Silicon Valley Bank Loan and Security Agreement. Receivables are eligible for borrowing is a matter of Silicon’s discretion, the following (the “Minimum Eligibility Requirements”) are the minimum requirements for a Receivable to be an Eligible Receivable: (i) the Receivable must not be outstanding for more than 90 days from its invoice data, (ii) the Receivable must not represent progress bxxxxxxx, be due under a fulfillment or requirements contract with the Account Debtor or represent Deferred Revenue, (iii) the Receivable most not be subject to any contingencies (including Receivables arising from sales on consignment, guaranteed sale or other terms pursuant to which payment by the Account Debtor may be conditional, except as may otherwise be acceptable to Silicon in its discretion), (iv) the Receivable must not be owing from an Account Debtor with whom the Borrower has any dispute of a material nature (whether or not relating to the particular Receivable), (v) the Receivable must not be owing from an Affiliate of Borrower, (vi) the Receivable must not be owing from an Account Debtor which is subject to any insolvency or bankruptcy proceeding, or whose financial condition is not acceptable to Silicon, or which, fails or goes out of a material portion of its business, (vii) the Receivable must not be owing from the United States or any department, agency or instrumentality thereof (unless there has been compliance, to Silicon’s satisfaction, with the United States Assignment of Claims Act), (viii) the Receivable must not be owing from an Account Debtor located outside the United States (unless pre-approved by Silicon in its discretion in writing, or backed by a letter of credit satisfactory to Silicon, or FCIA insured satisfactory to Silicon), and (ix) the Receivable must not be owing from an Account Debtor to whom Borrower is or may be liable for goods purchased from such Account Debtor or otherwise. Receivables owing from one Account Debtor will not be deemed Eligible Receivables to the extent they exceed 25% (35% with respect to Receivables owing from Dell, Inc.) of the total Receivables outstanding. In addition, if more than 50% of the Receivables owing from an Account Debtor are outstanding more than 90 days from their invoice date (without regard to unapplied credits) or are otherwise not eligible Receivables, then all Receivables owing from that Account Debtor will be deemed ineligible for borrowing. Silicon may, from time to time, in its good faith business judgment, revise the Minimum Eligibili...
Silicon Valley Bank Loan and Security Agreement genuine, and all such documents, instruments and agreements are and shall be legally enforceable in accordance with their terms.
Silicon Valley Bank Loan and Security Agreement otherwise acquire, directly or indirectly, any of Borrower’s stock; (xii) make any change in Borrower’s capital structure which would result in a Material Adverse Change; or (xiii) engage, directly or indirectly, in any business other than the businesses currently engaged in by Borrower or reasonably related thereto; or (xiv) dissolve or elect to dissolve. Transactions permitted by the foregoing provisions of this Section are only permitted if no Default or Event of Default would occur as a result of such transaction. * Borrower has advised Silicon that Borrower intends to sell substantially all of its assets to “Newco” (a C corporation for which Parthenon Capital is the majority shareholder and formed for the sole purpose of purchasing the assets of Borrower and assuming the liabilities of Borrower, including Borrower’s Obligations, and continuing to conduct business as currently conducted by Borrower) for approximately $20,000,000 (the “Parthenon Transaction”). No more than $15,000,000 of the purchase price of the Parthenon Transaction shall be used by Borrower to effect a distribution to the holders of equity securities of Borrower, including Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxxxx and Xxxxxxx Xxxxx, and to repay the Founder Notes (as defined in the Schedule). As part of the Parthenon Transaction, after the acquisition of the assets of Borrower, Newco is to have a minimum equity investment of at least $5,000,000 (the “Net Equity Investment”). All of the foregoing to be in accordance with the terms previously disclosed by Borrower to Silicon; Silicon hereby consents to the Parthenon Transaction (including, without limitation, the assumption by Newco of Borrower’s Obligations in form and substance satisfactory to Silicon in its good faith business judgment) provided that Silicon shall have the right to require that all Obligations be indefeasibly paid in full in conjunction with the Parthenon Transaction and/or to require Newco to execute such documents as Silicon deems necessary in conjunction with the assumption by Newco of Borrower’s Obligations and of this Agreement and all related documents; ** and except in conjunction with the Parthenon Transaction *** and, so long as Borrower, remains an “S” corporation, except for distributions to its shareholders to enable its shareholders to make timely quarterly payments of estimated taxes and payments of the balance of federal and state income taxes, as the case may be, incurred with respect to such shareholder’s in...
Silicon Valley Bank Loan and Security Agreement under any bankruptcy, fraudulent conveyance or similar law; or (p) a Material Adverse Change shall occur; or (q) Silicon, acting in good faith and in a commercially reasonable manner, deems itself insecure because of the occurrence of an event prior to the effective date hereof of which Silicon had no knowledge on the effective date or because of the occurrence of an event on or subsequent to the effective date. Silicon may cease making any Loans hereunder during any of the above cure periods, and thereafter if an Event of Default has occurred and is continuing. * 25% ** except in connection with the Parthenon Transaction, to which Silicon hereby consents;
Silicon Valley Bank Loan and Security Agreement. Code and under all other applicable laws, and under any other instrument or agreement now or in the future entered into between Silicon and Borrower, and all of such rights and remedies are cumulative and none is exclusive. Exercise or partial exercise by Silicon of one or more of its rights or remedies shall not be deemed an election, nor bar Silicon from subsequent exercise or partial exercise of any other rights or remedies. The failure or delay of Silicon to exercise any rights or remedies shall not operate as a waiver thereof, but all rights and remedies shall continue in full force and effect until all of the Obligations have been fully paid and performed.
Silicon Valley Bank Loan and Security Agreement finished products, including without limitation such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returned goods and any documents of title representing any of the above.
Silicon Valley Bank Loan and Security Agreement only Silicon and not Borrower in connection with this Agreement. If either Silicon or Borrower files any lawsuit against the other predicated on a breach of this Agreement, the prevailing party in such action shall be entitled to recover its reasonable costs and attorneys’ fees, including (but not limited to) reasonable attorneys’ fees and costs incurred in the enforcement of, execution upon or defense of any order, decree, award or judgment. All attorneys’ fees and costs to which Silicon may be entitled pursuant to this Paragraph shall immediately become part of Borrower’s Obligations, shall be due on demand, and shall bear interest at a rate equal to the highest interest rate applicable to any of the Obligations.
Silicon Valley Bank Loan and Security Agreement. (i) any Borrower, including the Agent, as agent for each Borrower, shall be unable to, or prohibited from carrying out the terms and conditions of this Agreement (as determined by Silicon in Silicon’s sole and absolute discretion); or
Silicon Valley Bank Loan and Security Agreement the Deposit Account and otherwise satisfactory to Silicon in its good faith business judgment. Nothing herein limits any requirements which may be set forth in the Schedule as to where Deposit Accounts will be maintained.
Silicon Valley Bank Loan and Security Agreement of liability upon, any pledge of any certificate of deposit, securities or other property or asset of any kind pledged by any third party affiliated with Borrower to secure any or all of the Obligations, or any attempt to do any of the foregoing, or commencement of proceedings by or against any such third party under any bankruptcy or insolvency law; or (m) Borrower defaults under any agreement evidencing any indebtedness to any third party; or (n) Borrower makes any payment on account of any indebtedness or obligation which has been subordinated to the Obligations other than as permitted in the applicable subordination agreement, or a default occurs under any instrument evidencing such subordinated indebtedness, or the holder of any such subordinated indebtedness accelerates all or any portion of such subordinated indebtedness or if any Person who has subordinated such indebtedness or obligations terminates or in any way limits his subordination agreement other than in accordance with its terms; or (o) (i) there shall be any change in the record or beneficial ownership of the outstanding shares of stock of Vertical Communications Acquisition Corp. (a wholly-owned subsidiary of Artisoft, Inc.) compared to the ownership of outstanding shares of stock of Borrower in effect on the date hereof, without the prior written consent of Silicon or (ii) after giving effect to the transactions contemplated by the Stock Purchase Agreement dated as of the date hereof among Artisoft, Inc. and the Investors party thereto providing for the sale of shares of common stock of Artisoft, Inc. on the basis set forth therein, and related transactions, any “person” or “group” (within the meaning of Section 13(d) and 14 (d)(2) of the Securities Exchange Act of 1934, as amended, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended, directly or indirectly of 40% of the shares of all classes of stock then outstanding of Artisoft, Inc. ordinarily entitled to vote in the election of directors,; or (p) Borrower shall generally not pay its debts as they become due, or Borrower shall conceal, remove or transfer any part of its property, with intent to hinder, delay or defraud its creditors, or make or suffer any transfer of any of its property which may be fraudulent under any bankruptcy, fraudulent conveyance or similar law; or (q) there shall be (i) a material impairment in the perfection or priority of Silicon’s security interest...
