(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 BANK'S AFFILIATES.
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 WHICH
CONTROL AGREEMENT MAY NOT BE TERMINATED WITHOUT THE PRIOR WRITTEN CONSENT OF
BANK.
THE PROVISIONS OF THE PREVIOUS SENTENCE SHALL NOT APPLY TO: (I) 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, AND (II) THE PERMITTED BANK ACCOUNTS.
6.9
FINANCIAL COVENANTS.
BORROWER SHALL MAINTAIN
AT ALL TIMES, UNLESS OTHERWISE NOTED, ON A CONSOLIDATED BASIS WITH RESPECT TO
BORROWER AND ITS SUBSIDIARIES:
(a)
Adjusted Quick Ratio.
To be tested as of
the last day of each calendar month, an Adjusted Quick Ratio of at least 1.20 to
1.0.
(B)
OPERATING CASH FLOW.
OPERATING CASH FLOW OF
AT LEAST (I) ($2,000,000.00) AS OF DECEMBER 31, 2009, (II) ($5,000,000.00) AS OF
EACH OF MARCH 31, 2010 AND JUNE 30, 2010, (III) ($4,000,000.00) AS OF
SEPTEMBER 30, 2010, (IV) ($3,000,000.00) AS OF DECEMBER 31, 2010, AND (V) AS OF
THE LAST DAY OF EACH CALENDAR QUARTER THEREAFTER, THE AMOUNT THAT IS
$1,000,000.00 GREATER THAN THE REQUIRED OPERATING CASH FLOW AS OF THE LAST DAY
OF THE IMMEDIATELY PRECEDING CALENDAR QUARTER.
6.10
PROTECTION OF INTELLECTUAL PROPERTY RIGHTS.
(A)
(I) USE COMMERCIALLY REASONABLE EFFORTS TO
PROTECT, DEFEND AND MAINTAIN THE VALIDITY AND ENFORCEABILITY OF ITS INTELLECTUAL
PROPERTY; (II) PROMPTLY ADVISE BANK IN WRITING OF MATERIAL INFRINGEMENTS OF ITS
INTELLECTUAL PROPERTY; AND (III) NOT ALLOW ANY INTELLECTUAL PROPERTY MATERIAL TO
BORROWER'S BUSINESS TO BE ABANDONED, FORFEITED OR DEDICATED TO THE PUBLIC
WITHOUT BANK'S WRITTEN CONSENT.
(B)
PROVIDE WRITTEN NOTICE TO BANK WITHIN TEN
(10) DAYS OF ENTERING OR BECOMING BOUND BY ANY RESTRICTED LICENSE (OTHER THAN
OVER-THE-COUNTER SOFTWARE THAT IS COMMERCIALLY AVAILABLE TO THE PUBLIC).
BORROWER SHALL TAKE SUCH STEPS AS BANK REQUESTS TO OBTAIN THE CONSENT OF, OR
WAIVER BY, ANY PERSON WHOSE CONSENT OR WAIVER IS NECESSARY FOR (I) ANY
RESTRICTED LICENSE TO BE DEEMED "COLLATERAL" AND FOR BANK TO HAVE A SECURITY
INTEREST IN IT THAT MIGHT OTHERWISE BE RESTRICTED OR PROHIBITED BY LAW OR BY THE
TERMS OF ANY SUCH RESTRICTED LICENSE, WHETHER NOW EXISTING OR ENTERED INTO IN
THE FUTURE, AND (II) BANK TO HAVE THE ABILITY IN THE EVENT OF A LIQUIDATION OF
ANY COLLATERAL TO DISPOSE OF SUCH COLLATERAL IN ACCORDANCE WITH BANK'S RIGHTS
AND REMEDIES UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
6.11
LITIGATION COOPERATION.
FROM THE DATE HEREOF AND
CONTINUING THROUGH THE TERMINATION OF THIS AGREEMENT, MAKE AVAILABLE TO BANK,
WITHOUT EXPENSE TO