EXHIBIT 4.1
364-DAY REVOLVING
CREDIT AGREEMENT
DATED AS OF AUGUST 25, 2005
AMONG
XXXXXXXXXXX INTERNATIONAL LTD.
AND
XXXXXXXXXXX LIQUIDITY MANAGEMENT
HUNGARY LIMITED LIABILITY COMPANY,
AS BORROWERS,
XXXXXXXXXXX INTERNATIONAL, INC.,
AS GUARANTOR,
UBS AG, STAMFORD BRANCH,
AS ADMINISTRATIVE AGENT,
BANK OF AMERICA, N.A.
AND
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
AS CO-SYNDICATION AGENTS,
THE LENDERS PARTY HERETO,
AND
UBS SECURITIES LLC,
BANC OF AMERICA SECURITIES LLC
AND
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
AS JOINT BOOKRUNNERS AND JOINT LEAD ARRANGERS
TABLE OF CONTENTS
PAGE
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Article I DEFINITIONS; ACCOUNTING TERMS; INTERPRETATION.......................................................... 1
SECTION 1.01. Definitions............................................................................... 1
SECTION 1.02. Types of Borrowings....................................................................... 18
SECTION 1.03. Accounting Terms; Changes in GAAP......................................................... 18
SECTION 1.04. Interpretation............................................................................ 19
Article II COMMITMENTS; LOANS.................................................................................... 20
SECTION 2.01. Loans..................................................................................... 20
SECTION 2.02. Requests for Loans........................................................................ 21
SECTION 2.03. Funding of Borrowings..................................................................... 21
SECTION 2.04. Interest Elections........................................................................ 22
SECTION 2.05. Optional Termination and Reduction of Commitments......................................... 23
SECTION 2.06. Repayment of Loans; Evidence of Debt...................................................... 24
SECTION 2.07. Optional Prepayment of Loans.............................................................. 24
SECTION 2.08. Mandatory Termination and Reduction of Commitments; Mandatory Prepayment of Loans......... 25
SECTION 2.09. Fees...................................................................................... 25
SECTION 2.10. Interest.................................................................................. 26
SECTION 2.11. Alternate Rate of Interest................................................................ 27
SECTION 2.12. Increased Costs........................................................................... 27
SECTION 2.13. Break Funding Payments.................................................................... 28
SECTION 2.14. Agreement to Defer Exercise of Right of Contribution, Etc................................. 29
Article III PAYMENTS; PRO RATA TREATMENT; TAXES.................................................................. 29
SECTION 3.01. Payments Generally; Pro Rata Treatment; Sharing of Set-offs............................... 29
SECTION 3.02. Taxes..................................................................................... 31
SECTION 3.03. Mitigation Obligations; Replacement of Lenders............................................ 33
Article IV CONDITIONS PRECEDENT.................................................................................. 33
SECTION 4.01. Conditions Precedent to the Initial Credit Event.......................................... 33
SECTION 4.02. Conditions Precedent to All Credit Events................................................. 35
SECTION 4.03. Delivery of Documents..................................................................... 36
Article V REPRESENTATIONS AND WARRANTIES......................................................................... 36
SECTION 5.01. Organization and Qualification............................................................ 36
SECTION 5.02. Authorization, Validity, Etc.............................................................. 36
SECTION 5.03. Governmental Consents, Etc................................................................ 37
SECTION 5.04. No Breach or Violation of Law or Agreements............................................... 37
SECTION 5.05. Title to Assets........................................................................... 37
SECTION 5.06. Information; Financial Statements......................................................... 37
SECTION 5.07. Investment Company Act.................................................................... 38
SECTION 5.08. Public Utility Holding Company Act........................................................ 38
SECTION 5.09. ERISA..................................................................................... 38
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SECTION 5.10. Tax Returns and Payments.................................................................. 38
SECTION 5.11. Requirements of Law; Environmental Matters................................................ 39
SECTION 5.12. Purpose of Loans.......................................................................... 39
SECTION 5.13. Designation of the Obligations............................................................ 39
SECTION 5.14. No Default................................................................................ 39
Article VI AFFIRMATIVE COVENANTS................................................................................. 40
SECTION 6.01. Information Covenants..................................................................... 40
SECTION 6.02. Books, Records and Inspections............................................................ 41
SECTION 6.03. Insurance and Maintenance of Properties................................................... 42
SECTION 6.04. Payment of Taxes and other Claims......................................................... 42
SECTION 6.05. Existence................................................................................. 42
SECTION 6.06. ERISA Information and Compliance.......................................................... 42
Article VII NEGATIVE COVENANTS................................................................................... 43
SECTION 7.01. Material Change in Business............................................................... 43
SECTION 7.02. Consolidation, Merger, or Sale of Assets, Etc............................................. 43
SECTION 7.03. Liens..................................................................................... 45
SECTION 7.04. Indebtedness.............................................................................. 45
SECTION 7.05. Ownership of WII.......................................................................... 45
SECTION 7.06. Financial Covenant........................................................................ 45
SECTION 7.07. Limitation on Transactions with Affiliates................................................ 45
SECTION 7.08. Restrictions on Subsidiary Dividends...................................................... 46
SECTION 7.09. The Debenture Indentures.................................................................. 46
Article VIII EVENTS OF DEFAULT AND REMEDIES...................................................................... 46
SECTION 8.01. Events of Default and Remedies............................................................ 46
SECTION 8.02. Right of Setoff........................................................................... 49
SECTION 8.03. Other Remedies............................................................................ 49
SECTION 8.04. Application of Moneys During Continuation of Event of Default............................. 49
Article IX ADMINISTRATIVE AGENT.................................................................................. 50
Article X GUARANTY............................................................................................... 52
SECTION 10.01. Guaranty.................................................................................. 52
SECTION 10.02. Continuing Guaranty....................................................................... 52
SECTION 10.03. Effect of Debtor Relief Laws.............................................................. 55
SECTION 10.04. Waiver.................................................................................... 55
SECTION 10.05. Agreement to Defer Exercise of Subrogation................................................ 56
SECTION 10.06. Full Force and Effect..................................................................... 56
Article XI MISCELLANEOUS......................................................................................... 56
SECTION 11.01. Waiver; Amendments........................................................................ 56
SECTION 11.02. Notices................................................................................... 57
SECTION 11.03. Expenses, Etc............................................................................. 57
SECTION 11.04. Indemnity................................................................................. 58
SECTION 11.05. Amendments, Etc........................................................................... 58
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SECTION 11.06. Successors and Assigns.................................................................... 59
SECTION 11.07. Confidentiality........................................................................... 63
SECTION 11.08. Survival of Representations and Warranties................................................ 63
SECTION 11.09. Governing Law............................................................................. 63
SECTION 11.10. Independence of Covenants................................................................. 64
SECTION 11.11. Binding Effect............................................................................ 64
SECTION 11.12. Severability.............................................................................. 64
SECTION 11.13. Conflicts Between This Agreement and the Other Loan Documents............................. 64
SECTION 11.14. Limitation of Interest.................................................................... 64
SECTION 11.15. Execution in Counterparts................................................................. 64
SECTION 11.16. Submission to Jurisdiction................................................................ 64
SECTION 11.17. Waiver of Jury Trial...................................................................... 65
SECTION 11.18. Judgment Currency......................................................................... 66
SECTION 11.19. Final Agreement of the Parties............................................................ 66
SECTION 11.20. USA Patriot Act........................................................................... 66
EXHIBITS
EXHIBIT A Form of Assignment and Assumption
EXHIBIT B Form of Promissory Note
EXHIBIT C Form of Compliance Certificate
EXHIBIT D Form of Borrowing Request
EXHIBIT E Form of Interest Election Request
SCHEDULES
Pricing Schedule
SCHEDULE 1.01 Lenders
SCHEDULE 2.01 Commitments
SCHEDULE 5.01 Material Subsidiaries
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364-DAY REVOLVING CREDIT AGREEMENT
THIS 364-DAY REVOLVING CREDIT AGREEMENT, dated as of August 25, 2005, is
among:
(a) Xxxxxxxxxxx International Ltd., a Bermuda exempted company ("WIL");
(b) Xxxxxxxxxxx International, Inc., a Delaware corporation ("WII" or the
"Guarantor");
(c) Xxxxxxxxxxx Liquidity Management Hungary Limited Liability Company, a
Hungarian limited liability company ("HOC" and together with WIL,
collectively, the "Borrowers");
(d) UBS AG, Stamford Branch, as administrative agent for the other Lenders (in
such latter capacity together with any other Person that becomes the
Administrative Agent pursuant to Article IX, the "Administrative Agent");
and
(e) the banks and other financial institutions listed on the signature pages
hereof under the caption "Lenders" (together with each other Person that
becomes a Lender pursuant to Section 11.06, collectively, the "Lenders").
The parties hereto agree as follows:
Article I
DEFINITIONS; ACCOUNTING TERMS; INTERPRETATION
Section 1.01. Definitions. As used in this Agreement the following terms
shall have the following meanings:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Acquisition" means the acquisition by certain subsidiaries of WIL of
Precision Drilling Corporation's Energy Services Division and International
Contract Drilling Division pursuant to the Acquisition Document.
"Acquisition Document" means the Stock Purchase Agreement dated as of June
6, 2005 by and between Precision Drilling Corporation and WIL.
"Acquisition Borrowing" means any Borrowing comprised of Loans, the
proceeds of which will be used to fund the Acquisition, including any related
post-closing purchase price adjustment.
"Acquisition Borrowing Date" means any date (whether one or more) on which
the Loans comprising any Acquisition Borrowing are made.
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"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" has the meaning specified in paragraph (d) on page
one.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under direct or
indirect common control with, such Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling" and
"controlled"), when used with respect to any Person, means the power to direct
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise.
"Agreement" means this 364-Day Revolving Credit Agreement, as it may from
time to time be further amended, modified, restated or supplemented.
"Alternate Base Rate" means, for any day, a rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the greater of (a)
the Base Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. If the Administrative Agent shall have
determined (which determination shall be presumed correct absent manifest error)
that it is unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms of the definition thereof,
the Alternate Base Rate shall be determined without regard to clause (b) of the
preceding sentence until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in the Base
Rate or the Federal Funds Effective Rate shall be effective from and including
the effective date of such change in the Base Rate or the Federal Funds
Effective Rate, respectively.
"Applicable Margin" means the per annum rate of interest set forth in the
definition of Applicable Rate under the heading "Applicable Margin", based upon
the ratings by Xxxxx'x and S&P, respectively, applicable on such date to the
Index Debt.
"Applicable Rate" means, for any day, with respect to any Eurodollar Loan,
or with respect to the facility fees payable hereunder, as the case may be, the
applicable rate per annum set forth on the Pricing Schedule under the caption
"Utilization Fee", "Facility Fee" or "Applicable Margin", as the case may be,
based upon the ratings by Xxxxx'x and S&P, respectively, applicable on such date
to the Index Debt.
"Approved Fund" has the meaning specified in Section 11.06.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 11.06) and accepted by the Administrative Agent, in the form
of Exhibit A.
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"Assurance" means, as to any Person, any guaranty or other contingent
liability of such Person (other than any endorsement for collection or deposit
in the ordinary course of business) or obligations as an account party in
respect of letters of credit, direct or indirect, with respect to any obligation
of another Person, through an agreement or otherwise, including (a) any other
endorsement or discount with recourse or undertaking substantially equivalent to
or having economic effect similar to a guarantee in respect of any such
obligation and (b) any agreement (i) to purchase, or to advance or supply funds
for the payment or purchase of, any such obligation, (ii) to purchase securities
or to purchase, sell or lease property (whether as lessee or lessor), products,
materials or supplies, or transportation or services, in respect of enabling
such other Person to pay any such obligation or to assure the owner thereof
against loss regardless of the delivery or non-delivery of the securities,
property, products, materials or supplies, or transportation or services or
(iii) to make any loan, advance or capital contribution to or other investment
in, or to otherwise provide funds to or for, such other Person in respect of
enabling such Person to satisfy any obligation (including any liability for a
dividend, stock liquidation payment or expense) or to assure a minimum equity,
working capital or other balance sheet condition in respect of any such
obligation. The amount of any Assurance shall be an amount equal to the lesser
of the stated or determinable amount of the primary obligation in respect of
which such Assurance is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Availability Period" means, for each Lender, the period from the
Effective Date to the earlier of the Maturity Date and the date of termination
of the Commitments.
"Bankruptcy Code" means the United States Bankruptcy Code, as the same may
be amended and together with any successor statutes.
"Base Rate" means the rate of interest per annum that is equal to the
corporate base rate of interest established by the Administrative Agent from
time to time; each change in the Base Rate shall be effective on the date such
change is effective. The corporate base rate is not necessarily the lowest rate
charged by the Administrative Agent to its customers.
"Board" means the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person (or of its (managing) general partner or managing
member, as the case may be), or any committee thereof duly authorized to act on
behalf of such Board of Directors.
"Borrowers" has the meaning specified in paragraph (c) on page one.
"Borrowing" means Loans of the same Type, made, converted or continued on
the same date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect.
"Borrowing Request" means a request by a Borrower for a Loan in accordance
with Section 2.02 and substantially in the form of Exhibit D, or such other form
as shall be approved by the Administrative Agent.
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"Business Day" means any day that is not a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Lease" means, as to any Person, any lease in respect of which the
rental obligation of such Person constitutes a Capitalized Lease Obligation.
"Capital Markets Takeout Financing" means (a) any public or private
issuance or sale of debt securities and/or preferred equity securities
(including mezzanine loans or securities) and/or (b) any public or private
offering or sale of equity securities or equity-linked securities (including
convertible securities), in each case (i) issued or guaranteed by one or more of
the Obligors, (ii) to Persons other than an Obligor or a Subsidiary of an
Obligor and (iii) the proceeds of which are cash; provided that none of the
following shall constitute a "Capital Markets Takeout Financing": (w) the sale
of equity interests issued by any Person that is not an Obligor in a transaction
involving a disposition of such Person, (x) the New Revolving Credit Facility,
(y) the issuance of any commercial paper, or the short term notes equivalent of
commercial paper, or any notes with maturities of greater than 270 days but less
than 397 days, by any Obligor and (z) the issuance of any equity securities or
equity-linked securities by any Obligor to support employee and director
compensation programs.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents (however designated) of such Person's equity, including all common
stock and preferred stock, common shares and preference shares, any limited or
general partnership interest and any limited liability company membership.
"Capitalized Lease Obligation" means, with respect to any Person, the
obligation of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real or personal property that is
required to be classified and accounted for as a capital lease obligation on a
balance sheet of such Person under GAAP and, for purposes of this Agreement, the
amount of such obligation at any date shall be the capitalized amount thereof at
such date, determined in accordance with GAAP.
"Change of Control" means an event or series of events by which (a) in the
case of WIL (i) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act as in effect on the Effective Date) or related persons
constituting a "group" (as such term is used in Rule 13d-5 under the Exchange
Act in effect on the Effective Date) is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, as in effect on the
Effective Date, except that a person or such group shall be deemed to have
"beneficial ownership" of all shares that any such person or such group has the
right to acquire without condition, other than the passage of time, whether such
right is exercisable immediately or only after the passage of time), directly or
indirectly, of 50% or more of the total voting power of the Voting Stock of WIL,
except as a result of a Redomestication in which the Persons who were the
shareholders of WIL immediately prior to such Redomestication continue to own,
directly or indirectly, 100% of the issued and outstanding Capital Stock of each
class of WIL; (ii) the shareholders of WIL approve any plan of liquidation,
winding up or dissolution of WIL, except
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in connection with a Redomestication of WIL; (iii) WIL conveys, transfers or
leases all or substantially all of its assets to any Person except in connection
with a Redomestication of WIL; or (iv) during any period of twelve consecutive
months, individuals who, at the beginning of such period, constituted the Board
of Directors of WIL (together with any new directors whose appointment or
election by such Board of Directors or whose nomination for election by the
shareholders of WIL, as applicable, was approved by a vote of not less than a
majority of the directors then still in office who were either directors at the
beginning of such period or whose appointment, election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of WIL then in office, but excluding from the
foregoing clause any change in the composition or membership of the Board of
Directors of WIL resulting (i) from a Redomestication of WIL or (ii) from the
addition thereto or removal therefrom of directors in connection with WIL's
compliance with the United States Sarbanes Oxley Act of 2002 or the rules and
regulations of any stock exchange on which WIL's securities are listed, pursuant
to the recommendation of WIL's legal counsel, (b) in the case of WII, except in
a transaction permitted by Section 7.02(a)(ii)(B) or 7.02(b), the Persons who
are the shareholders of WII immediately prior to a transaction cease to own,
after giving effect to such transaction, directly or indirectly, 100% of the
issued and outstanding Capital Stock of each class of WII, or (c) in the case of
HOC, except in a transaction permitted by Section 7.02, WIL or the New Parent
ceases to own, after giving effect to such transaction, directly or indirectly,
100% of the issued and outstanding Capital Stock of each class of HOC.
"Change of Control Event" means (a) the execution of any definitive
agreement which when fully performed by the parties thereto, would result in a
Change of Control; or (b) the commencement of a tender offer pursuant to Section
14(d) of the Exchange Act that would result in a Change of Control if completed.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.12, by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Charges" has the meaning specified in Section 11.14.
"Code" means the United States Internal Revenue Code of 1986, as amended,
from time to time, and the regulations promulgated thereunder.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.05 or 2.08
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 11.06. The initial amount of each Lender's
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Commitment, as applicable.
The initial aggregate amount of the Lenders' Commitments is $1,200,000,000.
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"Communications" has the meaning specified in Section 11.02.
"consolidated" means any Person whose financial condition and results of
operations are required in accordance with GAAP to be shown on a consolidated
basis with the financial condition and results of operations of WIL.
"Consolidated Indebtedness" means, for any Person, at the date of any
determination thereof, Indebtedness of such Person and its consolidated
Subsidiaries (other than Interest Rate Risk Indebtedness, Derivatives
Obligations, and contingent obligations in respect of letters of credit)
determined on a consolidated basis in accordance with GAAP.
"CP Borrowing" means any Borrowing comprised of Loans, the proceeds of
which will be used to refinance commercial paper, or the short term notes
equivalent of commercial paper, issued by either Borrower or the Guarantor.
"Credit Event" means the making of any Loan pursuant hereto.
"Default" means the occurrence of any event which with the giving of
notice or the passage of time or both would become an Event of Default.
"Derivatives Obligations" means, as to any Person all obligations of such
Person in respect of any swap transaction, forward rate transaction, commodity
swap, commodity option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of the foregoing
transactions) or any combination of the foregoing transactions, entered into in
the ordinary course of business of such Person for the purpose of hedging and
not for speculative purposes.
"Dollars," "dollars" and "$" means lawful money of the United States of
America.
"domestic" means, when used with respect to a Subsidiary of a Person, a
Subsidiary organized under the laws of any State of the United States or the
District of Columbia.
"Domestic Intercompany Debt" means Indebtedness owed by any domestic
Subsidiary of WIL to WIL or to any Wholly-Owned Subsidiary of WIL.
"Effective Date" means the date on which the conditions set forth in
Section 4.01 are first satisfied or waived.
"Environmental Law" means all federal, state, provincial or local laws,
statutes, rules, regulations, ordinances and codes, together with all final
administrative orders, licenses, authorizations and permits of, and written
agreements with, any Governmental Authorities, in each case relating to the
protection of the environment or the disposal of hazardous waste.
"ERISA" means the United States Employee Retirement Income Security Act of
1974, as amended from time to time, and all rules, regulations, rulings and
interpretations adopted by the U.S. Department of Labor thereunder.
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"ERISA Affiliate" means (a) all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with WIL, are treated as a single employer under
Section 414 of the Code and (b) any Subsidiary of any of the Obligors.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" shall have the meaning specified in Article VIII.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of either Borrower hereunder, (a) income or franchise taxes imposed
on (or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which a Borrower, the Administrative Agent, any Lender or any
other such recipient is located, (c) in the case of a Foreign Lender (other than
an assignee pursuant to a request by a Borrower under Section 3.03(b)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or would have been so imposed if a Borrower were a United States
corporation, or is attributable to such Foreign Lender's failure to comply with
Section 3.02(c) or 3.02(e), except to the extent that such Foreign Lender (or
its assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from such Borrower with
respect to such withholding tax pursuant to Section 3.02(a) and (d) in the case
of any Lender that becomes a party to this Agreement after the date hereof (or
designates a new lending office after the date hereof) without the prior written
consent of WIL pursuant to Section 11.06 (other than a Lender that becomes a
party to this Agreement or designates a new lending office when an Event of
Default has occurred and is continuing), any withholding tax that is imposed on
amounts payable to such Lender pursuant to this Agreement (and including any
additional withholding tax that is imposed on amounts payable to such Lender as
a result of a change in treaty, law or regulation).
"Existing Revolving Credit Facility" means that certain Amended and
Restated Credit Agreement dated as of January 14, 2005 among the Borrowers, the
Guarantor, JPMorgan Chase Bank, N.A., individually and as Administrative Agent,
and the other lenders party thereto, as it may from time to time be amended.
"Facility Fee" has the meaning set forth in Section 2.09(a).
"Facility Fee Rate" means the per annum rate of interest set forth under
the heading "Facility Fee" in the definition of Applicable Rate, based upon the
ratings by Moody's and S&P, respectively, applicable on such date to the Index
Debt.
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"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"foreign" means, when used with respect to a Subsidiary of any Person, a
Subsidiary of such Person organized under the laws of any jurisdiction other
than a State of the United States or the District of Columbia.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than the United States of America or any State thereof.
"GAAP" means generally accepted accounting principles as in effect from
time to time as set forth in the opinions, statements and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and the Financial Accounting Standards Board.
"Governmental Authority" means any governmental authority of the United
States of America, any State of the United States, Bermuda, the Republic of
Hungary or of any other foreign jurisdiction and any political subdivision of
any of the foregoing, and any central bank, agency, department, commission,
board, bureau, court or other tribunal having or lawfully asserting jurisdiction
over the Administrative Agent, any Lender, any Obligor or their respective
properties.
"Guaranteed Obligations" has the meaning specified in Section 10.01.
"Guarantor" has the meaning specified in paragraph (b) on page one.
"Guaranty" means the guaranty contained in Article X.
"HOC" has the meaning specified in paragraph (c) on page one.
"Indebtedness" means (without duplication), with respect to any Person,
(a) any liability of such Person (i) for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof), or under any reimbursement obligation relating to a letter of
credit, bankers' acceptance or note purchase facility, (ii) evidenced by a bond,
note, debenture or similar instrument, (iii) for the balance deferred and unpaid
of the purchase price for any property or any obligation upon which interest
charges are customarily paid (except for trade payables arising in the ordinary
course of business), or (iv) for the payment of money relating to the principal
portion of any Capitalized Lease Obligation; (b) any obligation of any Person
secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) a consensual Lien on property owned
or acquired, whether or not any obligation secured thereby has been assumed, by
such Person; (c) all net obligations of such Person as of the date of a required
calculation of any Derivatives Obligations;
- 8 -
(d) all Assurances of such Person of the Indebtedness of any other Person of the
type referred to in clause (a) or (c); (e) Interest Rate Risk Indebtedness of
such Person; and (f) any amendment, supplement, modification, deferral, renewal,
extension or refunding of any liability of the types referred to above.
"Indemnified Taxes" means any Taxes other than Excluded Taxes and Other
Taxes.
"Indemnitee" has the meaning specified in Section 11.04.
"Index Debt" means senior, unsecured, long-term indebtedness for borrowed
money of WIL that is not guaranteed by any other Person or subject to any other
credit enhancement.
"Interest Election Request" means a request by a Borrower to convert or
continue a Loan in accordance with Section 2.04 and substantially in the form of
Exhibit E, or such other form as shall be approved by the Administrative Agent.
"Interest Payment Date" means (a) with respect to any ABR Borrowing, the
last day of each March, June, September and December, and (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period.
"Interest Period" means, with respect to a Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
(or, with the consent of each Lender, nine or twelve months) thereafter, as a
Borrower may elect; provided that (i) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day and (ii)
any Interest Period pertaining to a Eurodollar Borrowing that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and, in the case of a Loan, thereafter
shall be the effective date of the most recent conversion or continuation of
such Borrowing.
"Interest Rate Risk Indebtedness" means, with respect to any Person, all
obligations and Indebtedness of such Person with respect to the program for the
hedging of interest rate risk provided for in any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or similar
arrangement entered into such Person for the purpose of reducing its exposure to
interest rate fluctuations and not for speculative purposes, approved in writing
by the Administrative Agent (such approval not to be unreasonably withheld), as
it may from time to time be amended, modified, restated or supplemented.
"ISDA" means the International Swaps and Derivatives Association, Inc.
- 9 -
"Lenders" means the Persons listed on Schedule 1.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Assumption,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Assumption.
"LIBO Rate" means the Applicable Margin from time to time in effect plus
the applicable British Bankers' Association London interbank offered rate for
deposits in Dollars for such Loan, as reported by any generally recognized
financial information service as of 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, and having a maturity equal to
such Interest Period, provided that if no such British Bankers' Association
London interbank offered rate is available to the Administrative Agent, the
applicable LIBO Rate for the relevant Interest Period shall instead be the rate
at which deposits in Dollars and in immediately available funds are offered to
first class banks in the London interbank market by the Reference Bank at 11:00
a.m. (London time) two Business Days before the first day of the applicable
Interest Period and for a period equal to such Interest Period and in amounts
substantially equal to the amount of the requested LIBO Rate Loan of the
Reference Bank comprising a part of such Borrowing.
"Lien" means any lien, mortgage, pledge, assignment (including any
assignment of rights to receive payments of money), security interest, charge or
encumbrance of any kind including any conditional sale or other title retention
agreement or any lease (excluding, however, any lease that is not a Capital
Lease) in the nature thereof (whether voluntary or involuntary and whether
imposed or created by operation of law or otherwise), and any agreement to give
a lien, mortgage, pledge, assignment (including any assignment of rights to
receive payments of money), security interest, charge or other encumbrance of
any kind; provided that "Lien" shall not include or cover (i) setoff rights and
other standard arrangements for netting payment obligations in the settlement of
obligations, arising under ISDA standard documents or otherwise customary in
swap or hedging transactions; and (ii) setoff rights of banks party to
Derivatives Obligations which rights arise in the ordinary course of customary
banking relationships.
"Loan" means a loan made pursuant to Section 2.01.
"Loan Documents" means, collectively, this Agreement, the Notes, all
instruments, certificates (including all Borrowing Requests) and agreements now
or hereafter executed or delivered by any Obligor to the Administrative Agent or
any Lender pursuant to any of the foregoing or in connection with the
Obligations or any commitment regarding the Obligations, and all amendments,
modifications, renewals, extensions, increases and rearrangements of, and
substitutions for, any of the foregoing.
"Material Adverse Effect" means, relative to any occurrence of whatever
nature (including any adverse determination in any litigation, arbitration or
governmental investigation or proceeding) and after taking into account actual
insurance coverage and effective indemnification with respect to such
occurrence, (a) a material adverse effect on the financial condition, business
or operations of WIL and its consolidated Subsidiaries taken as a whole, (b) the
impairment of (i) the ability of the Obligors to collectively perform their
payment or other material obligations hereunder or under the Notes and other
Loan Documents or (ii) the ability of the Administrative Agent or the Lenders to
realize the material benefits intended to be provided
- 10 -
by the Obligors under the Loan Documents or (c) the subjection of the
Administrative Agent or any Lender to any civil or criminal liability arising in
connection with the Loan Documents.
"Material Subsidiary" means, at any date, a consolidated Subsidiary the
Capital Stock of which is owned by WIL and/or one or more of its Subsidiaries
and that either (a) has total assets in excess of 5% of the total assets of WIL
and its consolidated Subsidiaries, in each case as determined in accordance with
GAAP or (b) has gross net revenues in excess of 5% of the consolidated gross
revenues of WIL and its consolidated Subsidiaries based, in each case, on the
most recent audited consolidated financial statements of WIL.
"Maturity Date" means August 23, 2006.
"Maximum Rate" has the meaning set forth in Section 11.14.
"May 1996 Debenture Indenture" means the Indenture dated as of May 17,
1996, from WII to The Bank of New York, as Trustee, as amended and supplemented
to the Effective Date.
"May 1996 Debentures" means WII's debentures issued pursuant to the May
1996 Debenture Indenture, which are guaranteed by WIL.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means any plan which is a "multiemployer plan" (as
such term is defined in Section 4001(a)(3) of ERISA).
"Net Cash Proceeds" means the cash proceeds of any Capital Markets Takeout
Financing, net of customary fees, commissions, costs and other expenses incurred
in connection therewith.
"Net Worth" means, for any Person, at the date of any determination
thereof, on a consolidated basis, the sum of (a) the par value or stated value
of its Capital Stock, plus (b) capital in excess of par or stated value of
shares of its Capital Stock, plus (or minus in the case of a deficit) (c)
retained earnings or accumulated deficit, as the case may be, plus (d) any other
account which, in accordance with GAAP, constitutes stockholders' equity, but
excluding (i) any treasury stock, (ii) non-cash charges incurred in connection
with the Acquisition in an aggregate amount not to exceed $350,000,000 and (iii)
the effects upon net worth resulting from the translation of foreign currency
denominated assets into Dollars.
"New Parent" has the meaning specified in the definition of the term
"Redomestication".
"New Revolving Credit Facility" means any new revolving credit facility
that replaces the Existing Revolving Credit Facility. For the avoidance of
doubt, the term "New Revolving Credit Facility" includes any amendment and
restatement of the Existing Revolving Credit Facility.
"New Revolving Credit Facility Agreement" means the agreement that
evidences the New Revolving Credit Facility.
- 11 -
"New Revolving Credit Facility Effective Date" means the date of
effectiveness of the New Revolving Credit Facility.
"Notes" has the meaning specified in Section 2.06(e).
"Obligations" means, as at any date of determination thereof, the sum of
the following: (a) the aggregate principal amount of Loans outstanding hereunder
on such date, plus (b) all other outstanding liabilities, obligations and
indebtedness of either Borrower under any Loan Document on such date.
"Obligors" means WIL, WII and HOC.
"October 2003 Debenture Indenture" means the Indenture dated as of October
1, 2003, among WIL, as the issuer, WII, as the guarantor, and Deutsche Bank
Trust Company Americas, as Trustee, as amended and supplemented to the Effective
Date.
"October 2003 Debentures" means WIL's debentures issued pursuant to the
October 2003 Debenture Indenture, which are guaranteed by WII.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies, other
than Excluded Taxes, arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Agreement, but only to the extent that any of the foregoing is imposed by (i)
Bermuda, Barbados, the Republic of Hungary or the United States or any other
jurisdiction in which WIL is Redomesticated or is resident for tax purposes with
respect to a Foreign Lender or (ii) Bermuda, Barbados, the Republic of Hungary
or any other jurisdiction (other than the United States) in which WIL is
Redomesticated or is resident for tax purposes with respect to a Lender which is
not a Foreign Lender.
"Participant" has the meaning specified in Section 11.06(c).
"Past Due Rate" means, on any day, a rate per annum equal to (a) for ABR
Borrowings, the applicable Alternate Base Rate plus 2% and (b) for Eurodollar
Borrowings, the applicable Adjusted LIBO Rate plus 2%.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Performance Level" means a reference to one of Performance Level I,
Performance Level II, Performance Level III, Performance Level IV or Performance
Level V.
"Performance Level I" means, at any date of determination, WIL shall have
an Index Debt rating in effect on such date of A- or better by S&P and A3 or
better by Moody's.
"Performance Level II" means, at any date of determination, (a) the
Performance Level does not meet the requirements of Performance Level I and (b)
WIL shall have an Index Debt rating in effect on such date of BBB+ or better by
S&P and Baa1 or better by Moody's.
- 12 -
"Performance Level III" means, at any date of determination, (a) the
Performance Level does not meet the requirements of Performance Level I or
Performance Level II and (b) WIL shall have an Index Debt rating in effect on
such date of BBB or better by S&P and Baa2 or better by Moody's.
"Performance Level IV" means, at any date of determination, (a) the
Performance Level does not meet the requirements of Performance Level I,
Performance Level II or Performance Level III and (b) WIL shall have an Index
Debt rating in effect on such date of BBB- or better by S&P and Baa3 or better
by Moody's.
"Performance Level V" means, at any date of determination, the Performance
Level does not meet the requirements of Performance Level I, Performance Level
II, Performance Level III or Performance Level IV.
"Permitted Liens" means, without duplication,
(a) Liens, not otherwise permitted under any other provision of this
definition, securing Indebtedness permitted under this Agreement in an
aggregate principal amount at any time outstanding which does not exceed
12% of WIL's Net Worth;
(b) Liens for Taxes or unpaid utilities not yet delinquent or which
are being contested in good faith by appropriate proceedings; provided
that adequate reserves with respect thereto are maintained on the books of
WIL or its Subsidiaries, as the case may be, in conformity with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
and not overdue for a period of more than 60 days or which are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been made in accordance with GAAP;
(d) pledges or deposits or deemed trusts in connection with workers'
compensation, unemployment insurance, pension, employment or other social
security legislation;
(e) easements, rights-of-way, use restrictions, minor defects or
irregularities in title, reservations (including reservations in any
original grant from any government of any land or interests therein and
statutory exceptions to title) and other similar encumbrances incurred in
the ordinary course of business which, in the aggregate, are not
substantial in amount and which do not in any case materially detract from
the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of WIL or any of its Subsidiaries;
(f) judgment and attachment Liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal
proceeding that are currently being contested in good faith by appropriate
proceedings, promptly instituted and diligently conducted, and for which
adequate reserves have been made to the extent required by GAAP;
- 13 -
(g) Liens on the assets of any entity or asset existing at the time
such asset or entity is acquired by WIL or any of its Subsidiaries,
whether by merger, amalgamation, consolidation, purchase of assets or
otherwise; provided that such Liens (i) are not created, incurred or
assumed by such entity in contemplation of such entity's being acquired by
WIL or any of its Subsidiaries; (ii) do not extend to any other assets of
WIL or any of its Subsidiaries; and (iii) the Indebtedness secured by such
Lien is permitted pursuant to this Agreement;
(h) Liens securing Indebtedness of WIL or its Subsidiaries not
prohibited by Section 7.04 incurred to finance the acquisition of fixed or
capital assets, provided that (i) such Liens shall be created not more
than 90 days after the acquisition of such fixed or capital assets, (ii)
such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (iii) the Liens are not
modified to secure other Indebtedness and the amount of Indebtedness
secured thereby is not increased;
(i) Liens incurred to secure the performance of tenders, bids,
leases, statutory obligations, surety and appeal bonds, government
contracts, performance and return-of-money bonds and other obligations of
a like nature incurred in the ordinary course of business (exclusive of
obligations for the payment of borrowed money);
(j) leases or subleases granted to others not interfering in any
material respect with the business of WIL or any of its Subsidiaries;
(k) Liens to secure obligations arising from statutory or regulatory
requirements;
(l) any interest or title of a lessor in property subject to any
Capitalized Lease Obligation or operating lease which, in each case, is
permitted under this Agreement;
(m) Liens in favor of collecting or payor banks having a right of
setoff, revocation, refund or chargeback with respect to money or
instruments of WIL or any of its Subsidiaries on deposit with or in
possession of such bank; and
(n) any renewal or refinancing of or substitution for, or any
extension or modification of any maturity date for any Indebtedness
secured by, any Lien permitted by any of the preceding clauses; provided
that the debt secured is not increased nor the Lien extended to any
additional assets.
"Person" means any individual, corporation, company, limited or general
partnership, limited liability company, joint venture, association, joint stock
company, trust, unincorporated organization or other entity, or any Governmental
Authority.
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code and is either (a) maintained by WIL or any ERISA Affiliate for employees of
WIL or any ERISA Affiliate or (b) maintained pursuant to a collective bargaining
agreement or any other arrangement under which more than one employer makes
contributions and to which WIL or any ERISA Affiliate is then
- 14 -
making or accruing an obligation to make contributions or has within the
preceding five plan years made contributions.
"Pricing Schedule" means the Pricing Schedule attached hereto, which
Pricing Schedule shall be, on the New Revolving Credit Facility Effective Date,
automatically (without any further action by any party hereto) deemed to be
amended and restated such that, for any given Performance Level, (i) the
Facility Fee for such Performance Level after giving effect to such deemed
amendment and restatement shall be the same as the Facility Fee for such
Performance Level prior to giving effect to such deemed amendment and
restatement, (ii) the sum of the Facility Fee and the Applicable Margin for such
Performance Level after giving effect to such deemed amendment and restatement
shall equal the sum of the facility fee and the applicable margin for the
equivalent performance level contained in the New Revolving Credit Facility
Agreement, and (iii) the Utilization Fee for such Performance Level shall equal
the utilization fee for the equivalent performance level contained in the New
Revolving Credit Facility Agreement (it being the intention of the parties
hereto that on the New Revolving Credit Facility Effective Date, amounts loaned
under this Agreement will be subject to the same "all-in drawn spread" as
amounts loaned under the New Revolving Credit Facility, but that commitments to
lend may or may not be subject to the same rates of compensation as commitments
to lend under the New Revolving Credit Agreement). The Administrative Agent
shall replace the Pricing Schedule attached hereto with a replacement Pricing
Schedule that evidences the changes described above as soon after the New
Revolving Credit Facility Effective Date as is reasonably practicable, and the
Administrative Agent shall distribute a copy of such replacement Pricing
Schedule to all parties hereto.
"Redemption" means, at any time, the redemption of all the Zero Coupon
Debentures outstanding at such time.
"Redemption Borrowing" means the Borrowing comprised of Loans, the
proceeds of which will be used to fund (i) the Redemption or (ii) the repurchase
of common shares or other equity securities issued by WIL, provided that such
shares or securities are cancelled, and not held in treasury for reissuance,
immediately following the repurchase thereof.
"Redemption Borrowing Date" means the date on which the Loans comprising
the Redemption Borrowing are made.
"Redomestication" means:
(a) any amalgamation, merger, conversion or consolidation of WIL or
WII with or into any other Person, or of any other Person with or into WIL
or WII, or the sale or other disposition (other than by lease) of all or
substantially all of its assets by WIL or WII to any other Person,
(b) any continuation, discontinuation, amalgamation, merger,
conversion, consolidation or domestication or similar action with respect
to WIL or WII pursuant to the law of the jurisdiction of its organization
and of any other jurisdiction, or
(c) the formation of a Person that becomes, as part of the
transaction, the owner of 100% of the Capital Stock of WIL (the "New
Parent"),
- 15 -
if as a result thereof
(x) in the case of any action specified in clause (a), the entity
that is the surviving, resulting or continuing Person in such merger,
amalgamation, conversion or consolidation, or the transferee in such sale
or other disposition,
(y) in the case of any action specified in clause (b), the entity
that constituted such Obligor, immediately prior thereto (but disregarding
for this purpose any change in its jurisdiction of organization), or
(z) in the case of any action specified in clause (c), the New
Parent
(in any such case the "Surviving Person") is a corporation or other entity,
validly incorporated or formed and existing in good standing (to the extent the
concept of good standing is applicable) under the laws of Delaware or another
State of the United States or under the laws of the United Kingdom, The Kingdom
of the Netherlands or (with the consent of the Required Lenders, such consent
not to be unreasonably withheld) under the laws of any other jurisdiction, whose
Capital Stock of each class issued and outstanding immediately following such
action, and giving effect thereto, shall be beneficially owned by the same
Persons, in the same percentages, as was the Capital Stock of the entity
constituting WIL immediately prior thereto and, if the Surviving Person is WII
or the New Parent, the Surviving Person continues to be Sowned, directly or
indirectly, 100% by Persons who were shareholders of WIL immediately prior to
such transaction and the Surviving Person shall have delivered to the
Administrative Agent (i) a certificate to the effect that, both before and after
giving effect to such transaction, no Default or Event of Default exists, (ii)
an opinion, reasonably satisfactory in form, scope and substance to the
Administrative Agent, of counsel reasonably satisfactory to the Administrative
Agent, addressing such matters in connection with the Redomestication as the
Administrative Agent or any Lender may reasonably request, and (iii) if the
Surviving Person is the New Parent, a guaranty of the Obligations in form and
substance reasonably satisfactory to the Administrative Agent.
"Reference Bank" means UBS AG, Stamford Branch.
"Register" has the meaning specified in Section 11.06(b)(iv).
"Regulation D" means Regulation D of the Board (respecting reserve
requirements), as the same is from time to time in effect, and all official
rulings and interpretations thereunder or thereof.
"Regulation T" means Regulation T of the Board (respecting eligible
securities and margin requirements), as the same is from time to time in effect,
and all official rulings and interpretations thereunder or thereof.
"Regulation U" means Regulation U of the Board (respecting margin credit
extended by banks), as the same is from time to time in effect, and all official
rulings and interpretations thereunder or thereof.
- 16 -
"Regulation X" means Regulation X of the Board (respecting borrowers who
obtain margin credit), as the same is from time to time in effect, and all
official rulings and interpretations thereunder or thereof.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Reportable Event" means an event described in Section 4043(c) of ERISA
with respect to a Plan as to which the 30 day notice requirement has not been
waived by the PBGC.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing at least fifty-one percent (51%)
of the sum of the total Revolving Credit Exposures and unused Commitments at
such time.
"Requirement of Law" means, as to any Person, any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"Responsible Officer" means, with respect to any Obligor, the president,
the chief financial officer, the controller or any vice president of such
Obligor, or an individual specifically authorized by the Board of Directors of
such Obligor to sign on behalf of such Obligor.
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the outstanding principal amount of such Lender's Loans at such time.
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx,
Inc.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject, with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as "eurocurrency liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subsidiary" of a Person means (a) a company or corporation a majority of
whose Voting Stock is at the time, directly or indirectly, owned by such Person,
by one or more subsidiaries of such Person or by such Person and one or more
subsidiaries of such Person, (b) a partnership in which such Person or a
subsidiary of such Person is, at the date of determination, a general or limited
partner of such partnership, but only if such Person or its subsidiary is
entitled to receive
-17-
more than 50% of the assets of such partnership upon its dissolution, or (c) any
other Person (other than a corporation or partnership) in which such Person,
directly or indirectly, at the date of determination thereof, has (i) at least a
majority ownership interest or (ii) the power to elect or direct the election of
a majority of the directors or other governing body of such Person. Unless the
context otherwise clearly requires, references in this Agreement to a
"Subsidiary" or the "Subsidiaries" refer to a Subsidiary or the Subsidiaries of
WIL.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Termination Date" means the earlier of (a) the Maturity Date and (b) the
earlier date of the acceleration of the maturity of the Obligations pursuant to
Section 8.01.
"Total Capitalization" means, for any Person, at the date of determination
thereof, the sum of (a) Consolidated Indebtedness of such Person, plus (b) Net
Worth of such Person.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
"Utilization Fee" means the per annum rate specified in Section 2.09(c),
as determined under the heading "Utilization Fee" in the definition of
"Applicable Rate" and based upon the ratings by Xxxxx'x and S&P, respectively,
applicable on such date to the Index Debt.
"Voting Stock" means, with respect to any Person, securities of any class
or classes of Capital Stock in such Person entitling holders thereof (whether at
all times or only so long as no senior class of stock has voting power by reason
of any contingency) to vote in the election of members of the Board of Directors
or other governing body of such Person.
"Wholly-Owned Subsidiary" of a Person means a Subsidiary of which all
issued and outstanding Capital Stock (excluding directors' qualifying shares or
similar jurisdictional requirements) is directly or indirectly owned by such
Person.
"WII" has the meaning specified in paragraph (b) on page one.
"WIL" has the meaning specified in paragraph (a) on page one.
"Zero Coupon Debentures" means the zero coupon convertible debentures due
June 30, 2020, issued by WII on August 22, 2000, pursuant to the Indenture dated
as of May 17, 1996, from WII to The Bank of New York, as Trustee, as amended and
supplemented thereafter, and guaranteed by WIL.
SECTION 1.02. Types of Borrowings. Borrowings hereunder are distinguished
by "Type." The "Type" of a Loan refers to the determination whether such Loan is
a part of a Loan bearing interest at the Adjusted LIBO Rate or at the Alternate
Base Rate.
SECTION 1.03. Accounting Terms; Changes in GAAP. All accounting and
financial terms used herein and not otherwise defined herein and the compliance
with each covenant
-18-
contained herein which relates to financial matters shall be determined in
accordance with GAAP applied on a consistent basis, except to the extent that a
deviation therefrom is expressly stated. Should there be a change in GAAP from
that in effect on the Effective Date, such that the defined terms set forth in
Section 1.01 or the covenants set forth in Article VII would then be calculated
in a different manner or with different components or would render the same not
meaningful criteria for evaluating the matters contemplated to be evidenced by
such covenants, (a) WIL and the Lenders agree, within the 60-day period
following any such change, to negotiate in good faith and enter into an
amendment to this Agreement in order to conform the defined terms set forth in
Section 1.01 or the covenants set forth in Article VII, or both, in such
respects as shall reasonably be deemed necessary by the Required Lenders so that
the criteria for evaluating the matters contemplated to be evidenced by such
covenants are substantially the same criteria as were effective prior to any
such change in GAAP, and (b) the Obligors shall be deemed to be in compliance
with such covenants during the 60-day period following any such change, or until
the earlier date of execution of such amendment, if and to the extent that the
Obligors would have been in compliance therewith under GAAP as in effect
immediately prior to such change.
SECTION 1.04. Interpretation. (a) In this Agreement, unless a clear
contrary intention appears:
(i) the singular number includes the plural number and vice versa;
(ii) reference to any gender includes each other gender;
(iii) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision;
(iv) unless the context indicates otherwise, reference to any Person
includes such Person's successors and assigns but, if applicable, only if
such successors and assigns are permitted by this Agreement, including any
Person that becomes a successor to WIL or WII as a result of a
Redomestication, and reference to a Person in a particular capacity
excludes such Person in any other capacity or individually, provided that
nothing in this clause (iv) is intended to authorize any assignment not
otherwise permitted by this Agreement;
(v) except as expressly provided to the contrary herein, reference
to any agreement, document or instrument (including this Agreement) means
such agreement, document or instrument as amended, supplemented or
modified and in effect from time to time in accordance with the terms
thereof and, if applicable, the terms hereof, and reference to any Note or
other note includes any note issued pursuant hereto in extension or
renewal thereof and in substitution or replacement therefor;
(vi) unless the context indicates otherwise, reference to any
Article, Section, Schedule or Exhibit means such Article or Section hereof
or such Schedule or Exhibit hereto;
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(vii) the word "including" (and with correlative meaning "include")
means including, without limiting the generality of any description
preceding such term;
(viii) with respect to the determination of any period of time,
except as expressly provided to the contrary, the word "from" means "from
and including" and the word "to" means "to but excluding"; and
(ix) reference to any law, rule or regulation means such as amended,
modified, codified or reenacted, in whole or in part, and in effect from
time to time.
(b) The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
(c) No provision of this Agreement shall be interpreted or construed
against any Person solely because that Person or its legal representative
drafted such provision.
Article II
COMMITMENTS; LOANS
SECTION 2.01. Loans. Subject to the terms and conditions set forth herein,
each Lender agrees to make Loans denominated in Dollars to the Borrowers from
time to time during the Availability Period in an aggregate principal amount
that shall not result in (x) such Lender's Revolving Credit Exposure exceeding
such Lender's Commitment or (y) the sum of the total Revolving Credit Exposures
exceeding the total Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrowers may borrow, prepay and
reborrow Loans. Each Lender severally agrees, subject to all of the terms and
conditions of this Agreement to make Loans as follows:
(a) Each Loan shall be made as part of a Borrowing consisting of
Loans made by the Lenders ratably in accordance with their respective
Commitments. The failure of any Lender to make any Loan required to be made by
it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.11, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as a Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the joint and
several obligation of the Borrowers to repay such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $3,000,000 and not less than $3,000,000. At the time that each ABR
Borrowing is made, such ABR Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $1,000,000; provided that an ABR
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the total Commitments. Borrowings of more than one Type
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may be outstanding at the same time; provided that there shall not at any time
be more than a total of seven Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.02. Requests for Loans. To request a Borrowing, a Borrower shall
deliver, by hand delivery or telecopier, a duly completed and executed Borrowing
Request to the Administrative Agent, who shall promptly thereafter notify the
Lenders, of such request (a) in the case of a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, on the date of the proposed Borrowing. Each such
Borrowing Request shall be irrevocable and shall specify the following
information in compliance with Section 2.01:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the account of the requesting
Borrower to which funds are to be disbursed, which shall comply with the
requirements of Section 2.03.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the requesting Borrower
shall be deemed to have selected an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.03. Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder on
the proposed date thereof by wire transfer of immediately available funds by
12:00 noon, New York City time for Borrowings consisting of Eurodollar Loans,
and 1:00 p.m. New York City time for Borrowings consisting of ABR Loans, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent shall make such Loans
available to the requesting Borrower by promptly crediting the amounts so
received from the Lenders, in like funds, to an account of such Borrower
designated by such Borrower in the applicable Borrowing Request; provided that,
if a Borrowing shall not occur on such date
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because any condition precedent herein specified shall not have been met, the
Administrative Agent shall return the amounts so received from the Lenders to
the respective Lenders.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing that such Lender shall not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the requesting
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the Borrowers, jointly and severally, and the applicable Lender severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to the requesting Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrowers, the interest rate applicable
to ABR Borrowings. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.04. Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, a Borrower may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. A Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, a Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.02 if such Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in
the form of Exhibit E or such other form approved by the Administrative Agent,
in each case signed by such Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be
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specified pursuant to clauses (iii) and (iv) below shall be specified for
each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower making such Interest Election
Request shall be deemed to have selected an Interest Period of one month's
duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If a Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing, the Administrative Agent may, or at the
request of the Required Lenders shall, notify WIL that, so long as an Event of
Default is continuing, (i) no outstanding Borrowing may be converted to or
continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.05. Optional Termination and Reduction of Commitments.
(a) XXX xxx at any time terminate, or from time to time reduce, the
Commitments; provided that (i) each reduction of the Commitments shall be in an
amount that is an integral multiple of $1,000,000 and not less than $5,000,000
and (ii) WIL shall not terminate or reduce the Commitments if, after giving
effect to any concurrent prepayment of the Loans in accordance with Section
2.07, the Revolving Credit Exposures would exceed the total Commitments.
(b) WIL shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (b) of this Section at least
three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by WIL pursuant to this
Section shall be irrevocable; provided that a notice of termination of the
Commitments delivered by XXX xxx state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by WIL (by notice to the Administrative Agent on or prior to the
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specified effective date) if such condition is not satisfied. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.
SECTION 2.06. Repayment of Loans; Evidence of Debt.
(a) The Borrowers hereby jointly and severally and unconditionally
promise to pay to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Loan on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrowers to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from each Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the
Borrowers, jointly and severally, to repay the Loans in accordance with the
terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note (all of such notes being hereinafter collectively referred to as
the "Notes"). In such event, the Borrowers shall prepare, execute and deliver to
such Lender a promissory note payable, jointly and severally, to the order of
such Lender and in the form of Exhibit B. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 11.06) be represented by one or more Notes in
such form payable to the order of the payee named therein.
SECTION 2.07. Optional Prepayment of Loans.
(a) The Borrowers shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section.
(b) A Borrower shall notify the Administrative Agent by telephone
(promptly confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount
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of each Borrowing or portion thereof to be prepaid; provided that, if a notice
of prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.05, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.05. Promptly following receipt of any such notice relating to a
Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount that
would be permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02. Each prepayment of a Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.10. All
prepayments under this Section 2.07 shall be subject to Section 2.13.
SECTION 2.08. Mandatory Termination and Reduction of Commitments;
Mandatory Prepayment of Loans.
(a) Unless previously terminated, the Commitments shall terminate on
the Maturity Date.
(b) On the date that a Change of Control of the type described in
clause (a)(iii) of the definition of such term occurs and on the date that is 15
days after the occurrence of any other type of Change of Control, the
Commitments shall terminate and the Borrowers, jointly and severally, shall
prepay the principal amount of the Loans and all accrued and unpaid interest
thereon in immediately available funds.
(c) Within 30 days of receipt by an Obligor of the Net Cash Proceeds
of any Capital Markets Takeout Financing, an amount equal to the lesser of (i)
100% of such Net Cash Proceeds and (ii) a portion of such Net Cash Proceeds
equal to the aggregate amount of Loans then outstanding shall be applied to
prepay the Loans then outstanding, and the Commitments shall be permanently
reduced by an amount equal to 100% of such Net Cash Proceeds. Each such
reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
(d) If the New Revolving Credit Facility provides for commitments by
the lenders party thereto greater than $500,000,000 in the aggregate, upon
effectiveness of such New Revolving Credit Facility, the Commitments shall be
permanently reduced by an amount equal to the difference between the aggregate
amount of the commitments under such New Revolving Credit Facility and
$500,000,000. Such reduction of the Commitments shall be made ratably among the
Lenders in accordance with their respective Commitments.
(e) If the Acquisition is not consummated on or prior to December
31, 2005, on January 1, 2006, the Commitments shall be permanently reduced by an
amount equal to $600,000,000. Such reduction of the Commitments shall be made
ratably among the Lenders in accordance with their respective Commitments.
SECTION 2.09. Fees.
(a) The Borrowers, jointly and severally, agree to pay to the
Administrative Agent for the account of each Lender a facility fee (the
"Facility Fee"), which shall accrue at the Facility Fee Rate on the daily amount
of the Commitment of such Lender (whether used or
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unused) during the period from and including the Effective Date to but excluding
the date on which such Lender ceases to have any Revolving Credit Exposure.
Accrued Facility Fees shall be payable in arrears on the last day of March,
June, September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur after the date
hereof; provided that any Facility Fees accruing after the date on which the
Commitments terminate shall be payable on demand. All Facility Fees shall be
computed on the basis of a year of 365 or 366 days, as applicable, and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) The Borrowers, jointly and severally, agree to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between WIL and the Administrative Agent.
(c) The Borrowers, jointly and severally, agree to pay to the
Administrative Agent for the account of each Lender a utilization fee (the
"Utilization Fee") which shall accrue (i) during the period from and including
the Effective Date to but excluding the New Revolving Credit Facility Effective
Date, at the Applicable Rate on the daily amount of the Revolving Credit
Exposure of such Lender at all times when the amount of the total Revolving
Credit Exposures exceeds $600,000,000 (provided that the Utilization Fee shall
only accrue on that portion of the total Revolving Credit Exposure that exceeds
$600,000,000) and (ii) from and after the New Revolving Credit Facility
Effective Date, at the Applicable Rate on the daily amount of the Revolving
Credit Exposure of such Lender at all times when the amount of the total
Revolving Credit Exposures exceeds 50% of the total Commitments. Utilization
Fees shall be computed on the basis of a year of 360 days and shall be payable
in arrears on the last day of March, June, September and December of each year
and the Maturity Date.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of Facility Fees and Utilization Fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.
SECTION 2.10. Interest.
(a) The Loans comprising each ABR Borrowing shall bear interest at
the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Borrowers hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Borrowings as provided in paragraph (a) of this Section.
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(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and upon termination of the
Commitments; provided that (i) interest accrued pursuant to paragraph (c) of
this Section shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR Loan prior to the
Termination Date), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Base Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be presumed correct absent manifest error.
SECTION 2.11. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall
be presumed correct absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period
shall not adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to WIL and the Lenders
by telephone or telecopy as promptly as practicable thereafter and, until the
Administrative Agent notifies WIL and the Lenders that the circumstances giving
rise to such notice no longer exist, (x) any Interest Election Request that
requests the conversion of any ABR Borrowing to, or continuation of any
Eurodollar Borrowing as, a Eurodollar Borrowing shall be ineffective, and (y) if
any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be
made as an ABR Borrowing.
SECTION 2.12. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such
Lender;
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and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise), then the Borrowers, jointly and severally, shall pay to such Lender
such additional amount or amounts as shall compensate such Lender for such
additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrowers, jointly and severally,
shall pay to such Lender such additional amount or amounts as shall compensate
such Lender or such Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company as specified in
paragraph (a) or (b) of this Section, along with (i) a calculation of such
amount or amounts, (ii) a description of the specific Change in Law that
justifies such amounts due, and (iii) such other pertinent information related
to the foregoing as either Borrower may reasonably request, shall be delivered
to such Borrower and shall be presumed correct absent manifest error. The
Borrowers, jointly and severally, shall pay such Lender the correct amount shown
as due on any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that no Borrower shall be
required to compensate a Lender pursuant to this Section for any increased costs
or reductions incurred more than 120 days prior to the date that such Lender
notifies the Borrowers of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 120-day period referred to above shall be
extended to include the period of retroactive effect thereof.
SECTION 2.13. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.07(b) and is revoked in accordance therewith), or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by a Borrower pursuant to Section 3.03, then,
in any such event, the Borrowers, jointly and severally, shall compensate each
Lender for the loss, cost and expense attributable to such event. In the case of
a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined
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by such Lender to be the excess, if any, of (i) the amount of interest which
would have accrued on the principal amount of such Loan had such event not
occurred, at the Adjusted LIBO Rate that would have been applicable to such
Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrowers and shall be presumed correct absent manifest error, and shall set
forth a calculation of such amounts and such other information as either
Borrower may reasonably request. The Borrowers, jointly and severally, shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.14. Agreement to Defer Exercise of Right of Contribution, Etc.
Notwithstanding any payment or payments made by a Borrower (a "Paying Borrower")
hereunder, or any setoff or application by the Administrative Agent or any
Lender of any security furnished by, or of any credits or claims against, such
Paying Borrower, if an Event of Default has occurred and is continuing, such
Paying Borrower will not assert or exercise any rights of the Administrative
Agent or any Lender or of its own, against the other Borrower to recover the
amount of any such payment, setoff or application by the Administrative Agent or
any Lender, whether by way of assertion of any claim, or exercise of any remedy
or right of subrogation, reimbursement, exoneration, contribution,
indemnification, participation or otherwise, and whether arising by contract, by
statute, under common law or otherwise, and, if an Event of Default has occurred
and is continuing, such Paying Borrower shall not have any right to exercise any
right of recourse to or any claim against assets or property of the other
Borrower for such amounts, in each case unless and until all of the Obligations
of the Borrowers have been fully and finally satisfied. If any amount shall be
paid to a Paying Borrower by the other Borrower after payment in full of the
Obligations, and the Obligations shall thereafter be reinstated in whole or in
part and the Administrative Agent or any Lender forced to repay to either
Borrower any sums received in payment of the Obligations, the obligations of
each Borrower hereunder shall be automatically pro tanto reinstated and such
amount shall be held in trust by the payee thereof for the benefit of the
Administrative Agent and the Lenders and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Obligations, whether
matured or unmatured.
Article III
PAYMENTS; PRO RATA TREATMENT; TAXES
SECTION 3.01. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Each Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest or fees, or of amounts payable under Section
2.12, 2.13 or 3.02, or otherwise) prior to 12:00 noon, New York City time, on
the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to
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the Administrative Agent at its offices at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxxxxxxx, except that payments pursuant to Sections 2.12, 2.13, 3.02 and
11.04 shall be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by a Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to a Borrower or any Subsidiary or Affiliate thereof (as
to which the provisions of this paragraph shall apply). Each Borrower consents
to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
a Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that such Borrower shall not make
such payment, the Administrative Agent may assume that such Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if a
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at
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the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.03(b) or 3.01(d), then the Administrative Agent may,
in its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 3.02. Taxes.
(a) Any and all payments by or on account of any obligation of the
Borrowers hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if either Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section), the Administrative Agent or Lender (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) The Borrowers, jointly and severally, shall indemnify the
Administrative Agent and each Lender, within 20 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent or such Lender, as the case may be, on or with respect
to any payment by or on account of any obligation of a Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrowers by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
presumed correct absent manifest error.
(c) Any Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which a Borrower is located
or treated as located for income Tax purposes, or any treaty to which any such
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to such Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by such
Borrower as shall permit such payments to be made without withholding or at a
reduced rate.
(d) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes paid by a
Borrower or with respect to which a Borrower has paid additional amounts
pursuant to this Section 3.02, it shall pay over such refund to such Borrower
(but only to the extent of indemnity payments made, or additional amounts paid,
by such Borrower under this Section 3.02 with respect to the Taxes or Other
Taxes
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giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided that each Borrower, upon the request of the Administrative
Agent or such Lender, agrees to repay promptly the amount paid over to such
Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority with respect to such amount) to the Administrative Agent
or such Lender in the event the Administrative Agent or such Lender is required
to repay such refund to such Governmental Authority. This Section shall not be
construed to require the Administrative Agent or any Lender to make available
its Tax returns (or any other information relating to its Taxes which it deems
confidential) to either Borrower or any other Person.
(e) Without limiting the generality of the foregoing, each Foreign
Lender shall deliver to each Borrower and the Administrative Agent on the
Effective Date or upon the effectiveness of any Assignment and Assumption by
which it becomes a party to this Agreement (i) two duly completed copies of
United States Internal Revenue Service Form W-8ECI, W 8BEN, W-8EXP or W-8IMY or
other applicable governmental form, as the case may be, certifying in each case
that such Lender is entitled to receive payments under this Agreement and the
Notes payable to it without deduction or withholding of any United States
federal income Taxes, as if each Borrower were incorporated under the laws of
the United States or a State thereof, and (ii) any other governmental forms
which are necessary or required under an applicable Tax treaty or otherwise by
law to eliminate any withholding Tax or which have been reasonably requested by
the Borrowers. Each Lender which delivers to the Borrowers and the
Administrative Agent a Form W-8ECI, W-8BEN, W-8EXP or W-8IMY or other applicable
governmental form pursuant to the preceding sentence further undertakes to
deliver to the Borrowers and the Administrative Agent two further copies of such
form on or before the date that any such form expires (currently, three
successive calendar years for Form W-8BEN or Form W-8ECI) or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form so
delivered by it, and such amendments thereto or extensions or renewals thereof
as may reasonably be requested by a Borrower and the Administrative Agent, in
each case certifying that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
Taxes, unless an event (including any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender advises the Borrowers and the Administrative Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income Taxes and in any such event, each Borrower shall withhold
Taxes at the rate and in the manner required by the laws of the United States
with respect to payments made to such a Lender and shall be required to pay any
additional amounts or indemnify such a Lender pursuant to this Section 3.02 with
respect to such withheld Taxes.
(f) The Borrowers, jointly and severally, will remit to the
appropriate Governmental Authority, prior to delinquency, all Indemnified Taxes
and Other Taxes payable in respect of any payment. Within 30 days after the date
of any payment of Indemnified Taxes or Other Taxes, the applicable Borrower will
furnish to the Administrative Agent the original or a certified copy of a
receipt evidencing payment of such Indemnified Taxes or Other Taxes or such
other evidence thereof as may be reasonably satisfactory to the Administrative
Agent.
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SECTION 3.03. Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.12, or if a Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 3.02, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.12 or 3.02, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrowers hereby, jointly
and severally, agree to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
(b) If (i) any Lender requests compensation under Section 2.12, or
(ii) a Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.02,
or (iii) any Lender defaults in its obligation to fund Loans hereunder, or (iv)
any Lender fails to provide its consent to a Redomestication under the laws of a
jurisdiction (other than the United Kingdom or The Kingdom of the Netherlands)
outside of the United States, then XXX xxx, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 11.06), 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 (x) if such assignee is not already a Lender
hereunder, WIL shall have received the prior written consent of the
Administrative Agent, which consent shall not be unreasonably withheld, (y) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, 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 applicable Borrower
(in the case of all other amounts) and (z) in the case of any such assignment
resulting from a claim for compensation under Section 2.12 or payments required
to be made pursuant to Section 3.02, such assignment shall result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling WIL to require such
assignment and delegation cease to apply and such Lender neither received nor
continued to claim any such compensation or payment.
Article IV
CONDITIONS PRECEDENT
SECTION 4.01. Conditions Precedent to the Initial Credit Event. The
obligation of each Lender to make any Loan on or after the date hereof for the
account of either Borrower is subject to the following conditions:
(a) The Administrative Agent shall have received the following:
(i) this Agreement executed by each party hereto;
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(ii) the appropriate Notes of the Borrowers, if any, payable to each
applicable Lender, duly completed and executed and dated the Effective
Date;
(iii) a certificate of a Responsible Officer of WIL, dated the
Effective Date, certifying (which certifications shall constitute
representations and warranties made by WIL to the Lenders and the
Administrative Agent hereunder) that, as of the Effective Date, (A) except
for actions, suits or proceedings described in the filings made by WIL
with the Securities and Exchange Commission pursuant to the Exchange Act,
(1) there are no actions, suits or proceedings pending or, to the best
knowledge of WIL, threatened against any Obligor or against any of their
respective properties or assets that are reasonably likely to have
(individually or collectively) a Material Adverse Effect and (2) to the
best knowledge of WIL, there are no actions, suits or proceedings pending
or threatened that purport to affect or pertain to the Loan Documents, any
transactions contemplated thereby or the Acquisition; and (B) there has
been no material adverse change since December 31, 2004 in the financial
condition, business or operations of WIL and its Subsidiaries taken as a
whole which could reasonably be expected to have a Material Adverse
Effect;
(iv) a certificate of a Responsible Officer and of the secretary or
an assistant secretary of each Obligor, dated the date hereof and
certifying, inter alia (A) true and complete copies of the memorandum of
association and bye-laws or the bylaws and certificate of incorporation or
other organizational documents, each as amended and in effect, of such
Obligor and the resolutions adopted by the Board of Directors of such
Obligor (1) authorizing the execution, delivery and performance by such
Obligor of this Agreement and the other Loan Documents to which it is or
shall be a party and the borrowing of the Loans to be made hereunder and
(2) authorizing officers of such Obligor to execute and deliver the Loan
Documents to which it is or shall be a party and any related documents,
including any agreement contemplated by this Agreement, (B) the incumbency
and specimen signatures of the officers of such Obligor executing any
documents on its behalf and (C) (1) that the representations and
warranties made by such Obligor in any Loan Document to which such Obligor
is a party and which shall be delivered at or prior to the Effective Date
are true and correct in all material respects as of the Effective Date,
except for those that by their express terms apply to an earlier date
which shall be true and correct in all material respects as of such
earlier date, (2) the absence of any proceedings for the dissolution,
liquidation or winding up of such Obligor, and (3) the absence of the
occurrence and continuance of any Default or Event of Default;
(v) favorable, signed opinions addressed to the Administrative Agent
and the Lenders dated the Effective Date from (A) Fulbright & Xxxxxxxx
L.L.P., counsel to the Obligors, (B) Xxxxxxx Xxxx & Xxxxxxx, special
Bermuda counsel to WIL, and (C) Szakaly Law Firm, special Hungarian
counsel to HOC, each given upon the express instruction of the applicable
Obligor;
(vi) one or more letters from CT Corporation System in form and
substance satisfactory to the Administrative Agent and the Lenders
evidencing the obligation of CT Corporation System to accept service of
process in the State of New York on behalf of
each Obligor that is not authorized to do business as a foreign
corporation in the State of New York;
(vii) copies of the memorandum of association, articles or
certificates of incorporation or other similar organizational documents of
each Obligor certified as of a recent date prior to the Effective Date by
the appropriate Governmental Authority and certificates of appropriate
public officials as to the existence, good standing and qualification to
do business as a foreign corporation, of each Obligor in each jurisdiction
in which the ownership of its properties or the conduct of its business
requires such qualification and where the failure to so qualify would,
individually or collectively, have a Material Adverse Effect; and
(viii) an executed copy of the Acquisition Document (including all
exhibits, schedules and supplements thereto), accompanied by a certificate
of a Responsible Officer of WIL to the effect that such copy is true and
complete as of the Effective Date.
(b) The Administrative Agent shall have received evidence
satisfactory to it that all material consents of each Governmental Authority and
of each other Person, if any, reasonably required in connection with (a) the
Loans and (b) the execution, delivery and performance of this Agreement and the
other Loan Documents have been satisfactorily obtained.
(c) The Borrowers shall have paid (i) to the Administrative Agent
and the Lenders, as applicable, all fees and expenses agreed upon by such
parties to be paid on or prior to the Effective Date, and (ii) to Xxxxx Xxxxx
L.L.P. pursuant to Section 11.03 all fees and disbursements invoiced at or
before 10:00 a.m. (New York City time) on the Effective Date by said firm to the
Borrowers, on the Effective Date.
(d) The Lenders shall have received, sufficiently in advance of the
Effective Date, all documentation and other information requested in writing by
the Administrative Agent or any Lender and required by bank regulatory
authorities under applicable "know your customer" and anti-money laundering
rules and regulations, including without limitation, the United States PATRIOT
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), including,
without limitation, the information described in Section 11.20.
SECTION 4.02. Conditions Precedent to All Credit Events. The obligation of
the Lenders to make any Loan on or after the date hereof is subject to the
further conditions precedent that on the date such Loan is made:
(a) The conditions precedent set forth in Section 4.01 shall have
theretofore been satisfied.
(b) The representations and warranties set forth in Article V and in
the other Loan Documents shall be true and correct in all material respects as
of, and as if such representations and warranties were made on, the date of the
proposed Loan (unless such representation and warranty expressly relates to an
earlier date, in which case such representation and warranty shall continue to
be true and correct as of such earlier date), and the Obligors shall be deemed
to have certified to the Administrative Agent and the Lenders that such
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representations and warranties are true and correct in all material respects by
a Borrower's delivery of a Borrowing Request.
(c) The Administrative Agent shall have received a duly executed
Borrowing Request by the time and on the Business Day specified under Section
2.02.
(d) No Default or Event of Default shall have occurred and be
continuing or would result from such Credit Event.
(e) The Administrative Agent and the Lenders shall have received
such other approvals, opinions or documents as the Administrative Agent or the
Required Lenders may reasonably request.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each of the Obligors to each of the Lenders that
all of the conditions specified in this Section 4.02 above have been satisfied
as of that time.
SECTION 4.03. Delivery of Documents. All of the Notes, certificates, legal
opinions and other documents and papers referred to in this Article IV, unless
otherwise specified, shall be delivered to the Administrative Agent for the
account of each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be satisfactory in form
and substance to the Administrative Agent.
Article V
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the Loans,
each Obligor represents and warrants as to itself, and WIL represents and
warrants as to the other Obligors (such representations and warranties to
survive any investigation and the making of the Loans), to the Lenders and the
Administrative Agent as follows:
SECTION 5.01. Organization and Qualification. Each Obligor and each
Material Subsidiary (a) is a company, corporation, partnership, or entity having
limited liability that is duly organized or formed, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation,
(b) has the corporate, partnership or other power and authority to own its
property and to carry on its business as now conducted and (c) is duly qualified
as a foreign corporation or other foreign entity to do business and is in good
standing in every jurisdiction in which the failure to be so qualified would,
together with all such other failures of the Obligors and their Subsidiaries,
have a Material Adverse Effect. As of the Effective Date, the companies,
corporations and other entities named in Schedule 5.01 are all of the Material
Subsidiaries, and Schedule 5.01 accurately reflects (i) the direct owner of the
Capital Stock of each such Subsidiary and (ii) the percentage of the issued and
outstanding Capital Stock of each such Subsidiary owned by each Obligor.
SECTION 5.02. Authorization, Validity, Etc. Each Obligor has the corporate
or other power and authority to execute, deliver and perform its obligations
hereunder and under the other Loan Documents to which it is a party and to
obtain the Loans, and all such action has been duly authorized by all necessary
corporate, partnership or other proceedings on its part or on its
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behalf. This Agreement has been duly and validly executed and delivered by or on
behalf of each Obligor and constitutes valid and legally binding agreements of
such Obligor enforceable against such Obligor in accordance with the terms
hereof, and the Notes and the other Loan Documents to which such Obligor is a
party, when duly executed and delivered by or on behalf of such Obligor, shall
constitute valid and legally binding obligations of such Obligor enforceable in
accordance with the respective terms thereof and of this Agreement, except, in
each case (a) as may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws relating to or affecting
the enforcement of creditors' rights generally, and by general principles of
equity which may limit the right to obtain equitable remedies (regardless of
whether such enforceability is a proceeding in equity or at law) and (b) as to
the enforceability of provisions for indemnification and the limitations thereon
arising as a matter of law or public policy.
SECTION 5.03. Governmental Consents, Etc. No authorization, consent,
approval, license or exemption of or filing or registration with any
Governmental Authority, is necessary for the valid execution, delivery or
performance by any Obligor of any Loan Document to which it is a party, except
those that have been obtained and such matters relating to performance as would
ordinarily be done in the ordinary course of business after the Effective Date.
SECTION 5.04. No Breach or Violation of Law or Agreements. Neither the
execution, delivery and performance by any Obligor of the Loan Documents to
which it is a party, nor compliance with the terms and provisions thereof, nor
the extensions of credit contemplated by the Loan Documents, (a) shall breach or
violate any applicable Requirement of Law, (b) shall result in any breach or
violation of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of its property or assets
pursuant to the terms of any indenture, mortgage, deed of trust, agreement or
other instrument to which it or any of its consolidated Subsidiaries is party or
by which any property or asset of it or any of its consolidated Subsidiaries is
bound or to which it is subject, except for breaches, violations and defaults
under clauses (a) and (b) that collectively for the Obligors shall not have a
Material Adverse Effect or (c) shall violate any provision of the organizational
documents of any Obligor.
SECTION 5.05. Title to Assets. Each Obligor and each consolidated
Subsidiary of WIL has good and indefeasible title to its assets, except for such
defects in title as would not in the aggregate have a Material Adverse Effect.
As of the Effective Date, the property of the Obligors and their Subsidiaries is
subject to no Liens, except Permitted Liens.
SECTION 5.06. Information; Financial Statements. All information
heretofore furnished by the Obligors to the Administrative Agent or any Lender
in connection with this Agreement, when considered together with the disclosures
made herein, in the other Loan Documents and in the filings made by any Obligor
with the Securities and Exchange Commission pursuant to the Exchange Act, did
not as of the date thereof and shall not as of the date of the initial Credit
Event hereunder, when read together and taken as a whole, contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained therein not misleading in any material respect.
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SECTION 5.07. Investment Company Act. No Obligor nor any of its
Subsidiaries is, or is regulated as, an "investment company," as such term is
defined in the Investment Company Act of 1940 (as adopted in the United States),
as amended.
SECTION 5.08. Public Utility Holding Company Act. No Obligor nor any of
its Subsidiaries is a non-exempt "holding company," or subject to regulation as
such, or, to the knowledge of any Obligor's officers, an "affiliate" of a
"holding company" or a "subsidiary company" of a "holding company," within the
meaning of the Public Utility Holding Company Act of 1935 (as adopted in the
United States), as amended.
SECTION 5.09. ERISA.
(a) Each Obligor and each ERISA Affiliate has maintained and
administered each Plan in compliance with all applicable laws except for such
instances of noncompliance as have not resulted in and would not reasonably be
expected to have a Material Adverse Effect. No Obligor nor any ERISA Affiliate
has incurred any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit plans (as defined
in Section 3 of ERISA), and no event, transaction or condition has occurred or
exists that would reasonably be expected to result in the incurrence of any such
liability by any Obligor or any ERISA Affiliate, or in the imposition of any
Lien on any of the rights, properties or assets of any Obligor or any ERISA
Affiliate pursuant to Title I or IV of ERISA Sections 401(a)(29) or 412 of the
Code, other than such liabilities or Liens as would not in the aggregate
reasonably be expected to have a Material Adverse Effect.
(b) No accumulated funding deficiency (as defined in Section 412 of
the Code or Section 302 of ERISA), in excess of $50,000,000, whether or not
waived, exists or is expected to be incurred with respect to any Plan.
(c) No Obligor and its ERISA Affiliates have incurred withdrawal
liabilities (and are not subject to contingent withdrawal liabilities) under
Sections 4201 or 4204 of ERISA in respect of Multiemployer Plans that in the
aggregate would reasonably be expected to have a Material Adverse Effect.
(d) All contributions have been timely made to all employee benefit
plans, as defined in Section 3 of ERISA, except for such failures as would not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.10. Tax Returns and Payments. Each Obligor and each Material
Subsidiary has caused to be filed all federal income tax returns and other
material tax returns, statements and reports (or obtained extensions with
respect thereto) which are required to be filed and have paid or deposited or
made adequate provision in accordance with GAAP for the payment of all taxes
(including estimated taxes shown on such returns, statements and reports) which
are shown to be due pursuant to such returns, except where the failure to pay
such taxes (collectively for the Obligors and the Material Subsidiaries, taken
as a whole) would not have a Material Adverse Effect. No material income tax
liability of any Obligor or any Material Subsidiary has been asserted by the
Internal Revenue Service of the United States or any other Governmental
Authority for any taxes in excess of those already paid, except for taxes which
are
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being contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP have been created on the books of the Obligors
and their Subsidiaries.
SECTION 5.11. Requirements of Law; Environmental Matters.
(a) The Obligors and each of their consolidated Subsidiaries are in
compliance with all Requirements of Law, applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all Governmental
Authorities in respect of the conduct of its business and the ownership of their
property, except for such non-compliances which, in the aggregate, would not
have a Material Adverse Effect.
(b) WIL monitors, in the ordinary course of its business, the effect
of existing Environmental Laws, and each claim asserted against it, the other
Obligors, and any of their Subsidiaries by any Governmental Authority alleging
potential liability or responsibility for violation of any Environmental Law, on
its business operations and properties. As a result thereof, WIL have reasonably
concluded that such Environmental Laws and any such claims would not, in the
aggregate, have a Material Adverse Effect.
SECTION 5.12. Purpose of Loans.
(a) All proceeds of the Loans shall be used by the Borrowers (i) to
fund the Acquisition, (ii) to fund (A) the Redemption or (B) the repurchase of
common shares or other equity securities issued by WIL (provided that such
shares or securities are cancelled, and not held in treasury for reissuance,
immediately following the repurchase thereof) or (iii) to refinance commercial
paper issued by either Borrower or the Guarantor. Neither the Administrative
Agent nor any Lender shall have any responsibility as to the use of any proceeds
of the Loans.
(b) None of the proceeds of the Loans were or shall be used directly
or indirectly for the purpose of buying or carrying any "margin stock" within
the meaning of Regulation U (herein called "margin stock") or for the purpose of
reducing or retiring any indebtedness which was originally incurred to buy or
carry a margin stock, or for any other purpose which might constitute this
transaction a "purpose" credit within the meaning of Regulation U. No Obligor
nor any agent acting on its behalf has taken or shall take any action which
might cause this Agreement or any other Loan Document to violate Regulation T, U
or X, or any other regulation of the Board or to violate the Exchange Act.
Margin stock did not on the Effective Date, and does not now, constitute more
than 25% of the assets of any Obligor.
SECTION 5.13. Designation of the Obligations. The Obligations under this
Agreement and under the other Loan Documents are pari passu with Indebtedness
under the May 1996 Debenture Indenture and the October 2003 Debenture Indenture.
SECTION 5.14. No Default. No Default or Event of Default has occurred and
is continuing
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Article VI
AFFIRMATIVE COVENANTS
Each of WIL and WII covenants and agrees that prior to the termination of
this Agreement it shall duly and faithfully perform, and (as applicable) cause
its Subsidiaries to perform, each and all of the following covenants:
SECTION 6.01. Information Covenants. Each of WIL and WII shall furnish or
cause to be furnished to the Administrative Agent and each Lender:
(a) As soon as available, and in any event within 45 days after the
end of each of the first three quarterly accounting periods in each fiscal year
the Quarterly Report on Form 10 Q, or its equivalent, of WIL; provided that WIL
shall be deemed to have furnished said Quarterly Report on Form 10-Q for
purposes of this Section 6.01(a) if the same shall have timely been made
available on "XXXXX" and/or on its home page on the worldwide web (as the date
of this Agreement located at xxx.xxxxxxxxxxx.xxx) and complied with Section
4.01(c) in respect thereof.
(b) As soon as available, and in any event within 90 days after the
close of each fiscal year, the Annual Report, the Form 10 K, or its equivalent,
of WIL, for such fiscal year and certified by Ernst & Young LLP or other
independent certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent and the Required Lenders,
whose certification shall be without qualification or limitation; provided that
(x) WIL shall be deemed to have furnished said Annual Report on Form 10-K for
purposes of this Section 6.01(b) if the same shall have timely been made
available on "XXXXX" and/or on its home page on the worldwide web (at the date
of this Agreement located at xxx.xxxxxxxxxxx.xxx) and complied with Section
4.01(c) in respect thereof, and (y) if said Annual Report on Form 10-K contains
the report of such independent public accountants (without qualification or
exception, and to the effect, as specified above), neither WIL nor WII shall be
required to deliver such report.
(c) Promptly after the same become publicly available, (whether on
"XXXXX" or WIL's homepage on the worldwide web or otherwise), notice to the
Administrative Agent of the filing of all periodic reports, and all amendments
to such reports, on Form 10-K or Form 10-Q, and all definitive proxy statements
filed by any Obligor or any of its Subsidiaries with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed by WIL to its shareholders generally, as the case may be (and in
furtherance of the foregoing, WIL will give to the Administrative Agent prompt
written notice of any change at any time or from time to time of the location of
WIL's home page on the worldwide web).
(d) Promptly, and in any event within ten Business Days after any
Responsible Officer of such Obligor obtains knowledge of
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(i) any event or condition (excluding events or conditions
constituting generalized market conditions affecting WIL and its
competitors in substantially the same way) which would reasonably be
expected to have a Material Adverse Effect; or
(ii) any event or condition which constitutes a Default or an Event
of Default; or
(iii) the occurrence of a Change of Control or Change of Control
Event;
a notice of such event or condition, specifying the nature thereof.
(e) At the time of the delivery of the financial statements provided
for in Sections 6.01(a) and 6.01(b), (i) a certificate of a Responsible Officer
of WIL in the form of Exhibit C and (ii) to the extent there has been any change
in the information previously furnished to the Administrative Agent and the
Lenders on Schedule 5.01, a revised Schedule 5.01.
(f) Promptly, and in any event within 30 days after any Responsible
Officer of such Obligor obtains knowledge thereof, notice:
(i) of the occurrence or expected occurrence of any material
Reportable Event with respect to any Plan, a failure to make any material
required contribution to a Plan, any Lien in favor of the PBGC or a Plan,
or any withdrawal from, or the termination, reorganization or insolvency
(within the meaning of such terms as used in ERISA) of any Multiemployer
Plan, or
(ii) of the institution of proceedings or the taking of any other
action by the PBGC or WIL or any ERISA Affiliate or any Multiemployer Plan
with respect to the withdrawal from, or the terminating, reorganization or
insolvency (within the meaning of such terms as used in ERISA) of, any
Plan which termination, reorganization or insolvency would reasonably be
expected to have a Material Adverse Effect, except that no notice shall be
required with respect to the merger of a defined contribution plan of one
ERISA Affiliate into a defined contribution plan of another ERISA
Affiliate.
(g) Promptly after effectiveness thereof, notice and copies of any
material amendments, waivers or supplements to the Acquisition Document.
(h) From time to time and with reasonable promptness, such other
information or documents (financial or otherwise) with respect to any Obligor or
any of its Subsidiaries as the Administrative Agent or any Lender through the
Administrative Agent may reasonably request.
SECTION 6.02. Books, Records and Inspections. Such Obligor shall, and
shall cause each of its Material Subsidiaries and, to the extent it is not a
Material Subsidiary, HOC, to permit, or cause to be permitted, any Lender, upon
written notice, to visit and inspect any of the properties of such Obligor and
its Subsidiaries, to examine the books and financial records of such Obligor and
its Subsidiaries and to discuss the affairs, finances and accounts of any such
Obligor with a Responsible Officer of such Obligor, such Subsidiaries, all at
such reasonable times and as often as such Lender(s), through the Administrative
Agent, may reasonably request.
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SECTION 6.03. Insurance and Maintenance of Properties. Such Obligor shall,
and shall cause each of the Material Subsidiaries and, to the extent it is not a
Material Subsidiary, HOC, to maintain or cause to be maintained insurance with
respect to its property and business against such liabilities and risks, in such
types and amounts and with such deductibles or self-insurance risk retentions,
in each case as are in accordance with normal industry practice.
SECTION 6.04. Payment of Taxes and other Claims. Such Obligor shall, and
shall cause each of the Material Subsidiaries and, to the extent it is not a
Material Subsidiary, HOC, to pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all taxes, assessments and governmental
charges levied or imposed upon such Obligor or such Material Subsidiary or HOC,
as applicable, or upon the income, profits or property of such Obligor or such
Material Subsidiary or, to the extent it is not a Material Subsidiary, HOC, as
applicable, except for (i) such taxes, assessments or governmental charges as
would not, individually or in the aggregate, have a Material Adverse Effect and
(ii) any such tax, assessment or governmental charge whose amount, applicability
or validity is being contested in good faith by appropriate proceedings and for
which adequate reserves have been established in accordance with GAAP.
SECTION 6.05. Existence. Except as expressly permitted pursuant to Section
7.02, each such Obligor shall do all things necessary to preserve and keep in
full force and effect the corporate or other existence, rights and franchises of
such Obligor and HOC.
SECTION 6.06. ERISA Information and Compliance. Except with respect to
matters described in clauses (a), (c) and (d) below which would not reasonably
be expected to have a Material Adverse Effect, WIL shall promptly furnish to
Administrative Agent: (a) immediately upon receipt, a copy of any notice of
complete or partial withdrawal liability under ERISA and any notice from the
PBGC under ERISA of an intent to terminate or appoint a trustee to administer
any Plan, (b) if requested by the Administrative Agent, promptly after the
filing thereof with the United States Secretary of Labor or the PBGC or the
Internal Revenue Service, copies of each annual and other report with respect to
each Plan or any trust created thereunder, (c) immediately upon becoming aware
of the occurrence of any Reportable Event, or of any "prohibited transaction",
as such term is defined in Section 4975 of the Code, in connection with any Plan
or any trust created thereunder, a written notice signed by a Responsible
Officer of WIL or the applicable ERISA Affiliate specifying the nature thereof,
what action WIL or the applicable ERISA Affiliate is taking or proposes to take
with respect thereto, and, when known, any action taken by the PBGC, the
Internal Revenue Service, the Department of Labor or any other applicable
Governmental Authority with respect thereto, (d) promptly after the filing or
receiving thereof by WIL or any ERISA Affiliate, any notice of the institution
of any proceedings or other actions which may result in the termination of any
Plan, and (e) each request for waiver of the funding standards or extension of
the amortization periods required by ERISA or Section 412 of the Code promptly
after the request is submitted by WIL or any ERISA Affiliate to the Secretary of
the Treasury, the Department of Labor, the Internal Revenue Service or any other
applicable Governmental Authority. WIL covenants that it shall and shall cause
each ERISA Affiliate to comply, with respect to each Plan and Multiemployer
Plan, with all applicable provisions of ERISA and the Code, except to the extent
that any failure to comply would not reasonably be expected to have a Material
Adverse Effect.
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Article VII
NEGATIVE COVENANTS
Each Obligor covenants and agrees with the Administrative Agent and the
Lenders that prior to the termination of this Agreement it shall duly and
faithfully perform, and cause its Subsidiaries to perform, each and all of the
following covenants:
SECTION 7.01. Material Change in Business. WIL shall not, and shall not
permit its Material Subsidiaries and, to the extent it is not a Material
Subsidiary, HOC, to engage in any material business substantially different from
those carried on by WIL and its consolidated Subsidiaries taken as a whole on
the date hereof and after giving pro forma effect to the Acquisition.
SECTION 7.02. Consolidation, Merger, or Sale of Assets, Etc. WIL shall
not, and shall not permit any consolidated Subsidiary to (x) wind up, liquidate
or dissolve its affairs, or (y) amalgamate or consolidate with, or merge into,
or sell, lease or otherwise dispose of all or substantially all of its assets
(in one transaction or a series of transactions) to, any other Person, or permit
any other Person to amalgamate or consolidate with, or merge into, or sell,
lease or otherwise dispose of all or substantially all of its assets to, it,
except that this Section 7.02 shall not prohibit any Redomestication or any of
the following transactions, or any agreement to effect the same:
(a) if, immediately before and after giving effect thereto, no Event
of Default or Default (other than an Event of Default or Default that would
arise from such transaction under the terms of Section 8.01(i) but for the terms
of this Section 7.02(a)) shall have occurred and be continuing, any
amalgamation, consolidation or merger, or sale, lease or other disposition of
assets involving WIL or any of its consolidated Subsidiaries, provided that
(i) in any such merger, consolidation or amalgamation involving WIL,
either
(A) the entity that constituted WIL immediately prior thereto
is the surviving, resulting or continuing Person in such merger,
amalgamation or consolidation (in any such case, the "Survivor"), or
(B) if the entity that constituted WIL immediately prior
thereto is not the Survivor, the Survivor shall execute and deliver
to the Administrative Agent an instrument, in form and substance
satisfactory to it, whereby the Survivor shall become a party to
this agreement and assume all rights and obligations of WIL
hereunder;
(ii) in any such merger, consolidation or amalgamation involving
WII, either
(A) the entity that constituted WII immediately prior thereto
is the Survivor, or
(B) WII shall have amalgamated or merged with and into WIL and
WIL shall be the Survivor, or
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(C) if neither the entity that constituted WII immediately
prior thereto nor WIL is the Survivor, the Survivor shall execute
and deliver to the Administrative Agent an instrument, in form and
substance satisfactory to it, whereby the Survivor shall become a
party to this agreement and assume all rights and obligations of
such WII hereunder;
(iii) sales, leases or other dispositions of assets to Persons that
are not consolidated Subsidiaries shall be made for fair market value as
determined by the Board of Directors of the applicable transferor;
provided that (i) at the time of any sale, lease or other disposition, no
Default or Event of Default shall exist or shall result from such sale,
lease or other disposition, and (ii) no such sale, lease or other
disposition shall constitute a disposition of all or substantially all of
the assets of WIL and its consolidated Subsidiaries, taken as a whole;
(iv) in any such merger, consolidation or amalgamation not involving
WIL or WII, either (A) a Wholly-Owned Subsidiary of WIL is the Survivor or
(B) if the Survivor is not a Wholly-Owned Subsidiary, such merger,
consolidation or amalgamation does not constitute a sale, lease or other
disposition of all or substantially all of the assets of WIL and its
consolidated Subsidiaries, taken as a whole;
(v) in the case of any transaction specified in the foregoing
clauses (i), (ii), (iii) or (iv), (A) WIL and its consolidated
Subsidiaries shall be in compliance, on a pro forma basis after giving
effect to such transaction, with the covenants contained in this Article
VII recomputed as of the last day of the most recently ended fiscal
quarter of WIL as if such transaction had occurred on the first day of
each relevant period for testing such compliance, and (B) if an Obligor is
a party to such transaction and is not the Survivor, the Administrative
Agent shall have received an opinion reasonably satisfactory in form,
scope and substance to the Administrative Agent, of counsel reasonably
satisfactory to the Administrative Agent, addressing such matters in
connection with such transaction as the Administrative Agent or such
Lender may reasonably request, along with such other documentation as the
Administrative Agent may reasonably request; and
(vi) sales, leases, other dispositions and transfers of assets among
or between the Borrowers, or among and between the Borrowers and
Subsidiaries or among and between Subsidiaries; provided that WIL's direct
or indirect equity interests in the transferee will be at least as great
as its direct or indirect equity interests in the transferor immediately
prior to such sale, lease, other disposition or transfer.
(b) any winding up, liquidation or dissolution of any consolidated
Subsidiary if immediately before and after giving effect thereto, no Event of
Default or Default (other than an Event of Default or Default that would arise
from such transaction under the terms of Section 8.01(i) but for the terms of
this Section 7.02(b)) shall have occurred and be continuing and, in the case of
any Material Subsidiary, if in the reasonable judgment of the Board of Directors
(or other managing group) of such Material Subsidiary, such winding up,
liquidation or dissolution is in the best interests of WIL and its consolidated
Subsidiaries taken as a whole and is not materially disadvantageous to any
Lender, provided that, with respect to any winding up, liquidation or
dissolution of either HOC or WII (i) the owner of all of the Capital Stock of
such Obligor
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immediately prior to such event shall be WIL, a Wholly-Owned Subsidiary of WIL,
the New Parent or a direct or indirect Wholly-Owned Subsidiary of the New Parent
and (ii) if such owner is not then an Obligor, such owner shall execute and
deliver to the Administrative Agent (A) a guaranty of the Obligations in form
and substance reasonably satisfactory to the Administrative Agent, (B) an
opinion, reasonably satisfactory in form, scope and substance to the
Administrative Agent, of counsel reasonably satisfactory to the Administrative
Agent, addressing such matters in connection with such event as the
Administrative Agent or any Lender may reasonably request and (C) such other
documentation as the Administrative Agent may reasonably request.
SECTION 7.03. Liens. WIL shall not, and shall not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of WIL or such Subsidiary, whether now owned or hereafter acquired,
except Permitted Liens.
SECTION 7.04. Indebtedness.
(a) WIL shall not create, incur or assume, nor permit any of its
Subsidiaries to create, incur or assume any Indebtedness, unless each of the
Borrowers and their Subsidiaries shall be in compliance, on a pro forma basis
after giving effect to such transactions, with the covenants contained in this
Article VII recomputed as of the last day of the most recently ended fiscal
quarter of WIL as if the transaction in question had occurred on the first day
of each relevant period for testing such compliance.
(b) In addition to and notwithstanding Section 7.04(a), the
aggregate principal amount of all Indebtedness of all Subsidiaries of WIL other
than WII and HOC at any time outstanding to any Person other than WIL and its
Subsidiaries shall not exceed 20% of WIL's Net Worth at such time.
SECTION 7.05. Ownership of WII. Except to the extent permitted under
Section 7.02, the Persons who are the shareholders of WIL shall not at any time
own, beneficially and of record, directly or indirectly, less than 100% of the
Capital Stock (except for directors' qualifying shares) of WII.
SECTION 7.06. Financial Covenant. WIL shall not permit its Consolidated
Indebtedness to exceed 60% of its Total Capitalization at the end of any fiscal
quarter.
SECTION 7.07. Limitation on Transactions with Affiliates. WIL shall not,
and shall not permit any of its consolidated Subsidiaries to, directly or
indirectly, conduct any business or enter into, renew, extend or permit to exist
any transaction or series of related transactions with any Affiliate who is not
either (a) WIL or one of WIL's consolidated Subsidiaries or a Person that
becomes, pursuant to a Redomestication, a part of the consolidated group that
includes WIL, or (b) Weatherford\Al Rushaid Limited, Weatherford Saudi Arabia
Limited or Universal Compression Holdings, Inc., other than on fair and
reasonable terms (taking all related transactions into account and considering
the terms of such related transactions in their entirety) substantially as
favorable to WIL or such consolidated Subsidiary, as the case may be, as would
be available in a comparable arm's length transaction. Notwithstanding the
foregoing, the
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restrictions set forth in this covenant shall not apply to (i) the payment of
reasonable and customary regular fees to directors of an Obligor who are not
employees of such Obligor; (ii) loans and advances to officers and employees of
an Obligor and its respective Subsidiaries for travel, entertainment and moving
and other relocation expenses made in direct furtherance and in the ordinary
course of business of an Obligor and its Subsidiaries; and (iii) any other
transaction with any employee, officer or director of an Obligor or any of its
Subsidiaries pursuant to employee benefit or compensation arrangements entered
into in the ordinary course of business and approved by, as applicable, the
Board of Directors of such Obligor or the Board of Directors of such Subsidiary
permitted by this Agreement.
SECTION 7.08. Restrictions on Subsidiary Dividends. WIL shall not, nor
shall it permit any of its consolidated Subsidiaries to, enter into any
agreement or contract which limits or restricts in any way the payment of any
dividends or distributions by any consolidated Subsidiary of such Obligor to WIL
or to another consolidated Subsidiary of WIL, except that the foregoing
restrictions set forth in this Section 7.08 shall not apply to limitations or
restrictions existing under or by reason of (i) any agreement for the sale or
other disposition of all or substantially all of the equity interests in or all
or substantially all of the assets of a Subsidiary, which agreement restricts
distributions or dividends by such Subsidiary pending such sale or other
disposition, (ii) contracts and agreements outstanding on the date hereof and
(iii) any agreement or instrument governing capital stock of a Person acquired
by WIL or any of its consolidated Subsidiaries as in effect at the time of such
acquisition, which restriction or limitation (x) is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or the
property or assets of such Person, so acquired and (y) is not incurred in
connection with, or in contemplation of, such acquisition.
SECTION 7.09. The Debenture Indentures. Neither WIL nor WII shall take any
action that could result in the Obligations' failing to be classified as pari
passu with Indebtedness under the May 1996 Debenture Indenture or the October
2003 Debenture Indenture.
Article VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01. Events of Default and Remedies. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) (i) the principal of any Loan or Note shall not be paid on the
date on which such payment is due, or (ii) any payment of interest on any such
Loan or Note or any other amount due hereunder or any other Loan Document shall
not be paid within five calendar days following the date on which such payment
of interest or such other amount is due; or
(b) any representation or warranty made or, for purposes of Article
IV, deemed made by or on behalf of any Obligor herein, at the direction of any
Obligor or by any Obligor in any other Loan Document or in any document,
certificate or financial statement delivered in connection with this Agreement
or any other Loan Document shall prove to have been incorrect in any material
respect when made or deemed made or reaffirmed, as the case may be; or
- 46 -
(c) any Obligor shall fail to perform or observe any covenant
contained in Article VII or fails to give any notice required by Section
6.01(d), 6.01(e) or 6.01(f); or
(d) any Obligor shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement (other than those specified in
Section 8.01(a), 8.01(b) or 8.01(c)) or any other Loan Document to which it is a
party and, in any event, such failure shall remain unremedied for 30 calendar
days after the earlier of (i) written notice of such failure shall have been
given to a Responsible Officer of WIL by the Administrative Agent or any Lender
or, (ii) a Responsible Officer of any Obligor becomes aware of such failure; or
(e) any Obligor or any of its Subsidiaries (i) fails to make
(whether as primary obligor or as guarantor or other surety) any principal
payment of or interest or premium, if any, on any Indebtedness beyond any period
of grace provided with respect thereto (not to exceed 30 days), provided that
the aggregate amount of all Indebtedness as to which such a payment default
shall occur and be continuing is equal to or exceeds $100,000,000, or (ii)
defaults under any agreement or any instrument which governs the rights and
remedies of Persons holding Indebtedness of any Obligor or any of its
Subsidiaries with an aggregate face amount or aggregate amount of commitments
which is equal to or exceeds $100,000,000 (including without limitation the New
Revolving Credit Facility Agreement); or
(f) the entry by a court having jurisdiction in the premises of (i)
a decree or order for relief in respect of any Obligor or any Material
Subsidiary in an involuntary case or proceeding under any applicable federal,
state or foreign bankruptcy, insolvency, reorganization or other similar law or
(ii) a decree or order adjudging any Obligor or any Material Subsidiary bankrupt
or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of any Obligor or any
Material Subsidiary under any applicable federal, state or foreign law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of any Obligor or any Material Subsidiary of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs; or
(g) the commencement by any Obligor or any Material Subsidiary of a
voluntary case or proceeding under any applicable federal, state or foreign
bankruptcy, insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent by any
Obligor or any Material Subsidiary to the entry of a decree or order for relief
in respect of such Obligor or such Material Subsidiary in an involuntary case or
proceeding under any applicable federal, state or foreign bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by any
Obligor or any Material Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable federal, state or foreign law, or
the consent by any Obligor or any Material Subsidiary to the filing of such
petition or the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of such Obligor
or such Material Subsidiary or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the consent to,
approval of or the admission by any Obligor or any Material Subsidiary in
writing of its inability to pay its debts generally as they become due, or the
taking
- 47 -
of corporate or other action by any Obligor or any Material Subsidiary in
furtherance of any such action; or
(h) a judgment or order shall be entered against any Obligor or any
Material Subsidiary, which with other outstanding judgments and orders entered
against the Obligors and the Material Subsidiaries equals or exceeds
$100,000,000 in the aggregate (to the extent not covered by insurance as to
which the respective insurer has acknowledged coverage), and (i) within 60 days
after entry thereof such judgment shall not have been discharged or execution
thereof stayed pending appeal or, within 60 days after the expiration of any
such stay, such judgment shall not have been discharged, or (ii) any enforcement
proceeding shall have been commenced (and not stayed) by any creditor upon such
judgment; or
(i) other than as a result of a transaction permitted by the terms
of Section 7.02, any Loan Document shall (other than with the consent of the
Administrative Agent and the Lenders), at any time after its execution and
delivery and for any reason, cease to be in full force and effect in any
material respect, or shall be declared to be null and void, or the validity or
enforceability thereof shall be contested by any Obligor or any Obligor shall
deny that it has any or further liability or obligation thereunder; or
(j) any Plan shall incur an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA) which (individually
or collectively) exceeds $50,000,000, whether or not waived, or a waiver of the
minimum funding standard or extension of any amortization period is sought or
granted under Section 412 of the Code with respect to a Plan; any proceeding
shall have occurred or is reasonably likely to occur by the PBGC under Section
4069(a) of ERISA to impose liability on WIL, any consolidated Subsidiary or an
ERISA Affiliate which (individually or collectively) exceeds $50,000,000; any
required contribution to a Plan or Multiemployer Plan in excess of $50,000,000
shall not have been made within 15 days of the date such contribution is due; or
WIL, any consolidated Subsidiary or any ERISA Affiliate has incurred or is
reasonably likely to incur a liability to or on account of a Plan or
Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA,
and there shall result (individually or collectively) from any such event or
events a material risk of either (i) the imposition of a Lien(s) upon, or the
granting of a security interest(s) in, the assets of WIL, any consolidated
Subsidiary and/or an ERISA Affiliate securing an amount(s) equal to or exceeding
$50,000,000, or (ii) WIL, any consolidated Subsidiary and/or an ERISA Affiliate
incurring a liability(ies) or obligation(s) with respect thereto equal to or
exceeding $50,000,000;
then, and in every such event (other than an event with respect to any Obligor
described in clause (f) or (g) of this Section 8.01), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrowers, take either
or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in
whole (or in part, in which case any principal not so declared to be due
and payable may thereafter be declared to be due and payable), and
thereupon the principal of the Loans so declared to
- 48 -
be due and payable, together with accrued interest thereon and all fees
and other obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrowers, and
in case of any event with respect to any Obligor described in clause (f)
or (g) of this Section 8.01, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other obligations of the Borrowers
accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Obligors.
SECTION 8.02. Right of Setoff. Upon the occurrence and during the
continuance of any Event of Default, each Lender is hereby authorized at any
time and from time to time, without notice to any Obligor (any such notice being
expressly waived by each Obligor), to set off and apply any and all deposits
(general or special, time or demand, provisional or final but excluding the
funds held in accounts clearly designated as escrow or trust accounts held by
any Obligor for the benefit of Persons which are not Affiliates of any Obligor),
whether or not such setoff results in any loss of interest or other penalty, and
including all certificates of deposit, at any time held, and any other funds or
property at any time held, and other indebtedness at any time owing by such
Lender to or for the credit or the account of any Obligor against any and all of
the Obligations irrespective of whether or not such Lender or the Administrative
Agent shall have made any demand under this Agreement, the Notes or any other
Loan Document. Should the right of any Lender to realize funds in any manner set
forth above be challenged and any application of such funds be reversed, whether
by court order or otherwise, the Lenders shall make restitution or refund to the
applicable Obligor, as the case may be, pro rata in accordance with their
Commitments. Each Lender agrees to promptly notify the applicable Obligor and
the Administrative Agent after any such setoff and application, provided that
the failure to give such notice shall not affect the validity of such setoff and
application. The rights of the Administrative Agent and the Lenders under this
Section are in addition to other rights and remedies (including other rights of
setoff) which the Administrative Agent or the Lenders may have. This Section is
subject to the terms and provisions of Section 3.01(a).
SECTION 8.03. Other Remedies. No remedy conferred herein or in any of the
other Loan Documents is to be exclusive of any other remedy, and each and every
remedy contained herein or in any other Loan Document shall be cumulative and
shall be in addition to every other remedy given hereunder and under the other
Loan Documents now or hereafter existing at law or in equity or by statute or
otherwise.
SECTION 8.04. Application of Moneys During Continuation of Event of
Default.
(a) So long as an Event of Default of which the Administrative Agent
shall have given notice to the Lenders shall continue, all moneys received by
the Administrative Agent (i) from any Obligor under the Loan Documents shall,
except as otherwise required by law, be distributed by the Administrative Agent
on the dates selected by the Administrative Agent as follows:
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first, to payment of the unreimbursed expenses for which the
Administrative Agent or any Lender is to be reimbursed pursuant to
Section 11.03 and to any unpaid fees owing to the Administrative
Agent;
second, to the ratable payment of accrued but unpaid interest on the
Loans;
third, to the ratable payment of unpaid principal of the Loans;
fourth, to the ratable payment of all other amounts payable by the
Obligors hereunder;
fifth, to the ratable payment of all other Obligations, until all
Obligations shall have been paid in full; and
finally, to payment to the Obligors, or their respective successors
or assigns, or as a court of competent jurisdiction may direct, of
any surplus then remaining from such proceeds.
(b) The term "unpaid" as used in this Section 8.04 shall mean all
Obligations outstanding as of any such distribution date as to which prior
distributions have not been made, after giving effect to any adjustments which
are made pursuant to Section 8.02 of which the Administrative Agent shall have
been notified..
Article IX
ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof, together with such actions and powers as are reasonably
incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with any Obligor or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default or an Event of Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing as directed by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 11.05), and (c) except
as expressly set forth herein, the Administrative Agent shall not have any duty
to disclose, and shall not be liable for the failure to disclose, any
information relating to any of the Obligors or any of their Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required
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Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 11.05) or in the
absence of its own gross negligence, willful misconduct or unlawful acts. The
Administrative Agent shall be deemed not to have knowledge of any Default or
Event of Default unless and until written notice thereof is given to the
Administrative Agent by a Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for either Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders and WIL. Upon any such resignation, the Required
Lenders shall have the right, in consultation with WIL, to appoint a successor.
If no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may, on behalf of the Lenders, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrowers to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrowers and such successor. After the
Administrative Agent's resignation hereunder, the
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provisions of this Article and Sections 11.03 and 11.04 shall continue in effect
for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
shall, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
Article X
GUARANTY
SECTION 10.01. Guaranty.
(a) In consideration of, and in order to induce the Lenders to make
Loans to the Borrowers, WII hereby absolutely, unconditionally and irrevocably
guarantees in favor of all of the Lenders, the punctual payment and performance
when due, whether at stated maturity, by acceleration or otherwise, of the
Obligations and all covenants of the Borrowers, now or hereafter existing under
this Agreement and the other Loan Documents to which either Borrower is a party,
whether for principal, interest (including interest accruing or becoming owing
both prior to and subsequent to the commencement of any proceeding against or
with respect to either Borrower under any applicable bankruptcy or insolvency
law (including the Bankruptcy Code), fees, commissions, expenses (including
reasonable attorneys' fees and expenses)), indemnities, or otherwise (all such
obligations being, as applicable, the "Guaranteed Obligations"). WII agrees to
pay any and all expenses incurred by each Lender and the Administrative Agent in
enforcing this Guaranty against WII.
(b) This Guaranty is an absolute, unconditional, present and
continuing guaranty of payment and not of collection and is in no way
conditioned upon any attempt to collect from either Borrower or any other
action, occurrence or circumstance whatsoever.
SECTION 10.02. Continuing Guaranty.
(a) WII guarantees that the Guaranteed Obligations shall be paid
strictly in accordance with the terms of this Agreement and the other Loan
Documents. WII agrees that, to the maximum extent permitted by applicable law,
the Guaranteed Obligations and Loan Documents to which either Borrower is a
party may be extended or renewed, and indebtedness thereunder repaid and
reborrowed in whole or in part, without notice to or assent by WII, and that WII
shall remain bound upon this Guaranty notwithstanding any extension, renewal or
other alteration of any of the Guaranteed Obligations or such Loan Documents or
any repayment and reborrowing of Loans to the Borrowers. The obligations of WII
under this Guaranty are absolute and unconditional irrespective of the value,
genuineness, validity, regularity or enforceability of
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the obligations of the Borrowers under this Agreement or any other Loan Document
or any substitution, release or exchange of any other guarantee of or security
for the Obligations. To the maximum extent permitted by applicable law, except
as otherwise expressly provided in this Agreement or any other Loan Document to
which WII is a party, the obligations of WII under this Guaranty shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms hereof under any circumstances whatsoever, including:
(i) any modification, amendment, supplement, renewal, extension for
any period, increase, decrease, alteration or rearrangement of all or any
part of the Guaranteed Obligations, or of this Agreement or any other Loan
Document executed in connection herewith, or any contract or understanding
among the Borrowers, the Administrative Agent and/or the Lenders, or any
other Person, pertaining to the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or compromise that
might be granted or given by the Lenders to WII, either Borrower or any
other Person liable on the Guaranteed Obligations;
(iii) the insolvency, bankruptcy, arrangement, adjustment,
composition, liquidation, disability, dissolution or lack of power of WII,
either Borrower or any other Person at any time liable for the payment of
all or part of the Guaranteed Obligations; or any dissolution or winding
up of WII or either Borrower, or any sale, lease or transfer of any or all
of the assets of WII or either Borrower, or any changes in the
shareholders of WII or either Borrower, or any reorganization of WII or
either Borrower;
(iv) the invalidity, illegality or unenforceability of all or any
part of the Guaranteed Obligations, or any document or agreement executed
in connection with the Guaranteed Obligations, for any reason whatsoever,
including the fact that (A) the Guaranteed Obligations, or any part
thereof, exceed the amount permitted by law, (B) the act of creating the
Guaranteed Obligations, or any part thereof is ultra xxxxx, (C) the
officers or representatives executing the documents or otherwise creating
the Guaranteed Obligations acted in excess of their authority, (D) the
Guaranteed Obligations or any part thereof violate applicable usury laws,
(E) WII or either Borrower has valid defenses, claims, and offsets
(whether at law or in equity, by agreement or by statute) which render the
Guaranteed Obligations wholly or partially uncollectible from WII or
either Borrower, (F) the creation, performance, or repayment of the
Guaranteed Obligations (or execution, delivery and performance of any
document or instrument representing any part of the Guaranteed Obligations
or executed in connection with any of the Guaranteed Obligations, or given
to secure the repayment of the Guaranteed Obligations) is illegal,
uncollectible, legally impossible or unenforceable, or (G) this Agreement,
any other Loan Document, or any other document or instrument pertaining to
any of the Guaranteed Obligations has been forged or otherwise is
irregular or not genuine or authentic;
(v) any full or partial release of the liability of WII or either
Borrower on the Guaranteed Obligations or any part thereof, or any other
Person now or hereafter liable, whether directly or indirectly, jointly,
severally, or jointly and severally, to pay, perform, guarantee, or assure
the payment of the Guaranteed Obligations or any part thereof; it being
recognized, acknowledged, and agreed by WII that WII may be required to
pay the
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Guaranteed Obligations in full without assistance or support of any other
Person, and that WII has not been induced to enter into this Guaranty on
the basis of a contemplation, belief, understanding or agreement that any
other Person shall be liable to perform the Guaranteed Obligations or that
the Administrative Agent or any Lender shall look to any other Person to
perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or
guaranty, or other assurance of payment, for all or any part of the
Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment of any collateral, property or
security, at any time existing in connection with, or assuring or securing
payment of, all or any part of the Guaranteed Obligations;
(viii) the failure of the Administrative Agent, the Lenders or any
other Person to exercise diligence or reasonable care in the preservation,
protection, enforcement, sale or other handling or treatment of all or any
part of such collateral, property or security;
(ix) the fact that any collateral, security or Lien contemplated or
intended to be given, created or granted as security for the repayment of
the Guaranteed Obligations shall not be properly perfected or created, or
shall prove to be unenforceable or subordinate to any other Lien; it being
recognized and agreed by WII that WII is not entering into this Guaranty
in reliance on, or in contemplation of the benefits of, the validity,
enforceability, collectibility or value of any of the collateral for the
Guaranteed Obligations;
(x) any payment by either Borrower or WII to the Administrative
Agent or any Lender is held to constitute a preference under bankruptcy or
insolvency laws, or for any other reason either the Administrative Agent
or any Lender is required to refund such payment or pay such amount to
either Borrower, WII, or any other Person; or
(xi) any other action taken or omitted to be taken with respect to
this Agreement, any other Loan Document, the Guaranteed Obligations, or
the security and collateral therefor, whether or not such action or
omission prejudices WII or increases the likelihood that WII shall be
required to pay the Guaranteed Obligations pursuant to the terms hereof;
it being the unambiguous and unequivocal intention of WII that WII shall be
obligated to pay the Guaranteed Obligations when due, notwithstanding any
occurrence, circumstance, event, action, or omission whatsoever, whether
contemplated or uncontemplated, and whether or not otherwise or particularly
described herein, except for the full and final payment and satisfaction of the
Guaranteed Obligations after the termination of all of the Commitments.
(b) WII further agrees that, to the fullest extent permitted by law,
as between WII, or the one hand, and the Lenders and the Administrative Agent,
on the other hand, (i) the maturity of the Obligations may be accelerated as
provided in Section 8.01 for the purposes of this Guaranty, notwithstanding any
stay, injunction or other prohibition preventing the acceleration of the
Obligations as against either Borrower and (ii) in the event of any purported
acceleration (whether by declaration or automatic) of the Obligations as
provided in Section
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8.01, the Obligations (whether or not due and payable) shall forthwith become
due and payable by WII for the purpose of this Guaranty.
SECTION 10.03. Effect of Debtor Relief Laws. If after receipt of any
payment of, or proceeds of any security applied (or intended to be applied) to
the payment of all or any part of the Guaranteed Obligations, the Administrative
Agent or any Lender is for any reason compelled to surrender or voluntarily
surrenders, such payment or proceeds to any Person (a) because such payment or
application of proceeds is or may be avoided, invalidated, declared fraudulent,
set aside, determined to be void or voidable as a preference, fraudulent
conveyance, fraudulent transfer, impermissible set off or a diversion of trust
funds or (b) for any other reason, including (i) any judgment, decree or order
of any court or administrative body having jurisdiction over the Administrative
Agent, any Lender or any of their respective properties or (ii) any settlement
or compromise of any such claim effected by the Administrative Agent or any
Lender with any such claimant (including either Borrower), then the Guaranteed
Obligations or any part thereof intended to be satisfied shall be reinstated and
continue, and this Guaranty shall continue in full force as if such payment or
proceeds have not been received, notwithstanding any revocation thereof or the
cancellation of any instrument evidencing any of the Guaranteed Obligations or
otherwise; and WII shall be liable to pay the Administrative Agent and the
Lenders, and hereby does indemnify the Administrative Agent and the Lenders and
hold them harmless for the amount of such payment or proceeds so surrendered and
all reasonable expenses (including reasonable attorneys' fees, court costs and
expenses attributable thereto) incurred by the Administrative Agent or any such
Lender in the defense of any claim made against it that any payment or proceeds
received by the Administrative Agent or any such Lender in respect of all or
part of the Guaranteed Obligations must be surrendered. The provisions of this
paragraph shall survive the termination of this Guaranty and any satisfaction
and discharge of the Borrowers by virtue of any payment, court order, or any
law.
SECTION 10.04. Waiver. WII hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and waives presentment, demand for payment, notice
of intent to accelerate, notice of dishonor or nonpayment and any requirement
that the Administrative Agent or any Lender institute suit, collection
proceedings or take any other action to collect any of the Guaranteed
Obligations, including any requirement that the Administrative Agent or any
Lender protect, secure, perfect or insure any Lien against any property subject
thereto or exhaust any right or take any action against any Borrower or any
other Person or any collateral (it being the intention of the Administrative
Agent, the Lenders and WII that this Guaranty is to be a guaranty of payment and
not of collection). It shall not be necessary for the Administrative Agent or
any Lender, in order to enforce any payment by WII hereunder, to institute suit
or exhaust its rights and remedies against WII, any Borrower or any other
Person, including others liable to pay the Guaranteed Obligations, or to enforce
its rights against any security ever given to secure payment thereof. WII hereby
expressly waives to the maximum extent permitted by applicable law each and
every right to which it may be entitled by virtue of the suretyship laws of the
State of Texas or any other state in which it may be located, including any and
all rights it may have pursuant to Rule 31, Texas Rules of Civil Procedure,
Section 17.001 of the Texas Civil Practice and Remedies Code and Chapter 34 of
the Texas Business and Commerce Code. WII hereby waives marshaling of assets and
liabilities, notice by the Administrative Agent or any Lender of any
indebtedness or liability to which such Person applies or may apply any amounts
received by
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it, and of the creation, advancement, increase, existence, extension, renewal,
rearrangement or modification of the Guaranteed Obligations. WII expressly
waives, to the extent permitted by applicable law, the benefit of any and all
laws providing for exemption of property from execution or for valuation and
appraisal upon foreclosure.
SECTION 10.05. Agreement to Defer Exercise of Subrogation. Notwithstanding
any payment or payments made by WII hereunder, or any setoff or application by
the Administrative Agent or any Lender of any security or of any credits or
claims, WII will not assert or exercise any rights of the Administrative Agent
or any Lender or of itself against either Borrower to recover the amount of any
payment made hereunder by WII to the Administrative Agent or any Lender by way
of any claim, remedy or subrogation, reimbursement, exoneration, contribution,
indemnity, participation or otherwise arising by contract, by statute, under
common law or otherwise, and WII shall not have any right to exercise any right
of recourse to or any claim against assets or property of either Borrower for
such amounts, in each case unless and until the Obligations of such Borrower
guaranteed hereby have been fully and finally satisfied. Until such time (but
not thereafter), WII hereby agrees not to exercise any claim, right or remedy
which it may now have or hereafter acquire against either Borrower that arises
under this Agreement or any other Loan Document or from the performance by WII
of the Guaranty hereunder including any claim, remedy or right of subrogation,
reimbursement, exoneration, contribution, indemnification or participation in
any claim, right or remedy of the Administrative Agent or any Lender against
either Borrower or WII, or any security that the Administrative Agent or any
Lender now has or hereafter acquires pursuant hereto securing the Obligations of
the Borrowers under this Agreement, whether or not such claim, right or remedy
arises in equity, under contract, by statute, under common law or otherwise. If
any amount shall be paid to WII by either Borrower after payment in full of the
Obligations, and the Obligations shall thereafter be reinstated in whole or in
part and the Administrative Agent or any Lender forced to repay any sums
received by any of them in payment of the Obligations, this Guaranty shall be
automatically reinstated and such amount shall be held in trust for the benefit
of the Administrative Agent and the Lenders and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guaranteed Obligations,
whether matured or unmatured. The provisions of this paragraph shall survive the
termination of this Guaranty, and any satisfaction and discharge of either
Borrower by virtue of any payment, court order or any federal or state law.
SECTION 10.06. Full Force and Effect. This Guaranty is a continuing
guaranty and shall remain in full force and effect until all of the Guaranteed
Obligations under this Agreement and the other Loan Documents to which any
Borrower is a party and all other amounts payable under this Guaranty have been
paid in full (after the termination of the Commitments). All rights, remedies
and powers provided in this Guaranty may be exercised, and all waivers contained
in this Guaranty may be enforced, only to the extent that the exercise or
enforcement thereof does not violate any provisions of applicable law which may
not be waived.
Article XI
MISCELLANEOUS
SECTION 11.01. Waiver; Amendments. No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver
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thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by any Obligor therefrom shall in any event be
effective unless the same shall be permitted by Section 11.05, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Loan shall not be construed as a waiver of any Default or Event of
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
SECTION 11.02. Notices.
(a) All notices and other communications provided for herein,
including any modifications of, or waivers or consents under, this Agreement
(collectively, "Communications") shall be given or made on a Business Day by
telecopy (confirmed by mail) or other writing and telecopied or mailed or
delivered to the intended recipient at the "Address for Notices" specified below
its name on the signature pages hereof (or provided for in an Assignment and
Assumption); or, as to any party hereto, at such other address as shall be
designated by such party in a notice (given in accordance with this Section
11.02) (i) as to any Obligor, to the Administrative Agent, (ii) as to the
Administrative Agent, to any Obligor, and to each Lender, and (iii) as to any
Lender, to either Borrower and to the Administrative Agent. Except as otherwise
provided in this Agreement, all such Communications shall be deemed to have been
duly given (a) when transmitted by telecopier, confirmation received, (b) when
personally delivered, (c) one Business Day after deposit with an overnight mail
or delivery service, postage prepaid or (d) five Business Days' after deposit in
a receptacle maintained by the United States Postal Service, postage prepaid,
registered or certified mail, return receipt requested, in each case given or
addressed as aforesaid. Notwithstanding the foregoing, Communications to the
Administrative Agent pursuant to Article II, Article III or Article IX shall not
be effective until received by the Administrative Agent.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or any
Obligor may, in its discretion, agree to accept notices and other communications
to it hereunder by electronic communications pursuant to procedures approved by
it; provided that approval of such procedures may be limited to particular
notices or communications.
SECTION 11.03. Expenses, Etc. Whether or not any Loan is ever made, the
Borrowers, jointly and severally, shall pay or reimburse within 10 days after
written demand (a) the Administrative Agent for paying the reasonable fees and
expenses of legal counsel to the Administrative Agent, together with the
reasonable fees and expenses of each local counsel to the Administrative Agent,
in connection with the preparation, negotiation, execution and delivery of this
Agreement (including the exhibits and schedules hereto), the other Loan
Documents and
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the making of the Loans hereunder, and any modification, supplement or waiver of
any of the terms of this Agreement or any other Loan Document; (b) the
Administrative Agent for reasonable out-of-pocket expenses incurred in
connection with the preparation, documentation, administration and syndication
of any of the Loan Documents (including the advertising, marketing, printing,
publicity, duplicating, mailing and similar expenses) or any of the Obligations;
(c) the Administrative Agent or any Lender for paying all transfer, stamp,
documentary or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement or any other Loan
Document or any other document referred to herein or therein; and (d) following
the occurrence and during the continuation of an Event of Default, any Lender or
the Administrative Agent for paying all amounts reasonably expended, advanced or
incurred by such Lender or the Administrative Agent to collect the Obligations
or to enforce, protect, preserve or defend the rights of the Lenders or the
Administrative Agent under this Agreement or any other Loan Document, together
with interest thereon at the Past Due Rate applicable to the Loans on each such
amount from the due date of payment until the date of reimbursement to such
Lender or the Administrative Agent.
SECTION 11.04. Indemnity.
(a) The Borrowers, jointly and severally, shall indemnify the
Administrative Agent, the Lenders and each Affiliate thereof and their
respective directors, officers, employees and agents (each such Person being an
"Indemnitee") from, and hold each Indemnitee harmless against, any and all
losses, liabilities, claims or damages (including reasonable legal fees and
expenses) to which any Indemnitee may become subject, insofar as such losses,
liabilities, claims or damages arise out of or result from (i) any
investigation, litigation or other proceeding (including any threatened
investigation or proceeding) relating to this Agreement, any Loan or any other
Loan Document or (ii) any actual or proposed use by either Borrower or any of
its Subsidiaries of the proceeds of any extension of credit by any Lender
hereunder, and the Borrowers, jointly and severally, shall reimburse each
Indemnitee upon demand for any expenses (including reasonable legal fees)
incurred in connection with any such investigation, litigation or other
proceeding; but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence, willful misconduct or
unlawful conduct of such Indemnitee.
(b) WITHOUT LIMITING ANY PROVISION OF THIS AGREEMENT, IT IS THE
EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH INDEMNITEE HEREUNDER SHALL BE
INDEMNIFIED AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS OR
DAMAGES ARISING OUT OF OR RESULTING FROM THE SOLE OR CONCURRENT ORDINARY
NEGLIGENCE OF SUCH INDEMNITEE. WITHOUT PREJUDICE TO THE SURVIVAL OF ANY OTHER
OBLIGATIONS OF THE BORROWERS HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS TO
WHICH IT IS A PARTY, THE OBLIGATIONS OF THE BORROWERS UNDER THIS SECTION 11.04
SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND
THE PAYMENT OF THE OTHER OBLIGATIONS OR THE ASSIGNMENT OF THE NOTES.
SECTION 11.05. Amendments, Etc.
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(a) No amendment to or modification of this Agreement, the Notes or
any other Loan Document shall in any event be effective against any Obligor
unless the same shall be agreed or consented to in writing by such Obligor. No
amendment, modification or waiver of any provision of this Agreement, the Notes
or any other Loan Document, nor any consent to any departure by any Obligor
therefrom, shall in any event be effective against the Lenders unless the same
shall be agreed or consented to in writing by the Required Lenders, and each
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided that no amendment, modification,
waiver or consent shall (a) increase the Commitment of any of the Lenders (or
reinstate any termination or reduction of such Commitment), or subject any of
the Lenders to any additional obligations, without the written consent of such
Lender; (b) reduce the principal of, or interest on, any Loan, fee or other
amount due hereunder, without the written consent of each Lender affected
thereby; (c) postpone or extend the Maturity Date, the Termination Date, the
Availability Period or any scheduled date fixed for any payment of principal of,
or interest on, any Loan, fee or other sum to be paid hereunder, or waive any
Event of Default described in Section 8.01(a), without the written consent of
each Lender affected thereby; (d) change the percentage of any of the
Commitments or of the aggregate unpaid principal amount of Obligations, or the
percentage of Lenders, which shall be required for the Lenders or any of them to
take any action under this Agreement (including, to change the definition of
"Required Lenders"), without the written consent of each Lender; (e) change
Section 3.01(b) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender; (f) change any
provision contained in Section 11.03, 11.04 or 11.05, without the written
consent of each Lender, (g) release either Borrower from its joint and several
liability for the Obligations, without the written consent of each Lender; or
(h) release any Person from its liability under a guaranty, without the written
consent of each Lender. Notwithstanding anything in this Section 11.05 to the
contrary, no amendment, modification, waiver or consent shall be made with
respect to Article IX without the consent of the Administrative Agent to the
extent it affects the Administrative Agent, in its role as the Administrative
Agent. Subject to the foregoing, the amendment or waiver of any provisions of
Article V, VI, VII or VIII may be effected with the consent of the Required
Lenders.
SECTION 11.06. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that (i) no Obligor may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by such Obligor without
such consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section. Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants (to the extent provided in
paragraph (c) of this Section) and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in subparagraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under
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this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it) with the prior written consent (such consent not to be
unreasonably withheld) of:
(A) WIL, provided that no consent of WIL shall be required for
an assignment to a Lender, an Affiliate of a Lender, an Approved
Fund or, if an Event of Default has occurred and is continuing, any
other assignee; and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of any
Commitment to an assignee that is a Lender with a Commitment
immediately prior to giving effect to such assignment.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment or Loans of any Type,
the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than
$5,000,000 unless each of WIL and the Administrative Agent otherwise
consent, provided that no such consent of WIL shall be required if
an Event of Default under clause (a), (f) or (g) of Article VIII has
occurred and is continuing;
(B) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and
obligations under this Agreement;
(C) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500;
(D) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire;
(E) except in connection with assignments made while an Event
of Default has occurred and is continuing, all prospective assignees
of a Lender shall be required, as a condition to the effectiveness
of such Assignment, to execute and deliver the forms required under
Section 3.02(e) for any Lender, and no Assignment shall be effective
in connection herewith unless and until such forms are so delivered;
(F) no assignment shall be made before the earlier to occur of
(1) the New Revolving Credit Facility Effective Date and (2) January
31, 2006; and
(G) in the case of any assignee subject to the prior written
consent of WIL under Section 11.06(b)(i), no assignment shall be
made to any such assignee unless such assignee provides a written
representation to WIL that such assignee
- 60 -
is not subject under then current law to any withholding tax on
amounts payable to such assignee under this Agreement.
For purposes of this Section 11.06, the term "Approved Fund" has the following
meaning:
"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and
that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
subparagraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.12, 2.13, 3.02, 11.03 and 11.04). Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with
this Section 11.06 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrowers, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans owing by each Borrower to, each
Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive, and the Obligors, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the
Obligors and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Assumption and record the information contained
therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in
this paragraph.
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(c) (i) Any Lender may, without the consent of any Obligor or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (A) such Lender's obligations under this Agreement
shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (C) the
Borrowers, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the proviso to Section 11.05 that affects such Participant. Subject
to subparagraph (c)(ii) of this Section, each Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 3.02 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 8.02 as
though it were a Lender, provided such Participant agrees to be subject to
Section 3.01(b), and to deliver the forms required by Section 3.02(e), as though
it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Sections 2.12 and 3.02 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with WIL's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 3.02 unless WIL is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrowers,
to comply with Sections 3.02(d) and 3.02(e) as though it were a Lender.
(iii) Anything in this Section 11.06 to the contrary
notwithstanding, no Participant shall be entitled to benefits under this
Agreement if the Lender from whom such Participant purchased its
participation would not be entitled to the same benefits, and no
Participant shall be entitled to rights and benefits hereunder in excess
of such Participant's pro rata interest in the applicable Lender's rights
hereunder, the rights of a Participant hereunder being determined solely
by and based upon the Lender from whom the Participant purchased its
interest hereunder.
(d) Notwithstanding any other provision herein, any Lender may, in
connection with any assignment or participation or proposed assignment or
participation pursuant to this Section 11.06, disclose to the assignee or
participant or proposed assignee or participant any information relating to the
Obligors furnished to such Lender by or on behalf of any Obligor, subject to the
provisions of Section 11.07.
(e) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank, and
- 62 -
this Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.
(f) All transfers of any interest in any Note hereunder shall be in
compliance with all federal, state and other securities laws, if applicable.
Notwithstanding the foregoing sentence, however, the parties to this Agreement
do not intend that any transfer under this Section 11.06 be construed as a
"purchase" or "sale" of a "security" within the meaning of any applicable
federal or state securities laws.
SECTION 11.07. Confidentiality. Each Lender agrees to exercise its best
efforts to keep any information delivered or made available by any Obligor to it
pursuant to or in connection with this Agreement (including any information
obtained pursuant to Section 6.01 other than information on XXXXX or on a
publicly accessible page on the worldwide web), confidential from anyone other
than Persons employed or retained by such Lender or its Affiliates who are or
are expected to become engaged in evaluating, approving, structuring or
administering the Loans; provided that nothing herein shall prevent any Lender
from disclosing such information (a) to any other Lender or such Lender's
Affiliates, (b) pursuant to subpoena or upon the order of any court or
administrative agency, (c) upon the request or demand of any regulatory agency
or authority having or claiming jurisdiction over such Lender, (d) which has
been publicly disclosed, (e) to the extent reasonably required in connection
with any litigation to which the Administrative Agent, any Lender, any Obligor
or their respective Affiliates may be a party, (f) to the extent reasonably
required in connection with the exercise of any remedy hereunder or under any
other Loan Document, (g) to such Lender's legal counsel and independent auditors
and (h) to any actual or proposed participant or assignee of all or part of its
rights hereunder which has agreed in writing to be bound by the provisions of
this Section 11.07. Each Lender shall promptly notify WIL of any information
that it is required or requested to deliver pursuant to clause (b) or (c) of
this Section 11.07 and, if no Obligor is a party to any such litigation, clause
(e) of this Section 11.07.
SECTION 11.08. Survival of Representations and Warranties. All
representations, warranties and covenants contained herein or made in writing by
the Obligors in connection herewith and the other Loan Documents shall survive
the execution and delivery of this Agreement, the Notes and the other Loan
Documents until two years and one day after payment in full of the Obligations
and the termination of the Commitments of the Lenders, and shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto,
whether so expressed or not; provided that the undertaking of the Lenders to
make Loans and extend credit to the Borrowers shall not inure to the benefit of
any successor or assign of either Borrower, except a successor or assign that
becomes such in accordance with Section 7.02.
SECTION 11.09. Governing Law. This Agreement, the Notes, the other Loan
Documents and all other documents executed in connection herewith and therewith
and the rights and obligations of the parties hereto and thereto, shall be
deemed to be contracts and agreements executed by the Obligors party thereto,
the Administrative Agent and the Lenders under the laws of the State of New York
and of the United States of America and for all purposes
- 63 -
shall be construed in accordance with, and governed by, the laws of said state
and, to the extent controlling, of the United States of America.
SECTION 11.10. Independence of Covenants. All covenants contained in this
Agreement and in the other Loan Documents shall be given independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that such action or condition would be permitted by an
exception to, or otherwise be within the limitations of, another covenant, shall
not avoid the occurrence of a Default or an Event of Default if such action is
taken or condition exists.
SECTION 11.11. Binding Effect. This Agreement shall become effective on
the Effective Date.
SECTION 11.12. Severability. Should any clause, sentence, paragraph or
Section of this Agreement be judicially declared to be invalid, unenforceable or
void, such decision shall not have the effect of invalidating or voiding the
remainder of this Agreement, and the parties hereto agree that the part or parts
of this Agreement so held to be invalid, unenforceable or void shall be deemed
to have been stricken herefrom and the remainder shall have the same force and
effectiveness as if such part or parts had never been included herein.
SECTION 11.13. Conflicts Between This Agreement and the Other Loan
Documents. In the event of any conflict between, or inconsistency with, the
terms of this Agreement and the terms of any of the other Loan Documents, the
terms of this Agreement shall control.
SECTION 11.14. Limitation of Interest. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 11.15. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 11.16. Submission to Jurisdiction.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE SUPREME COURT OF THE STATE OF
NEW YORK SITTING IN XXX XXXX XXXXXX
- 00 -
XX XXX XXXXXX XXXXXX DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
ANY APPELLATE COURT FROM EITHER THEREOF, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OBLIGOR, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, UNCONDITIONALLY,
THE NON EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS WITH RESPECT TO ANY SUCH
ACTION OR PROCEEDING. EACH OBLIGOR, TO THE EXTENT IT IS NOT QUALIFIED TO DO
BUSINESS IN NEW YORK, HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT
CORPORATION SYSTEM, WITH OFFICES ON THE DATE HEREOF AT 000 XXXXXX XXXXXX, XXX
XXXX, XXX XXXX 00000, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT
AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE
OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED
IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND
AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, EACH SUCH OBLIGOR AGREES TO
DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK ON THE TERMS AND FOR
THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE ADMINISTRATIVE AGENT. EACH
OBLIGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS
PROVIDED IN SECTION 11.02, AND AT ITS REGISTERED OFFICE, IF DIFFERENT. SUCH
SERVICE TO BECOME EFFECTIVE THIRTY DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST ANY OBLIGOR IN ANY OTHER JURISDICTION.
(b) EACH OF THE OBLIGORS HEREBY IRREVOCABLY WAIVES ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE
AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 11.17. Waiver of Jury Trial. EACH OBLIGOR, THE ADMINISTRATIVE
AGENT AND EACH LENDER (a) IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO ANY LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN; (b) IRREVOCABLY
WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM
OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO,
- 65 -
ACTUAL DAMAGES; (c) CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR
COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED
THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS; AND (d) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY BASED UPON, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS CONTAINED IN THIS SECTION.
SECTION 11.18. Judgment Currency. The obligation of each Obligor to make
payments on any Obligation to the Lenders or to the Administrative Agent
hereunder in any currency (the "first currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any other currency (the "second currency") except to the extent
to which such tender or recovery shall result in the effective receipt by the
applicable Lender or the Administrative Agent of the full amount of the first
currency payable, and accordingly the primary obligation of each Obligor shall
be enforceable as an alternative or additional cause of action for the purpose
of recovery in the second currency of the amount (if any) by which such
effective receipt shall fall short of the full amount of the full currency
payable and shall not be affected by a judgment being obtained for any other sum
due hereunder.
SECTION 11.19. Final Agreement of the Parties. THIS AGREEMENT (INCLUDING
THE SCHEDULES AND EXHIBITS HERETO), THE NOTES AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER
HEREOF AND THEREOF, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
SECTION 11.20. USA Patriot Act. Each Lender hereby notifies the Obligors
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107 56 (signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies each Obligor, which
information includes the name and address of such Obligor and other information
that will allow such Lender to identify such Obligor in accordance with the Act.
[REMAINDER OF THIS PAGE BLANK; SIGNATURE PAGES FOLLOW.]
- 66 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
WIL:
XXXXXXXXXXX INTERNATIONAL LTD.
By: /s/ XXXX X. XXXXXX
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President, General Counsel
and Secretary
Notice Information:
c/o Weatherford International, Inc.
000 Xxxx Xxx Xxxx.
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
WII:
XXXXXXXXXXX INTERNATIONAL, INC.
By: /s/ XXXX X. XXXXXX
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President, General Counsel
and Secretary
Notice Information:
000 Xxxx Xxx Xxxx.
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SIGNATURE PAGE TO 364-DAY REVOLVING CREDIT AGREEMENT
HOC:
XXXXXXXXXXX LIQUIDITY MANAGEMENT
HUNGARY LIMITED LIABILITY COMPANY
By: /s/ XXXX X. XXXXXX
--------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Representative
Notice Information:
c/o Weatherford International, Inc.
000 Xxxx Xxx Xxxx.
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SIGNATURE PAGE TO 364-DAY REVOLVING CREDIT AGREEMENT
ADMINISTRATIVE AGENT:
UBS AG, STAMFORD BRANCH,
as Administrative Agent
By: /s/ XXXXXXX X. SAINT
----------------------------------------------
Name: Xxxxxxx X. Saint
Title: Director - Banking Products Services, US
By: /s/ XXXXXXX XXXXXXXXX
----------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Associate Director - Banking Products
Services, US
Notice Information:
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vladimira Holeckova
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SIGNATURE PAGE TO 364-DAY REVOLVING CREDIT AGREEMENT
LENDERS:
UBS LOAN FINANCE LLC
By: /s/ XXXXXXX X. SAINT
----------------------------------------------
Name: Xxxxxxx X. Saint
Title: Director - Banking Products Services, US
By: /s/ XXXXXXX XXXXXXXXX
----------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Associate Director - Banking Products
Services, US
Notice Information:
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vladimira Holeckova
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SIGNATURE PAGE TO 364-DAY REVOLVING CREDIT AGREEMENT
BANK OF AMERICA, N.A.
By: /s/ XXXXXX X. XXX
--------------------------------------------
Name: Xxxxxx X. Xxx
Title: Senior Vice President
Notice Information:
Mail Code TX1-492-14-12
Bank of America Plaza
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SIGNATURE PAGE TO 364-DAY REVOLVING CREDIT AGREEMENT
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By: /s/ XXXXXX X. XXXXXX
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Notice Information:
Xxx Xxxxxxxxxx Xxxxx
000 Xxxxxx Xxxxx West, 7th Floor
New York, New York
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SIGNATURE PAGE TO 364-DAY REVOLVING CREDIT AGREEMENT
EXHIBIT A
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is dated
as of the Effective Date set forth below (the "Effective Date") and is entered
into by and between [INSERT NAME OF ASSIGNOR] (the "Assignor") and [INSERT NAME
OF ASSIGNEE], (the "Assignee"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified below
(as amended, supplemented or restated from time to time, the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective
facilities identified below (including any guarantees included in such
facilities) and (ii) to the extent permitted to be assigned under applicable
law, all claims, suits, causes of action and any other right of the Assignor (in
its capacity as a Lender) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including contract
claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned
pursuant to clause (i) above (the rights and obligations sold and assigned
pursuant to clauses (i) and (ii) above being referred to herein collectively as
the "Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor: _____________________________________________________
2. Assignee: _____________________________________________________
[and is an Affiliate/Approved Fund of
[IDENTIFY LENDER](1)
3. Borrowers: Xxxxxxxxxxx International Ltd. and Xxxxxxxxxxx
Liquidity Management Hungary Limited Liability Company
4. Administrative Agent: UBS AG, Stamford Branch, as the administrative under
the Credit Agreement
---------
(1) Select as applicable.
A-1
5. Credit Agreement: The 364-Day Revolving Credit Agreement dated as of
August 25, 2005 among Xxxxxxxxxxx International Ltd.,
Xxxxxxxxxxx Liquidity Management Hungary Limited
Liability Company, Xxxxxxxxxxx International, Inc.,
the Lenders party thereto and UBS AG, Stamford
Branch, as Administrative Agent
6. Assigned Interest:
Aggregate Amount of
Commitment/Revolving Amount of Percentage Assigned of
Credit Exposure for Commitment/Revolving Commitment/Revolving
All Lenders Credit Exposure Assigned Credit Exposure(2)
-------------------- ------------------------ ----------------------
$ $ %
$ $ %
$ $ %
7. Effective Date: _________________, 20___ [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN
THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR:
[NAME OF ASSIGNOR]
By:_________________________________
Name:
Title:
ASSIGNEE:
[NAME OF ASSIGNEE]
By:_________________________________
Name:
Title:
------------
(2) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Revolving Credit Exposure of all Lenders thereunder.
A-2
[Consented to and](3) Accepted:
UBS AG, STAMFORD BRANCH,
as Administrative Agent
By: ______________________________
Name:
Title:
[Consented to:](4)
XXXXXXXXXXX INTERNATIONAL LTD.,
as Borrower
By: ______________________________
Name:
Title:
-------------
(3) To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
(4) To be added only if the consent of WIL is required by the terms of the
Credit Agreement.
X-0
XXXXX 0
XXXXXXXX XXXXX AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of any
Obligor, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by any
Obligor, any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Loan Document.
1.2 Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire the Assigned Interest and
become a Lender, (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender thereunder and, to the extent
of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 6.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, [and] (v) if it is a Foreign
Lender, attached to the Assignment and Assumption is any documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee [and (vi) it is not subject under current
law to any withholding tax on amounts payable to it under the Credit
Agreement](5); and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
------------
(5) Only required if the consent of WIL is required by the terms of the Credit
Agreement.
A-2
[It is expressly understood and agreed by all parties hereto that WIL is a
third party beneficiary of the representation of the Assignee contained in
clause (a)(vi) of Section 1.2 of this Assignment and Assumption.](6)
2. Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignor for amounts
which have accrued to but excluding the Effective Date and to the Assignee for
amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
-----------
(6) Only required if the consent of WIL is required by the terms of the Credit
Agreement.
A-3
EXHIBIT B
FORM OF
PROMISSORY NOTE
_____________, 200__
XXXXXXXXXXX INTERNATIONAL LTD., a Bermuda exempted company, and
XXXXXXXXXXX LIQUIDITY MANAGEMENT HUNGARY LIMITED LIABILITY COMPANY, a Hungarian
limited liability company (collectively, the "Borrowers"), for value received,
jointly and severally, promise and agree to pay to _____________________________
(the "Lender"), or order, at the principal office of UBS AG, Stamford Branch, as
Administrative Agent, at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000,
the principal sum of such Lender's Commitment, or such lesser amount as shall
equal the aggregate unpaid principal amount of the Loans owed to the Lender
under the Credit Agreement, as hereafter defined, in lawful money of the United
States of America and in immediately available funds, on the dates and in the
principal amounts provided in the Credit Agreement, and to pay interest on the
unpaid principal amount as provided in the Credit Agreement for such Loans, at
such office, in like money and funds, for the period commencing on the date of
each such Loan until such Loan shall be paid in full, at the rates per annum and
on the dates provided in the Credit Agreement.
This note evidences the Loans owed to the Lender under that certain
364-Day Revolving Credit Agreement dated as of August 25, 2005, by and among the
Borrowers, Xxxxxxxxxxx International, Inc., a Delaware corporation ("WII"), UBS
AG, Stamford Branch, individually and as Administrative Agent, and the other
financial institutions parties thereto (including the Lender) (such 364-Day
Revolving Credit Agreement, together with all amendments or supplements thereto,
being the "Credit Agreement"), and shall be governed by the Credit Agreement.
Capitalized terms used in this note and not defined in this note, but which are
defined in the Credit Agreement, have the respective meanings herein as are
assigned to them in the Credit Agreement.
The Lender is hereby authorized by the Borrowers to endorse on Schedule A
(or a continuation thereof) attached to this note, the applicable Borrower and
Type of each Loan owed to the Lender, the amount and date of each payment or
prepayment of principal of each such Loan received by the Lender and the
Interest Periods and interest rates applicable to each Loan, provided that any
failure by the Lender to make any such endorsement shall not affect the
obligations of the Borrowers under the Credit Agreement or under this note in
respect of such Loans.
This note may be held by the Lender for the account of its applicable
lending office and, except as otherwise provided in the Credit Agreement, may be
transferred from one lending office of the Lender to another lending office of
the Lender from time to time as the Lender may determine.
Except only for any notices which are specifically required by the Credit
Agreement, the Borrowers and any and all co-makers, endorsers, guarantors and
sureties severally waive notice
B-1
(including but not limited to notice of intent to accelerate and notice of
acceleration, notice of protest and notice of dishonor), demand, presentment for
payment, protest, diligence in collecting and the filing of suit for the purpose
of fixing liability, and consent that the time of payment hereof may be extended
and re-extended from time to time without notice to any of them. Each such
person agrees that his, her or its liability on or with respect to this note
shall not be affected by any release of or change in any guaranty or security at
any time existing or by any failure to perfect or maintain perfection of any
lien against or security interest in any such security or the partial or
complete unenforceability of any guaranty or other surety obligation, in each
case in whole or in part, with or without notice and before or after maturity.
The Credit Agreement provides for the acceleration of the maturity of this
note upon the occurrence of certain events and for prepayment of Loans upon the
terms and conditions specified therein. Reference is made to the Credit
Agreement for all other pertinent purposes.
This note is issued pursuant to and is entitled to the benefits,
including, without limitation, the Guaranty of WII contained in Article X of the
Credit Agreement.
This note shall be construed in accordance with and be governed by the law
of the State of New York and the United States of America from time to time in
effect.
The COMMON SEAL of )
XXXXXXXXXXX INTERNATIONAL LTD. )
was hereunto affixed )
in the presence of: )
By: _________________________________
Name:
Title:
B-2
WEATHERFORD LIQUIDITY MANAGEMENT
HUNGARY LIMITED LIABILITY COMPANY
By: ______________________________________
Name:
Title:
B-3
SCHEDULE A
TO
PROMISSORY NOTE
This note evidences the Loans owed to the Lender under the Credit Agreement, in
the principal amount set forth below and the applicable Interest Periods and
rates for each such Loan, subject to the payments of principal set forth below:
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
Amount of
Principal Principal
Interest Amount of Paid or Interest Balance Notation
Borrower Date Period Rate Loan Prepaid Paid of Loans Made by
-------- ---- -------- ---- --------- --------- -------- -------- --------
________ ____ ________ ____ _________ _________ ________ ________ ________
________ ____ ________ ____ _________ _________ ________ ________ ________
________ ____ ________ ____ _________ _________ ________ ________ ________
________ ____ ________ ____ _________ _________ ________ ________ ________
________ ____ ________ ____ _________ _________ ________ ________ ________
________ ____ ________ ____ _________ _________ ________ ________ ________
________ ____ ________ ____ _________ _________ ________ ________ ________
________ ____ ________ ____ _________ _________ ________ ________ ________
________ ____ ________ ____ _________ _________ ________ ________ ________
________ ____ ________ ____ _________ _________ ________ ________ ________
________ ____ ________ ____ _________ _________ ________ ________ ________
________ ____ ________ ____ _________ _________ ________ ________ ________
B-4
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
The undersigned hereby certifies that such officer is the _______________
of Xxxxxxxxxxx International Ltd., a Bermuda exempted company ("WIL"), and that
such officer is authorized to execute this certificate on behalf of such
Borrower pursuant to the 364-Day Revolving Credit Agreement dated as of August
25, 2005 (as restated, amended, modified, supplemented and in effect from time
to time, the "Credit Agreement"), among WIL, Weatherford Liquidity Management
Hungary Limited Liability Company, a Hungarian limited liability company
(together with WIL, the "Borrowers"), Xxxxxxxxxxx International, Inc., a
Delaware corporation ("WII", and together with the Borrowers, the "Obligors"),
the Lenders and UBS AG, Stamford Branch, as Administrative Agent; and that a
review of the Obligors have been made under such officer's supervision with a
view to determining whether the Obligors have fulfilled all of their respective
obligations under the Credit Agreement, the Notes and the other Loan Documents;
and on behalf of WIL further certifies, represents and warrants that to the
knowledge of such officer, after due inquiry (each capitalized term used herein
having the same meaning given to it in the Credit Agreement unless otherwise
specified):
No Default or Event of Default has occurred and is continuing. In this
regard, the compliance with the provisions of Sections 7.04 and 7.06 of the
Credit Agreement (or if any Default or Event of Default does exist, attached is
a description of such event) is as follows:
(a) Section 7.04(b) - Indebtedness of Subsidiaries (other than WII
and HOC)
Actual Required
------ ------------
$_____ $________(7)
(b) Section 7.06 - Consolidated Indebtedness to Total
Capitalization
Actual Required
------- --------
______% 60%
Attached are calculations demonstrating such compliance.
DATED as of _____________________.
_______________________________________
[SIGNATURE OF AUTHORIZED OFFICER OF WIL]
----------
(7) Not more than 20% of WIL's Net Worth.
C-1
EXHIBIT D
FORM OF BORROWING REQUEST
UBS AG, Stamford Branch,
as Administrative Agent for the Lenders referred to below,
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vladimira Holeckova
Telecopy: (000) 000-0000
Re: Xxxxxxxxxxx International Ltd. ("WIL")
Weatherford Liquidity Management Hungary Limited Liability Company ("HOC")
[Date]
Ladies and Gentlemen:
Reference is made to the 364-Day Revolving Credit Agreement dated as
of August 25, 2005 (as restated, amended, modified, supplemented and in effect
from time to time, the "Credit Agreement"), among WIL and HOC, as Borrowers
(each, a "Borrower"), Xxxxxxxxxxx International, Inc. ("WII", and together with
the Borrowers, the "Obligors"), the Lenders party thereto and UBS AG, Stamford
Branch, as Administrative Agent (in such capacity, the "Administrative Agent")
for the Lenders. Capitalized terms used herein and not defined herein have the
respective meanings herein as are assigned to such terms in the Credit
Agreement.
[WIL] [HOC] (the "Requesting Borrower") hereby gives you notice
pursuant to Section 2.02 of the Credit Agreement that it requests a Borrowing
under the Credit Agreement, and in that connection sets forth below the terms on
which such Borrowing is requested to be made:
(A) Principal amount of Borrowing(8): _______________________
(B) Date of Borrowing (which is a Business Day): _______________________
(C) Type of Borrowing: [ABR] [Eurodollar]
(D) Interest Period and the last day thereof(9): _______________________
--------------
(8) ABR Borrowings must be in an aggregate amount that is an integral multiple
of $500,000 and not less than $1,000,000. Eurodollar Borrowings must be in an
aggregate amount that is an integral multiple of $3,000,000 and not less than
$3,000,000.
(9) For Eurodollar Borrowings only. Shall be subject to the definition of
"Interest Period" in the Credit Agreement.
D-1
(E) Funds are requested to be disbursed to the following account of the
Borrower:
Bank name: ________________________________
ABA Routing No.: ________________________________
Bank address: ________________________________
Account No.: ________________________________
Account Name: ________________________________
Attn/Reference(10): ________________________________
WIL hereby certifies, represents and warrants to the Lenders and the
Administrative Agent that, as of the date hereof and as of the date of the
Borrowing being requested pursuant to this Borrowing Request (the "Borrowing
Date"):
(1) The representations and warranties set forth in Article V of the
Credit Agreement and in the other Loan Documents are true and correct in all
material respects (unless any such representation and warranty expressly relates
to an earlier date, in which case such representation and warranty shall
continue to be true and correct as of such earlier date).
[(2) The Acquisition has been or is concurrently being consummated,
or will be consummated on the Borrowing Date or within a reasonable period of
time after the Borrowing Date, substantially in accordance with the terms of the
Acquisition Document (as amended, supplemented or otherwise modified).
(3) There have been no material amendments, waivers or supplements
to the Acquisition Document other than as have been disclosed and delivered to
the Administrative Agent prior to the date hereof.
(4) Except for actions, suits or proceedings described in the
filings made by WIL with the Securities and Exchange Commission pursuant to the
Exchange Act, (a) there are no actions, suits or proceedings pending or, to the
best knowledge of WIL, threatened by or against any Obligor or against any of
their respective properties or assets that are reasonably likely to have
(individually or collectively) a Material Adverse Effect and (b) to the best
knowledge of WIL, there are no actions, suits or proceedings pending or
threatened that purport to affect or pertain to the Loan Documents, any
transactions contemplated thereby or the Acquisition.
(5) There has been no material adverse change since December 31,
2004 in the financial condition, business or operations of WIL and its
Subsidiaries taken as a whole which could reasonably be expected to have a
Material Adverse Effect.
----------
(10) Insert if applicable.
D-2
(6) The proceeds of the Borrowing being requested pursuant to this
Borrowing Request will be used to fund the Acquisition.](11)
[(2) The Redemption has been or is concurrently being consummated,
or will be consummated on the Borrowing Date or within a reasonable period of
time after the Borrowing Date, substantially in accordance with the terms of the
indenture pursuant to which the Zero Coupon Debentures were issued.
(3) Except for actions, suits or proceedings described in the
filings made by WIL with the Securities and Exchange Commission pursuant to the
Exchange Act, (a) there are no actions, suits or proceedings pending or, to the
best knowledge of WIL, threatened by or against any Obligor or against any of
their respective properties or assets that are reasonably likely to have
(individually or collectively) a Material Adverse Effect and (b) to the best
knowledge of WIL, there are no actions, suits or proceedings pending or
threatened that purport to affect or pertain to the Loan Documents or any
transactions contemplated thereby.
(4) There has been no material adverse change since December 31,
2004 in the financial condition, business or operations of WIL and its
Subsidiaries taken as a whole which could reasonably be expected to have a
Material Adverse Effect.
(5) The proceeds of the Borrowing being requested pursuant to this
Borrowing Request will be used to fund [the Redemption] [the repurchase of
common shares or other equity securities issued by WIL, provided that such
shares or securities are cancelled, and not held in treasury for reissuance,
immediately following the repurchase thereof](12).
[(2) The proceeds of the Borrowing being requested pursuant to this
Borrowing Request will be used to refinance commercial paper or short term notes
that are equivalent thereto issued by either Borrower or the Guarantor.](13)
--------------
(11) To be included for Acquisition Borrowings.
(12) To be included for the Redemption Borrowing.
(13) To be included for CP Borrowings.
D-3
IN WITNESS WHEREOF, the undersigned [has] [have] executed this
Borrowing Request this _____ day of _____________, 200__.
XXXXXXXXXXX INTERNATIONAL LTD.
By: __________________________________
Name:
Title:
[WEATHERFORD LIQUIDITY MANAGEMENT
HUNGARY LIMITED LIABILITY COMPANY
By: __________________________________
Name:
Title:
D-4
EXHIBIT E
FORM OF INTEREST ELECTION REQUEST
UBS AG, Stamford Branch,
as Administrative Agent for the Lenders referred to below,
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vladimira Holeckova
Telecopy: (000) 000-0000
Re: Xxxxxxxxxxx International Ltd.
Weatherford Liquidity Management Hungary Limited Liability Company
[Date]
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as of August
25, 2005 (as restated, amended, modified, supplemented and in effect from time
to time, the "CREDIT AGREEMENT") among Xxxxxxxxxxx International Ltd. ("WIL")
and Xxxxxxxxxxx Liquidity Management Hungary Limited Liability Company ("HOC"),
as Borrowers (each, a "Borrower"), Xxxxxxxxxxx International, Inc., UBS AG,
Stamford Branch, as administrative agent (in such capacity, "ADMINISTRATIVE
AGENT"), and the lenders party thereto. Capitalized terms used but not defined
herein have the meanings assigned to them in the Credit Agreement. [WIL] [HOC]
hereby gives you notice pursuant to Section 2.04 of the Credit Agreement that it
elects to [continue the Borrowing listed below, or a portion thereof as
described below] [convert the Borrowing listed below, or a portion thereof as
described below, to a different Type], and in that connection sets forth below
the terms on which such [conversion] [continuation] is to be made.
(A) The amount of the Borrowing to which this
Interest Election Request applies(14): _________________________
(C) The effective date of the election
(which is a Business Day): _________________________
(D) Type of Borrowing following [conversion]
[continuation]: [ABR] [Eurodollar]
(E) Interest Period and the last day thereof(15): _________________________
-------------------
(14) If different options are being elected with respect to different portions
of such Borrowing, specify the portions thereof to be allocated to each
resulting Borrowing and specify the information requested in clauses (C), (D)
and (E) for each resulting Borrowing.
E-1
[Signature Page Follows]
------------
(15) For Eurodollar Borrowings only. Shall be subject to the definition of
"Interest Period" in the Credit Agreement.
E-2
IN WITNESS WHEREOF, the undersigned has executed this Interest Election
Request this ___ day of ___________, 200__.
[BORROWER]
By: _________________________________
Name:
Title: [Responsible Officer]
E-3
PRICING SCHEDULE
Index Utilization Facility Applicable
Debt Ratings Fee Fee Margin
-------------------- ----------- -------- ----------
Performance Level I .050% .070% .230%
Performance Level II .050% .080% .270%
Performance Level III .050% .100% .350%
Performance Level IV .050% .140% .485%
Performance Level V .050% .165% .710%
For purposes of the foregoing, (i) if either Xxxxx'x or S&P shall not have
in effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then such rating agency
shall be deemed to have established the same rating as the rating agency that
has in effect a rating for the Index Debt; (ii) if the ratings established or
deemed to have been established by Xxxxx'x and S&P for the Index Debt shall fall
within different Performance Levels, the Applicable Rate shall be based on the
higher of the two ratings unless one of the two ratings is two or more
Performance Levels lower than the other, in which case the Applicable Rate shall
be determined by reference to the Performance Level next below that of the
higher of the two ratings; and (iii) if the ratings established or deemed to
have been established by Xxxxx'x and S&P for the Index Debt shall be changed
(other than as a result of a change in the rating system of Xxxxx'x or S&P),
such change shall be effective as of the date on which it is first announced by
the applicable rating agency, irrespective of when or whether notice of such
change shall have been furnished by WIL to the Administrative Agent and the
Lenders. Each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of Xxxxx'x or S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations, WIL and the
Lenders shall negotiate in good faith to amend this definition to reflect such
changed rating system or the unavailability of ratings from such rating agency
and, pending the effectiveness of any such amendment, the Applicable Rate shall
be determined by reference to the rating most recently in effect prior to such
change or cessation.
Pricing Schedule-1
SCHEDULE 1.01
LENDERS
UBS Loan Finance LLC
Bank of America, X.X.
Xxxxxx Xxxxxxx Senior Funding, Inc.
Schedule 1.01-1
SCHEDULE 2.01
COMMITMENTS
BANK ALLOCATION
----------------------------------- --------------
UBS Loan Finance LLC $ 400,000,000
Bank of America, N.A. $ 400,000,000
Xxxxxx Xxxxxxx Senior Funding, Inc. $ 400,000,000
TOTAL $1,200,000,000
==============
Schedule 2.01-2
SCHEDULE 5.01
MATERIAL SUBSIDIARIES
% OF CAPITAL
STOCK DIRECTLY
DIRECT OWNERS OWNED BY
NAME OF COMPANY OF CAPITAL STOCK EACH OBLIGOR
--------------------------------------------- -------------------------------------- --------------
Weatherford Artificial Lift Systems, Inc. Xxxxxxxxxxx International, Inc. 100%
Weatherford U.K. Ltd. Weatherford Eurasia Limited None
Weatherford Bermuda Holdings Ltd Xxxxxxxxxxx International Ltd 100%
Weatherford Canada Ltd. Weatherford Investment (Luxembourg) None
S.a.r.l.
Weatherford Canada Partnership Weatherford Canada Ltd - 82.7% None
Xxxxxxxxxxx XX Amalco Inc. - 16.3%
Weatherford Artificial Lift
Systems Canada Ltd. - 1%
Weatherford Eurasia Limited Weatherford Investment (Luxembourg) None
S.a.r.l.
Xxxxxxxxxxx International, Inc. Weatherford U.S. Holdings, L.L.C. None
Weatherford Investment (Luxembourg) S.a.r.l. Weatherford Luxembourg S.a.r.l. None
Weatherford Luxembourg S.a.r.l. Weatherford/Xxxx, Inc. - 90.7% None
Weatherford Artificial Lift Systems,
Inc. - 9.3%
Weatherford Financing (Luxembourg) S.a.r.l. Xxxxxxxxxxx International, Ltd. 100%
Xxxxxxxxxxx Oil Tool Middle East Ltd. Weatherford/Lamb, Inc. None
Weatherford U.S. Holdings, L.L.C. Weatherford Bermuda Holdings Ltd. None
Weatherford U.S., L.P. WEUS Holding, Inc. - 99% None
WUS Holding, L.L.C. 1%
Weatherford/Lamb, Inc. WEUS Holding, Inc. None
WEUS Holding, Inc. Xxxxxxxxxxx International, Inc. 100%
Weatherford Liquidity Management Hungary Weatherford Financing None
Limited Liability Company (Luxembourg) S.a.r.l. - 90%
Xxxxxxxxxxx International Ltd. - 10%
Schedule 5.01-3
% OF CAPITAL
STOCK DIRECTLY
DIRECT OWNERS OWNED BY
NAME OF COMPANY OF CAPITAL STOCK EACH OBLIGOR
--------------------------------------------- -------------------------------------- --------------
Weatherford Hong Kong Holdings Limited Weatherford Bermuda Holdings Ltd. None
Weatherford Holding (Ireland) Company Weatherford Hong Kong Holdings Limited None
Weatherford (G.B.) LLP Weatherford Canada Limited None
Weatherford North Atlantic Limited Weatherford Bermuda Holdings Ltd. None
Xxxxxxxxxxx Limited Partner, LLC WEUS Holding, Inc. None
Schedule 5.01-4
