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These excerpts taken from the WEN 10-K filed Mar 13, 2009. GOVERNING
LAW: This Agreement
shall be construed and enforced in accordance with and governed by the laws of
the State of Delaware, without giving effect to its conflict of laws
principles.
15. GOVERNING LAW: This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Delaware, without giving effect to its conflict of laws principles. 15. This excerpt taken from the WEN 8-K filed Jan 16, 2009. GOVERNING
LAW
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction;
Waivers
Each
Grantor hereby irrevocably and unconditionally:
(a) submits
for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof;
(b) consents
that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to such Grantor at its address referred
to in Section 8.2 or at such other address of which the Collateral Agent shall
have been notified pursuant thereto;
(d) agrees
that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other
jurisdiction; and
(e) waives,
to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages.
8.13 Acknowledgements
Each
Grantor hereby acknowledges that:
(a) it
has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents to which it is a party;
(b) neither
the Collateral Agent nor any Secured Party has any fiduciary relationship with
or duty to any Grantor arising out of or in connection with this Agreement or
any of the other Loan Documents, and the relationship between the Grantors, on
the one hand, and the Collateral Agent and Secured
Parties, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and
(c) no
joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Secured
Parties or among the Grantors and the Secured Parties.
8.14 Additional
Grantors
Each
Subsidiary of the Borrower that is required to become a party to this Agreement
pursuant to Section 7.10 of the Credit Agreement shall become a Grantor for all
purposes of this Agreement upon execution and delivery by such Subsidiary of an
Assumption Agreement in the form of Annex II hereto.
8.15 Releases
(a) At
such time as the Loans, the Reimbursement Obligations and the other Obligations
(other than contingent obligations or Obligations in respect of Specified Swap
Agreements) shall have been paid in full, the Commitments have been terminated
and no Letters of Credit shall be outstanding (unless cash collateralized on
terms reasonably acceptable to the Agent), the Collateral shall be released from
the Liens created hereby, and this Agreement and all obligations (other than
those expressly stated to survive such termination) of the Collateral Agent and
each Grantor hereunder shall terminate, all without delivery of any instrument
or performance of any act by any party, and all rights to the Collateral shall
revert to the Grantors. At the request and sole expense of any
Grantor following any such termination, the Collateral Agent shall deliver to
such Grantor any Collateral held by the Collateral Agent hereunder, and execute
and deliver to such Grantor such documents as such Grantor shall reasonably
request to evidence such termination.
(b) If
any of the Collateral shall be sold, financed, transferred or otherwise disposed
of by any Grantor in a transaction permitted by the Credit Agreement, then the
Collateral Agent, at the request and sole expense of such Grantor, shall execute
and deliver to such Grantor all releases or other documents reasonably necessary
or desirable for the release of the Liens created hereby on such
Collateral. At the request and sole expense of the Borrower, a
Subsidiary Guarantor shall be released from its obligations hereunder in the
event that all the Capital Stock of such Subsidiary Guarantor shall be sold,
transferred or otherwise disposed of in a transaction permitted by the Credit
Agreement; provided that the
Borrower shall have delivered to the Agent, at least five Business Days prior to
the date of the proposed release, a written request for release identifying the
relevant Subsidiary Guarantor and the terms of the sale or other disposition in
reasonable detail, together with a certification by the Borrower stating that
such transaction is in compliance with the Credit Agreement and the other Loan
Documents.
8.16 Limitations on Restricted
Entities
Notwithstanding
anything herein or in any other Loan Document to the contrary, it is hereby
acknowledged and agreed that (a) the perfection and priority of the security
interests granted by the Restricted Entities, (b) the delivery of any Collateral
by the Restricted Entities to the Collateral Agent and (c) if it would result in
an impairment of surplus of the Restricted Entities to the extent that the
surplus is less than the amount prescribed by the Vermont Commissioner pursuant
to Section 6004(b) of
Title 8
of the Vermont Statutes Annotated, the enforcement of rights and remedies of the
Secured Parties are, in each case, subject to the prior consent of the Vermont
Commissioner.
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