THE FOREGOING, (A) SO LONG AS NO
EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, BORROWER SHALL HAVE THE OPTION
OF APPLYING THE PROCEEDS OF ANY CASUALTY POLICY UP TO TWO HUNDRED FIFTY THOUSAND
DOLLARS ($250,000) IN THE AGGREGATE TOWARD THE REPLACEMENT OR REPAIR OF
DESTROYED OR DAMAGED PROPERTY; PROVIDED THAT ANY SUCH REPLACED OR REPAIRED
PROPERTY (I) SHALL BE OF EQUAL OR LIKE VALUE AS THE REPLACED OR REPAIRED
COLLATERAL AND (II) SHALL BE DEEMED COLLATERAL IN WHICH BANK HAS BEEN GRANTED A
FIRST PRIORITY SECURITY INTEREST, AND (B) AFTER THE OCCURRENCE AND DURING THE
CONTINUANCE OF AN EVENT OF DEFAULT, ALL PROCEEDS PAYABLE 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 6.4 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 6.4, AND TAKE ANY ACTION UNDER THE
POLICIES BANK DEEMS PRUDENT.
6.5
ACCOUNTS.
(A)
TO PERMIT BANK TO MONITOR BORROWER'S FINANCIAL PERFORMANCE AND
CONDITION, SUBJECT TO THE FOLLOWING, BORROWER, AND ALL BORROWER'S SUBSIDIARIES,
SHALL MAINTAIN BORROWER'S AND SUCH SUBSIDIARIES', DEPOSITORY AND OPERATING
ACCOUNTS AND SECURITIES ACCOUNTS WITH BANK AND BANK'S AFFILIATES:
9
(i)
Borrower is permitted to maintain the existing Bank of America,
N.A. account number 0006827055 and the existing TD Bank, N.A. account number
8242351851 (collectively, the "Borrower Bank Accounts"), provided that (A) such
Borrower Bank Accounts shall be closed within ninety (90) days of the Effective
Date, and (B) any amounts in such Borrower Bank Accounts shall be transferred on
a daily basis for deposit into an account at Bank.
In any event, Borrower shall
promptly notify its Account Debtors to remit payments to the Lockbox as of the
Effective Date; and
(ii)
Borrower is permitted to maintain its Certificate of Deposit
number 8731024878 (the "CD") at TD Bank, N.A.; provided that, (A) the CD shall
not have a value in excess of Twenty-One Thousand Dollars ($21,000.00) at any
time, and (B) on or prior to July 31, 2009, such CD shall either (1) be
transferred to an account at Bank or Bank's Affiliate (and if transferred to
Bank's Affiliate, Borrower will execute an account control agreement with such
Bank Affiliate in favor of Bank), or (2) be liquidated, and the proceeds
therefrom shall be deposited at an account with Bank.
(B)
BORROWER SHALL IDENTIFY TO BANK, IN WRITING, ANY DEPOSIT OR
SECURITIES ACCOUNT OPENED BY BORROWER WITH ANY INSTITUTION OTHER THAN BANK.
IN
ADDITION, FOR EACH SUCH ACCOUNT THAT BORROWER OR GUARANTOR AT ANY TIME OPENS OR
MAINTAINS, BORROWER SHALL, AT BANK'S REQUEST AND OPTION, PURSUANT TO AN
AGREEMENT IN FORM AND SUBSTANCE ACCEPTABLE TO BANK, CAUSE THE DEPOSITORY BANK OR
SECURITIES INTERMEDIARY TO AGREE THAT SUCH ACCOUNT IS THE COLLATERAL OF BANK
PURSUANT TO THE TERMS HEREUNDER, WHICH CONTROL AGREEMENT MAY NOT BE TERMINATED