OF PAYMENT TO
THIRD PERSONS AND BANK, BANK MAY UPON NOTICE TO BORROWER MAKE ALL OR PART OF
SUCH PAYMENT OR OBTAIN SUCH INSURANCE POLICIES REQUIRED IN THIS SECTION 6.5, AND
TAKE ANY ACTION UNDER THE POLICIES BANK DEEMS PRUDENT.
6.6
OPERATING ACCOUNTS.
(A)
WITHIN THIRTY (30) DAYS OF THE EFFECTIVE DATE, MAINTAIN ITS AND
ITS SUBSIDIARIES' PRIMARY OPERATING AND DEPOSITORY ACCOUNTS WITH BANK.
IN
ADDITION, BORROWER AND ITS SUBSIDIARIES SHALL MAINTAIN THEIR CASH AND SECURITIES
WITH BANK AND/OR SVB SECURITIES IN EXCESS OF THAT AMOUNT USED USE BORROWER'S AND
SUCH SUBSIDIARIES' CURRENT OPERATIONS IN AN AMOUNT EQUAL TO THE LESSER OF
(I) SEVENTY-FIVE PERCENT (75.0%) OF THE AMOUNT OF SUCH EXCESS CASH AND
SECURITIES, AND (II) THIRTY-FIVE MILLION DOLLARS ($35,000,000.00).
ANY
GUARANTOR THAT IS AN AFFILIATE OF BORROWER SHALL MAINTAIN SEVENTY-FIVE PERCENT
(75.0%) OF ITS FUNDS IN 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 OR GUARANTOR 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,
WHICH CONTROL AGREEMENT MAY NOT BE TERMINATED WITHOUT THE PRIOR WRITTEN CONSENT
OF BANK.
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.
(C)
NOTWITHSTANDING SECTION 6.6(B) ABOVE TO THE CONTRARY, BORROWER
SHALL DELIVER TO BANK, WITHIN THIRTY (30) DAYS OF THE EFFECTIVE DATE, A
FULLY-EXECUTED CONTROL AGREEMENT WITH RESPECT TO EACH OF BORROWER'S ACCOUNTS
WITH MORGAN STANLEY, IN FORM AND SUBSTANCE ACCEPTABLE TO BANK IN ITS SOLE AND
ABSOLUTE DISCRETION.
6.7
FINANCIAL COVENANTS.
BORROWER SHALL MAINTAIN AT ALL TIMES, TO BE TESTED AS OF THE LAST DAY OF EACH
MONTH, UNLESS OTHERWISE NOTED:
(a)
Quick Ratio.
A Quick Ratio of at least 1.85 to 1.0.
(b)
Tangible Net Worth.
To be tested as of the last day of each of
Borrower's fiscal quarters, Tangible Net Worth of at least (i) Seventy Million
Dollars ($70,000,000.00) as of the quarters ending June 30, 2008, September 30,
2008 and December 31, 2008, (ii) Fifty-Five Million Dollars ($55,000,000.00) as
of the quarter ending March 31, 2009, and (iii) Fifty Million Dollars
($50,000,000.00) as of the quarter ending June 30, 2009 and as of the last day
of each quarter thereafter.
Notwithstanding the foregoing, the amount required
in the prior sentence shall increase by an amount equal to fifty percent (50.0%)
of the gross proceeds received by Borrower from the sale of its equity in
financing transactions or the incurrence