Appears in 2 contracts

Samples: Loan Modification Agreement (Tremor Video Inc.), Loan Modification Agreement (Tremor Video Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts~~, all certificates of deposit~~, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include any of the following, whether now owned or hereafter ~~acquired~~ acquired: any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; provided, however, the Collateral shall include all Accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, ~~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~~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. EXHIBIT B COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: STEREOTAXIS, INC. and STEREOTAXIS INTERNATIONAL, INC. The undersigned authorized officer of StereoTaxis, Inc., a Delaware corporation and StereoTaxis International, Inc. (collectively, jointly and severally, the “Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 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 meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 120 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No 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”) Financial Covenant Required Actual Complies Maintain as indicated: Minimum Tangible Net Worth** (tested monthly) $ $ Yes No ** See Section 6.9 of the Loan Agreement The following financial covenant analyses and information set forth in Schedule 1 attached hereto are true and accurate as of the date of this Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”) STEREOTAXIS, INC. BANK USE ONLY STEREOTAXIS INTERNATIONAL, INC. Received by: By: AUTHORIZED SIGNER Name: Date: Title: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes No Schedule 1 to Compliance Certificate

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 each Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts~~, all certificates of deposit~~, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include any of the following, : (a) whether now owned or hereafter acquired any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in 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 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; provided, however, the Collateral shall include all Accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing; 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 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~~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. EXHIBIT B Loan Payment/Advance Request Form DEADLINE FOR SAME DAY PROCESSING IS NOON P.S.T. Fax To: Date: _____________________ LOAN PAYMENT: BigBand Networks, Inc. and BigBand Networks BAS, Inc. From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ All 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: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, P.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): (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). 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 #: EXHIBIT C BORROWING BASE CERTIFICATE Borrowers: BigBand Networks, Inc. and BigBand Networks BAS, Inc. Lender: Silicon Valley Bank Commitment Amount: The 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 following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, ~~all~~ certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include any of the following, whether now owned or hereafter ~~acquired~~ acquired, any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; provided, however, the Collateral shall include all Accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, ~~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~~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. Portions of this Exhibit were omitted, as indicated by [***], and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. EXHIBIT B Loan Payment/Advance Request Form DEADLINE FOR SAME DAY PROCESSING IS NOON P.S.T. Fax To: Date: _____________________ LOAN PAYMENT: ALPHATEC SPINE, INC. and ALPHATEC HOLDINGS, INC. From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ All 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: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, P.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): (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 #: Portions of this Exhibit were omitted, as indicated by [***], and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. EXHIBIT C Transaction Report [Excel spreadsheet to be provided from Bank] Portions of this Exhibit were omitted, as indicated by [***], and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. EXHIBIT D COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK, Date: FROM: ALPHATEC SPINE, INC. and ALPHATEC HOLDINGS, INC. The undersigned authorized officer of ALPHATEC SPINE, INC. (“Alphatec”) 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 (the “Agreement”), (1) Each 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) 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 meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies [***] [***] Yes No Financial Covenant Required Actual Complies [***] [***] 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 Schedule 1 attached hereto are true and accurate as of the date of this Certificate. Portions of this Exhibit were omitted, as indicated by [***], and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. ALPHATEC SPINE, INC. LENDERS’ USE ONLY By: Received by: Name: AUTHORIZED SIGNER Title: Date: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes No Portions of this Exhibit were omitted, as indicated by [***], and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

Appears in 1 contract

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

Appears in 1 contract

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

Appears in 1 contract

Samples: Loan and Security Agreement (Senorx Inc)

Appears in 1 contract

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

Exhibit A. The Collateral consists of all of Borrower’s 's right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, ~~all~~ certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s 's Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include any of the following, whether now owned or hereafter acquired any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; provided, however, the Collateral shall include all Accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, ~~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~~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. EXHIBIT 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 outgoing wire. From Account #_________________________ To Account #________________________ (Loan Account #) (Deposit Account #) Amount of Advance $____________________ All Borrower's representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: AUTHORIZED SIGNATURE:__________________ Phone Number: ______________________ Print Name/Title: _____________________ ================================================================================ ================================================================================ OUTGOING WIRE REQUEST: COMPLETE ONLY IF ALL OR A PORTION OF FUNDS FROM THE LOAN ADVANCE ABOVE IS TO BE WIRED. Deadline for same day processing is noon, 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.):__________ (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 terms and conditions of the Loan and Security Agreement between Borrower and Bank (the "Agreement"), (1) Borrower is in complete compliance for the period ending _______________ with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.8 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 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 Section 6.7(a) of the Agreement ** As set forth in Section 6.7(b) of the Agreement 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.") -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- Spire Corporation BANK USE ONLY By: Received by: ----------------------------------- ----------------------- Name: AUTHORIZED SIGNER --------------------------------- Title: Date: -------------------------------- ------------------------------- Bandwidth Semiconductor, LLC Verified: -------------------------- AUTHORIZED SIGNER By: Date: ----------------------------------- ------------------------------ Name: -------------------------------- Title: Compliance Status: Yes No -------------------------------- SCHEDULE 1 TO COMPLIANCE CERTIFICATE ------------------------------------ FINANCIAL COVENANTS OF BORROWER ------------------------------- Dated: __________ In the event of a conflict between this Schedule and the Loan Agreement, the terms 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 personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include any of the following, whether now owned or hereafter acquired any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; provided, however, the Collateral shall include all Accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Notwithstanding the foregoing, the Lender’s Lien with respect to any of the Archanova Collateral is expressly subordinate to Arachnova Therapeutics Limited’s Lien on the Arachnova Collateral. Pursuant to the terms of a certain negative pledge arrangement with ~~Bank~~Collateral Agent and Lenders, except for Permitted Liens, Borrower has agreed not to encumber any of its copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished~~, 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~~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~~Collateral Agent’s prior written consent. Notwithstanding the foregoing, Borrower may enter into non-exclusive and exclusive licenses, partnership or joint ventures for the use of the property of Borrower or its Subsidiaries in the ordinary course of business with any third party, which arrangements are approved by the Board. For the avoidance of doubt, Lenders acknowledge and agree that Borrower shall be permitted to license its intellectual property to third parties consistent with Borrower's current business model and existing practice in the biotech industry. EXHIBIT B Loan Payment/Advance Request Form DYNOGEN PHARMACEUTICAL, INC. Deadline is Noon E.S.T.* Fax To: Date: _____________________ LOAN PAYMENT: From Account #___________________________________ To Account #_____________________________________ (Deposit Account #) (Loan Account #) Principal $_________________________________________ and/or Interest $___________________________________ Authorized Signature:_______________________________ Phone Number: ___________________________________ Print Name/Title:____________________________________ Loan Advance: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account #___________________________________ To Account #_____________________________________ (Loan Account #) (Deposit Account #) Amount of Advance $_______________________________ and/or Interest $___________________________________ All Borrower’s representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature:_______________________________ Phone Number: ___________________________________ Print Name/Title:____________________________________ Outgoing Wire Request: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, E.S.T. Beneficiary Name: ___________________________________ Amount of Wire: $_____________________________________ Beneficiary Lender: __________________________________ Account Number: _____________________________________ City and State: ______________________________________ Beneficiary Lender Transit (ABA) #:______________________ Beneficiary Lender Code (Swift, Sort, Chip, etc.): ______________ (For International Wire Only) Intermediary Lender: __________________________________ Transit (ABA) #:______________________________________ For Further Credit to: _________________________________________________________________________________________________ Special Instructions: _________________________________________________________________________________________________ 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, as Collateral Agent Date: FROM: DYNOGEN PHARMACEUTICALS, INC. The undersigned authorized officer of Dynogen Pharmaceuticals, Inc. (“Borrower”) certifies 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 the 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. Please indicate compliance status by circling Yes/No under “Complies” column.

Appears in 1 contract

Samples: Loan and Security Agreement (Apex Bioventures Acquisition Corp)

Appears in 1 contract

Samples: Loan and Security Agreement (Soundbite Communications Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Isotis Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Luca Technologies Inc)

Exhibit A. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts~~, all certificates of deposit~~, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include any of the following, whether now owned or hereafter acquired (a) leasehold interests under real property leases, (b) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by any Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, or (c) any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; provided, however, the Collateral shall include all Accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, each Borrower has agreed not to encumber any of its copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished~~, 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~~and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of ~~Borrower~~ Borrowers 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. EXHIBIT B Loan Payment/Advance Request Form DEADLINE FOR SAME DAY PROCESSING IS NOON P.S.T. Fax To: Date: LOAN PAYMENT: Sunrise Telecom Incorporated/Sunrise Telecom Broadband Inc. From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ All Borrower’s representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: OUTGOING WIRE REQUEST: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, 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.): (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 #: EXHIBIT C BORROWING BASE CERTIFICATE Borrowers: Sunrise Telecom Incorporated/Sunrise Telecom Broadband Inc. Lender: Silicon Valley Bank Commitment Amount: $10,000,000 ACCOUNTS RECEIVABLE

Appears in 1 contract

Samples: Loan and Security Agreement (Sunrise Telecom Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Finisar Corp)

Appears in 1 contract

Samples: Loan and Security Agreement (DecisionPoint Systems, Inc.)

Appears in 1 contract

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

Appears in 1 contract

Samples: Loan and Security Agreement (Motricity Inc)

Appears in 1 contract

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

Appears in 1 contract

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

Appears in 1 contract

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

Appears in 1 contract

Samples: Loan and Security Agreement (Somaxon Pharmaceuticals, Inc.)

Appears in 1 contract

Samples: Loan and Security Agreement (Luca Technologies Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Tranzyme Inc)

Appears in 1 contract

Samples: Loan Modification Agreement (Enernoc Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Soundbite Communications Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Network Engines Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, ~~all~~ certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include any of the following, whether now owned or hereafter acquired any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; provided, however, the Collateral shall include all Accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, ~~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~~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. EXHIBIT B COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: ENERNOC, INC. and ENERNOC SECURITIES CORPORATION The undersigned authorized officer of ENERNOC, INC. and ENERNOC SECURITIES CORPORATION (individually and collectively, jointly and severally, “Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.8 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 meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies 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 Contracts entered into during month by Borrower restricting grant of security interest to Bank pursuant to Section 5.2 of the Agreement: Financial Covenant Required Actual Complies Quick Ratio (monthly) 1.85 : 1.0 : 1.0 Yes No Tangible Net Worth (quarterly) $ * $ Yes No *As set forth in Section 6.7(b) of the Loan and Security Agreement. The following financial covenant analyses and information set forth in Schedule 1 attached hereto are true and accurate as of the date of this Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”) ENERNOC, INC. BANK USE ONLY ENERNOC SECURITIES CORPORATION Received by: By: AUTHORIZED SIGNER Name: Date: Title: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes No Schedule 1 to Compliance Certificate Financial Covenants of Borrower Dated: In the event of a conflict between this Schedule and the Loan Agreement, the terms of the Loan Agreement shall control.

Appears in 1 contract

Samples: Loan and Security Agreement (Enernoc Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (International Electronics Inc)

Common use of Exhibit A Clause in Contracts