This excerpt taken from the WEN 8-K filed Mar 12, 2009.
EBITDA” means, with respect to any Person and its Subsidiaries (other than Unrestricted Subsidiaries) for any period,
(a) Consolidated Net Income of such Person for such period, plus
(b) the sum of, in each case to the extent included in the calculation of such Consolidated Net Income as a reduction thereof but without duplication, the following:
(i) any provision for federal, state, local and foreign income tax, franchise taxes and state single business unitary and similar taxes imposed in lieu of income tax;
(i) Interest Expense;
(iii) depreciation and amortization expenses;
(iv) cash expenses made during such period in connection with any RTM Acquisition or Permitted Acquisition for which such Person or its Consolidated Subsidiaries (other than Unrestricted Subsidiaries) have been reimbursed during such period by third parties that are not Affiliates of such Person or any of its Consolidated Subsidiaries;
(v) fees (including underwriting fees) and expenses paid by such Person or its Consolidated Subsidiaries (other than Unrestricted Subsidiaries) during such period in connection with the consummation of the Transactions, including without limitation one time cash costs and expenses incurred in connection with any RTM Acquisition during such period (including without limitation costs and expenses relating to severance, relocation and consulting services);
(vi) all other non-cash charges and non-cash losses for such period, including the amount of any compensation deduction as the result of any grant of Stock or Stock Equivalents to employees, officers, directors or consultants (excluding any non-cash charge that results in an accrual of a reserve for cash charges in any future period);
(vii) any portion of the Management Fee paid by or on behalf of, or accrued by, such Person or any of its Consolidated Subsidiaries (other than Unrestricted Subsidiaries) during such period;
(viii) synergies in connection with the RTM Acquisitions in the amounts of $2,340,000, $1,570,000 and $355,000 for the Fiscal Quarters ending October 2, 2005, January 1, 2006, and April 2, 2006, respectively;
(ix) fees, expenses and charges paid or incurred in connection with the consummation of the Triarc Acquisition, the Wendy’s Credit Agreement and the closing of this Agreement in respect of Fiscal Year 2008 and Fiscal Year 2009 but only up to an aggregate amount equal to $94,800,000; and
(x) non-recurring integration costs of $16,200,000 in respect of Fiscal Year 2009 and $5,000,000 in respect of Fiscal Year 2010 incurred in connection with, or resulting from, the consummation of the Triarc Acquisition (including, without limitation, corporate integration costs, severance, relocation and recruiting costs, IT integration costs, and staffing reduction, travel and other costs); and minus
(c) the sum of, in each case to the extent included in the calculation of such Consolidated Net Income as an increase thereto but without duplication, each of the following:
(i) any credit for income tax;
(ii) Consolidated net gains of such Person and its Subsidiaries (other than Unrestricted Subsidiaries) under Interest Rate Contracts for such period;
(iii) any Consolidated interest income of such Person and its Subsidiaries (other than Unrestricted Subsidiaries) for such period;
(iv) any aggregate net gain in such period (but not any aggregate net loss) from the sale, exchange or other disposition of capital assets by such Person or any of its Consolidated Subsidiaries (other than Unrestricted Subsidiaries) (other than dispositions of inventory in the ordinary course of business);
(v) any cash refund of any payment in such period of any item described in clause (b) above which payment or item was added to Consolidated Net Income in the calculation of EBITDA by reason of such clause either in such period or in any prior period; and
(vi) any other non-cash gains or other items that have been added in determining Consolidated Net Income of such Person for such period, including any reversal of a charge referred to in clause (b)(vi) above by reason of a decrease in the value of any Stock or Stock Equivalent.
Notwithstanding anything in the foregoing to the contrary, it is agreed that EBITDA of Arby’s Opco Borrower for the Fiscal Quarters ending January 2, 2005, April 3, 2005, and July 3, 2005, is $45,176,000, $42,925,000 and $49,803,000, respectively.