that if such
Capital Stock is issued to any employees of the Borrower or any of its
Subsidiaries for compensatory purposes or to plan for the benefit of employees
of the Borrower or its subsidiaries or by any such plan to such employees, such
Capital Stock shall not constitute Disqualified Stock solely because it may be
required to be repurchased in order pursuant to the terms of any such
arrangement.
"Dollars" or "$" shall mean lawful money of the United States of America.
"Domestic Subsidiaries" shall mean, with respect to any Person, any subsidiary
of such Person other than a Foreign Subsidiary.
"EBITDA" shall mean, for any period, the Consolidated Net Income of the Borrower
for such period
(A)
INCREASED (WITHOUT DUPLICATION) BY (TO THE EXTENT THE SAME WAS
DEDUCTED (AND NOT ADDED BACK) IN CALCULATING SUCH CONSOLIDATED NET INCOME):
(I)
PROVISION FOR TAXES BASED ON INCOME OR PROFITS OR CAPITAL (OR ANY
ALTERNATIVE TAX IN LIEU THEREOF), INCLUDING, WITHOUT LIMITATION, FOREIGN, STATE,
FRANCHISE AND SIMILAR TAXES AND FOREIGN WITHHOLDING TAXES OF SUCH PERSON AND
SUCH SUBSIDIARIES PAID OR ACCRUED DURING SUCH PERIOD, INCLUDING PAYMENTS MADE
PURSUANT TO ANY TAX SHARING AGREEMENTS OR ARRANGEMENTS AMONG THE BORROWER, ITS
RESTRICTED SUBSIDIARIES AND ANY DIRECT OR INDIRECT PARENT COMPANY OF THE
BORROWER (SO LONG AS SUCH TAX SHARING PAYMENTS ARE ATTRIBUTABLE TO THE
OPERATIONS OF THE BORROWER AND ITS RESTRICTED SUBSIDIARIES); PLUS
(II)
FIXED CHARGES OF SUCH PERSON FOR SUCH PERIOD; PLUS
(III)
CONSOLIDATED DEPRECIATION AND AMORTIZATION EXPENSE OF SUCH PERSON
FOR SUCH PERIOD; PLUS
(IV)
ANY FEES, COSTS, COMMISSIONS, EXPENSES, ACCRUALS OR OTHER CHARGES
(INCLUDING STOCK AND OTHER EQUITY-BASED COMPENSATION EXPENSES) (OTHER THAN
CONSOLIDATED DEPRECIATION AND AMORTIZATION EXPENSE BUT INCLUDING THE EFFECTS OF
PURCHASE ACCOUNTING
15
ADJUSTMENTS) RELATED TO THE TRANSACTIONS, ANY EQUITY OFFERING, PERMITTED
INVESTMENT, ACQUISITION, DISPOSITION, DIVIDEND OR SIMILAR RESTRICTED PAYMENT,
RECAPITALIZATION OR THE INCURRENCE OR REPAYMENT, AMENDMENT OR MODIFICATION OF
INDEBTEDNESS PERMITTED TO BE INCURRED UNDER THIS AGREEMENT (INCLUDING A
REFINANCING THEREOF) (WHETHER OR NOT SUCCESSFUL), INCLUDING (W) ANY EXPENSING OF
BRIDGE, COMMITMENT OR OTHER FINANCING FEES, (X) SUCH FEES, COSTS, COMMISSIONS,
EXPENSES OR OTHER CHARGES RELATED TO THE OFFERING OF THE NEW SENIOR NOTES AND
THE CREDIT FACILITIES, (Y) ANY SUCH FEES, COSTS (INCLUDING CALL PREMIUM),
COMMISSIONS, EXPENSES OR OTHER CHARGES RELATED TO ANY AMENDMENT OR OTHER
MODIFICATION OF THE EXISTING NOTES, THE NEW SENIOR NOTES AND THE CREDIT
FACILITIES AND (Z) COMMISSIONS, DISCOUNTS, YIELD AND OTHER FEES AND CHARGES
(INCLUDING ANY INTEREST EXPENSE) RELATED TO ANY RECEIVABLES FACILITY; PLUS
(V)
THE AMOUNT OF ANY RESTRUCTURING CHARGE OR RESERVE, INCLUDING
RESTRUCTURING COSTS AND INTEGRATION COSTS INCURRED IN CONNECTION WITH
ACQUISITIONS AFTER THE CLOSING DATE, COSTS RELATED TO THE CLOSURE AND/OR
CONSOLIDATION OF FACILITIES, RETENTION CHARGES, CONTRACT TERMINATION COSTS,
RETENTION, RECRUITING, RELOCATION, SEVERANCE AND SIGNING BONUSES AND EXPENSES,
TRANSACTION FEES AND EXPENSES, FUTURE LEASE COMMITMENTS, SYSTEMS ESTABLISHMENT
COSTS, CONVERSION COSTS AND EXCESS PENSION CHARGES, CONSULTING FEES AND ANY
ONE-TIME EXPENSE RELATING TO ENHANCED ACCOUNTING FUNCTION, OR COSTS ASSOCIATED
WITH BECOMING A STANDALONE ENTITY OR PUBLIC COMPANY INCURRED