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This excerpt taken from the WEN 8-K filed Jan 16, 2009. Survey”) of the
sites of the Mortgaged Properties 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 (ii) in the absence of
a Survey for any Mortgaged Property, the title insurance policy delivered
pursuant to Section
7.12.3 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; provided, that the Borrower shall not be in default
of this Section
7.12.2 if the Borrower fails to satisfy clauses (i) or (ii)
in respect of any one or more Mortgaged Properties, then in such event the
provisions of Section
7.10.3 shall apply with respect to such Mortgaged
Properties.
7.12.3 The
Agent shall have received in respect of each Mortgaged Property a mortgagee’s
title insurance policy (or policies) or marked up unconditional binder for such
insurance, in each case covering such Mortgaged Property in an amount at least
equal to 110% of the Real Estate Fair Value of such Mortgaged Property (or such
other amount as shall be reasonably specified by the Collateral Agent) and
otherwise in form and substance reasonably satisfactory to the Collateral
Agent. Each such
policy shall include such title endorsements
(excluding, with respect to any Mortgaged Property, the title
endorsements referenced in Section
7.12.2(ii) in
the event that Section
7.10.3 is applicable to such Mortgaged Property) as may be
reasonably requested by the Collateral Agent, provided, however, that
(1)
for any
jurisdiction wherein a zoning endorsement is unavailable or the cost of the
issuance of the zoning endorsement for the applicable Mortgaged 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
use
commercially reasonable efforts to deliver a
zoning compliance report or a letter
from the applicable municipality
which
demonstrates that the current use of such Mortgaged Property is in compliance
with applicable zoning requirements, and (2) in no
event shall the Borrower be required to obtain a new Survey in order to procure
the issuance of a zoning endorsement. The
Agent shall have received evidence reasonably satisfactory to it that all
premiums in respect of each such policy, all charges for mortgage recording tax,
and all related expenses, if any, have been
paid.
7.12.4 With
respect to each Mortgaged Property which is located in a “special flood hazard
area” (A) a policy of flood insurance that (1) covers any parcel of improved
real property that is encumbered by any Mortgage (2) is written in an amount not
less than the outstanding principal amount of the Indebtedness secured by such
Mortgage that is reasonably allocable to such real property or the maximum limit
of coverage made available with respect to the particular type of property under
the National Flood Insurance Act of 1968, whichever is less, and (3) has a term
ending not later than the maturity of the Indebtedness secured by such Mortgage
and (B) confirmation that the Borrower has received the notice required pursuant
to Section 208(e)(3) of Regulation H.
7.12.5 The
Agent shall have received a copy of all recorded documents referred to, or
listed as exceptions to title in, the title policy or policies referred to in
Section
7.12.3 and a copy of all other material documents affecting
the Mortgaged Properties.
7.13. Environmental
Laws. Holdings
and the Borrower will, and will cause each Restricted Subsidiary
to:
7.13.1 comply
in all material respects with, and use commercially reasonable efforts to ensure
compliance in all material respects by all tenants and subtenants, if any, with,
all applicable Environmental Laws, and obtain and comply in all material
respects with and maintain, and use commercially reasonable efforts to ensure
that all tenants and subtenants obtain and comply in all material respects with
and maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws except to the extent failure
to do so could not reasonably be expected to have a Material Adverse
Effect.
7.13.2 conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and
promptly comply in all material respects with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws except to the
extent failure to do so could not reasonably be expected to have a Material
Adverse Effect..
7.14. Dividends. Each
of Holdings and the Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, declare or pay any dividend (other than dividends
payable solely in common stock of the Person making such dividend) on, or make
any payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other acquisition
of, any Capital Stock of any Group Member, whether now or hereafter outstanding,
or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of any Group Member
(collectively, “ |
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