POTTSTOWN TERM LOAN AND THE WC TERM
LOAN.
(H)
"CREDIT FACILITY ORDER OF PRIORITY" SHALL MEAN (I) FIRST, TO
ACCRUED AND UNPAID INTEREST ON THE APPLICABLE CREDIT FACILITY, (II) SECOND, TO
THE PRINCIPAL BALANCE OF THE APPLICABLE CREDIT FACILITY AND (III) THIRD, TO
ACCRUED AND UNPAID FEES PAYABLE IN CONNECTION WITH THE APPLICABLE CREDIT
FACILITY.
(I)
"CREDIT FACILITY'S PROPORTIONATE SHARE" SHALL MEAN, AS TO EACH
CREDIT FACILITY, THE QUOTIENT OBTAINED (EXPRESSED AS A PERCENTAGE) BY DIVIDING
(I) THE TOTAL SUMS DUE UNDER SUCH CREDIT FACILITY (INCLUDING INTEREST, PRINCIPAL
AND FEES) ON ANY DETERMINATION DATE BY (II) THE TOTAL OBLIGATIONS OUTSTANDING ON
SUCH DETERMINATION DATE.
(J)
"DEBT SERVICE COVERAGE RATIO" SHALL MEAN, WITH RESPECT TO
BORROWER, FOR ANY PERIOD, THE RATIO OF (I) THE SUM OF PRE-TAX INCOME (EXCLUDING
ANY EXTRAORDINARY GAINS AND/OR LOSSES), MINUS CASH DIVIDENDS AND DISTRIBUTIONS
DECLARED DURING SUCH PERIOD, PLUS ALL INTEREST EXPENSE,
37
PLUS DEPRECIATION, PLUS AMORTIZATION, TO (II) THE SUM OF INTEREST EXPENSE, PLUS
THE CURRENT MATURITIES OF LONG-TERM INDEBTEDNESS AS OF THE MOST RECENT DATE AS
OF WHICH SUCH RATIO IS REQUIRED TO BE CALCULATED (INCLUDING, WITHOUT LIMITATION,
ALL CAPITALIZED LEASE OBLIGATIONS), ALL AS DETERMINED IN ACCORDANCE WITH GAAP.
(K)
"DEFAULT" SHALL MEAN ANY EVENT, OCCURRENCE OR CIRCUMSTANCE WHICH,
WITH THE GIVING OF NOTICE, THE LAPSE OF TIME, OR BOTH, WOULD CONSTITUTE AN EVENT
OF DEFAULT.
(L)
"DERIVATIVES CONTRACT" SHALL MEAN A FUTURES OR OPTIONS CONTRACT
FOR THOSE PETROLEUM PRODUCTS SOLD BY BORROWER IN THE ORDINARY COURSE OF
BUSINESS, ENTERED INTO BY BORROWER ON A NATIONALLY RECOGNIZED ORGANIZED EXCHANGE
(INCLUDING, WITHOUT LIMITATION, THE NEW YORK MERCANTILE EXCHANGE), PURSUANT TO
THE RULES OF SUCH EXCHANGE.
FOR PURPOSES OF CLARIFICATION, THE TERM DERIVATIVES
CONTRACTS SHALL NOT INCLUDE SWAP AGREEMENTS, AS DEFINED IN 11 U.S.C. § 101 AND
SHALL INCLUDE BORROWER'S AGREEMENTS WITH FIMAT ALTERNATIVE STRATEGIES, INC.
(M)
"DETERMINATION DATE" SHALL MEAN EACH DATE AFTER AN ACCELERATION
DATE ON WHICH PAYMENTS ON ACCOUNT OF ANY OBLIGATIONS OR PROCEEDS FROM THE SALE
OR OTHER DISPOSITION OF COLLATERAL ARE RECEIVED.
(N)
"ELIGIBLE INVENTORY" SHALL MEAN INVENTORY IN THE POSSESSION OF
BORROWER CONSISTING OF PETROLEUM PRODUCTS IN WHICH AGENT, FOR THE BENEFIT OF
LENDERS, HAS A PRIOR, PERFECTED, FIRST PRIORITY LIEN AND MEETS ALL
SPECIFICATIONS ESTABLISHED BY REQUIRED LENDERS, IN ITS REASONABLE CREDIT
JUDGMENT, FROM TIME TO TIME.
ELIGIBLE INVENTORY SHALL NOT INCLUDE (I) INVENTORY
NOT CONSISTING OF PETROLEUM PRODUCTS; (II) INVENTORY LOCATED AT ANY LOCATION
OTHER THAN THE ADDRESSES SET FORTH IN SECTION 10.3(C); (III) OBSOLETE,
SLOW-MOVING OR UNMERCHANTABLE INVENTORY OR INVENTORY WHICH IS NOT IN GOOD
CONDITION OR NOT CURRENTLY USABLE OR SALABLE IN THE ORDINARY COURSE OF
BORROWER'S BUSINESS AS DETERMINED BY AGENT IN ITS REASONABLE CREDIT JUDGMENT;
(IV) INVENTORY CONSISTING OF FINISHED GOODS WHICH DO NOT MEET THE SPECIFICATIONS
OF THE PURCHASE ORDER FOR WHICH SUCH INVENTORY WAS PRODUCED; (V) INVENTORY
CONSISTING OF PACKAGING, SHIPPING MATERIALS OR SUPPLIES; (VI) INVENTORY PRODUCED
IN VIOLATION OF THE FAIR LABOR STANDARDS ACT AND SUBJECT TO THE SO-CALLED "HOT
GOODS" PROVISION CONTAINED IN TITLE 29 U.S.C. SECTION 215(A)(1); (VII)