provided that there
shall be excluded from the calculation of Consolidated Net Income for any period
(without duplication):
(I)
ALL EXTRAORDINARY OR NONRECURRING GAINS (OR EXTRAORDINARY LOSSES
OR NONRECURRING, NON-CASH LOSSES), TOGETHER WITH ANY RELATED PROVISION FOR TAXES
ON ANY SUCH EXTRAORDINARY OR NONRECURRING GAIN (AND THE TAX EFFECT OF ANY SUCH
EXTRAORDINARY LOSS OR NONRECURRING, NON-CASH LOSS), REALIZED BY THE COMPANY OR
ANY OF ITS CONSOLIDATED SUBSIDIARIES DURING SUCH PERIOD;
3
(II)
THE INCOME (OR LOSS) OF ANY PERSON IN WHICH ANY OTHER PERSON
(OTHER THAN THE COMPANY OR ANY OF ITS WHOLLY-OWNED CONSOLIDATED SUBSIDIARIES)
HAS AN OWNERSHIP INTEREST AND WHICH IS NOT A CONSOLIDATED SUBSIDIARY OF THE
COMPANY, EXCEPT TO THE EXTENT THAT ANY SUCH INCOME IS ACTUALLY DISTRIBUTED IN
CASH TO THE COMPANY OR SUCH WHOLLY-OWNED CONSOLIDATED SUBSIDIARY DURING SUCH
PERIOD;
(III)
THE INCOME OF ANY SUBSIDIARY OF THE COMPANY (OTHER THAN A LOAN
PARTY) TO THE EXTENT THAT THE DECLARATION OR PAYMENT OF RESTRICTED PAYMENTS OR
SIMILAR DISTRIBUTIONS BY THAT SUBSIDIARY OF THAT INCOME IS NOT AT THE TIME
PERMITTED BY OPERATION OF THE TERMS OF ITS CHARTER OR ANY AGREEMENT, INSTRUMENT,
JUDGMENT, DECREE, ORDER, STATUTE, RULE OR GOVERNMENTAL REGULATION APPLICABLE TO
THAT SUBSIDIARY;
(IV)
ANY NON-CASH INCOME OR NON-CASH LOSS FOR SUCH PERIOD ATTRIBUTABLE
TO THE APPLICATION OF THE PURCHASE METHOD OF ACCOUNTING IN ACCORDANCE WITH GAAP;
(V)
ANY GAIN OR LOSS REALIZED DURING SUCH PERIOD UPON THE TERMINATION
OF ANY EMPLOYEE PENSION BENEFIT PLAN, TOGETHER WITH ANY RELATED PROVISION FOR
TAXES ON ANY SUCH TERMINATION (OR THE TAX EFFECT OF ANY SUCH TERMINATION);
(VI)
ANY GAIN OR LOSS REALIZED DURING SUCH PERIOD IN RESPECT OF ASSET
DISPOSITIONS OTHER THAN IN THE ORDINARY COURSE OF BUSINESS (INCLUDING, WITHOUT
LIMITATION, ASSET DISPOSITIONS PURSUANT TO SALE/LEASEBACK TRANSACTIONS),
TOGETHER WITH ANY RELATED PROVISION FOR TAXES ON ANY SUCH ASSET DISPOSITION (OR
THE TAX EFFECT OF ANY SUCH ASSET DISPOSITION);
(VII)
ANY INCOME FOR SUCH PERIOD ARISING AS A RESULT OF THE RESTORATION
OF ANY CONTINGENCY RESERVE, EXCEPT TO THE EXTENT THE ORIGINAL PROVISION FOR SUCH
RESERVE WAS MADE AFTER THE CLOSING DATE;
(VIII)
ANY GAIN OR LOSS ARISING FROM THE ACQUISITION OF ANY SECURITIES
DURING SUCH PERIOD OR THE EXTINGUISHMENT, UNDER GAAP, DURING SUCH PERIOD OF ANY
INDEBTEDNESS OF THE COMPANY OR ITS CONSOLIDATED SUBSIDIARIES;
(IX)
ANY FINANCIAL ADVISORY FEES, ACCOUNTING FEES, LEGAL FEES AND
OTHER SIMILAR ADVISORY AND CONSULTING FEES AND RELATED OUT-OF-POCKET EXPENSES
INCURRED DURING SUCH PERIOD AS A RESULT OF THE TRANSACTION;
(X)
ALL DEFERRED FINANCING COSTS AMORTIZED OR WRITTEN OFF, AND
PREMIUMS AND PREPAYMENT PENALTIES PAID, IN EACH CASE DURING SUCH PERIOD IN
CONNECTION WITH (A) THE TRANSACTION OR (B) THE REFINANCING OF ANY EQUITY
INTERESTS (OTHER THAN DEBT EQUIVALENTS);
(XI)
ANY CHARGES DURING SUCH PERIOD RESULTING FROM THE APPLICATION OF
STATEMENT OF FINANCIAL ACCOUNTING STANDARDS NO. 142, "GOODWILL AND OTHER
INTANGIBLE ASSETS" OR NO. 144, "ACCOUNTING FOR THE IMPAIRMENT OR DISPOSAL OF
LONG-LIVED ASSETS";
(XII)
UNREALIZED GAINS AND LOSSES ASSOCIATED WITH SWAP AGREEMENTS;
(XIII)
NON-CASH COMPENSATION CHARGES OR OTHER NON-CASH EXPENSES OR