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This excerpt taken from the WEN 8-K filed Mar 12, 2009. Indebtedness” of any Person means without duplication (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person evidenced by notes, bonds, debentures or similar instruments or that bear interest, (c) all reimbursement and other obligations with respect to letters of credit,
bankers’ acceptances, surety bonds and performance bonds, whether or not matured, (d) all indebtedness for the deferred purchase price of property or services, other than trade payables incurred in the ordinary course of business that are not overdue by more than 90 days, (e) all indebtedness of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (f) all Capital Lease Obligations of such Person, (g) all Guaranty Obligations of such Person, (h) all Disqualified Stock of such Person, (i) all payments that such Person would have to make in the event of an early termination on the date Indebtedness of such Person is being determined in respect of Hedging Contracts of such
Person, (j) all Synthetic Lease Obligations of such Person and (k) all Indebtedness of the type referred to above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and general intangibles) owned by such Person, even though such Person has not assumed and is not otherwise liable for the payment of such Indebtedness;
provided, however, that Indebtedness shall not include accretion or amortization of original issue discount and accretion of interest paid in kind. The value for purposes of this Agreement of any Indebtedness qualifying as such under clause (k) above (regardless of whether such Indebtedness qualifies as such under any other clause hereof) shall be deemed to be equal to the
lesser of (x) the amount of such Indebtedness and (y) the Fair Market Value of the property subject to a Lien securing any of such Indebtedness.
“ This excerpt taken from the WEN 8-K filed Jan 16, 2009. Indebtedness” of
a Person means, at any time, without duplication, such Person’s (i) obligations
for borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person’s business payable on terms customary in the trade), (iii)
obligations with respect to Indebtedness, whether or not assumed, secured by
Liens on Property now or hereafter owned or acquired by such Person, (iv)
obligations which are evidenced by notes, bonds, debentures, acceptances, or
other instruments, (v) Capitalized Lease Obligations, (vi) Contingent
Obligations (whether or not then due and payable by such Person), (vii)
reimbursement obligations under letters of credit, bankers acceptances, surety
bonds and similar instruments, (viii) Off-Balance Sheet Liabilities, (ix) Net
Mark-to-Market Exposure under Rate Management Transactions, (x) Rate Management
Obligations and (xi) any other obligation for borrowed money or other financial
accommodation which in accordance with Agreement Accounting Principles would be
shown as a liability on the consolidated balance sheet of such Person; provided, however, that
obligations under operating leases shall not constitute
“Indebtedness”. Notwithstanding the forgoing, Contingent Obligations
and Off-Balance Sheet Liabilities shall only constitute “Indebtedness” of the
Borrower and its Subsidiaries to the extent such items are reported in the
footnotes of the consolidated financial statements of the
Borrower. For purposes of Section
7.23, Indebtedness of the type specified in clauses (ix) and
(x) of this definition, listed on Schedule
1.1D or any reimbursement obligations under surety bonds referred to in
clause (vii) shall not be deemed to be Indebtedness.
“ This excerpt taken from the WEN 8-K filed Dec 27, 2007. Indebtedness. Incur, or permit any other Subsidiary to Incur,
any Indebtedness on or after the Closing Date, except for the following:
(a) Indebtedness pursuant to (i) any Note Document and (ii) any Series B Note Document, provided that until the occurrence of the Repriority Event (as defined in the Intercreditor Agreement), the aggregate principal amount of the Series B Notes outstanding at any time may not exceed the Maximum First Lien Principal Amount (as defined in the Intercreditor Agreement); (b) (i) Indebtedness Incurred in the ordinary course of business and consistent with guidelines established by the Parent’s board of directors from time to time under any “warehouse” financing or repurchase obligation and (ii) Non-Recourse Indebtedness Incurred in connection with financing of investment positions in Financial Assets; (c) Indebtedness under Hedging Obligations with respect to interest rates or foreign currency exchange rates, in each case entered into in the ordinary course of business for bona fide hedging purposes and not for speculative purposes; (d) Indebtedness outstanding on the Closing Date and listed on Schedule 6.01(d); (e) Indebtedness owing by any Note Party to any other Note Party; (f) any Indebtedness arising from Capital Leases and purchase money Indebtedness; provided that such Indebtedness, in the aggregate, shall not exceed $2,500,000 outstanding at any time (collectively, the “Permitted Financings”); provided, further, that the Parent the Issuer and any Subsidiary can incur purchase money Indebtedness pursuant to this Section 6.01(f) within one hundred-eighty (180) days after the acquisition of the Property acquired therewith; (g) Indebtedness in respect of bid, performance or surety bonds, workers’ compensation claims, self-insurance obligations, bankers acceptances and similar obligations issued for the account of the Parent or any of its Subsidiaries in the ordinary course of business, including guarantees or obligations of the Parent or any of its Subsidiaries with respect to letters of credit supporting such bid, performance or surety bonds, workers’ compensation claims, self-insurance obligations, bankers acceptances or other similar obligations (in each case other than for an obligation for money borrowed); (h) guarantees by any Note Party or Subsidiary in respect of Indebtedness otherwise permitted under this Section 6.01; (i) any Indebtedness; provided that on the date of Incurrence of such Indebtedness and after giving effect thereto (i) no Default or Event of Default shall exist or result therefrom and (ii) the Parent Leverage Ratio shall not be more than 2.50:1:00; 34 (j) Indebtedness not otherwise permitted by the foregoing clauses; provided that the aggregate principal amount of all Indebtedness permitted under this clause (j) shall not exceed $5,000,000 at any time outstanding; (k) unsecured Indebtedness under the Fifth Third Facility, as the same may be amended, restated, supplemented or otherwise modified, refinanced or replaced; provided that any such amendment, restatement, supplement or other modification, refinancing or replacement (pursuant to a waiver or otherwise) shall not increase the aggregate principal amount of the commitment under the Fifth Third Facility as of the date hereof; and (l) any Permitted Refinancing Indebtedness (other than in respect of Indebtedness permitted by Section 6.01(k)).
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