AMENDMENT TO CREDIT AGREEMENT
Exhibit 4.3
AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of January 9,
2009 by and among Xxxxxxxxxxx International Ltd., a Bermuda exempted company (“WIL” or the
“Borrower”), Xxxxxxxxxxx International, Inc., a Delaware corporation (“WII” or the
“Guarantor”), as Guarantor, Xxxxxxxxxxx International Ltd., a Swiss joint stock corporation
(“WIL-Switzerland”), UBS AG, Stamford Branch, as administrative agent for the Lenders (the
“Administrative Agent”), and the Lenders listed on the signature pages attached hereto
under the heading “Lenders”.
RECITALS:
WHEREAS, WIL desires to effect a “Redomestication”, as that term is defined in the Credit
Agreement dated as of October 20, 2008 (as amended or modified prior to the date hereof, the
“Credit Agreement”), among the Borrower, WII, as Guarantor, the Administrative Agent and
the Lenders party thereto;
WHEREAS, pursuant to an exchange of the shares of common stock issued by WIL for the shares of
common stock issued by WIL-Switzerland, upon the consummation of such share exchange as
contemplated in the Share Exchange Agreement dated as of December 10, 2008 (the “Share Exchange
Agreement”), between WIL and WIL-Switzerland (WIL-Switzerland currently being a wholly owned
subsidiary of WIL) (the “Share Exchange”), WIL will become a wholly owned Subsidiary of
WIL-Switzerland; and
WHEREAS, the Required Lenders, signatory hereto, desire to amend the Credit Agreement in
connection therewith;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used but not otherwise defined herein shall have
the meanings set forth therefor in the Credit Agreement.
2. Representations and Warranties. The Borrower and the Guarantor represent and
warrant that, as of the Effective Date:
(a) the Redomestication has been consummated in accordance in all material respects
with the terms of the Share Exchange Agreement, and all conditions precedent to such
consummation have been satisfied or waived, in compliance in all material respects with all
applicable laws, regulations and governmental and judicial approvals;
(b) WIL-Switzerland is a joint stock corporation validly incorporated and existing in
good standing (to the extent the concept of good standing is applicable) under the laws of
Switzerland;
(c) WIL is a wholly-owned Subsidiary of WIL-Switzerland;
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(d) the Capital Stock of each class issued and outstanding of WIL-Switzerland
immediately following the Share Exchange is beneficially owned by the same Persons, and in
the same percentages, as was the Capital Stock of WIL immediately prior to the Share
Exchange and WIL-Switzerland will continue to be owned, directly or indirectly, 100% by
Persons who were shareholders of WIL immediately prior to such transaction; and
(e) (i) the Share Exchange does not constitute a Default or an Event of Default under
the Credit Agreement, and constitutes a Redomestication permitted under the Credit Agreement
and (ii) the representations and warranties set forth in Article VI of the Credit Agreement
and in the other Loan Documents are true and correct in all material respects as of, and as
if such representations and warranties were made on, the Effective Date (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).
3. Amendments to Credit Agreement.
(a) The introductory paragraph of the Credit Agreement is amended by deleting clause (b)
thereof in its entirety and replacing it with the following:
| “(b) | Xxxxxxxxxxx International Ltd., a Swiss joint stock corporation (“WIL-Switzerland”), and Xxxxxxxxxxx International, Inc., a Delaware corporation (“WII” and, together with WIL-Switzerland, the “Guarantors” and each, individually, a “Guarantor”);” |
(b) Section 1.01 of the Credit Agreement is hereby amended by inserting the following
definitions therein in the proper alphabetical order:
“WIL-Switzerland” has the meaning specified in paragraph (b) on
page one.
“WIL-Switzerland Guaranty” means the Guaranty Agreement made by
WIL-Switzerland pursuant to which WIL-Switzerland guarantees the Obligations.
(c) The definitions of “Change of Control”, “Guarantor”, “Obligors” and “Redomestication” in
Section 1.01 of the Credit Agreement are hereby amended and restated in their entirety to read as
follows:
“Change of Control” means an event or series of events by which: (a) in
the case of WIL-Switzerland, (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
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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-Switzerland, except as a result of a Redomestication in which the Persons who
were the shareholders of WIL-Switzerland immediately prior to such Redomestication
continue to own, directly or indirectly, 100% of the issued and outstanding Capital
Stock of each class of WIL-Switzerland; (ii) the shareholders of WIL-Switzerland
approve any plan of liquidation, winding up or dissolution of WIL-Switzerland,
except in connection with a Redomestication of WIL-Switzerland; (iii)
WIL-Switzerland conveys, transfers or leases all or substantially all of its assets
to any Person except in connection with a Redomestication of WIL-Switzerland; or
(iv) during any period of twelve consecutive months, individuals who, at the
beginning of such period, constituted the Board of Directors of WIL-Switzerland
(together with any new directors whose appointment or election by such Board of
Directors or whose nomination for election by the shareholders of WIL-Switzerland,
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-Switzerland then in office, but excluding from the foregoing clause any change
in the composition or membership of the Board of Directors of WIL-Switzerland
resulting from the addition thereto or removal therefrom of directors in connection
with WIL-Switzerland’s compliance with the United States Sarbanes Oxley Act of 2002
or the rules and regulations of any stock exchange on which WIL-Switzerland’s
securities are listed, pursuant to the recommendation of WIL-Switzerland’s legal
counsel; or (b) in the case of any other Obligor, except in a transaction permitted
by Section 8.02, WIL-Switzerland or the New Parent ceases to own, after
giving effect to such event or series of events, directly or indirectly, 100% of the
issued and outstanding Capital Stock of each class of such Obligor.
“Guarantor” and “Guarantors” have the respective meanings
specified in paragraph (b) on page one.
“Obligors” means WIL, WIL-Switzerland, WII (unless the Guaranty has
been terminated and not reinstated pursuant to Section 11.07) and each other
Borrower.
“Redomestication” means:
(a) any amalgamation, merger, conversion or consolidation of
WIL-Switzerland, WIL or WII with or into any other Person, or of any other
Person with or into WIL-Switzerland, WIL or WII, or the sale or other
disposition (other than by lease) of all or substantially all of its assets
by WIL-Switzerland, WIL or WII to any other Person,
(b) any continuation, discontinuation, amalgamation, merger,
conversion, consolidation or domestication or similar action with respect
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to WIL-Switzerland, 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-Switzerland (the “New
Parent”),
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, Luxembourg, Switzerland 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-Switzerland immediately prior thereto and, if the Surviving Person
is WIL, WII or the New Parent, the Surviving Person continues to be owned, directly
or indirectly, 100% by Persons who were shareholders of WIL-Switzerland 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, (iii) if applicable, the documents required by
Section 8.02(c) and (iv) if the Surviving Person is the New Parent, a
guaranty of the Obligations in form and substance reasonably satisfactory to the
Administrative Agent.
(d) The definition of “consolidated” in Section 1.01 of the Credit Agreement is hereby amended
by replacing the reference to “WIL” in the last line thereof with a reference to “WIL-Switzerland”.
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(e) The definition of “ERISA Affiliate” in Section 1.01 of the Credit Agreement is hereby
amended by replacing the reference to “WIL” in the third line thereof with a reference to
“WIL-Switzerland”.
(f) The definition of “Governmental Authority” in Section 1.01 of the Credit Agreement is
hereby amended by inserting the word “Switzerland,” immediately after the phrase “any State of the
United States,” in the second line thereof.
(g) The definition of “Index Debt” in Section 1.01 of the Credit Agreement is hereby amended
by replacing the parenthetical contained therein with the following: “(other than WIL-Switzerland
and WII)”.
(h) The definition of “Loan Documents” in Section 1.01 of the Credit Agreement is hereby
amended by inserting the phrase “the WIL-Switzerland Guaranty,” immediately after the phrase “the
Notes,” in the first line thereof.
(i) The definition of “Material Adverse Effect” in Section 1.01 of the Credit Agreement is
hereby amended by replacing the reference to “WIL” contained in clause (a) thereof with a reference
to “WIL-Switzerland”.
(j) The definition of “Material Subsidiary” in Section 1.01 of the Credit Agreement is hereby
amended by replacing each reference to “WIL” contained therein with a reference to
“WIL-Switzerland”.
(k) The definition of “Permitted Liens” in Section 1.01 of the Credit Agreement is hereby
amended by (i) replacing the phrase “WIL’s Net Worth” contained in clause (a) thereof with the
phrase “WIL-Switzerland’s Net Worth” and (ii) replacing each reference to “WIL” contained in
clauses (b), (e), (g), (h), (j) and (m) thereof with a reference to “WIL-Switzerland”.
(l) The definition of “Plan” in Section 1.01 of the Credit Agreement is hereby amended by
replacing each reference to “WIL” contained therein with a reference to “WIL-Switzerland”.
(m) The definition of “Subsidiary” in Section 1.01 of the Credit Agreement is hereby amended
by replacing the reference to “WIL” contained in the final sentence thereof with a reference to
“WIL-Switzerland”.
(n) Section 1.03 of the Credit Agreement is hereby amended by replacing the reference to “WIL”
contained in clause (a) of the second sentence thereof with the phrase “WIL, the other Obligors”.
(o) Section 1.04(a) of the Credit Agreement is hereby amended by replacing the phrase
“including any Person that becomes a successor to WIL or WII as a result of a Redomestication”
contained in clause (iv) thereof with the phrase “including any Person that becomes a successor to
WIL-Switzerland, WIL or WII as a result of a Redomestication”.
(p) [Intentionally Omitted]
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(q) Section 4.03(b) of the Credit Agreement is hereby amended by replacing clause (iv) thereof
with the following: “(iv) any Lender fails to provide its consent to a Redomestication under the
laws of a jurisdiction (other than the United Kingdom, The Kingdom of the Netherlands, Luxembourg
or Switzerland) outside of the United States”.
(r) Sections 7.01 and 7.06 of the Credit Agreement are hereby amended by replacing each
reference to “WIL” contained therein with a reference to “WIL-Switzerland”.
(s) Section 8.01 of the Credit Agreement is hereby amended by replacing the reference to “WIL”
contained in the first line thereof with a reference to “WIL-Switzerland”.
(t) Section 8.02 of the Credit Agreement is hereby amended by:
(i) replacing the references to “WIL” contained in the first and fourth lines of
paragraph (a) thereof with references to “WIL-Switzerland”;
(ii) deleting clauses (i) and (ii) of the proviso to paragraph (a) thereof in their
entirety and replacing them with the following:
”(i) in the case of a merger, a consolidation or an amalgamation involving
WIL-Switzerland, if WIL-Switzerland is not the surviving Person, the surviving
Person shall (A) execute and deliver to the Administrative Agent an instrument, in
form and substance satisfactory to the Administrative Agent, whereby such surviving
Person shall become a party to this Agreement and the WIL-Switzerland Guaranty and
assume all rights and obligations of WIL-Switzerland hereunder and thereunder and
(B) deliver to the Administrative Agent one or more opinions of counsel in form,
scope and substance reasonably satisfactory to the Administrative Agent;
(ii) in the case of a merger, a consolidation or an amalgamation involving WIL,
if WIL is not the surviving Person, the surviving Person shall (A) execute and
deliver to the Administrative Agent an instrument, in form and substance
satisfactory to the Administrative Agent, whereby such surviving Person shall become
a party to this Agreement and assume all rights and obligations of WIL hereunder and
(B) deliver to the Administrative Agent one or more opinions of counsel in form,
scope and substance reasonably satisfactory to the Administrative Agent;
(iii) in the case of a merger, a consolidation or an amalgamation involving any
Obligor other than WIL-Switzerland or WIL, if neither such Obligor, WIL-Switzerland,
WIL nor another Obligor that is a Wholly-Owned Subsidiary of WIL-Switzerland is the
surviving Person, then the surviving Person shall (A) be a Wholly-Owned Subsidiary
of WIL-Switzerland after giving effect to such merger, consolidation or
amalgamation, (B) execute and deliver to the Administrative Agent an instrument, in
form and substance satisfactory to the Administrative Agent, whereby such surviving
Person shall become a party to this Agreement and assume all rights and obligations
of such Obligor hereunder and
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(C) deliver to the Administrative Agent one or more opinions of counsel in
form, scope and substance reasonably satisfactory to the Administrative Agent; and
(iv) in the case of any such merger, consolidation or amalgamation,
WIL-Switzerland 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 VIII recomputed as of the last day of the most recently ended
fiscal quarter of WIL-Switzerland as if such transaction had occurred on the first
day of each relevant period for testing such compliance.”;
(iii) replacing the references to “WIL” contained in paragraph (b) thereof with
references to “WIL-Switzerland”; and
(iv) deleting paragraphs (c) and (d) thereof in their entirety and replacing them with
the following:
”(c) Notwithstanding the foregoing provisions, this Section 8.02 shall
not prohibit any Redomestication; provided that (i) in the case of a
Redomestication of WIL-Switzerland, WIL or WII of the type described in
clause (a) of the definition thereof, the Surviving Person shall (A) execute
and deliver to the Administrative Agent an instrument, in form and substance
satisfactory to the Administrative Agent, whereby such Surviving Person shall become
a party to this Agreement (and, in the case of WIL-Switzerland, the WIL-Switzerland
Guaranty) and assume all rights and obligations of such Obligor hereunder (and, if
applicable, thereunder) and (B) deliver to the Administrative Agent one or more
opinions of counsel in form, scope and substance reasonably satisfactory to the
Administrative Agent, and (ii) in the case of a Redomestication of WIL-Switzerland,
WIL or WII of the type described in clause (b) of the definition thereof in
which the Person formed pursuant to such Redomestication is a different legal entity
than such Obligor, the Person formed pursuant to such Redomestication shall (A)
execute and deliver to the Administrative Agent an instrument, in form and substance
satisfactory to the Administrative Agent, whereby such Person shall become a party
to this Agreement (and, in the case of WIL-Switzerland, the WIL-Switzerland
Guaranty) and assume all rights and obligations of such Obligor hereunder (and, if
applicable, thereunder) and (B) deliver to the Administrative Agent one or more
opinions of counsel in form, scope and substance reasonably satisfactory to the
Administrative Agent.
(d) Neither WIL-Switzerland nor WIL shall, and neither WIL-Switzerland nor WIL
shall permit any other Obligor to, wind up, liquidate or dissolve, except that, if
at the time thereof and immediately after giving effect thereto no Default or Event
of Default shall have occurred and be continuing, any Obligor other than
WIL-Switzerland and XXX xxx wind up, liquidate or dissolve if (i) the owner of all
of the Capital Stock of such Obligor immediately prior to such event shall be
WIL-Switzerland, a Wholly-Owned Subsidiary of WIL-Switzerland, 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
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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.”
(u) Section 8.03 of the Credit Agreement is hereby amended by replacing each reference to
“WIL” contained therein with a reference to “WIL-Switzerland”.
(v) Sections 8.04, 8.05, 8.06, 8.07 and 8.08 of the Credit Agreement are hereby amended by
replacing each reference to “WIL” contained therein with a reference to “WIL-Switzerland”.
(w) Section 9.01(j) of the Credit Agreement is hereby amended by replacing each reference to
“WIL” contained therein with a reference to “WIL-Switzerland”.
(x) Section 12.01(c) of the Credit Agreement is hereby amended by replacing each reference to
“WIL” contained therein with a reference to “WIL-Switzerland.”
(y) Section 12.01(d) of the Credit Agreement is hereby amended by replacing the reference to
“WIL” contained in the first line thereof with a reference to “WIL-Switzerland”.
(z) Section 12.04 of the Credit Agreement is hereby amended by replacing the phrase “either
Borrower” contained in the tenth line of paragraph (a) thereof with the phrase “any Borrower”.
(aa) Exhibit A to the Credit Agreement is hereby amended by replacing the description of the
Credit Agreement contained in paragraph 5 thereof with the following: “The Credit Agreement dated
as of October 20, 2008 among Xxxxxxxxxxx International Ltd. (a Bermuda exempted company), the other
Borrowers from time to time thereunder, Xxxxxxxxxxx International Ltd. (a Swiss joint stock
corporation), Xxxxxxxxxxx International, Inc., as Guarantor, the Lenders parties thereto and UBS
AG, Stamford Branch, as Administrative Agent, as amended modified, restated or supplemented from
time to time”.
(bb) Exhibit F to the Credit Agreement is hereby amended and restated in its entirety to read
as set forth in Annex 1 attached hereto.
(cc) Exhibit G is hereby amended by replacing the reference to “WIL” contained in Recital A
thereof with a reference to “WIL-Switzerland”.
4. Effective Date; Conditions Precedent. This Amendment shall become effective at
such time as the Administrative Agent has received each of the following (the “Effective
Date”), such receipt being a condition precedent to the effectiveness hereof:
(a) a counterpart of this Amendment executed by WIL, WII, WIL-Switzerland and the
Required Lenders;
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(b) evidence of consummation of the Redomestication in accordance in all material
respects with the Share Exchange Agreement (with all conditions precedent to such
consummation having been satisfied or waived);
(c) a certificate of a Responsible Officer of WIL-Switzerland to the effect that, after
giving effect to this Amendment, both before and after giving effect to the Redomestication
in Switzerland as described herein above, no Default or Event of Default exists;
(d) opinion(s), in form, scope and substance reasonably satisfactory to the
Administrative Agent, of one or more counsel reasonably satisfactory to the Administrative
Agent, addressing such matters in connection with such Redomestication (including, without
limitation, Swiss tax law) as the Administrative Agent may reasonably request;
(e) a guaranty by WIL-Switzerland of the Obligations in form and substance reasonably
satisfactory to the Administrative Agent;
(f) a certificate of a Responsible Officer of WIL-Switzerland, dated the Effective Date
and certifying, inter alia, true and complete copies of the deed of foundation or other
organizational documents, each as amended and in effect, of WIL-Switzerland and the
resolutions adopted by the Board of Directors of WIL-Switzerland (1) authorizing the
execution, delivery and performance by WIL-Switzerland of the Loan Documents to which it is
or shall be a party and (2) authorizing officers of WIL-Switzerland 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 Amendment;
(g) a certificate of the secretary or an assistant secretary of WIL-Switzerland, dated
the Effective Date and certifying the incumbency and specimen signatures of the officers of
WIL-Switzerland executing any documents on its behalf in connection herewith;
(h) copies of the deed of foundation or other similar organizational documents of
WIL-Switzerland 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 WIL-Switzerland
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;
(i) payment to the Administrative Agent and the Lenders, as applicable, of all fees and
expenses agreed upon by such parties to be paid on or prior to the Effective Date; and
(j) copies of all court orders and governmental certificates and orders sanctioning the
consummation of the Redomestication.
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5. Joinder of WIL-Switzerland to Credit Agreement. WIL-Switzerland agrees to be
bound, from and after the Effective Date, by all of the provisions of the Credit Agreement, as
amended hereby, and the other Loan Documents specifically applicable to WIL-Switzerland thereunder
or applicable to an “Obligor” thereunder and agrees that it shall, on and as of the Effective Date,
become a party to the Credit Agreement, as amended hereby, and an “Obligor” for all purposes
thereof to the same extent as if originally a party thereto.
6. Ratification. The Credit Agreement and each Guaranty executed in connection
therewith are hereby ratified, approved and confirmed in all respects.
7. Reference to Agreement. From and after the Effective Date hereof, each reference
in the Credit Agreement to “this Agreement”, “hereof”, or “hereunder” or words of like import, and
all references to the Credit Agreement in any and all agreements, instruments, documents, notes,
certificates, guaranties and other writings of every kind and nature shall be deemed to mean the
Credit Agreement as modified by this Amendment.
8. Costs and Expenses. The Borrower agrees to pay all reasonable costs, fees, and
out-of-pocket expenses (including reasonable attorneys’ fees and disbursements) incurred by the
Administrative Agent in connection with the preparation, execution and enforcement of this
Amendment.
9. CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW) WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES.
10. Execution in Counterparts. This Amendment 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.
<signature pages follow>
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered
by their duly authorized officers as of the date hereof.
| WIL: | ||||||
| XXXXXXXXXXX INTERNATIONAL, LTD., | ||||||
| a Bermuda exempted company | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxx | |||||
| Title: | Sr. Vice President & Chief Financial Officer | |||||
Signature Page to Amendment
| WII: | ||||||
| XXXXXXXXXXX INTERNATIONAL, INC. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxx | |||||
| Title: | Sr. Vice President & Chief Financial Officer | |||||
Signature Page to Amendment
| WIL-SWITZERLAND: | ||||||
| XXXXXXXXXXX INTERNATIONAL LTD., | ||||||
| a Swiss joint stock corporation | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxx | |||||
| Title: | Sr. Vice President & Chief Financial Officer | |||||
Signature Page to Amendment
| ADMINISTRATIVE AGENT: | ||||||
| UBS AG, STAMFORD BRANCH, | ||||||
| as Administrative Agent | ||||||
| By: | /s/ Xxxx X. Xxxx | |||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Associate Director | |||||
| Banking Products Services, US | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Title: | Director | |||||
| Banking Products Services, US | ||||||
| Notice Information: | ||||||
| 000 Xxxxxxxxxx Xxxx. | ||||||
| Xxxxxxxx, XX 00000 | ||||||
| Telephone: 000-000-0000 | ||||||
| Telecopy: 000-000-0000 | ||||||
| Email: XX-XXXXxxxxx@xxx.xxx | ||||||
| Attn: Xxxxxxxxxxx Xxxxx | ||||||
| with a copy to: | ||||||
| 000 Xxxxxxxxxx Xxxx. | ||||||
| Xxxxxxxx, XX 00000 | ||||||
| Telephone: 000-000-0000 | ||||||
| Telecopy: 000-000-0000 | ||||||
| Email: XX-XXXXxxxxx@xxx.xxx | ||||||
| Attn: Xxxxxxx Xxxx | ||||||
Signature Page to Amendment
| LENDERS: | ||||||
| BARCLAYS BANK PLC | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||||
| Name: | Xxxxxxxx X. Xxxx | |||||
| Title: | Director | |||||
Signature Page to Amendment
| LENDERS: | ||||||
| BANK OF AMERICA, N.A. | ||||||
| By: | /s/ Xxxxxxx X. XxXxxxxx | |||||
| Name: | Xxxxxxx X. XxXxxxxx | |||||
| Title: | Senior Vice President | |||||
Signature Page to Amendment
| LENDERS: | ||||||
| DEUTSCHE BANK AG NEW YORK BRANCH | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||
| Title: | Director | |||||
| By: | /s/ Xxxxxx Xxxxx | |||||
| Name: | Xxxxxx Xxxxx | |||||
| Title: | Vice President | |||||
Signature Page to Amendment
| LENDERS: | ||||||
| XXXXXXX STREET LLC | ||||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Name: | Xxxx Xxxxxx | |||||
| Title: | Authorized Signatory | |||||
Signature Page to Amendment
| LENDERS: | ||||||
| UBS LOAN FINANCE LLC | ||||||
| By: | /s/ Xxxx X. Xxxx | |||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Associate Director | |||||
| Banking Products Services, US | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Title: | Director | |||||
| Banking Products Services, US | ||||||
Signature Page to Amendment
Annex 1 to Amendment
EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
The undersigned hereby certifies that such officer is the of
Xxxxxxxxxxx International Ltd., a Swiss joint stock corporation (“WIL-Switzerland”), and
that such officer is authorized to execute this certificate on behalf of WIL-Switzerland pursuant
to the Credit Agreement (the “Credit Agreement”) dated as of October 20, 2008 (as restated,
amended, modified, supplemented and in effect from time to time, the “Credit Agreement”),
among Xxxxxxxxxxx International Ltd., a Bermuda exempted company (“WIL”, together with any
other Persons from time to time becoming Borrowers thereunder pursuant to Section 12.01(c)
thereof, collectively, the “Borrowers”), Xxxxxxxxxxx International, Inc. (“WII”)
and WIL-Switzerland (together with the Borrowers and WIL, collectively, the “Obligors”),
the Lenders and UBS AG, Stamford Branch, as Administrative Agent; and that a review of the Obligors
has 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-Switzerland further certifies, represents and warrants that to
the knowledge of such officer (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 8.04 and 8.06 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 8.04(b) — Indebtedness of Subsidiaries (other than Subsidiaries that are
Obligors)
| Actual | Required | |||
| $ | $ 1 | |||
| (b) Section 8.06 – Consolidated Indebtedness to Total Capitalization | ||||
| Actual | Required | |||
| % | 60% | |||
Attached are calculations demonstrating such compliance.
| 1 | Not more than 20% of WIL-Switzerland’s Net Worth. |
DATED
as of .
| [SIGNATURE OF AUTHORIZED OFFICER OF | ||||
| WIL-SWITZERLAND] |
