(BUT EXCLUDING ANY NON-CASH CHARGE IN RESPECT OF AN ITEM THAT WAS INCLUDED IN
NET INCOME IN A PRIOR PERIOD), AND (VI) ANY LOSSES, COSTS AND EXPENSES,
INCLUDING WITHOUT LIMITATION ATTORNEY'S FEES, INCURRED BY THE BORROWER IN
CONNECTION WITH THE FRAUD (PROVIDED, HOWEVER, THAT FOR ALL FISCAL YEARS
COMMENCING ON OR AFTER JULY 1, 2011, THE AMOUNT OF SUCH COSTS AND EXPENSES
INCURRED BY THE BORROWER IN CONNECTION WITH THE FRAUD INCLUDED IN THE
CALCULATION OF EBITDA SHALL NOT EXCEED $250,000) MINUS (B) WITHOUT DUPLICATION
AND TO THE EXTENT INCLUDED IN NET INCOME, (I) ANY CASH PAYMENTS MADE DURING SUCH
PERIOD IN RESPECT OF NON-CASH CHARGES DESCRIBED IN CLAUSE (A)(V) TAKEN IN A
PRIOR PERIOD, (II) ANY EXTRAORDINARY GAINS AND ANY NON-CASH ITEMS OF INCOME FOR
SUCH PERIOD, ALL CALCULATED FOR BORROWER AND ITS SUBSIDIARIES ON A CONSOLIDATED
BASIS IN ACCORDANCE WITH GAAP, AND (III) ANY AMOUNTS RECOVERED BY THE BORROWER
IN CONNECTION WITH THE FRAUD.
"EFFECTIVE DATE" MEANS THE DATE ON WHICH THE CONDITIONS SPECIFIED IN
SECTION 4.01 ARE SATISFIED (OR WAIVED IN ACCORDANCE WITH SECTION 8.02).
"ELIGIBLE ACCOUNTS" MEANS, AT ANY TIME, THE ACCOUNTS OF BORROWER WHICH LENDER
DETERMINES IN ITS PERMITTED DISCRETION ARE ELIGIBLE AS THE BASIS FOR THE
EXTENSION OF REVOLVING LOANS AND THE ISSUANCE OF LETTERS OF CREDIT HEREUNDER.
WITHOUT LIMITING LENDER'S DISCRETION PROVIDED HEREIN, ELIGIBLE ACCOUNTS SHALL
NOT INCLUDE ANY ACCOUNT:
5
(A)
WHICH IS NOT SUBJECT TO A FIRST PRIORITY
PERFECTED SECURITY INTEREST IN FAVOR OF LENDER;
(B)
WHICH IS SUBJECT TO ANY LIEN OTHER THAN
(I) A LIEN IN FAVOR OF LENDER AND (II) A PERMITTED ENCUMBRANCE WHICH DOES NOT
HAVE PRIORITY OVER THE LIEN IN FAVOR OF LENDER (EXCEPT WITH RESPECT TO INCHOATE
TAX LIENS FOR TAXES WHICH ARE NOT YET DUE);
(C)
WITH IS UNPAID MORE THAN 120 DAYS AFTER THE
DATE OF THE ORIGINAL INVOICE THEREFOR OR MORE THAN 60 DAYS AFTER THE ORIGINAL
DUE DATE, OR WHICH HAS BEEN WRITTEN OFF THE BOOKS OF BORROWER OR OTHERWISE
DESIGNATED AS UNCOLLECTIBLE;
(D)
WHICH IS OWING BY AN ACCOUNT DEBTOR FOR
WHICH MORE THAN 25% OF THE ACCOUNTS OWING FROM SUCH ACCOUNT DEBTOR AND ITS
AFFILIATES ARE INELIGIBLE, UNLESS SUCH ACCOUNTS ARE BACKED BY A LETTER OF CREDIT
OR OTHER CREDIT SUPPORT ACCEPTABLE TO THE LENDER IN ITS SOLE DISCRETION;
(E)
[INTENTIONALLY DELETED]
(F)
WHICH (I) DOES NOT ARISE FROM THE SALE OF
GOODS OR PERFORMANCE OF SERVICES IN THE ORDINARY COURSE OF BUSINESS, (II) IS NOT
EVIDENCED BY AN INVOICE OR OTHER DOCUMENTATION SATISFACTORY TO LENDER WHICH HAS
BEEN SENT TO THE ACCOUNT DEBTOR, (III) REPRESENTS A PROGRESS BILLING, (IV) IS
CONTINGENT UPON BORROWER'S COMPLETION OF ANY FURTHER PERFORMANCE, (V) REPRESENTS
A SALE ON A BILL-AND-HOLD, GUARANTEED SALE, SALE-AND-RETURN, SALE ON APPROVAL,
CONSIGNMENT, CASH-ON-DELIVERY OR ANY OTHER REPURCHASE OR RETURN BASIS, OR
(VI) RELATES TO PAYMENTS OF INTEREST;
(G)
FOR WHICH THE GOODS GIVING RISE TO SUCH
ACCOUNT HAVE NOT BEEN SHIPPED TO THE ACCOUNT DEBTOR OR FOR WHICH THE SERVICES
GIVING RISE TO SUCH ACCOUNT HAVE NOT