GUARANTY AGREEMENT
Exhibit 10.4
THIS GUARANTY AGREEMENT (this “Guaranty”), dated as of February 26, 2009, is made by
XXXXXXXXXXX INTERNATIONAL LTD., a Swiss joint stock corporation (“WIL-Switzerland”) and,
after the Share Exchange (as such term is defined in the Amendment (as hereinafter defined)), the
sole shareholder of Xxxxxxxxxxx International, Ltd., a Bermuda exempted company (“WIL”), in
favor of (i) the banks and other financial institutions that are parties to the Credit Agreement
(as hereinafter defined) and each assignee thereof becoming a “Lender” as provided therein
(collectively, the “Lenders”), and (ii) UBS AG, Stamford Branch, in its capacity as
administrative agent (the “Administrative Agent”) under the terms of the Credit Agreement,
and (iii) UBS AG, Stamford Branch, in its capacity as issuer of letters of credit (the “Issuing
Bank”) under the terms of the Credit Agreement.
W I T N E S S E T H:
WHEREAS, WIL, Xxxxxxxxxxx International, Inc., a Delaware corporation (“WII”), as a
guarantor, WIL-Switzerland, the Lenders party thereto and the Administrative Agent have entered
into a certain Amendment to Credit Agreement dated as of January 9, 2009 (the “Amendment”)
in order to amend that certain Credit Agreement dated as of October 20, 2008 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”; terms defined
therein and not otherwise defined herein being used herein as therein defined) among WIL, the other
Persons from time to time Borrowers thereunder (together with WIL, collectively, the
“Borrowers”), WII, as a guarantor, the Administrative Agent and the Lenders party thereto;
and
WHEREAS, it is a condition precedent to the effectiveness of the Amendment that
WIL-Switzerland execute and deliver this Guaranty, and WIL-Switzerland desires to execute and
deliver this Guaranty to satisfy such requirement;
NOW, THEREFORE, in consideration of the premises and in order to satisfy the requirements of
the Credit Agreement and the Amendment, and for other good and valuable consideration,
WIL-Switzerland hereby agrees as follows:
SECTION 1. Guaranty.
(a) In consideration of, and in order to induce the Administrative Agent and the Lenders to
enter into the Amendment and to make Loans to, and the Issuing Bank to issue Letters of Credit for
the account of, the Borrowers (including, without limitation, any additional Persons becoming
Borrowers under the Credit Agreement after the date hereof), WIL-Switzerland hereby absolutely,
unconditionally and irrevocably guarantees in favor of all of the Lenders, the Administrative Agent
and the Issuing Bank, the punctual payment and performance when due, whether at stated maturity, by
acceleration or otherwise, of the Obligations and all covenants of the Borrowers and the other
Guarantors, now or hereafter existing under the Credit Agreement and the other Loan Documents to
which any Borrower or any Guarantor is a party, whether for principal, LC Exposure, interest
(including interest accruing or becoming owing both prior to and subsequent to the commencement of
any proceeding against or with respect to any Borrower or any Guarantor 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”). WIL-Switzerland agrees to pay any and all expenses incurred by
each Lender, the Administrative Agent and the Issuing Bank in enforcing this Guaranty against
WIL-Switzerland.
(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 any Borrower or
any Guarantor or any other action, occurrence or circumstance whatsoever.
(c) The obligations of WIL-Switzerland under this Guaranty shall be limited to an aggregate
amount equal to the largest amount that would not render this Guaranty subject to avoidance under
Section 548 of the Bankruptcy Code or any comparable provisions of applicable law.
SECTION 2. Continuing Guaranty.
(a) WIL-Switzerland guarantees that the Guaranteed Obligations shall be paid strictly in
accordance with the terms of the Credit Agreement and the other Loan Documents. WIL-Switzerland
agrees that, to the maximum extent permitted by applicable law, the Guaranteed Obligations and Loan
Documents to which any 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 WIL-Switzerland, and that
WIL-Switzerland 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 WIL-Switzerland under this Guaranty are
absolute and unconditional irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of the Borrowers under the Credit 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 the Credit Agreement or any other Loan Document to which WIL-Switzerland is a party,
the obligations of WIL-Switzerland 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 the Credit Agreement or any other Loan Document executed in connection
therewith, or any contract or understanding among the Borrowers, any Guarantor, the
Administrative Agent, the Issuing Bank 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 Administrative Agent, the Issuing Bank or the Lenders to WIL-Switzerland, any
other Guarantor, any 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 WIL-Switzerland, any other Guarantor, any
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 WIL-Switzerland, any other
Guarantor or any Borrower, or any sale, lease or transfer of any or all of the assets of
WIL-Switzerland, any other Guarantor or any Borrower, or any changes in the shareholders of
WIL-Switzerland, any other Guarantor or any Borrower, or any reorganization of
WIL-Switzerland, any other Guarantor or any 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) WIL-Switzerland, any other Guarantor or any 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
WIL-Switzerland, any other Guarantor or any 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) the Credit 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 WIL-Switzerland, any other
Guarantor or any 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
WIL-Switzerland that WIL-Switzerland may be required to pay the Guaranteed Obligations in
full without assistance or support of any other Person, and that WIL-Switzerland 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, the Issuing Bank 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, the Issuing Bank 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 WIL-Switzerland that WIL-Switzerland 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 any Borrower, WIL-Switzerland or any other Guarantor to the
Administrative Agent, the Issuing Bank or any Lender is held to constitute a preference
under bankruptcy or insolvency laws, or for any other reason either the Administrative
Agent, the Issuing Bank or any Lender is required to refund such payment or pay such amount
to any Borrower, WIL-Switzerland, any other Guarantor or any other Person; or
(xi) any other action taken or omitted to be taken with respect to the Credit
Agreement, this Guaranty, any other Loan Document, the Guaranteed Obligations, or the
security and collateral therefor, whether or not such action or omission prejudices
WIL-Switzerland or increases the likelihood that WIL-Switzerland shall be required to pay
the Guaranteed Obligations pursuant to the terms hereof;
it being the unambiguous and unequivocal intention of WIL-Switzerland that WIL-Switzerland 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) WIL-Switzerland further agrees that, to the fullest extent permitted by law, as between
WIL-Switzerland, on the one hand, and the Administrative Agent, the Issuing Bank and the Lenders,
on the other hand, (i) the maturity of the Obligations may be accelerated as provided in Section
9.01 of the Credit Agreement for the purposes of this Guaranty, notwithstanding any stay,
injunction or other prohibition preventing the acceleration of the Obligations as against any
Borrower and (ii) in the event of any purported acceleration (whether by declaration or automatic)
of the Obligations as provided in Section 9.01 of the Credit Agreement, the Obligations (whether or
not due and payable) shall forthwith become due and payable by WIL-Switzerland for the purpose of
this Guaranty.
SECTION 3. 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, the Issuing Bank 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, the Issuing Bank, any Lender or any of their
respective properties or (ii) any settlement or compromise of any such claim effected by the
Administrative Agent, the Issuing Bank or any Lender with any such claimant (including any Borrower
or any other Guarantor), 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 had not been received, notwithstanding any revocation thereof or the
cancellation of any instrument evidencing any of the Guaranteed Obligations or otherwise; and
WIL-Switzerland shall be liable to pay the Administrative Agent, the Issuing Bank and the Lenders,
and hereby does indemnify the Administrative Agent, the Issuing Bank 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, the Issuing Bank or any such Lender in the defense of any claim made
against it that any payment or proceeds received by the Administrative Agent, the Issuing Bank 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 4. Waiver. WIL-Switzerland 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, the Issuing Bank 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, the Issuing Bank 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, any Guarantor or any other Person or any
collateral (it being the intention of the Administrative Agent, the Issuing Bank, the Lenders, and
WIL-Switzerland that this Guaranty is to be a guaranty of payment and not of collection). It shall
not be necessary for the Administrative Agent, the Issuing Bank or any Lender, in order to enforce
any payment by WIL-Switzerland hereunder, to institute suit or exhaust its rights and remedies
against WIL-Switzerland, any other Guarantor, 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. WIL-Switzerland 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. WIL-Switzerland
hereby waives marshaling of assets and liabilities, notice by the Administrative Agent, the Issuing
Bank or any Lender of any indebtedness or liability to which such Person applies or may apply any
amounts received by it, and of the creation, advancement, increase, existence, extension, renewal,
rearrangement or modification of the Guaranteed Obligations. WIL-Switzerland 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 5. Agreement to Defer Exercise of Subrogation. Notwithstanding any payment or
payments made by WIL-Switzerland hereunder, or any setoff or application by the Administrative
Agent, the Issuing Bank or any Lender of any security or of any credits or claims, WIL-Switzerland
will not assert or exercise any rights of the Administrative Agent, the Issuing Bank or any Lender
or of itself against any other Guarantor or any Borrower to recover the amount of any payment made
hereunder by WIL-Switzerland to the Administrative Agent, the Issuing Bank 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
WIL-Switzerland shall not have any right to exercise any right of recourse to or any claim against
assets or property of any Borrower or of any other Guarantor for such amounts, in each case unless
and until the Obligations of such Borrower or obligations of such Guarantor guaranteed hereby have
been fully and finally satisfied. Until such time (but not thereafter), WIL-Switzerland hereby
agrees not to exercise any claim, right or remedy which it may now have or hereafter acquire
against any other Guarantor or any Borrower that arises under the Credit Agreement or any other
Loan Document or from the performance by WIL-Switzerland 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, the Issuing Bank or any
Lender against any Borrower or any Guarantor, or any security that the Administrative Agent, the
Issuing Bank or any Lender now has or hereafter acquires pursuant hereto securing the Obligations
of the Borrowers or obligations of any Guarantor under the Credit Agreement or any other Loan
Document, 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 WIL-Switzerland by any Borrower or
any Guarantor after payment in full of the Obligations, and the Obligations shall thereafter be
reinstated in whole or in part and the Administrative Agent, the Issuing Bank 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, the Issuing Bank 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 any Borrower or any Guarantor by virtue of any payment, court
order or any federal or state law.
SECTION 6. 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 the Credit Agreement
and the other Loan Documents to which any Borrower or any Guarantor 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.
SECTION 7. Severability. Any provision of this Guaranty held to be invalid, illegal
or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such
invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof, and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 8. Amendments, Etc. No amendment or waiver of any provision of this Guaranty
nor consent to any departure by WIL-Switzerland therefrom shall in any event be effective unless
the same shall be in writing executed by the Administrative Agent.
SECTION 9. Notices. All notices and other communications provided for hereunder shall
be given in the manner specified in the Credit Agreement (i) in the case of the Administrative
Agent, at the address specified for the Administrative Agent in the Credit Agreement, and (ii) in
the case of WIL-Switzerland, at the address specified therefor in this Guaranty.
SECTION 10. No Waiver; Remedies. No failure or delay by the Administrative Agent, the
Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a waiver
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, the Issuing Bank 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 Guaranty or
consent to any departure by WIL-Switzerland therefrom shall in any event be effective unless the
same shall be permitted by Section 8 hereof, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
SECTION 11. Right of Set Off. Upon the occurrence and during the continuance of any
Event of Default, the Administrative Agent, the Issuing Bank and each Lender is hereby authorized
at any time and from time to time, without notice to WIL-Switzerland (any such notice being
expressly waived by WIL-Switzerland), 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 WIL-Switzerland for the benefit of Persons which are
not Affiliates of WIL-Switzerland), 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 other obligations at
any time owing by the Administrative Agent, the Issuing Bank or such Lender to or for the credit or
the account of WIL-Switzerland against any and all of the Guaranteed Obligations irrespective of
whether or not the Administrative Agent, the Issuing Bank or such Lender shall have made any demand
under the Credit Agreement, this Guaranty, the Notes or any other Loan Document. The rights of the
Administrative Agent, the Issuing Bank and the Lenders under this Section are in addition to other
rights and remedies (including other rights of setoff) which the Administrative Agent, the Issuing
Bank or the Lenders may have. This Section is subject to the terms and provisions of Section
4.01(a) of the Credit Agreement.
SECTION 12. Transfer Of Obligations. This Guaranty shall (i) be binding upon
WIL-Switzerland, its successors and assigns and (ii) inure to the benefit of and be enforceable by
the Administrative Agent, for the benefit of itself, the Lenders and the Issuing Bank.
SECTION 13. Governing Law. This Guaranty and the rights and obligations of the
parties hereto shall be construed in accordance with and governed by the law of the State of New
York.
SECTION 14. Submission to Jurisdiction; Consent To Service Of Process; Waiver of Jury
Trial.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR OTHERWISE RELATED HERETO
MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN THE BOROUGH OF MANHATTAN OR THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY
OF THIS GUARANTY, WIL-SWITZERLAND HEREBY CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE JURISDICTION OF THE AFORESAID COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS RIGHTS OR THE
RIGHTS OF THE ADMINISTRATIVE AGENT, THE LENDERS AND THE ISSUING BANK WITH RESPECT TO THIS GUARANTY
OR ANY DOCUMENT RELATED HERETO. WIL-SWITZERLAND HEREBY IRREVOCABLY DESIGNATES CT CORPORATION
SYSTEM, 000 0XX XXXXXX, XXX XXXX, XXX XXXX 00000, AS THE DESIGNEE, APPOINTEE AND AGENT OF
WIL-SWITZERLAND TO RECEIVE, FOR AND ON BEHALF OF WIL-SWITZERLAND, SERVICE OF PROCESS IN SUCH
JURISDICTION IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY DOCUMENT
RELATED HERETO AND SUCH SERVICE SHALL BE DEEMED COMPLETED THIRTY DAYS AFTER MAILING THEREOF TO SAID
AGENT. IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY
FORWARDED BY MAIL TO WIL-SWITZERLAND AT ITS ADDRESS SET FORTH HEREIN, BUT THE FAILURE OF
WIL-SWITZERLAND TO RECEIVE SUCH COPY SHALL NOT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AFFECT
IN ANY WAY THE SERVICE OF SUCH PROCESS. IF FOR ANY REASON SERVICE OF PROCESS CANNOT PROMPTLY BE
MADE ON EITHER SUCH LOCAL AGENT, WIL-SWITZERLAND FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS 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 WIL-SWITZERLAND AT ITS SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. WIL-SWITZERLAND HEREBY
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN
RESPECT OF THIS GUARANTY OR ANY DOCUMENT RELATED HERETO. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE ADMINISTRATIVE AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST WIL-SWITZERLAND IN ANY OTHER JURISDICTION.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, WIL-SWITZERLAND HEREBY IRREVOCABLY WAIVES ALL
RIGHT OF TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREWITH OR THEREWITH.
SECTION 15. Payments by Guarantor.
(a) Any and all payments by or on account of any obligation of WIL-Switzerland hereunder shall
be understood to be minimum payment obligations. When entering into this Agreement, WIL-Switzerland
has assumed that any and all payments by or on account of any obligation of WIL-Switzerland
hereunder will not be subject to any deduction for Indemnified Taxes or Other Taxes (collectively,
the “Covered Taxes”). WIL-Switzerland agrees that if it shall be required to deduct any
Covered 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, the Issuing Bank or the Lender (as the case may be)
receives an amount equal to the sum it would have received had no such deductions been made, (ii)
WIL-Switzerland shall make such deductions and (iii) WIL-Switzerland shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable law. If requested by
the Administrative Agent, WIL-Switzerland shall provide to the Administrative Agent those documents
which are required by law and applicable double taxation treaties to be provided by the payer of
such tax, for each relevant Lender to prepare a claim for refund of Swiss withholding tax.
WIL-Switzerland shall indemnify the Administrative Agent, the Issuing Bank and each Lender, within
20 days after written demand therefor, for the full amount of any Covered Taxes directly assessed
against and paid by the Administrative Agent, the Issuing Bank or such Lender, as the case may be,
on or with respect to any payment by or on account of the Guaranteed Obligations (including Covered
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 Covered 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
WIL-Switzerland by a Lender or the Issuing Bank, or by the Administrative Agent on its own behalf
or on behalf of a Lender or the Issuing Bank, shall be presumed correct absent manifest error.
(b) WIL-Switzerland will remit to the appropriate Governmental Authority, prior to delinquency
(assuming WIL-Switzerland has received notification of a claim for Covered Taxes within 10 Business
Days prior to the date the delinquency commences), all Covered Taxes payable in respect of any
payment by or on account of any obligations of WIL-Switzerland hereunder. Within 30 days after the
date of any payment of Covered Taxes, WIL-Switzerland will furnish to the Administrative Agent the
original or a certified copy of a receipt evidencing payment of such Covered Taxes or such other
evidence thereof as may be reasonably satisfactory to the Administrative Agent. At the reasonable
request of WIL-Switzerland, the Administrative Agent will request the Lenders to provide any
reasonable tax forms, certifications or other documents that would result in a reduction in the
amount of Covered Taxes hereunder; provided, however, the obligation of WIL-Switzerland to make
payments for Covered Taxes hereunder shall not be conditioned upon any Lender providing any such
tax forms, certifications or other documents.
SECTION 16. Judgment Currency. WIL-Switzerland’s obligation hereunder to make
payments shall not be discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than U.S. Dollars, except to the extent that such
tender or recovery results in the effective receipt by the applicable Lender, Issuing Bank or the
Administrative Agent of the full amount of U.S. Dollars expressed to be payable under this Guaranty
or the Credit Agreement. If for the purpose of obtaining or enforcing judgment against
WIL-Switzerland in any court or in any jurisdiction, it becomes necessary to convert into or from
any currency other than U.S. Dollars an amount due in U.S. Dollars, such amount shall be converted
into the currency required hereunder at the rate determined by the Administrative Agent as the rate
quoted by it in accordance with methods customarily used by the Administrative Agent for such or
similar purposes as the spot rate for the purchase by the Administrative Agent of the required
currency with the currency of actual payment through its principal foreign exchange trading office
at approximately 11:00 A.M. (local time at such office) two Business Days prior to the effective
date of such conversion, provided that the Administrative Agent may obtain such spot rate from
another financial institution actively engaged in foreign currency exchange if the Administrative
Agent does not then have a spot rate for the required currency. The parties hereto hereby agree,
to the fullest extent that they may effectively do so under applicable law, that (i) if for the
purposes of obtaining any judgment or award it becomes necessary to convert from any currency other
than the currency required hereunder into the currency required hereunder any amount in connection
with the Guaranteed Obligations, then the conversion shall be made as provided above on the
Business Day before the day on which the judgment or award is given, (ii) in the event that there
is a change in the applicable conversion rate prevailing between the Business Day before the day on
which the judgment or award is given and the date of payment, WIL-Switzerland will pay to the
Administrative Agent, for the benefit of the Lenders, such additional amounts (if any) as may be
necessary, and the Administrative Agent, on behalf of the Lenders, will pay to WIL-Switzerland such
excess amounts (if any) as result from such change in the rate of exchange, to assure that the
amount paid on such date is the amount in such other currency, which when converted at the
conversion rate described herein on the date of payment, is the amount then due in the currency
required hereunder, and (iii) any amount due from WIL-Switzerland under this Section shall be due
as a separate debt and shall not be affected by judgment or award being obtained for any other sum
due.
SECTION 17. Automatic Acceleration in Certain Events. Upon the occurrence of an Event
of Default specified in Section 9.01(f) or (g) of the Credit Agreement, all Guaranteed Obligations
shall automatically become immediately due and payable by WIL-Switzerland, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by WIL-Switzerland, and
regardless of whether payment of the Guaranteed Obligations by the Borrowers has then been
accelerated.
SECTION 18. Information. WIL-Switzerland assumes all responsibility for being and
keeping itself informed of the Borrowers’ financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks that WIL-Switzerland assumes and incurs hereunder, and agrees that
the Administrative Agent, the Issuing Bank and the Lenders will not have any duty to advise
WIL-Switzerland of information known to any of them regarding such circumstances or risks.
SECTION 19. Survival of Agreement. All covenants, agreements, representations and
warranties made by WIL-Switzerland herein shall be considered to have been relied upon by the
Administrative Agent, the Issuing Bank and the Lenders and shall survive the execution and delivery
of this Guaranty and the other Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any party or on its behalf and
notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have had notice
or knowledge of any Default or incorrect representation or warranty at the time any credit is
extended under the Credit Agreement, and shall continue in full force and effect as long as any
amount payable under this Guaranty is outstanding and unpaid.
SECTION 20. Counterparts. This Guaranty may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract.
SECTION 21. Currency of Payment. All payments to be made by WIL-Switzerland hereunder
shall be made in U.S. Dollars and, in the case of any required conversion of any currency, shall be
determined, and the related amounts calculated, in the manner provided in Section 16.
(Remainder of this page intentionally left blank.)
IN WITNESS WHEREOF, WIL-Switzerland and the Administrative Agent have caused this Guaranty to
be duly executed and delivered by their respective duly authorized officers as of the date first
above written.
Address for Notices:
Xxxxxxxxxxx International Ltd.
c/o Weatherford International, Inc.
000 Xxxx Xxx Xxxx.
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
c/o Weatherford International, Inc.
000 Xxxx Xxx Xxxx.
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
| XXXXXXXXXXX INTERNATIONAL LTD., a Swiss joint stock corporation |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President and Chief Financial Officer |
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| UBS AG, STAMFORD BRANCH, as Administrative Agent |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Associate Director Banking Product Services US |
|||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Associate Director Banking Product Services US |
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Signature Page to Guaranty Agreement
