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This excerpt taken from the WEN 8-K filed Mar 12, 2009. “Immaterial Subsidiaries” means each Subsidiary of WII Co-Borrower (that is not and has never been a Borrower or a Subsidiary of Holdco Co-Borrower) now existing or hereafter acquired or formed and each successor thereto that (a) for the most recent fiscal 9-month period of WII Co-Borrower before the Restatement Effective Date or thereafter for
the most recent fiscal year of WII Co-Borrower accounted for less than 5% (excluding any intercompany adjustments) of the consolidated revenues of the WII Co-Borrower or (b) as at the end of such fiscal 9-month period or such fiscal year, as the case may be, was the owner of less than 5% (excluding any intercompany adjustments) of the consolidated assets of WII Co-Borrower as shown on the consolidated financial statements of WII Co-Borrower and its consolidated Subsidiaries for such
fiscal 9-month period or for such fiscal year, as the case may be; provided that, notwithstanding the forgoing, none of Scioto Insurance Company, Wendy’s of Denver, Inc., Oldemark LLC or The New Bakery Co of Ohio, Inc. shall be deemed an “Immaterial Subsidiary” and BDJ 7112, LLC shall not be an Immaterial Subsidiary unless designated as an Immaterial Subsidiary by WII Co-Borrower in accordance with this definition;
provided, further that if at any time the aggregate amount of either consolidated revenues or consolidated assets (in each case, excluding any intercompany adjustments) of all Immaterial Subsidiaries account for more than 12.5% of the consolidated revenues or consolidated assets (in each case, excluding any intercompany adjustments), respectively, of WII Co-Borrower for or as at the
end of the most re-
cent fiscal 9-month period of WII Co-Borrower before the Restatement Effective Date or thereafter for or as at the end of the most recent fiscal year of WII Co-Borrower, then WII Co-Borrower shall designate one or more entities that would otherwise be deemed to be an Immaterial Subsidiary pursuant to this definition to be excluded from the definition of “Immaterial Subsidiary” such that, after giving effect to such designation, the aggregate amount of consolidated revenues and consolidated assets (in each case, excluding any intercompany adjustments) of all Immaterial Subsidiaries do not account for more than 12.5% of the consolidated revenues or consolidated assets (in each case, excluding any intercompany adjustments), respectively, of WII Co-Borrower for and as at the end of the applicable period. “ |
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