EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (a) any non-Product related Inventory, (b) any and all license agreements, but only with respect to license agreements which Borrower is licensee, (c) any property to the extent that such grant of security interest is prohibited by any Requirement of Law of a Governmental Authority or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, except to the extent that such Requirement of Law or the term in such contract, license, agreement, instrument or other document providing for such prohibition, breach, default or termination or requiring such consent is ineffective under Section 9-406, 9-407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity; provided, however, that such security interest shall attach immediately at such time as such Requirement of Law is not effective or applicable, or such prohibition, breach, default or termination is no longer applicable or is waived, and to the extent severable, shall attach immediately to any portion of the Collateral that does not result in such consequences, and (d) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property.
Appears in 1 contract
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided belowexcluding Intellectual Property), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all 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; provided, however, that the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Intellectual Property (the “Rights to Payment”). Notwithstanding the foregoing and subject to clause (c) of the paragraph directly below, 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 effective as of the date of this Agreement, include the Intellectual Property to the extent necessary to permit perfection of Agent’s security interest in the Rights to Payment. Notwithstanding the foregoing, the Collateral does not include include: (a) any non-Product related Inventory, rights held under a lease or license that are not assignable by their terms without the consent of the lessor/licensor thereof (but only to the extent such restriction on assignment is enforceable under applicable law); (b) any and all license agreements, but only with respect to license agreements which interest of Borrower is licensee, (c) any property to the extent that such grant of security interest as a lessee under an Equipment lease if Borrower is prohibited by any Requirement the terms of Law of such lease from granting a Governmental Authority or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, except to the extent that such Requirement of Law or the term security interest in such contract, license, agreement, instrument lease or other document providing for under which such prohibition, breach, an assignment or Lien would cause a default or termination or requiring to occur under such consent is ineffective under Section 9-406, 9-407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equitylease; provided, however, that such security interest shall attach immediately at such time as such Requirement upon termination of Law is not effective or applicable, or such prohibition, breachsuch interest shall immediately become Collateral without any action by Borrower or Agent, default or termination is no longer applicable or is waived, and (c) any “intent to use” trademarks at all times prior to the extent severablefirst use thereof, whether by the actual use thereof in commerce, the recording of a statement of use with the United States Patent and Trademark Office or otherwise, provided, that upon submission and acceptance by the United States Patent and Trademark Office of an amendment to allege use of an intent-to-use trademark application pursuant to 15 U.S.C. Section 1060(a) (or any successor provision) such intent-to-use application shall attach immediately to any portion of the Collateral that does not result in such consequencesconstitute Collateral, and (d) the Excluded Accounts and (e) more than 65% of the voting equity interests of any Intellectual Property; Excluded Subsidiary (provided, however, that immediately upon any change in the U.S. tax laws that would allow the pledge of a greater percentage of such voting equity interests without material adverse tax consequences to the Borrower, the Collateral shall automatically and without further action required by, and without notice to, any Person include all Accounts and all proceeds such greater percentage of Intellectual Property.voting equity interests of such Subsidiary from that time forward).
Appears in 1 contract
Sources: Loan and Security Agreement (Mountain Crest Acquisition Corp II)
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (ai) any non-Product related Inventoryaccounts receivable and other claims which arise out of the sale of goods or services to United Parcel Service, Inc., a Delaware corporation, and/or its subsidiaries or affiliates, to JPMorgan and/or one (1) or more other investors, pursuant to the terms of a Master Receivables Purchase Acceptance Letter by and between Borrower and JPMorgan or to any other financial institution pursuant to any similar arrangement, (bii) any and all license agreements, but only with respect to license agreements stock in Foreign Subsidiaries, more than sixty-five percent (65%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which Borrower is licenseeshares entitle the holder thereof to vote for directors or any other matter, (ciii) any property to the extent that such grant of security interest is prohibited by any Requirement of Law of a Governmental Authority or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, except to the extent that such Requirement of Law or the term in such contract, license, agreement, instrument or other document providing for such prohibition, breach, default or termination or requiring such consent is ineffective under Section 9-406, 9-407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity; provided, however, that such security interest shall attach immediately at such time as such Requirement of Law is not effective or applicable, or such prohibition, breach, default or termination is no longer applicable or is waived, and to the extent severable, shall attach immediately to any portion of the Collateral that does not result in such consequences, and (div) any interest of Borrower as a lessee or sublessee under a real property lease or an Equipment lease if Borrower is prohibited by the terms of such lease from granting a security interest in such lease or under which such an assignment or Lien would cause a default to occur under such lease (but only to the extent that such prohibition is enforceable under all applicable laws including, without limitation, the Code); provided, however, that upon termination of such prohibition, such interest shall immediately become Collateral without any action by Borrower or Bank, (v) the Excluded Accounts, or (vi) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. TO: SILICON VALLEY BANK Date: FROM: COUCHBASE, INC. (the “ Borrower”) Under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), Borrower is in complete compliance for the period ending with all required covenants except as noted below. Attached are the required documents evidencing such compliance, setting forth calculations prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes (other than, with respect to unaudited financial statements for the absence of footnotes and year-end audit adjustments). Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement. Pre IPO Event: Monthly Financial Statements with Compliance Statement Monthly within 30 days Yes No Post-IPO Event: Quarterly Financial Statements with Compliance Statement Within the earlier of (i) 45 days of fiscal quarter end, or (ii) 5 days after filing with SEC Yes No Annual Financial Statements (CPA Audited)* Pre-IPO Event: FYE within 270 days Post-IPO Event: FYE within 120 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC (if applicable) Yes No N/A Borrowing Base Statement Pre-IPO Event: Monthly within 30 days Post-IPO Event: Within the earlier of (i) 45 days of fiscal quarter end, or (ii) 5 days after filing with SEC Yes No Board approved projections Within the earlier of (i) 15 days after approval by the Board or (ii) 60 after FYE, and as amended/updated Yes No SaaS metrics report Pre-IPO Event: Monthly within 30 days Post-IPO Event: Quarterly within 30 days Yes No Board package As requested by Bank Yes No Adjusted Quick Ratio >1.15: 1.0 ____ : 1.0 Yes No * Provided however, if the Board does not require audited Annual Financial Statements for any fiscal year, then Borrower shall instead deliver CPA reviewed Annual Financial Statements for such fiscal year only. Since the date of the last Compliance Statement, have there been any changes in the ownership or management of Borrower that would change Borrower’s answers in Addendum 1 to the Perfection Certificate? If yes, provide details below or in a separate report to Bank. The following financial covenant analyses and information set forth in Schedule 1 attached hereto are true and accurate as of the date of this Compliance Statement. The following are the exceptions with respect to the statements above: (If no exceptions exist, state “No exceptions to note.”)
Appears in 1 contract
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (a) any non-Product related Inventory, (b) any and all license agreements, but only with respect to license agreements which Borrower is licensee, (c) any property to the extent that such grant of security interest is prohibited by any Requirement of Law of a Governmental Authority or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, except to the extent that such Requirement of Law or the term in such contract, license, agreement, instrument or other document providing for such prohibition, breach, default or termination or requiring such consent is ineffective under Section 9-406, 9-407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity; provided, however, that such security interest shall attach immediately at such time as such Requirement of Law is not effective or applicable, or such prohibition, breach, default or termination is no longer applicable or is waived, and to the extent severable, shall attach immediately to any portion of the Collateral that does not result in such consequences, and (di) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property.; provided, further, that if a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property, (ii) more than sixty five percent (65.0%) of the presently existing and hereafter arising issued and outstanding shares of any class of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, (iii) twenty percent (20.0%) of all royalties, revenues, milestone payments, progress payments and other proceeds payable to Borrower and/or its Affiliates pursuant to the GSK and ▇▇▇▇▇▇▇ Agreements (as in effect on the Effective Date) and (iv) one-half of one percent (0.50%) of HerpV Net Sales (as defined in the Revenue Interests Assignment Agreement as in effect on the Effective Date). 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. 5741777v2
Appears in 1 contract
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided below)Intangibles, Intellectual Property, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, guaranteed investment certificates, 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, foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (a) more than sixty-five percent (65%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any non-Product related InventoryForeign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, (b) any and all rights held under a license agreements, that are not assignable by their terms without the consent of the licensor thereof (but only with respect to license agreements which Borrower the extent such restriction on assignment is licensee, enforceable under applicable law); (c) any property “intent to use” trademarks at all times prior to the extent that such grant first use thereof, whether by the actual use thereof in commerce, the recording of security a statement of use with the United States Patent and Trademark Office or otherwise, or (d) any interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by any Requirement the terms of Law of such lease from granting a Governmental Authority or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, except to the extent that such Requirement of Law or the term security interest in such contract, license, agreement, instrument lease or other document providing for under which such prohibition, breach, an assignment or Lien would cause a default or termination or requiring to occur under such consent is ineffective under Section 9-406, 9-407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equitylease; provided, however, that such security interest shall attach immediately at such time as such Requirement upon termination of Law is not effective or applicable, or such prohibition, breach, default such interest shall immediately become Collateral without any action by Borrower or termination is no longer applicable or is waived, and to the extent severable, shall attach immediately to any portion of the Collateral that does not result in such consequences, and (d) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual PropertyBank.
Appears in 1 contract
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided below)Intangibles, Intellectual Property, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, guaranteed investment certificates, 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, foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (a) more than sixty-five percent (65%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any non-Product related InventoryForeign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, (b) any and all rights held under a license agreements, that are not assignable by their terms without the consent of the licensor thereof (but only with respect to license agreements which Borrower the extent such restriction on assignment is licensee, enforceable under applicable law); (c) any property “intent to use” trademarks at all times prior to the extent that such grant first use thereof, whether by the actual use thereof in commerce, the recording of security a statement of use with the United States Patent and Trademark Office or otherwise, or (d) any interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by any Requirement the terms of Law of such lease from granting a Governmental Authority or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, except to the extent that such Requirement of Law or the term security interest in such contract, license, agreement, instrument lease or other document providing for under which such prohibition, breach, an assignment or Lien would cause a default or termination or requiring to occur under such consent is ineffective under Section 9-406, 9-407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equitylease; provided, however, that such security interest shall attach immediately at such time as such Requirement upon termination of Law is not effective or applicable, or such prohibition, breachsuch interest shall immediately become Collateral without any action by Borrower or Lender. TO: SVB INNOVATION CREDIT FUND VIII, default or termination L.P Date:______________________ FROM: LANTRONIX, INC., on behalf of all Borrowers Under the terms and conditions of the Mezzanine Loan and Security Agreement (the “Agreement’) by and among SVB Innovation Credit Fund VIII, L.P. and Lantronix, Inc., on behalf of Lantronix, Inc., Lantronix Holding Company, Lantronix Canada, ULC, Lantronix Technologies Canada (Taiwan) Ltd. and Transition Networks, Inc. (individually and collectively, “Borrower”): Borrower is no longer applicable or is waivedin complete compliance for the period ending _______________ with all required covenants except as noted below. Attached are the required documents evidencing such compliance, and setting forth calculations prepared in accordance with GAAP consistently applied from one period to the extent severable, next except as explained in an accompanying letter or footnotes. Capitalized terms used but not otherwise defined herein shall attach immediately to any portion of have the Collateral that does not result meanings given them in such consequences, and (d) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual PropertyAgreement.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Lantronix Inc)
EXHIBIT A – COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, 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 (ai) any non-Product related Inventoryequity securities of AKARX, Inc owned by DOVA PHARMACEUTICALS, INC., (bii) more than sixty-five percent (65.0%) 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, (iii) any and all license agreements, interest of Borrower as a lessee or sublessee under a real property lease or an Equipment lease if Borrower is prohibited by the terms of such lease from granting a security interest in such lease or under which such an assignment or Lien would cause a default to occur under such lease (but only with respect to license agreements which Borrower is licensee, (c) any property to the extent that such grant of security interest prohibition is prohibited by any Requirement of Law of a Governmental Authority or constitutes a breach or default enforceable under or results in all applicable laws including, without limitation, the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, except to the extent that such Requirement of Law or the term in such contract, license, agreement, instrument or other document providing for such prohibition, breach, default or termination or requiring such consent is ineffective under Section 9-406, 9-407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided, however, that such security interest shall attach immediately at such time as such Requirement upon termination of Law is not effective or applicable, or such prohibition, breachsuch interest shall immediately become Collateral without any action by Borrower, default Agent or termination is no longer applicable any Lender, or is waived, and to the extent severable, shall attach immediately to any portion of the Collateral that does not result in such consequences, and (div) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property.. If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Agent’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property. Pursuant to the terms of a certain negative pledge arrangement with Agent and the Lenders, Borrower has agreed not to encumber any of its Intellectual Property without Agent’s and the Lenders’ prior written consent. TO: SILICON VALLEY BANK, as Agent, SVB, and WESTRIVER Date: FROM: DOVA PHARMACEUTICALS, INC. and AKARX, INC. The undersigned authorized officer of DOVA PHARMACEUTICALS, INC. and AKARX, INC. (individually and collectively, jointly and severally, “Borrower”) certifies that under the terms and conditions of the Amended and Restated Loan and Security Agreement among Borrower, SVB, and WestRiver (the “Loan Agreement”):
Appears in 1 contract
Sources: Loan and Security Agreement (Dova Pharmaceuticals Inc.)