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This excerpt taken from the WEN 8-K filed Dec 21, 2007.
CONDITIONS PRECEDENT TO THE OBLIGATION OF The obligation of the Company to enter into and complete the Closing is subject to the fulfillment on or prior to the Closing Date of the following conditions, any one or more of which may be waived by the Company: 8.1 Intentionally Omitted. 8.2 Intentionally Omitted. 8.3 No Orders. No Order enjoining or prohibiting the Company, the Buyer or Buyer Sub from consummating the transactions contemplated by this Agreement shall have been entered, and no action, suit, proceeding or investigation shall have been initiated or threatened by any Governmental Authority at any time prior to the Closing seeking to restrain or prohibit, or seeking damages or other relief in connection with, the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. 8.4 Accuracy of Representations and Warranties. The representations and warranties of the Buyer and Buyer Sub contained in this Agreement (as such representations and warranties would read if all limitations or qualifications therein as to materiality or Buyer Material Adverse Effect (or similar concept) were deleted therefrom) shall be true and correct on and as of the Closing Date as though made on and as of that date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), except for any failures to be true and 67 correct which would not, individually or in the aggregate, materially prevent, impair or delay the ability of the Buyer or Buyer Sub to consummate the transactions contemplated hereby. 8.5 Performance of Covenants and Agreements. The Buyer and Buyer Sub each shall have performed and complied in all material respects with all covenants and agreements contained in this Agreement required to be performed or complied with by it on or prior to the Closing. 8.6 Certificate. The Buyer shall have furnished the Company with a certificate (in form and substance reasonably satisfactory to the Company) signed by an authorized officer of the Buyer to the effect that the conditions set forth in Sections 8.4 and 8.5 have been satisfied. 8.7 No Buyer Material Adverse Effect. Since the date of this Agreement, neither the Buyer nor any of its Subsidiaries has suffered any event, change, occurrence or circumstance in the financial condition, business, results of operations, properties or assets of the Buyer or any of its Subsidiaries that, individually or in the aggregate with any such events, changes, occurrences or circumstances, has had or would reasonably be determined to have a Buyer Material Adverse Effect. 8.8 Registration Rights Agreement. The Buyer shall have executed and delivered the Registration Rights Agreement in a form set forth in Annex B of this Agreement. 8.9 REIT Qualification Opinion. The Buyer shall have furnished the Company with an opinion of Hunton & Williams LLP, dated as of the Closing Date, to the effect that (a) commencing with its taxable year ended December 31, 2004, and for each taxable year ended through December 31, 2006, the Buyer has been organized and operated in conformity with the requirements for qualification and taxation as a REIT and (b) the Buyer’s organization and current and proposed method of operation (including the consummation of the transactions contemplated hereby and after the consummation thereof) will enable it to continue to meet the requirements for qualification and taxation as a REIT for its taxable year ending December 31, 2007 and in the future. 8.10 Modification of Existing Restrictions on Transfer and Ownership of Shares. The Buyer shall have taken all actions necessary or desirable to exempt, pursuant to the Buyer’s Charter, the Members that held issued and outstanding Membership Interests as of immediately prior to the Effective Time, their respective Affiliates and the successive transferees of any of the foregoing from the “Stock Ownership Limit” contained in the Buyer’s Charter to the extent necessary to allow such Members, their respective Affiliates and the successive transferees of any of the foregoing to own the Buyer Preferred Stock, Buyer Common Stock and/or options with respect thereto (i) issued to such Members under this Agreement, including pursuant to the Conversion, and distributed to such Members pursuant to Section 6.21 (ii) owned (or deemed owned pursuant to the Buyer’s Charter) by such Members immediately prior to the Effective Time, (iii) issued by the Buyer to any of such Members, their respective 68 Affiliates and the successive transferees of any of the foregoing pursuant to options outstanding immediately prior to the Effective Time or (iv) otherwise issued by the Buyer or any of its Affiliates to any director, officer or employee of the Buyer or any of its Affiliates. 8.11 Name Change |
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