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This excerpt taken from the WEN 8-K filed Jan 16, 2009. Terminated
Lender”), the Borrower may, at its sole expense and effort, upon notice
to such Terminated Lender and the Agent, require such Terminated Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section
13.3), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that
(i) the Borrower shall have received the prior written consent of the Agent (and
if a L/C Commitment or L/C Exposure is being assigned, the Issuing Lender),
which consent shall not unreasonably be withheld, (ii) such Terminated Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in L/C Obligations, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts, including without limitation
payments due to such Terminated Lender under Sections
4.1, 4.2 and 4.5, and payments, if any, which would have been due to such
Terminated Lender on the day of such assignment under Section
4.4 had the Loans of such Terminated Lender been prepaid
on such date rather than assigned to the replacement Lender, in each case to the
extent not paid by the purchasing Lender), (iii) in the case of any such
assignment resulting from a claim for compensation under Section
4.1, 4.2 or 4.5, such assignment will result in a reduction in such
compensation or payments, (iv) such assignment does not conflict with any
Requirement of Law (excluding Certificates of Incorporation and By-Laws or other
organizational or governing documents), and (v) no Default shall have occurred
and be continuing at the time of such assignment. Such Terminated
Lender shall not be required to make any such assignment if, prior thereto, as a
result of a waiver by such Terminated Lender or otherwise, the circumstances
entitling the Borrower to require such assignment cease to
apply.
2.23. Increase of
Aggregate Commitment. At any time prior to the Facility Termination
Date, the Borrower may, on the terms set forth below, request that the Aggregate
Commitment hereunder be increased on one or more occasions by an aggregate
amount of up to $100,000,000 with the consent of the Agent but without the
consent of any other Lenders (except as provided below); provided, that
(i) the Aggregate Commitment hereunder at no time shall exceed $300,000,000
without the prior written consent of all existing Lenders, (ii) an increase in
the Aggregate Commitment hereunder may only be made if (a) no Default or
Unmatured Default shall have occurred and be continuing on and as of the date of
such increase and (b) the representations and warranties set forth in ARTICLE
VI of this Agreement are true and
correct on and as of such date (except to the extent any such representation or
warranty is stated to relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct on and as of such
earlier date), (iii) no Lender’s respective Commitment shall be increased under
this Section
2.23 without
such Lender’s consent and unless and until any Lender so consents, such Lender
shall be deemed to have refused any increase to its Commitment, (iv) each of the
then existing Lenders shall be given the opportunity to participate in the
increased Aggregate Commitment ratably in the proportion that its Commitment
bears to the Aggregate Commitment and (v) to the extent that all or any portion
of the requested increase in the Aggregate Commitment is not fulfilled pursuant
to the preceding clause
(iv), the increase shall be funded in such additional amounts as any
Lender, including any new financial institution, the Agent and the Borrower
agree, provided, that
any new financial institution which
either the Borrower or the Agent invites to become a Lender
hereunder shall be reasonably acceptable to the Borrower and the
Agent. In the event of such a requested increase in the Aggregate
Commitment, any existing Lender which the Borrower or the Agent invites to
increase its Commitment (or any new financial institution which the Borrower or
the Agent invites to become a Lender) may set the amount of its Commitment at a
level agreed to by the Borrower and the Agent. In the event that the
Borrower and one or more of the Lenders (or new financial institutions) shall
agree upon such an increase in the Aggregate Commitment (i) the Borrower, the
Agent and each Lender increasing its Commitment (or new financial institution
extending a new Commitment) shall enter into an agreement substantially in the
form of Exhibit
F hereto (a “ |
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