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This excerpt taken from the WEN 8-K filed Mar 12, 2009. Fair Market Value” means (a) with respect to any asset or group of assets (other than cash, Cash Equivalents and marketable Securities) of any Loan Party at any date that is the object of a transaction or series of transactions, the value of the consideration obtainable in a sale of such asset at such date or on the
date of such transaction or series of transactions assuming a sale by a willing seller to a willing purchaser, neither of which is under pressure or compulsion to complete the transaction and both of which are dealing at arm’s length, having regard to the nature and characteristics of such asset, as reasonably determined by the Board of Directors of such Loan Party (unless such consideration is equal to or less than $10,000,000, as determined by a Responsible Officer of such
Loan Party) or, if such asset shall have been the subject of a relatively contemporaneous appraisal by an independent third party appraiser, the basic assumptions underlying which have not materially changed since its date, the value set forth in such appraisal, (b) with respect to any marketable Security (including Cash Equivalents that constitute marketable Securities) at any date, the closing sale price of such Security on the Business Day next preceding such date, as
appearing in any published list of any national securities exchange or the NASDAQ Stock Market or, if there is no such closing sale price of such Security, the final price for the purchase of such Security at face value quoted on such Business Day by a financial institution of recognized standing regularly dealing in Securities of such type and reasonably se-
lected by the Administrative Agent and (c) with respect to cash or Cash Equivalents not constituting marketable Securities, the stated value thereof. “ |
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