EVIDENCE THAT SUCH AMOUNT WILL IN FACT BE PAID OR
REFUNDED BY THE INDEMNIFYING PARTY OR OTHER OBLIGOR AND ONLY TO THE EXTENT THAT
SUCH AMOUNT IS (A) NOT DENIED BY THE APPLICABLE INDEMNIFYING PARTY OR OBLIGOR IN
WRITING WITHIN 90 DAYS AND (B) IN FACT REIMBURSED WITHIN 180 DAYS OF THE DATE OF
SUCH EVIDENCE (WITH A DEDUCTION FOR ANY AMOUNT SO ADDED BACK TO THE EXTENT NOT
SO REIMBURSED WITHIN SUCH 180 DAYS); PLUS
(XI)
AN AMOUNT EQUAL TO LOSSES ON SEED CAPITAL INVESTMENTS OF UP TO
$15,000,000 IN ANY FOUR-QUARTER PERIOD; PLUS
(XII)
THE AMOUNT OF LOSS ON SALE OF RECEIVABLES TO A RECEIVABLES
SUBSIDIARY IN CONNECTION WITH A RECEIVABLES FACILITY; PLUS
(XIII)
EXTRAORDINARY LOSSES OR UNUSUAL OR NON-RECURRING CHARGES OR
EXPENSES (INCLUDING FINES AND PENALTIES); PLUS
(XIV)
IN THE CASE OF FISCAL YEARS 2007 AND 2008, THE PRO FORMA
ADJUSTMENTS PREVIOUSLY IDENTIFIED AND AGREED TO BY THE ARRANGERS IN AN AGGREGATE
AMOUNT NOT TO EXCEED $10,000,000; AND
(B)
DECREASED BY (WITHOUT DUPLICATION) (I) NON-CASH GAINS INCREASING
CONSOLIDATED NET INCOME OF SUCH PERSON FOR SUCH PERIOD, EXCLUDING ANY NON-CASH
GAINS TO THE EXTENT THEY REPRESENT THE REVERSAL OF AN ACCRUAL OR RESERVE FOR A
POTENTIAL CASH ITEM THAT REDUCED EBITDA IN ANY PRIOR PERIOD, (II) THE MINORITY
INTEREST INCOME CONSISTING OF SUBSIDIARY LOSSES ATTRIBUTABLE TO MINORITY EQUITY
INTERESTS OF THIRD PARTIES IN ANY NON-WHOLLY OWNED SUBSIDIARY TO THE EXTENT SUCH
MINORITY INTEREST INCOME IS INCLUDED IN CONSOLIDATED NET INCOME AND (III) AN
AMOUNT EQUAL TO GAINS ON SEED CAPITAL INVESTMENTS IN EXCESS OF $15,000,000 IN
ANY FOUR-QUARTER PERIOD; AND
(C)
INCREASED OR DECREASED BY (WITHOUT DUPLICATION):
(I)
ANY NET GAIN OR LOSS RESULTING IN SUCH PERIOD FROM HEDGING
OBLIGATIONS AND THE APPLICATION OF STATEMENT OF FINANCIAL ACCOUNTING STANDARDS
NO. 133 AND INTERNATIONAL
17
ACCOUNTING STANDARDS NO. 39 AND THEIR RESPECTIVE RELATED PRONOUNCEMENTS AND
INTERPRETATIONS, PLUS OR MINUS, AS APPLICABLE; AND
(II)
ANY NET GAIN OR LOSS INCLUDED IN CALCULATING CONSOLIDATED NET
INCOME RESULTING IN SUCH PERIOD FROM CURRENCY TRANSLATION GAINS OR LOSSES
RELATED TO CURRENCY REMEASUREMENTS OF INDEBTEDNESS (INCLUDING ANY NET LOSS OR
GAIN RESULTING FROM HEDGE AGREEMENTS FOR CURRENCY EXCHANGE RISK).
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization and non-cash charges of, a
Restricted Subsidiary (other than a Guarantor) shall be added to Consolidated
Net Income to compute EBITDA only to the extent (and in the same proportion,
including by reason of minority interests) that the net income or loss of such
Restricted Subsidiary was included in calculating Consolidated Net Income and
only if a corresponding amount would be permitted at the date of determination
to be dividended to the Borrower by such Restricted Subsidiary without any prior
governmental approval (which has not been obtained) or would not be restricted
from being so dividended, directly or indirectly, by the operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule, or governmental regulation applicable to that Restricted Subsidiary