UNDER SUCH CASUALTY POLICY SHALL, AT THE OPTION OF BANK, BE PAYABLE TO
BANK ON ACCOUNT OF THE OBLIGATIONS.
IF BORROWER FAILS TO OBTAIN INSURANCE AS
REQUIRED UNDER THIS SECTION 6.7 OR TO PAY ANY AMOUNT OR FURNISH ANY REQUIRED
PROOF OF PAYMENT TO THIRD PERSONS AND BANK, BANK MAY MAKE ALL OR PART OF SUCH
PAYMENT OR OBTAIN SUCH INSURANCE POLICIES REQUIRED IN THIS SECTION 6.7, AND TAKE
ANY ACTION UNDER THE POLICIES BANK DEEMS PRUDENT.
6.8
OPERATING ACCOUNTS.
(A)
MAINTAIN (I) ITS AND ITS SUBSIDIARIES'
PRIMARY DEPOSITORY, OPERATING AND SECURITIES ACCOUNTS WITH BANK AND BANK'S
AFFILIATES, WITH ALL EXCESS FUNDS MAINTAINED AT OR INVESTED THROUGH BANK OR AN
AFFILIATE OF BANK WHICH ACCOUNTS SHALL REPRESENT AT LEAST SEVENTY-FIVE PERCENT
(75%) OF THE DOLLAR VALUE OF BORROWER'S AND SUCH SUBSIDIARIES ACCOUNTS AT ALL
FINANCIAL INSTITUTIONS; AND (II) AT ALL TIMES, MAINTAIN BALANCE OF NOT LESS THAN
THREE MILLION DOLLARS ($3,000,000) IN A DESIGNATED DEPOSIT ACCOUNT AT BANK.
ANY
GUARANTOR SHALL MAINTAIN ITS PRIMARY 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.
6.9
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 0.95 TO 1.0 FOR THE QUARTER ENDING
DECEMBER 31, 2008 AND FOR EACH FISCAL QUARTER THEREAFTER.
12
(B)
MINIMUM EBITDA-CAP EX.
BORROWER'S EBITDA
MINUS ITS CAPITAL EXPENDITURES, ("EBITDA-CAP EX") FOR THE TWO (2) QUARTER PERIOD
ENDING AS OF THE LAST DAY OF EACH QUARTER, SHALL BE IN AN AMOUNT EQUAL TO:
(I) LOSSES NOT GREATER THAN (A) ONE MILLION FIVE HUNDRED THOUSAND DOLLARS
($1,500,000) FOR THE QUARTER ENDED DECEMBER 31, 2008; (B) SIX MILLION EIGHT
HUNDRED THOUSAND DOLLARS ($6,800,000) FOR THE QUARTER ENDING MARCH 31, 2009;
(C) EIGHT MILLION SEVEN HUNDRED THOUSAND DOLLARS ($8,700,000) FOR THE QUARTER
ENDING JUNE 30, 2009; AND (D) FIVE MILLION FIVE HUNDRED THOUSAND DOLLARS
($5,500,000) FOR THE QUARTER ENDING SEPTEMBER 30, 2009; (II) SIXTY THOUSAND
DOLLARS ($60,000) FOR THE QUARTER ENDING DECEMBER 31, 2009; (III) LOSSES NOT
GREATER THAN (A) TWO MILLION DOLLARS ($2,000,000) FOR THE QUARTER ENDING
MARCH 31, 2010; (B) SIX MILLION DOLLARS ($6,000,000) FOR THE QUARTER ENDING
JUNE 30, 2010;