DETERMINATION OF CONSOLIDATED NET
INCOME, PLUS
(D)
DEPRECIATION, DEPLETION AND AMORTIZATION EXPENSE DEDUCTED IN THE
DETERMINATION OF CONSOLIDATED NET INCOME, PLUS
(E)
ANY OTHER NON-CASH CHARGES AND ANY EXTRAORDINARY CHARGES DEDUCTED
IN THE DETERMINATION OF CONSOLIDATED NET INCOME, INCLUDING ANY ASSET IMPAIRMENT
CHARGES AND WRITE DOWNS OF GOODWILL (PROVIDED, HOWEVER, EXCEPT FOR NON-CASH
CHARGES ARISING IN FISCAL YEAR 2008 AND 2009 RELATING TO ROCKY MOUNTAIN AND
OTHER NON-CASH CHARGES UP TO $1,000,000 IN ANY TWELVE MONTH PERIOD
(COLLECTIVELY, THE "PERMITTED NON-CASH CHARGES"), ALL NON-CASH CHARGES (OTHER
THAN THE PERMITTED NON-CASH CHARGES) ARISING AFTER THE DATE HEREOF SHALL BE
REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT), MINUS
(F)
ANY GAINS FROM ASSET DISPOSITIONS, ANY EXTRAORDINARY GAINS AND
ANY GAINS FROM DISCONTINUED OPERATIONS INCLUDED IN THE DETERMINATION OF
CONSOLIDATED NET INCOME.
Eligible Account shall mean an Account owing to any Loan Party which meets each
of the following requirements:
7
(A)
IT ARISES FROM THE SALE OR LEASE OF GOODS OR THE RENDERING OF
SERVICES WHICH HAVE BEEN FULLY PERFORMED BY SUCH LOAN PARTY; AND IF IT ARISES
FROM THE SALE OR LEASE OF GOODS, (I) SUCH GOODS COMPLY WITH SUCH ACCOUNT
DEBTOR'S SPECIFICATIONS (IF ANY) AND HAVE BEEN DELIVERED TO SUCH ACCOUNT DEBTOR
AND (II) THE APPLICABLE LOAN PARTY HAS POSSESSION OF, OR IF REQUESTED BY THE
ADMINISTRATIVE AGENT, HAS DELIVERED TO ADMINISTRATIVE AGENT, DELIVERY RECEIPTS
EVIDENCING SUCH DELIVERY;
(B)
IT (X) IS SUBJECT TO A PERFECTED, FIRST-PRIORITY LIEN IN FAVOR OF
THE ADMINISTRATIVE AGENT FOR THE BENEFIT OF THE LENDERS, AND (Y) IS NOT SUBJECT
TO ANY OTHER ASSIGNMENT, CLAIM OR LIEN, IN EACH CASE, OTHER THAN PERMITTED
LIENS;
(C)
IT IS A VALID, LEGALLY ENFORCEABLE AND UNCONDITIONAL OBLIGATION OF
THE ACCOUNT DEBTOR WITH RESPECT THERETO, AND IS NOT SUBJECT TO THE FULFILLMENT
OF ANY CONDITION WHATSOEVER OR ANY COUNTERCLAIM, CREDIT, ALLOWANCE, DISCOUNT,
REBATE OR ADJUSTMENT BY THE ACCOUNT DEBTOR WITH RESPECT THERETO, OR TO ANY CLAIM
BY SUCH ACCOUNT DEBTOR DENYING LIABILITY THEREUNDER IN WHOLE OR IN PART AND THE
ACCOUNT DEBTOR HAS NOT REFUSED TO ACCEPT AND/OR HAS NOT RETURNED OR OFFERED TO
RETURN ANY OF THE GOODS OR SERVICES WHICH ARE THE SUBJECT OF SUCH ACCOUNT;
(D)
THERE IS NO BANKRUPTCY, INSOLVENCY OR LIQUIDATION PROCEEDING
PENDING BY OR AGAINST THE ACCOUNT DEBTOR WITH RESPECT THERETO;
(E)
THE ACCOUNT DEBTOR WITH RESPECT THERETO IS A RESIDENT OR CITIZEN
OF, AND IS LOCATED WITHIN, THE UNITED STATES, UNLESS THE SALE OF GOODS OR
SERVICES GIVING RISE TO SUCH ACCOUNT IS ON LETTER OF CREDIT, BANKER'S
ACCEPTANCE, OTHER CREDIT SUPPORT TERMS REASONABLY SATISFACTORY TO THE
ADMINISTRATIVE AGENT, OR, IN THE CASE OF FOREIGN ACCOUNTS OWED TO WILLIAMS
FURNACE OR PHOENIX MANUFACTURING, ANY SUCH ACCOUNT COVERED BY FOREIGN ACCOUNT
RECEIVABLE INSURANCE IN AT LEAST THE AMOUNT OF SUCH ACCOUNT (IN THE CASE OF EACH
SUCH FOREIGN ACCOUNT, THE AMOUNT OF SUCH ACCOUNT FOR PURPOSES OF THE BORROWING
BASE CALCULATION SHALL BE EQUAL TO NINETY-FIVE PERCENT (95%) OF THE ORIGINAL
AMOUNT OF SUCH ACCOUNT MINUS $25,000 REPRESENTING THE APPLICABLE DEDUCTIBLE);
(F)
IT