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, “