OF UP TO THIRTY
PERCENT (30.0%) OF ALL OF BORROWER'S ACCOUNTS REQUIRED TO BE MAINTAINED IN THE
ORDINARY COURSE OF BUSINESS OUTSIDE OF THE U.S.
ANY GUARANTOR SHALL MAINTAIN
ALL DEPOSITORY, OPERATING AND SECURITIES ACCOUNTS WITH BANK, OR SVB SECURITIES.
(B)
PROVIDE BANK FIVE (5) DAYS PRIOR WRITTEN NOTICE BEFORE ESTABLISHING ANY
COLLATERAL ACCOUNT AT OR WITH ANY BANK OR FINANCIAL INSTITUTION OTHER THAN BANK
OR ITS AFFILIATES.
IN ADDITION, FOR EACH COLLATERAL ACCOUNT THAT BORROWER AT
ANY TIME MAINTAINS, BORROWER SHALL CAUSE THE APPLICABLE BANK OR FINANCIAL
INSTITUTION (OTHER THAN BANK) AT OR WITH WHICH ANY COLLATERAL ACCOUNT IS
MAINTAINED TO EXECUTE AND DELIVER A CONTROL AGREEMENT OR OTHER APPROPRIATE
INSTRUMENT WITH RESPECT TO SUCH COLLATERAL ACCOUNT TO PERFECT BANK'S LIEN IN
SUCH COLLATERAL ACCOUNT IN ACCORDANCE WITH THE TERMS HEREUNDER.
THE PROVISIONS
OF THE PREVIOUS SENTENCE SHALL NOT APPLY TO DEPOSIT ACCOUNTS EXCLUSIVELY USED
FOR PAYROLL, PAYROLL TAXES AND OTHER EMPLOYEE WAGE AND BENEFIT PAYMENTS TO OR
FOR THE BENEFIT OF BORROWER'S EMPLOYEES AND IDENTIFIED TO BANK BY BORROWER AS
SUCH.
6.7
FINANCIAL COVENANTS.
Borrower shall maintain at all times, to be tested as of the last day of each
quarter:
(a)
Adjusted Quick Ratio.
A ratio of Quick Assets to Quick
Liabilities of at least 1.25 to 1.0; and
(b)
Minimum EBITDA-Cap Ex.
Borrower's EBITDA minus its capital
expenditures, ("EBITDA-Cap Ex") for the two (2) quarter period ending with each
quarter, shall be in an amount equal to: (i) losses not greater than (x) Seven
Million Dollars ($7,000,000.00) for the quarter ending September 30, 2006; (y)
Six Million Dollars ($6,000,000.00) for the quarters ending December 31, 2006,
March 31, 2007, and June 30, 2007; and (z) Three Million Dollars ($3,000,000.00)
for the quarter ending September 30, 2007; and (ii) at least Zero Dollars
($0.00) for the quarter ending December 31, 2007, and as of the last day of each
quarter thereafter.
6.8
LITIGATION COOPERATION.
FROM THE DATE HEREOF AND CONTINUING
THROUGH THE TERMINATION OF THIS AGREEMENT, MAKE AVAILABLE TO BANK, WITHOUT
EXPENSE TO BANK, BORROWER AND ITS OFFICERS, EMPLOYEES AND AGENTS AND BORROWER'S
BOOKS AND RECORDS, TO THE EXTENT THAT BANK MAY DEEM THEM REASONABLY NECESSARY TO
PROSECUTE OR DEFEND ANY THIRD-PARTY SUIT OR PROCEEDING INSTITUTED BY OR AGAINST
BANK WITH RESPECT TO ANY COLLATERAL OR RELATING TO BORROWER.
6.9
CO-BORROWER. WITHIN FIFTEEN (15) DAYS AFTER THE OCCURRENCE OF THE
ACQUISITION EVENT, BORROWER SHALL CAUSE XBC AND CALIPER HOLDINGS, INC.
(SUCCESSOR BY MERGER OF XENOGEN) ("HOLDINGS") TO BECOME A CO-BORROWERS UNDER
THIS AGREEMENT, PURSUANT TO DOCUMENTATION ACCEPTABLE TO BANK IN BANK'S SOLE
DISCRETION. IN CONNECTION THEREWITH, BORROWER SHALL PROVIDE BANK WITH AUTHORITY
DOCUMENTS ACCEPTABLE TO BANK, INCLUDING, WITHOUT LIMITATION, AN
AUTHORITY/ENFORCEABILITY OPINION FROM XBC AND HOLDINGS' COUNSEL, A CERTIFICATE
FROM THE OHIO SECRETARY OF STATE CERTIFYING THAT XBC IS A VALIDLY EXISTING OHIO
CORPORATION, AND IS IN GOOD STANDING IN THE STATE OF OHIO, AND A CERTIFICATE
FROM THE DELAWARE SECRETARY OF STATE CERTIFYING THAT HOLDINGS IS A VALIDLY
EXISTING DELAWARE CORPORATION, AND IS IN GOOD STANDING