180 days Yes No Board Projections Within 45 days after start of FY Yes No 10-Q, 10-K and 8-K, if applicable Within 5 days after filing with SEC Yes No Six month statements to be filed by Borrower with the UK equivalent of SEC Within 5 days after filing with UK equivalent of SEC Yes No A/R & A/P Agings and A/R Reconciliations Monthly within 15 days Yes No Transaction Report (if Streamline Period Not in Effect) Weekly and with each Advance Yes No Transaction Report (if Streamline Period in Effect) Monthly within 15 days and with each Advance Yes No Distributor Sell Through Report Quarterly within 15 days Yes No The following intellectual property was registered after the Effective Date (if no registrations, state “None”)

Appears in 1 contract

Samples: Loan and Security Agreement (Ocz Technology Group Inc)

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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, BRIGHTCOVE INC. (“Borrower”) certify under the 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 this the Agreement): 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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 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 misleadingmisleading in light of the circumstances in which they were made.

Appears in 1 contract

Samples: Loan and Security Agreement (Brightcove Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General 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 All 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 shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an as authorized officer of TINTRI, INC. Cimetrix Incorporated (“Borrower”) certify under the 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 this the Agreement): 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 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 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; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Cimetrix Inc)

Exhibit A. The Collateral consists of all of each Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), 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 All 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 shall does not be deemed to include any copyrights of the following: (including computer programs, blueprints and drawings)a) whether now owned or hereafter acquired any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of a 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; or any Intellectual Propertyprovided, except that however, 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; and (b) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by either Borrower of any Foreign Subsidiary or BigBand International, Inc., which shares entitle the holder thereof to vote for directors or any other matter. Pursuant to the terms of a certain negative pledge arrangement with Bank, each Borrower has agreed not to encumber any of its Intellectual Property 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 such 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. I, DEADLINE FOR SAME DAY PROCESSING IS NOON P.S.T. Fax To: Date: _____________________ From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an authorized officer outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of TINTRI, INC. (“Borrower”) certify under Advance $ All Borrowers’ 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: 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 (as amendedABA) #: Beneficiary Bank Code (Swift, the “Agreement”Sort, Chip, etc.): Intermediary Bank: Transit (ABA) between Borrower #: For Further Credit to: Special Instruction: BIGBAND NETWORKS, INC. Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: BIGBAND NETWORKS BAS, INC. Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: Borrowers: BigBand Networks, Inc. and BigBand Networks BAS, Inc. Lender: Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; Commitment Amount: The correct amount is on the 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.Revolving Line Limit ACCOUNTS RECEIVABLE

Appears in 1 contract

Samples: Loan and Security Agreement (BigBand Networks, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General 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 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 shall “Collateral” does not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part more than 65% of the same, trademarks, servicemarks presently existing and applications therefor, whether registered or not; 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 Intellectual Property, except that 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 foregoingmatter. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bankany 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. Loan Payment/Advance Request Form DEADLINE FOR SAME DAY PROCESSING IS NOON PACIFIC TIME Fax To: Date: ____________ From Account # _________________________________________________ (Deposit 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 #________________________________ To Account # __________________________________________________ (Loan Account #) (Deposit Account #) Amount of Advance $___________________________ All Borrower’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: ___________________________________ Phone Number: _________________________________ Print Name/Title: ______________________________________ OUTGOING WIRE REQUEST: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, Pacific Time. Beneficiary Name: _____________________________________________ Beneficiary Bank: _____________________________________________ City and State:________________________________________________ Amount of Wire: $ ___________________________________________________________________________ Account Number:_____________________________________________________________________________ Beneficiary Bank Transit (as amendedABA) #: _____________________ Beneficiary Bank Code (Swift, the “Agreement”Sort, Chip, etc.): ________________________________ Intermediary Bank: _______________________________________________ For Further Credit to: _____________________________________________ Special Instruction: _______________________________________________________________ Transit (ABA) between Borrower #: _____________________________________________________________________________ ____________________________________________________________________________________________ Authorized Signature: ______________________________________________________ Print Name/Title: _________________________________________________________ Telephone #: _____________________________________________________________ 2nd Signature (if required): _________________________________________________________________ Print Name/Title: _______________________________________________________________________ Telephone #: ___________________________________________________________________________ Borrower: GLOBAL MED TECHNOLOGIES, INC. and XXXXXXXXX.XXX, INC. Lender: Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.Commitment Amount: $_______________ ACCOUNTS RECEIVABLE

Appears in 1 contract

Samples: Loan Agreement (Global Med Technologies Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)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), commercial tort claims, 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 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$ Dated: January , 2011 FOR VALUE RECEIVED, the Collateral shall not be deemed to include any copyrights (including computer programsundersigned, blueprints and drawings)EXA CORPORATION, copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. Delaware corporation (“Borrower”), HEREBY PROMISES TO PAY to the order of GOLD HILL CAPITAL 2008, L.P./MASSACHUSETTS CAPITAL RESOURCE COMPANY (the “Lender”) certify under the principal amount of Dollars ($ ) or such lesser amount as shall equal the outstanding principal balance of the Growth Capital Advances made to Borrower by Lender, plus interest on the aggregate unpaid principal amount of the Growth Capital Advances, at the rates and in accordance with the terms of the Loan and Security Agreement by and among Xxxxxxxx , Xxxx Xxxx Xxxxxxx 0000, XX., as Agent, the Lender party thereto, including without limitation Gold Hill Capital 2008, L.P. and Massachusetts Capital Resource Company (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”) between Borrower ). If not sooner paid, the entire principal amount and Silicon Valley Bank (“Bank”) all accrued interest hereunder and under the Loan Agreement shall be due and payable on the Growth Capital Maturity Date as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in the Loan Agreement. Borrower agrees to pay any initial partial month interest payment from the date of this Agreement): Each Financed Receivable is an Eligible Account; Borrower is Note to the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is first Payment Date (“Interim Interest”) on the Invoice Transmittal first Payment Date. Principal, interest and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as other amounts due with respect to the Growth Capital Advances, are payable in lawful money of the Invoice Transmittal date; Each Financed Receivable United States of America to Lender as set forth in the Loan Agreement and this Secured Promissory Note. The principal amount of this Note and the interest rate applicable thereto, and all payments made with respect thereto, shall be recorded by Lender and, prior to any transfer hereof, endorsed on the grid attached hereto which is based on an actual sale and delivery part of goods and/or services renderedthis Note. The Loan Agreement, is due among other things, (a) provides for the making of secured Growth Capital Advances to Borrower, and (b) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events. This Note and the obligation of Borrower to repay the unpaid principal amount of the Growth Capital Advances, interest on the Growth Capital Advances and all other amounts due Lender under the Loan Agreement is not past due or in defaultsecured under the Loan Agreement. Presentment for payment, has not been previously solddemand, assigned, transferred, or pledged notice of protest and is free all other demands and notices of any lienskind in connection with the execution, security interests delivery, performance and encumbrances other than Permitted Liens; There enforcement of this Note are no defenseshereby waived. Borrower shall pay all reasonable fees and expenses, offsetsincluding, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings without limitation, reasonable attorneys’ fees 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. No representationcosts, 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 incurred by Lender in the certificates enforcement or statement attempt to enforce any of Borrower’s obligations hereunder not misleadingperformed when due. This Note shall be governed by, and construed and interpreted in accordance with, the laws of the Commonwealth of Massachusetts.

Appears in 1 contract

Samples: Loan and Security Agreement (Exa Corp)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing whether owned now or hereafter arising and whether the Borrower has rights now or hereafter has rights therein and wherever located: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles (as such definitions may be amended from time to time according to the Code), now owned or rights to payment of moneyhereafter acquired;, including, without limitation, goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment of any kind; All now existing and hereafter arising accounts, contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower (as such definitions may be amended from time to time according to the Code) whether or not earned by performance, and any and all credit insurance, insurance (including payment intangibles)refund) claims and proceeds, accounts (including health-care receivables)guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the credit, letter of credit is evidenced by a writing)rights, commercial tort claimscertificates of deposit, securitiesinstruments and chattel paper and electronic chattel paper now owned or hereafter acquired and Borrower’s Books relating to the foregoing; All copyright rights, copyright applications, copyright registrations and all other investment property, supporting obligations, like protections in each work of authorship and financial assetsderivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all 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 and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, upon Bank’s determination that Borrower has had two (2) consecutive fiscal quarters with a net profit, as determined in accordance with GAAP, the Collateral shall not include (and the following shall automatically be deemed released from the security interest granted to include Bank) (i) any copyrights (including computer programscopyrights, blueprints trademarks, servicemarks, patents and drawings), copyright mask works and applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuationsamendments, renewals, reissuesextensions, extensions and continuations-in-part all licenses or other rights to use and all license fees and royalties from the use, (ii) any trade secrets and any intellectual property rights in computer software and computer software products now or later existing, created, acquired or held, (iii) any design rights which may be available to Debtor now or later created, acquired or held, and (iv) any claims for damages by way of any past, present and future infringement of any of the sameforegoing (collectively, trademarks, servicemarks and applications therefor, whether registered or not; or any the “Intellectual Property”); provided, except however, that the Collateral shall include all accountsaccounts and general intangibles that consist of rights to payment and proceeds from the sale, license and royalty fees and other revenues, proceedslicensing or disposition of all or any part, or income arising out of or relating rights in, the foregoing (the “Rights to any of Payment”). Notwithstanding the foregoing. Pursuant , if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically and at all times include the Intellectual Property to the terms extent necessary to permit perfection of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentsecurity interest in the Rights to Payment. I, an as authorized officer of TINTRINETLOGIC MICROSYSTEMS, INC. (“Borrower”) certify under the AR Financing 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 this Agreement): follows: 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 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 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 Liensencumbrances; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower It has not filed or had filed against it Insolvency Proceedings 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. 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.. Borrower 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. The execution, delivery and performance of this Agreement has been duly authorized, and do not conflict with Borrower’s formations 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. Borrower has good title to the Collateral. 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. 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 with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules. None of Borrower’s properties or assets has been used by Borrower, to the best of Borrower’s knowledge, by previous persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower has timely filed all required tax returns and paid, or made adequate provision to pay, all taxes. Borrower 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. With respect to Placeholder Invoices, Borrower represents and warrants, as of the date the Advance is made based upon such Placeholder Invoice, that the estimated purchase order value determined by Borrower is based upon the best information available to Borrower and accurately and fully (considering all known discounts available to each such customer) reflects same and Borrower represents and warrants that, based upon the best information available to Borrower, an invoice for such purchase order is expected to be issued within 112 days from the date of the purchase order. All representations and warranties in the Agreement are true and correct in all material respects on this date. Sincerely, SIGNATURE TITLE DATE The exact correct corporate name of Borrower is (attach a copy of the formation documents, e.g., articles, partnership agreement): NetLogic Microsystems, Inc. Borrower’s State of formation: Delaware Borrower has operated under only the following other names (if none, so state): All other addresses at which the Borrower does business are as follows (attach additional sheets if necessary and include all warehouse addresses): Borrower has deposit accounts and/or investment accounts located only at the following institutions:

Appears in 1 contract

Samples: Ar Financing Loan Agreement (Netlogic Microsystems Inc)

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, all certificates of deposit, 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 all operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; and 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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRIINSPRO TECHNOLOGIES CORPORATION, INC. INSPRO TECHNOLOGIES, LLC and ATIAM TECHNOLOGIES L.P. (jointly and severally, individually and collectively, “Borrower”) certify under the 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 this the Agreement): 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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 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. 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. 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 have 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(s) set forth in Section 6.7 of the Agreement. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (InsPro Technologies Corp)

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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an as authorized officer of TINTRIeach of M-Wave, INC. Inc. and M-Wave DBS, Inc. (jointly and severally, the “Borrower”) certify under the 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 this the Agreement): 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 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 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; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (M Wave Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General 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 All 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 shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part more than 65% of the same, trademarks, servicemarks and applications therefor, whether registered or not; or voting securities of any Intellectual Property, except Subsidiary that is not organized under the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any laws of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber United States or any of its Intellectual Property without Bank’s prior written consentstates, other than a Guarantor. I, an authorized officer of TINTRIACTIVE POWER, INC. (“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 this the Agreement): Each Financed Receivable is an Eligible Account; Account or an Eligible Purchase Order. 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 of the amount financed is not contingent on any obligation or contract and Borrower has fulfilled all its obligations to receive such payment as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual Purchase Order or 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 discountdiscount with the exception of customary credits, adjustments and/or discounts given to an Account Debtor by Borrower that have been disclosed to Bank in writing; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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. 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.. 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. 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 in material compliance with laws. Borrower and each Subsidiary has timely filed all required material 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. All representations and warranties in the Agreement are true and correct in all material respects on this date, and the Borrower represents that there is no existing Event of Default. 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 Board approved financial projections On or prior to 12/31 Yes No A/R and A/P Aging, inventory report, Deferred Revenue Report, report of purchase orders Monthly within 30 days Yes No Borrowing Base Certificate Monthly within 30 days when not on Streamline, Bi-monthly within 15 days when on Streamline Yes No

Appears in 1 contract

Samples: Loan and Security Agreement (Active Power Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General 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 All 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 shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published Fax To: Date: From Account # To Account # Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: Complete Outgoing Wire Request section below if all or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part a portion of the same, trademarks, servicemarks funds from this loan advance are for an outgoing wire. From Account # To Account # Amount of Advance $ All Borrower’s representations and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under 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: 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 (as amendedABA) #: Beneficiary Bank Code (Swift, the “Agreement”Sort, Chip, etc.): Intermediary Bank: Transit (ABA) between Borrower and #: For Further Credit to: Special Instruction: * Unless otherwise provided for an Advance bearing interest at LIBOR. Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: Lender: Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.Commitment Amount: $

Appears in 1 contract

Samples: Loan and Security Agreement (Intrusion Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General 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 All 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 shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published Fax To: Date: From Account # To Account # Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: Complete Outgoing Wire Request section below if all or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part a portion of the same, trademarks, servicemarks funds from this loan advance are for an outgoing wire. From Account # To Account # Amount of Advance $ All Borrower’s representations and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under 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: 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 (as amendedABA) #: Beneficiary Bank Code (Swift, the “Agreement”Sort, Chip, etc.): Intermediary Bank: Transit (ABA) between Borrower and #: For Further Credit to: Special Instruction: Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: * Unless otherwise provided for an Advance bearing interest at LIBOR. Lender: Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.Commitment Amount: $750,000 ACCOUNTS RECEIVABLE

Appears in 1 contract

Samples: Loan and Security Agreement (Globalscape Inc)

Exhibit A. The Collateral consists undersigned (“Employee”), in accordance with the Separation and General Release Agreement by and between Bonanza Creek Energy, Inc. (along with its successors or affiliates, the “Company”) and Employee, dated August 1, 2017 (the “Separation Agreement”), on Employee’s own behalf and on behalf of Employee’s heirs, agents, representatives, attorneys, assigns, executors and/or anyone acting on Employee’s behalf, and in consideration of the promises and assurances for the Company to pay Employee the benefits set forth in the Separation Agreement, as specified on Appendix A attached hereto in connection with Employee’s termination from employment with the Company, to which Employee is not automatically entitled, hereby fully releases, the Company’s parents, subsidiaries, officers, shareholders, partners, members, individual employees, agents, representatives, directors, employees, attorneys, successors, and anyone acting on its behalf, known or unknown, from all claims and causes of Borroweraction by reason of any injuries and/or damages or losses, known or unknown, foreseen or unforeseen, patent or latent which Employee has sustained or which may be sustained as a result of any facts and circumstances arising out of or in any way related to Employee’s rightemployment by the Company or the resignation of that employment, title and interest in and to any other disputes, claims, disagreements, or controversies between Employee and the following: All goodsCompany up to and including the date this Release is signed by Employee. Employee’s release includes, equipmentbut is not limited to, inventoryany contract benefits, contract rights claims for quantum meruit, claims for wages, bonuses, employment benefits, moving expenses, stock options, profits units, or rights damages of any kind whatsoever, arising out of any contracts, express or implied, any covenant of good faith and fair dealing, express or implied, any theory of unlawful discharge, torts and related damages (including, but not limited to, emotional distress, loss of consortium, and defamation) any legal restriction on the Company’s right to payment terminate Employee’s employment and/or services, or any federal, state or other governmental statute or ordinance, including, without limitation, Title VII of money, leases, license agreements, franchise agreements, general intangibles the Civil Rights Act of 1964 (including payment intangiblesas amended), accounts the federal Age Discrimination in Employment Act of 1967 (including health-care receivables29 U.S.C. § 21, et seq.) (as amended) (“ADEA”), documentsthe federal Americans with Disabilities Act of 1990, instruments (any state laws concerning discrimination or harassment including the Fair Employment and Housing Act, or any promissory notes)other legal limitation on contractual or employment relationships, 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 All Borrower’s books relating to the foregoing and any and all claimsclaims for any loss, rights cost, damage, or expense with respect to Employee’s liability for taxes, penalties, interest or additions to tax on or with respect to any amount received from the Company or otherwise includible in Employee’s gross income, including, but not limited to, any liability for taxes, penalties, interest or additions to tax arising from the failure of this release agreement, or any other employment, severance, profit sharing, bonus, equity incentive or other compensatory plan to which Employee and interests the Company are or were parties, to comply with, or to be operated in compliance with the Internal Revenue Code of 1986, as amended, including, but not limited to, Section 409A thereof, or any provision of the above and all substitutions forstate or local income tax law; provided, additionshowever, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding that notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the 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 release set forth in this Agreement): Each Financed Receivable Section shall not extend to: (a) any vested rights under any pension, retirement, profit sharing or similar plan; (b) Employee’s rights, if any, to indemnification or defense under the Company’s certificate of incorporation, bylaws and/or policy or procedure, any indemnification agreement with Employee or under any insurance contract, in connection with Employee’s acts or omissions within the course and scope of Employee’s employment with the Company; (c) any claims that cannot be waived as a matter of law; or (d) Employee’s rights under the Separation Agreement (this “Release”). Appendix A to this Release sets forth the benefits, payments and obligations to which Employee will be provided as full consideration for this Release if, and only if, this Release is an Eligible Account; Borrower is executed, delivered and become irrevocable by no later than the owner with legal right to sell, transfer, assign date specified in Section 2 herein. Employee acknowledges and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and agrees that he is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the 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; Borrower reasonably believes no Account Debtor is insolvent or subject entitled to any Insolvency Proceedings; Borrower has not filed other termination or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ severance benefits whether under this Release or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. 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 misleadingotherwise.

Appears in 1 contract

Samples: Separation and General Release Agreement (Bonanza Creek Energy, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General 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 All 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 shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an TO: SILICON VALLEY BANK Date: FROM: DOCUMENT SCIENCES CORPORATION The undersigned authorized officer of TINTRI, INC. DOCUMENT SCIENCES CORPORATION (“Borrower”) certify 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, (2) there are no Events of Default, (3) all capitalized 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 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 meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. No representation, warranty or other statement of Borrower in any certificate or written statement meanings given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained them in the certificates or statement not misleading.Agreement. Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No A/R & A/P Agings and Reconciliations Monthly within 15 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No Transaction Report (if Liquidity Ratio Threshold Met) Monthly within 15 days and with each Advance Yes No Transaction Report (if Liquidity Ratio Threshold Not Met) Weekly and with each Advance Yes No Budgets, Projections 75 days after beginning of Fiscal Year Yes No The following intellectual property was registered after the Effective Date (if no registrations, state “None”)

Appears in 1 contract

Samples: Loan and Security Agreement (Document Sciences Corp)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest of Borrower 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, property supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books '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 The Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings)include: Any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter later acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks service marks and applications therefor; any trade secret rights, whether registered including any rights to unpatented inventions, now owned or not; or any Intellectual Propertyhereafter acquired. Notwithstanding the foregoing, except that 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 foregoingforegoing intellectual property. Pursuant To the extent a court of competent jurisdiction holds that a security interest in any Intellectual Property is necessary to have a security interest in any accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing Intellectual Property, then the Collateral shall, effective as of the Closing Date, include the Intellectual Property, to the terms extent necessary to permit perfection of a certain negative pledge arrangement with the Bank's security interest in such accounts, Borrower has agreed not license and royalty fees and other revenues, proceeds, or income arising out of or relating to encumber any of its the Intellectual Property without Bank’s prior written consentProperty. I, an authorized officer of TINTRI, INC. EXHIBIT B Loan Payment/Advance Request Form --------------------------------- DEADLINE FOR SAME DAY PROCESSING IS 3:00 E.S.T. Fax To: (617) 969-5965 Date:_______________ -------------------------------------------------------------------------------- LOAN PAYMENT: Sample documents Client Name (Borrower) certify under From Account #___________________ To Account #___________________ (Deposit Account #) (Loan Account #) Principal $__________ and/or Interest $___________ All Borrower's representation and warranties in the Loan and Security Agreement (as amendedare true, the “Agreement”) between Borrower correct and Silicon Valley Bank (“Bank”) as follows for the period ending (complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right material respects to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal date of the telephone transfer request for and is not disputed; Payment is not contingent on any obligation or contract advance, but those representations and Borrower has fulfilled warranties expressly referring to another date shall be true, correct and complete in all its obligations material respects as of the Invoice Transmittal date; Each Financed Receivable is based on : Authorized Signature:_______________________ Phone Number:____________ -------------------------------------------------------------------------------- LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an actual sale outgoing wire. From Account #___________________ To Account #___________________ (Loan Account #) (Deposit Account #) Amount of Advance $________________ All Borrower's representation 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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 warranties in the certificates Loan and Security Agreement are true, correct and complete in all material respects to on the date of the telephone transfer request for and advance, but those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of the date: Authorized Signature:_______________________ Phone Number:____________ -------------------------------------------------------------------------------- OUTGOING WIRE REQUEST Complete only if all or statement not misleading.a portion of funds from the loan advance above are to be wired. Deadline for same day processing is 3:00pm, E.S.T.

Appears in 1 contract

Samples: Loan and Security Agreement (Switchboard Inc)

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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. XPLORE TECHNOLOGIES CORPORATION OF AMERICA (“Borrower”) certify under the 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 this the Agreement): 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 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 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; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Xplore Technologies Corp)

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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an as authorized officer of TINTRICognigen Networks, INC. Inc. (“Borrower”) certify under the 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 this the Agreement): ), that as of _____________, 200_: 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 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 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; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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. 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. 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. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Cognigen Networks Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding without limitation all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including without limitation all merchandise, raw materials, parts, supplies, packing and shipping materials, work-in-process and finished products, including such inventory as is temporarily out of Borrower’s custody or possession or in transit and also including any returns upon any accounts or other proceeds (including insurance proceeds) resulting from the sale or disposition of any of the foregoing, and any documents of title representing any of the above; All contract rights and general intangibles now owned or rights to payment of moneyhereafter acquired, including without limitation goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles (including blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment intangibles)of any kind; All now existing and hereafter arising accounts, accounts (including health-care receivables)contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, guaranties and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the letter credit, certificates of credit is evidenced by a writing)deposit, commercial tort claims, securities, instruments and all other investment property, supporting obligations, and financial assets, whether chattel paper now owned or hereafter acquired, wherever locatedand Borrower’s Books relating to the foregoing; All copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, including all rights to unpatented inventions, know–how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all claims for damages by way of any past, present and future infringement of any of the foregoing; All of Borrower’s Intellectual Property; and All of Borrower’s books 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, additions and accessions and improvements to and replacements, products, proceeds thereof. o Loan Payment: From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ All Borrower’s representation and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection warranties in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the Loan and Security Agreement (as amendedare true, the “Agreement”) between Borrower correct and Silicon Valley Bank (“Bank”) as follows for the period ending (complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right material respects to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal date of the telephone transfer request for and is not disputed; Payment is not contingent on any obligation or contract advance, but those representations and Borrower has fulfilled warranties expressly referring to another date shall be true, correct and complete in all its obligations material respects as of the 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.: Authorized Signature: Phone Number:

Appears in 1 contract

Samples: Loan and Security Agreement (Broadvision Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, 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 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 shall does not be deemed to include any copyrights of the following, whether now owned or hereafter acquired: (including computer programs, blueprints and drawings)a) any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and trade names, service marks, mask works, rights of use of any name or domain names and, to the extent permitted under applicable law, any applications therefor, whether registered or not; or any Intellectual Propertyand the goodwill of the business of Borrower connected with and symbolized thereby, except that know-how, operating manuals, trade secret rights, clinical and non-clinical data, rights to unpatented inventions; provided, however, 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. Pursuant to the terms foregoing and any claims for damage by way of a certain negative pledge arrangement with Bankany past, Borrower has agreed not to encumber present, or future infringement of any of its Intellectual Property without Bank’s prior written consentthe foregoing or (b) any of the shares, capital stock or other beneficial interest in Tranzyme NSULC. IThe undersigned, an authorized officer being the duly elected and acting of TINTRITRANZYME, INC. ., a Delaware corporation (“Tranzyme”), and TRANZYME PHARMA INC., a Canadian corporation (“Tranzyme-Canada”) (Tranzyme and Tranzyme-Canada are referred to herein individually and collectively, jointly and severally, solidarily, as “Borrower”), does hereby certify to OXFORD FINANCE LLC, (“Oxford” and “Lender”), as collateral agent (the “Collateral Agent”) certify under the and HORIZON TECHNOLOGY FINANCE CORPORATION, a Delaware corporation, as successor-in-interest to COMPASS HORIZON FUNDING COMPANY LLC, a Delaware limited liability company (“Horizon”), in connection with that certain Loan and Security Agreement (as amended, dated on or about the “Agreement”) date hereof by and between Borrower and Silicon Valley Bank Collateral Agent (the BankLoan Agreement) as follows for the period ending (all ; with other capitalized terms used herein shall have below having the meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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 meanings ascribed thereto in the certificates or statement not misleading.Loan Agreement) that:

Appears in 1 contract

Samples: Loan and Security Agreement (Tranzyme Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is held for sale or lease, or to be furnished under a contract of service or is temporarily out of Borrower’s custody or possession or in transit and including any returns or repossession upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, trademarks, service marks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles (including blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance, payment intangibles), and rights to payment of any kind; All now existing and hereafter arising accounts (including health-care insurance receivables), documentscontract rights, instruments royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents (including any promissory notes), chattel paper (whether tangible or electronicnegotiable documents), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the credit, letter of credit is evidenced by a writing)rights, commercial tort claimsmoney, securitiescertificates of deposit, instruments (including promissory notes) and all other investment propertychattel paper (including tangible and electronic chattel paper) now owned or hereafter acquired and Borrower’s Books relating to the foregoing; All copyright rights, supporting obligationscopyright applications, copyright registrations and financial assetslike protections in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all 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 the computers and equipment containing said books and records, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights of the following created, modified or amended (including computer programsto the extent of the modification or amendment), blueprints and drawings)acquired or obtained on or after June 28, 2004: Any copyrights, copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized by such trademarks, 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 damage by way of any past, present and future infringement of any of the foregoing (collectively, the “Intellectual Property”), except that the Collateral shall include the proceeds of all the Intellectual Property that are accounts, license and royalty fees and other revenues, proceeds(i.e. accounts receivable) of Borrower, or income arising out general intangibles consisting of or relating rights to any payment, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in such accounts and general intangibles of Borrower that are proceeds of the foregoing. Pursuant Intellectual Property, then the Collateral shall automatically, and effective as of the Closing Date, include the Intellectual Property to the terms extent necessary to permit perfection of Bank’s security interest in such accounts and general intangibles of Borrower that are proceeds of the Intellectual Property. Notwithstanding the foregoing, the collateral does not include any license or contract rights to the extent (i) the granting of a certain negative pledge arrangement with Banksecurity interest in it would be contrary to applicable law, Borrower or (ii) that such rights are nonassignable by their terms (but only to the extent such prohibition is enforceable under applicable law) without the consent of the licensor or other party (but only to the extent such consent has agreed not to encumber any of its Intellectual Property without Bankbeen obtained). TO: CENTRAL CLIENT SERVICE DIVISION DATE: FAX #: (000) 000-0000 TIME: FROM: QuickLogic Corporation REQUESTED BY: AUTHORIZED SIGNATURE: PHONE NUMBER: FROM ACCOUNT # TO ACCOUNT # PRINCIPAL INCREASE (ADVANCE) $ PRINCIPAL PAYMENT (ONLY) $ INTEREST PAYMENT (ONLY) $ PRINCIPAL AND INTEREST (PAYMENT) $ All Borrower’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under representations and warranties in the Loan and Security Agreement (as amendedare true, the “Agreement”) between Borrower correct and Silicon Valley Bank (“Bank”) as follows for the period ending (complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 material respects on the Invoice Transmittal date of the telephone request for and is not disputedAdvance confirmed by this Borrowing Certificate; Payment is not contingent on any obligation or contract but those representations and Borrower has fulfilled warranties expressly referring to another date shall be true, correct and complete in all its obligations material respects as of the Invoice Transmittal that 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Quicklogic Corporation)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is held for sale or lease, or to be furnished under a contract of service or is temporarily out of Borrower’s custody or possession or in transit and including any returns or repossession upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above, except as set forth below; All contract rights and general intangibles now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles (including blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance, payment intangibles), and rights to payment of any kind, except as set forth below; All now existing and hereafter arising accounts (including health-care insurance receivables), documentscontract rights, instruments royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents (including any promissory notes), chattel paper (whether tangible or electronicnegotiable documents), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the credit, letter of credit is evidenced by a writing)rights, commercial tort claimsmoney, securitiescertificates of deposit, instruments (including promissory notes) and all other investment property, supporting obligations, chattel paper (including tangible and financial assets, whether electronic chattel paper) now owned or hereafter acquired, wherever located; acquired and All Borrower’s books 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 any copyrights (including computer programs, blueprints and drawings); All copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design all trade secret rights; any patents, patent applications and like protections including without limitation improvementsall rights to unpatented inventions, divisionsknow-how, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accountsoperating manuals, license rights and royalty fees agreements and other revenuesconfidential information, proceedsnow owned or hereafter acquired; all claims for damages by way of any past, or income arising out present and future infringement of or relating to any of the foregoing. Pursuant , except as set forth below; and All Borrower’s Books relating to the terms of a certain negative pledge arrangement with Bankforegoing, Borrower has agreed not to encumber and the computers and equipment containing said books and records, and any and all claims, rights and interests in any of its Intellectual Property without Bank’s prior written consentthe above and all substitutions for, additions and accessions to and proceeds thereof. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under Notwithstanding the Loan and Security Agreement (as amendedforegoing, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein Collateral shall have the meaning set forth in this Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right not be deemed to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.include:

Appears in 1 contract

Samples: Loan and Security Agreement (Cell Genesys Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following, whether now owned or hereafter existing: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles now owned or rights to hereafter acquired, including, without limitation, payment of moneyintangibles, leases, contracts, licenses, license agreements, franchise agreements, general intangibles blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, software, computer discs, computer tapes, literature, reports, catalogs, design rights, tax and other types of refunds, payments of insurance and rights to payment of any kind; All now existing and hereafter arising rights to payment of any kind, including accounts, contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, insurance (including payment intangibles)refund) claims and proceeds, accounts guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronicwarehouse receipts), cash, cash equivalents, deposit accounts, fixturessecurities, securities entitlements, securities accounts (including health care insurance receivables and credit card receivables), investment property, financial assets, letters of credit, letter of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claimscertificates of deposit, securitiesinstruments, chattel paper and all other investment property, supporting obligations, and financial assets, whether electronic chattel paper rights now owned or hereafter acquiredacquired and Borrower’s Books relating to the foregoing; All investment property, wherever locatedwhether held directly or as a security entitlement, securities account, commodity contract or a commodity account, or maintained with any securities intermediary or commodity intermediary; and All Borrower’s books 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, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the 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 this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.include:

Appears in 1 contract

Samples: Loan and Security Agreement (Palmsource Inc)

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 any copyrights Fax To: (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published 617) 969–5965 Date: From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Complete Outgoing Wire Request section below if all or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part a portion of the samefunds from this loan advance are for an outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ Authorized Signature: Phone Number: Complete only if all or a portion of funds from the loan advance above are to be wired. Deadline for same day processing is 3:00pm, trademarksE.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and Sate: Beneficiary Bank Transit (ABA) #: __ __ __ __ __ __ __ ­­­__ Beneficiary Bank Code (Swift, servicemarks and applications thereforSort, whether registered or not; or any Intellectual PropertyChip, except that the Collateral shall include all accountsetc.): Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: Authorized Signature: 2nd Signature (If Required): Print Name/Title: Print Name/Title: Telephone # Telephone # ____________________________________________________________________________________________ Borrower: Art Technology Group, 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Inc. Lender: Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.Commitment Amount: $15,000,000.00 ____________________________________________________________________________________________

Appears in 1 contract

Samples: Loan and Security Agreement (Art Technology Group Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles (including blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment intangibles)of any kind; All now existing and hereafter arising accounts, accounts (including health-care receivables)contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether credit, certificates of deposit, instruments and chattel paper now owned or not hereafter acquired and Borrower’s Books relating to the letter foregoing; All copyright rights, copyright applications, copyright registrations and like protections in each work of credit is evidenced by a writing), commercial tort claims, securities, authorship and all other investment property, supporting obligations, and financial assetsderivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all claims for damages by way of any past, present and future infringement of any of the foregoing All Borrower’s books 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, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings)copyrights, copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized by such trademarks, 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 damage by way of any past, present and future infringement of any of the foregoing (collectively, the “Intellectual Property”), except that the Collateral shall include the proceeds of all the Intellectual Property that are accounts, license and royalty fees and other revenues, proceeds(i.e. accounts receivable) of Borrower, or income arising out general intangibles consisting of or relating rights to any payment, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in such accounts and general intangibles of Borrower that are proceeds of the foregoing. Pursuant Intellectual Property, then the Collateral shall automatically, and effective as of the Closing Date, include the Intellectual Property to the terms extent necessary to permit perfection of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentsecurity interest in such accounts and general intangibles of Borrower that are proceeds of the Intellectual Property. I, an authorized officer of TINTRI, INC. TO: CENTRAL CLIENT SERVICE DIVISION DATE: FAX#: (000)000-0000 TIME: FROM: Pharsight Corporation REQUESTED BY: AUTHORIZED SIGNATURE: PHONE NUMBER: FROM ACCOUNT# TO ACCOUNT # REQUESTED TRANSACTION TYPE REQUESTED DOLLAR AMOUNT PRINCIPAL INCREASE (ADVANCE) $ PRINCIPAL PAYMENT (ONLY) $ INTEREST PAYMENT (ONLY) $ PRINCIPAL AND INTEREST (PAYMENT) $ OTHER INSTRUCTIONS: All Borrower”) certify under ’s representations and warranties in the Export-Import Bank Loan and Security Agreement (as amendedare true, the “Agreement”) between Borrower correct and Silicon Valley Bank (“Bank”) as follows for the period ending (complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 material respects on the Invoice Transmittal date of the telephone request for and is not disputedAdvance confirmed by this Borrowing Certificate; Payment is not contingent on any obligation or contract but those representations and Borrower has fulfilled warranties expressly referring to another date shall be true, correct and complete in all its obligations material respects as of the Invoice Transmittal that 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Pharsight Corp)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)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), commercial tort claims, 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 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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. I, Fax To: Date: From Account # To Account # (Deposit 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 authorized officer outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of TINTRI, INC. (“Advance $ All Borrower”) certify under ’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: Deadline for same day processing is noon, E.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (as amendedABA) #: Beneficiary Bank Code (Swift, the “Agreement”Sort, Chip, etc.): Intermediary Bank: Transit (ABA) between Borrower #: For Further Credit to: Special Instruction: Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: Borrower: Network Engines, Inc. and Alliance Systems, Inc. Lender: Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.Commitment Amount: $15,000,000.00

Appears in 1 contract

Samples: Loan and Security Agreement (Network Engines Inc)

Exhibit A. The Collateral consists of all of Borrower’s 's right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accountsDeposit 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 All all Borrower’s books 's 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 shall does not be deemed to include any copyrights of the following, whether now owned or hereafter acquired, (including computer programsa) the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary the pledge of which would require the consent or approval of any applicable foreign governmental authority or violate any foreign laws applicable thereto, blueprints (b) the presently existing and drawings)hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which is not a "Significant Subsidiary" (as defined in Rule 405 of the Securities Act of 1933) or (c) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary, or (c) any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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 's prior written consent. I, Fax To: Date: _____________________ LOAN PAYMENT: From Account #________________________________ (Deposit Account #) To Account #_____________________________________________ (Loan Account #) Principal $____________________________________ and/or Interest $________________________________________________ Authorized Signature: ____________________________ Print Name/Title: _____________________________________________ Phone Number: ___________________________________ Loan Advance: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an authorized officer outgoing wire. From Account #________________________________ (Loan Account #) To Account #_____________________________________________ (Deposit Account #) Amount of TINTRI, INC. (“Advance $___________________________ All Borrower”) certify under 's representations and warranties in the Loan and Security Agreement (as amendedare true, the “Agreement”) between Borrower correct and Silicon Valley Bank (“Bank”) as follows for the period ending (complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): 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 material respects on the Invoice Transmittal date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and is not disputedwarranties that already are qualified or modified by materiality in the text thereof; Payment is not contingent on any obligation or contract and Borrower has fulfilled provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all its obligations material respects as of the Invoice Transmittal such 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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.: Authorized Signature: ____________________________ Print Name/Title: _____________________________________________ Phone Number: ___________________________________

Appears in 1 contract

Samples: Loan and Security Agreement (Centillium Communications Inc)

Exhibit A. The Collateral consists of all of Borrower’s 's right, title and interest in and to the following: following whether owned now or hereafter arising and whether the Borrower has rights now or hereafter has rights therein and wherever located; All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, inventorywithout limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All Inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower's custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles (as such definitions may be amended from time to time according to the Code), now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment of any kind,; All now existing and hereafter arising accounts, contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower (as such definitions may be amended from time to time according to the Code) whether or not earned by performance, and any and all credit insurance, insurance (including payment intangibles)refund) claims and proceeds, accounts (including health-care receivables)guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the credit, letter of credit is evidenced by a writing)rights, commercial tort claimscertificates of deposit, securitiesinstruments and chattel paper and electronic chattel paper now owned or hereafter acquired and Borrower's Books relating to the foregoing; All copyright rights, copyright applications, copyright registrations and all other investment property, supporting obligations, like protections in each work of authorship and financial assetsderivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books '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, additions and accessions and improvements to and replacements, products, proceeds thereof. EXHIBIT B LOAN PAYMENT/ADVANCE REQUEST FORM DEADLINE FOR SAME DAY PROCESSING IS 12:00 P.S.T. Fax To: Date: To Account # and/or Interest $ All Borrower's representation and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection warranties in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the Loan and Security Agreement are true, correct and complete in all material respects up to and including the date of the transfer request for a loan payment, but those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of that date: Phone Number: To Account # All Borrower's representation and warranties in the Loan and Security Agreement are true, correct and complete in all material respects up to and including the date of the transfer request for an advance, but those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of that date: Phone Number: Deadline for same day processing is 12:00pm, P.S.T. Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Code (Swift, Sort, Chip, etc.): Transit (ABA) #: 2nd Signature (If Required): Print Name/Title: Telephone # The exact correct corporate name of Borrower is (attach a copy of the formation documents, e.g., articles, partnership agreement): Borrower's State of formation: Delaware Borrower has operated under only the following other names (if none, so state): All other address at which the Borrower does business are as amendedfollows (attach additional sheets if necessary and include all warehouse addresses): Borrower has deposit accounts and/or investment accounts located only at the following institutions: Liens existing on the Effective Date and disclosed to and accepted by Bank in writing: Investments existing on the Effective Date and disclosed to and accepted by Bank in writing: Indebtedness on the Effective Date and disclosed to and consented to by Bank in writing: The following is a list of the Borrower's copyrights (including copyrights of software) which are registered with the United States Copyright Office. (Please include name of the copyright and registration number and attach a copy of the registration): The following is a list of all software which the Borrower sells, distributes or licenses to others, which is not registered with the “Agreement”United States Copyright Office. (Please include versions which are not registered: The following is a list of all of the Borrower's patents which are registered with the United States Patent Office. (Please include name of the patent and registration number and attach a copy of the registration.): The following is a list of all of the Borrower's patents which are pending with the United States Patent Office. (Please include name of the patent and a copy of the application.): The following is a list of all of the Borrower's registered trademarks. (Please include name of the trademark and a copy of the registration.): Borrower is not subject to litigation which would have a material adverse effect on the Borrower's financial condition, except the following (attach additional comments, if needed): Tax ID Number 00-0000000 Organizational Number, if any: 3229390 TO: SILICON VALLEY BANK 0000 Xxxxxxxx Xxxx, Xxxxx 000 Xxx Xxxxx, XX 00000 FROM: DIVXNETWORKS, INC. The undersigned Responsible Officer of DivXNetworks, Inc. ("Borrower") certifies that under the terms and conditions of the Loan and Security 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 capitalized terms used herein shall have representations and warranties in the meaning set forth Agreement are true and correct in all material respects on this Agreement): Each Financed Receivable is 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 Eligible Account; accompanying letter or footnotes. The Responsible 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 owner with legal right terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Monthly financial statements + CC Monthly within 30 days Yes No Annual (audited) + XX XXX within 120 days Yes No Financial Covenant Required Actual Complies Maintain at all times, (tested monthly): Minimum Tangible Net Worth $ 1,750,000 $ Yes No Have there been updates to sellBorrower's intellectual property? Yes / No . Comments Regarding Exceptions: See Attached. BANK USE ONLY Sincerely, transferReceived by: AUTHORIZED SIGNER DivXNetworks, assign and encumber such Financed Receivable; The correct amount Inc. Date: SIGNATURE Verified: TITLE Date: DATE Compliance Status: Yes No This Intellectual Property Security Agreement is on the 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 Invoice Transmittal date; Each Financed Receivable is based on an actual sale Effective Date by and delivery of goods and/or services renderedbetween SILICON VALLEY BANK ("Bank") and DivXNetworks, 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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 misleadingInc. ("Grantor").

Appears in 1 contract

Samples: Loan and Security Agreement (Divx Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)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), commercial tort claims, 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 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 shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired, any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property 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. IDEADLINE FOR SAME DAY PROCESSING IS NOON P.S.T. Fax To: Date: _____________________ From Account # To Account # Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # To Account # Amount of Advance $ All Borrowers’ 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 REQUEST: 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 #: TO: SILICON VALLEY BANK, Date: FROM: ALPHATEC SPINE, INC. and ALPHATEC HOLDINGS, INC. The undersigned authorized officer of TINTRIALPHATEC SPINE, INC. (“BorrowerAlphatec”) certify certifies on behalf of Alphatec and ALPHATEC HOLDINGS, INC. (“Parent” and together with Alphatec each a “Borrower” and collectively, “Borrowers”) that under the terms and conditions of the Second Amended and Restated Loan and Security Agreement between Borrowers, Bank (as amended, the “Agreement”), (1) between Each 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 capitalized 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) Each Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and each Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by such 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 either Borrower or any of their Subsidiaries relating to unpaid employee payroll or benefits of which such Borrower has not previously provided written notification to Bank’s. 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 Borrowers are not in material 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 meaning meanings given them in the Agreement. [***] [***] Yes No [***] [***] Yes No * [***] The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”) The following analysis and information set forth in this Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign Schedule 1 attached hereto are true and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations accurate as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery date of goods and/or services renderedthis Certificate. ALPHATEC SPINE, 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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 CollateralINC. 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.LENDERS’ USE ONLY By: Received by: Name: AUTHORIZED SIGNER Title: Date: Verified: Date: Compliance Status: Yes No

Appears in 1 contract

Samples: Loan and Security Agreement (Alphatec Holdings, Inc.)

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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRIBRAINTECH, INC., BRAINTECH INDUSTRIAL, INC. and BRAINTECH GOVERNMENT & DEFENSE, INC. (individually and collectively, jointly and severally, “Borrower”) certify under the 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 this the Agreement): 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 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 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; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower 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. 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. Borrower and each Subsidiary (except for Shafi, Inc. and Shafi Innovation, Inc.) 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 (except for Shafi, Inc. and Shafi Innovation, Inc.) 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(s) set forth in Section 6.7 of the Agreement. All 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 and Security Agreement (Braintech Inc)

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, all certificates of deposit, 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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRIASTEA INTERNATIONAL INC., NETWORK DATA, INC., VIRTUAL SERVICE CORPORATION and FC ACQUISTION CORP. (jointly and severally, individually and collectively, “Borrower”) certify under the 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 this the Agreement): 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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 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. 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. 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 have 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 and except with respect to tax liabilities not exceeding Twenty Five Thousand Dollars ($25,000.00) in the aggregate. 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(s) set forth in Section 6.7 of the Agreement. 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Astea International Inc)

Exhibit A. The Collateral consists undersigned (“Employee”), in accordance with the Separation and General Release Agreement by and between Bonanza Creek Energy, Inc. (along with its successors or affiliates, the “Company”) and Employee, dated May , 2018 (the “Separation Agreement”), on Employee’s own behalf and on behalf of Employee’s heirs, agents, representatives, attorneys, assigns, executors and/or anyone acting on Employee’s behalf, and in consideration of the promises and assurances for the Company to pay Employee the benefits set forth in the Separation Agreement, as specified on Appendix A attached hereto in connection with Employee’s termination from employment with the Company, to which Employee is not automatically entitled, hereby fully releases, the Company’s parents, subsidiaries, officers, shareholders, partners, members, individual employees, agents, representatives, directors, employees, attorneys, successors, and anyone acting on its behalf, known or unknown, from all claims and causes of Borroweraction by reason of any injuries and/or damages or losses, known or unknown, foreseen or unforeseen, patent or latent which Employee has sustained or which may be sustained as a result of any facts and circumstances arising out of or in any way related to Employee’s rightemployment by the Company or the resignation of that employment, title and interest in and to any other disputes, claims, disagreements, or controversies between Employee and the following: All goodsCompany up to and including the date this Release is signed by Employee. Employee’s release includes, equipmentbut is not limited to, inventoryany contract benefits, contract rights claims for quantum meruit, claims for wages, bonuses, employment benefits, moving expenses, stock options, profits units, or rights damages of any kind whatsoever, arising out of any contracts, express or implied, any covenant of good faith and fair dealing, express or implied, any theory of unlawful discharge, torts and related damages (including, but not limited to, emotional distress, loss of consortium, and defamation) any legal restriction on the Company’s right to payment terminate Employee’s employment and/or services, or any federal, state or other governmental statute or ordinance, including, without limitation, Title VII of money, leases, license agreements, franchise agreements, general intangibles the Civil Rights Act of 1964 (including payment intangiblesas amended), accounts the federal Age Discrimination in Employment Act of 1967 (including health-care receivables29 U.S.C. § 21, et seq.) (as amended) (“ADEA”), documentsthe federal Americans with Disabilities Act of 1990, instruments (any state laws concerning discrimination or harassment including the Fair Employment and Housing Act, or any promissory notes)other legal limitation on contractual or employment relationships, 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 All Borrower’s books relating to the foregoing and any and all claimsclaims for any loss, rights cost, damage, or expense with respect to Employee’s liability for taxes, penalties, interest or additions to tax on or with respect to any amount received from the Company or otherwise includible in Employee’s gross income, including, but not limited to, any liability for taxes, penalties, interest or additions to tax arising from the failure of this release agreement, or any other employment, severance, profit sharing, bonus, equity incentive or other compensatory plan to which Employee and interests the Company are or were parties, to comply with, or to be operated in compliance with the Internal Revenue Code of 1986, as amended, including, but not limited to, Section 409A thereof, or any provision of the above and all substitutions forstate or local income tax law; provided, additionshowever, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding that notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the 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 release set forth in this Agreement): Each Financed Receivable Section shall not extend to: (a) any vested rights under any pension, retirement, profit sharing or similar plan; (b) Employee’s rights, if any, to indemnification or defense under the Company’s certificate of incorporation, bylaws and/or policy or procedure, any indemnification agreement with Employee or under any insurance contract, in connection with Employee’s acts or omissions within the course and scope of Employee’s employment with the Company; (c) any claims that cannot be waived as a matter of law; or (d) Employee’s rights under the Separation Agreement (this “Release”). Appendix A to this Release sets forth the benefits, payments and obligations to which Employee will be provided as full consideration for this Release if, and only if, this Release is an Eligible Account; Borrower is executed, delivered and become irrevocable by no later than the owner with legal right to sell, transfer, assign date specified in Section 2 herein. Employee acknowledges and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and agrees that he is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the 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; Borrower reasonably believes no Account Debtor is insolvent or subject entitled to any Insolvency Proceedings; Borrower has not filed other termination or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ severance benefits whether under this Release or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. 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 misleadingotherwise.

Appears in 1 contract

Samples: Separation and General Release Agreement (Bonanza Creek Energy, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leasesleases (except with respect to leases of real property), license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), 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, securitiessecurities (except as provided below), and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; 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 shall does not be deemed to include any copyrights of the following, whether now owned or hereafter acquired: (including computer programs, blueprints a) the presently existing and drawings)hereafter arising issued and outstanding shares of capital stock owned by Borrower or any of its Subsidiaries of any Foreign Subsidiary; (b) any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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 and continuations-in-continuations in part of the same, trademarks, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant ; (c) any motor vehicles; or (d) any General Intangible, Investment Property (as defined in the Code) or other such rights of Borrower arising under any contract, lease, instrument, license or other document if (but only to the extent that) the grant of a security interest therein would (x) constitute a violation of a valid and enforceable restriction of the terms of such General Intangible, Investment Property or under any law, regulation, permit, order or decree of any Governmental Authority, unless and until all required consents shall have been obtained (for the avoidance of doubt, the restrictions described herein are not negative pledges or similar undertakings or prohibitions on granting Liens in favor of a certain negative pledge arrangement with Banklender or other financial counterparty) or (y) expressly give any other party in respect of any such contract, lease, instrument, license or other document, the right to terminate its obligations thereunder; provided, however, that the limitations set forth in clause (d) above shall not affect, limit, restrict or impair the grant by Borrower has agreed of a security interest pursuant to this Agreement in any such Collateral to the extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by an applicable law, including the Code; provided, further, that in any of the above cases, at such time as any such property or asset ceases to be an excluded asset pursuant to the foregoing, the same shall become subject to the security interest granted hereunder immediately and automatically. Borrower hereby agrees not to encumber any of its Intellectual Property 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. ITO: SILICON VALLEY BANK Date: FROM: WEBSIDESTORY, an INC. The undersigned authorized officer of TINTRIWEBSIDESTORY, INC. (“Borrower”) certify 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, (2) there are no Events of Default, (3) all capitalized 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 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 meaning meanings given them in the Agreement. Monthly balance sheet Monthly within 30 days Yes No Quarterly financial statements with Compliance Certificate Quarterly within 50 days Yes No Annual financial statements (CPA Audited) + Compliance Certificate FYE within 90 days Yes No 10-Q and 10-K Within 5 days after filing with SEC Yes No Maintain on a Quarterly Basis: Minimum Adjusted Quick Ratio 1.0:1.0 :1.0 Yes No Minimum EBSTDA $750,000 for quarters ending 3/31/07 and 6/30/07 $1,500,000 for quarter ending 9/30/07 $2,500,000 for quarters ending after 9/30/07 through the term of the Agreement $ Yes No The following financial covenant analyses and information set forth in this Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign Schedule 1 attached hereto are true and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations accurate as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery date of goods and/or services renderedthis Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, is due state “No exceptions 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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 misleadingnote.”) Received by: By: Date: Name: Title: Verified: Date: Compliance Status: Yes No

Appears in 1 contract

Samples: Loan and Security Agreement (Websidestory Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), 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 All 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 shall does not be deemed to include any copyrights of the following, whether now owned or hereafter acquired (a) more than 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, or (b) all Intellectual Property (as such term is defined in this Agreement), including computer programs, blueprints and drawings)any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, 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, servicemarks and 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; or any Intellectual Propertyprovided, except that however, 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. Pursuant to This Reaffirmation of Unconditional Secured Guaranty is entered into as of March 14, 2014, by the terms undersigned (the “Guarantor”) in favor 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. I, an authorized officer of TINTRI, INC. SILICON VALLEY BANK (“BorrowerSVB) certify under the 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 this Agreement): 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 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 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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. 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).

Appears in 1 contract

Samples: Loan and Security Agreement (Radisys Corp)

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, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, consignment agreements and all related documents, filings and instruments, 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 any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that 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 Intellectual Property without Bank’s prior written consent. I, an authorized officer of TINTRIZOOM TELEPHONICS, INC. (“Borrower”) certify under the 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 this the Agreement): 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; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; 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 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.. 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. 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 have 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(s) set forth in Section 6.7 of this Agreement. 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. Tangible Net Worth $ 3,000,000 $ Yes No Adjusted Quick Ratio > 1.40:1.0 ___:1.0 Yes No 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. Sincerely, Signature Title Date Borrower: ZOOM TELEPHONICS, INC. Lender: Silicon Valley Bank Commitment Amount: $1,000,000.00

Appears in 1 contract

Samples: Loan and Security Agreement (Zoom Telephonics, Inc.)

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