|
|
 | | | |
- close
- close
- close
- close
| |||||||||
This excerpt taken from the WEN 8-K filed Jan 16, 2009. Property”),
and (ii) either (x) the Agent determines or becomes aware that the applicable
restaurant building is not located on the land that is covered by the Collateral
Agent’s title insurance policy issued with respect to such Non-Survey Property,
or (y) (A) a third party makes a title claim with respect to such
Non-Survey Property
and (B) as a result thereof the applicable Group Member is no longer able to
operate the restaurant located on such Non-Survey Property,
and
(C) the existence and potential adverse affect of such title claim would have
been disclosed by a Survey of such Non-Survey Property,
then, the Agent may, in its sole discretion, request that the Borrower grant, or
cause any of its Restricted Subsidiaries to grant, a Lien on additional
restaurant sites which are fee-owned and operated by the Borrower or any
Restricted Subsidiary such that (aa) after giving effect thereto (excluding
the Trailing 12-month Cash Flow of such
Non-Survey
Property), the Collateral Coverage Ratio equals or exceeds 20% and (bb) the
Trailing 12-month Cash Flow of the restaurant sites upon which a perfected Lien
of first-priority has been granted pursuant to this paragraph is no less than
the Trailing 12-month Cash Flow of the Non-Survey
Property. The Agent and the Borrower shall within 30 days mutually
agree upon the designation of such additional restaurant sites which are
fee-owned and operated by the Borrower or any of its Restricted Subsidiaries and
on which a Lien shall be granted. If such an agreement cannot be
reached within this period, the Agent shall, in its sole discretion, designate
such additional restaurant sites which are fee-owned and operated by the
Borrower or any of its Restricted Subsidiaries (excluding restaurant sites which
are put up for sale by the Borrower in good faith). In designating
such additional restaurant sites which are fee-owned and operated by the
Borrower or any of its Restricted Subsidiaries, the Agent shall use reasonable
efforts to minimize the Borrower’s and its Restricted Subsidiaries’
out-of-pocket costs, including (without
limitation) mortgage
recording taxes and title insurance premiums. Upon any such
designation, the applicable Group Members owning such restaurant sites shall
promptly, but not later than 90 days (or within such longer period as agreed
thereto by the Agent, in its sole discretion, but in any event no later than
within 150 days) thereafter, (i) execute and deliver a first priority
Mortgage, in favor of the Collateral Agent, for the benefit of the
Secured Parties,
covering such real properties, (ii) if requested by the Collateral Agent,
provide the Secured Parties with (x) title and extended coverage insurance
covering such real properties in an amount at least equal to 110% of the Real
Estate Fair Value of such real property (or such other amount as shall be
reasonably specified by the Collateral Agent) together
with such title endorsements as may be reasonably requested by the Collateral
Agent, provided, however, that for any jurisdiction wherein a zoning endorsement
is unavailable or the cost of the issuance of the zoning endorsement for such
real property is calculated as a percentage of the premium for the applicable
title insurance policy, in lieu of such zoning endorsement, the applicable Group
Member shall deliver a zoning compliance report or a letter from the applicable
municipality which demonstrates that the current use of such real property is in
compliance with applicable zoning requirements, as well as (A) a Survey
certified to the Collateral Agent and the Title Insurance Company in a manner
satisfactory to them, dated a date reasonably satisfactory to the Collateral
Agent and the Title Insurance Company by an independent professional licensed
land surveyor reasonably satisfactory to the Collateral Agent and the Title
Insurance Company, or (B) in the absence of a Survey, the title and extended
coverage insurance shall not contain a general survey exception and shall
contain, to the extent available in the particular jurisdiction and applicable
to the particular property, a survey endorsement, an access endorsement, a
contiguity endorsement and a comprehensive endorsement, and (y) any consents or
estoppels reasonably deemed necessary or advisable by
the Collateral Agent in connection with such Mortgage, each of the foregoing in
form and substance reasonably satisfactory to the Collateral Agent and (iii) if
requested by the Collateral Agent, deliver to the Collateral Agent legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the Collateral
Agent. If the conditions listed in this Section are met, the
Agent shall instruct the Collateral Agent to release the Lien on such fee-owned
restaurant sites which are being
replaced.
7.10.4 With
respect to any new Material Subsidiary that is a Domestic Subsidiary created or
acquired after the Closing Date by any Group Member (which, for the purposes of
this paragraph, shall include (x) any existing Material Subsidiary that ceases
to be a Foreign Subsidiary and (y) any Immaterial Subsidiary that is designated
as Subsidiary Guarantor), promptly (i) execute and deliver to the Collateral
Agent such amendments to the Guarantee and Collateral Agreement necessary or
advisable to grant to the Collateral Agent, for the benefit of the Secured
Parties, a perfected first priority security interest in the Capital Stock of
such new Subsidiary that is owned by any Group Member, (ii) deliver to the
Collateral Agent the certificates representing such Capital Stock, together with
undated stock powers, in blank, executed and delivered by a duly authorized
officer of the relevant Group Member, (iii) cause such new Subsidiary (A) to
become a party to the Guarantee and Collateral Agreement, (B) to take such
actions necessary or advisable to grant to the Collateral Agent, for the benefit
of the Secured Parties, a perfected first priority security interest in the
Collateral described in the Guarantee and Collateral Agreement with respect to
such new Subsidiary, including the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Guarantee and
Collateral Agreement or by law or as may be requested by the Collateral Agent
and (C) to deliver to the Collateral Agent a closing certificate of such
Subsidiary, substantially in the form satisfactory to the Collateral Agent, with
appropriate insertions and attachments, and (iv) if requested by the Collateral
Agent, deliver to the Collateral Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Collateral Agent.
7.11. Designation of
Unrestricted Subsidiaries. At any time after the Closing Date, the
Borrower may, in addition to the Unrestricted Subsidiaries listed on Schedule
1.1F on the Closing Date, designate any Restricted Subsidiary as an
Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted
Subsidiary upon prior written notice to the Agent; provided that
(a) Subsidiaries of the Borrower that are not Material Subsidiaries shall be the
only Subsidiaries eligible to be designated as Unrestricted Subsidiaries on
Schedule
1.1F or pursuant to this Section
7.11, (b) in the case of designation of any Subsidiary as an
Unrestricted Subsidiary, immediately before and after giving effect to such
designation, (i) no Default or Unmatured Default shall have occurred and be
continuing and (ii) the Borrower shall be in compliance with the covenants set
forth in Sections
7.23 and 7.24 (it being understood that as a condition precedent to
the effectiveness of any such designation, the Borrower shall deliver to the
Agent a certificate of an Authorized Officer setting forth in reasonable detail
the calculations demonstrating such compliance), (c) no Subsidiary may be
designated an Unrestricted Subsidiary if it owns any Capital Stock of, or holds
any Indebtedness of, any other Restricted Subsidiary, (d) if a Subsidiary is
being designated as an Unrestricted Subsidiary hereunder, (i) the sum of (A) the
net tangible assets of such Subsidiary as of such date of designation (the
“ |
| |||||||
