Credit Agreement $250,000,000 INITIAL AGGREGATE COMMITMENTS DATED AS OF MARCH 19, 2008 AMONG WEATHERFORD INTERNATIONAL LTD. AS BORROWER, WEATHERFORD INTERNATIONAL, INC., AS GUARANTOR DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH AS ADMINISTRATIVE AGENT, AND...
Exhibit 4.6
$250,000,000 INITIAL AGGREGATE COMMITMENTS
DATED AS OF MARCH 19, 2008
AMONG
XXXXXXXXXXX INTERNATIONAL LTD.
AS BORROWER,
XXXXXXXXXXX INTERNATIONAL, INC.,
AS GUARANTOR
AS GUARANTOR
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH
AS ADMINISTRATIVE AGENT,
AS ADMINISTRATIVE AGENT,
AND
XXXXXXX STREET LLC
AS SYNDICATION AGENT,
AS SYNDICATION AGENT,
XXXXXXX XXXXX BANK USA
AS DOCUMENTATION AGENT,
AS DOCUMENTATION AGENT,
THE LENDERS PARTY HERETO,
AND
DEUTSCHE BANK SECURITIES INC.
AS BOOKRUNNER AND LEAD ARRANGER
AS BOOKRUNNER AND LEAD ARRANGER
TABLE OF CONTENTS
Page | ||||
ARTICLE I |
||||
DEFINITIONS; ACCOUNTING TERMS; INTERPRETATION |
||||
SECTION 1.01. Definitions |
1 | |||
SECTION 1.02. Types of Borrowings |
21 | |||
SECTION 1.03. Accounting Terms; Changes in GAAP |
21 | |||
SECTION 1.04. Interpretation |
22 | |||
ARTICLE II |
||||
COMMITMENTS; LOANS |
||||
SECTION 2.01. Loans |
23 | |||
SECTION 2.02. Requests for Borrowings |
24 | |||
SECTION 2.03. Funding of Borrowings |
25 | |||
SECTION 2.04. Interest Elections |
26 | |||
SECTION 2.05. Termination and Reduction of Commitments |
27 | |||
SECTION 2.06. Repayment of Loans; Evidence of Debt |
28 | |||
SECTION 2.07. Prepayment of Loans |
28 | |||
SECTION 2.08. Fees |
29 | |||
SECTION 2.09. Interest |
30 | |||
SECTION 2.10. Alternate Rate of Interest |
31 | |||
SECTION 2.11. Increased Costs |
32 | |||
SECTION 2.12. Break Funding Payments |
33 | |||
SECTION 2.13. Agreement to Defer Exercise of Right of Contribution, Etc. |
33 | |||
SECTION 2.14. Extension of Maturity Date |
34 | |||
SECTION 2.15. Increase in Commitments |
35 | |||
SECTION 2.16. Currency Fluctuation |
37 | |||
ARTICLE III |
||||
LETTERS OF CREDIT |
||||
SECTION 3.01. Letters of Credit |
37 | |||
ARTICLE IV |
||||
PAYMENTS; PRO RATA TREATMENT; TAXES |
||||
SECTION 4.01. Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
41 | |||
SECTION 4.02. Taxes |
43 | |||
SECTION 4.03. Mitigation Obligations; Replacement of Lenders; Replacement of Issuing Bank |
45 |
-i-
Page | ||||
ARTICLE V |
||||
CONDITIONS PRECEDENT |
||||
SECTION 5.01. Conditions Precedent to the Effective Date |
46 | |||
SECTION 5.02. Conditions Precedent to All Credit Events |
48 | |||
SECTION 5.03. Delivery of Documents |
48 | |||
ARTICLE VI |
||||
REPRESENTATIONS AND WARRANTIES |
||||
SECTION 6.01. Organization and Qualification |
49 | |||
SECTION 6.02. Authorization, Validity, Etc. |
49 | |||
SECTION 6.03. Governmental Consents, Etc. |
49 | |||
SECTION 6.04. No Breach or Violation of Law or Agreements |
49 | |||
SECTION 6.05. Litigation |
50 | |||
SECTION 6.06. Information; Financial Statements |
50 | |||
SECTION 6.07. Investment Company Act; Sanctions; Etc. |
50 | |||
SECTION 6.08. ERISA |
51 | |||
SECTION 6.09. Tax Returns and Payments |
51 | |||
SECTION 6.10. Requirements of Law |
51 | |||
SECTION 6.11. No Default |
51 | |||
ARTICLE VII |
||||
AFFIRMATIVE COVENANTS |
||||
SECTION 7.01. Information Covenants |
52 | |||
SECTION 7.02. Books, Records and Inspections |
53 | |||
SECTION 7.03. Insurance |
53 | |||
SECTION 7.04. Payment of Taxes and other Claims |
54 | |||
SECTION 7.05. Existence |
54 | |||
SECTION 7.06. ERISA Information and Compliance |
54 | |||
SECTION 7.07. Purpose of Letters of Credit and Loans |
54 | |||
ARTICLE VIII |
||||
NEGATIVE COVENANTS |
||||
SECTION 8.01. Material Change in Business |
55 | |||
SECTION 8.02. Consolidation, Merger, or Sale of Assets, Etc. |
55 | |||
SECTION 8.03. Liens |
56 | |||
SECTION 8.04. Indebtedness |
56 | |||
SECTION 8.05. Ownership of WII |
56 | |||
SECTION 8.06. Financial Covenant |
57 | |||
SECTION 8.07. Limitation on Transactions with Affiliates |
57 | |||
SECTION 8.08. Restrictions on Subsidiary Dividends |
57 |
-ii-
Page | ||||
ARTICLE IX |
||||
EVENTS OF DEFAULT AND REMEDIES |
||||
SECTION 9.01. Events of Default and Remedies |
57 | |||
SECTION 9.02. Right of Setoff |
60 | |||
SECTION 9.03. Other Remedies |
60 | |||
SECTION 9.04. Application of Moneys During Continuation of Event of Default |
61 | |||
ARTICLE X |
||||
ADMINISTRATIVE AGENT |
||||
ARTICLE XI |
||||
GUARANTY |
||||
SECTION 11.01. Guaranty |
63 | |||
SECTION 11.02. Continuing Guaranty |
64 | |||
SECTION 11.03. Effect of Debtor Relief Laws |
66 | |||
SECTION 11.04. Waiver |
67 | |||
SECTION 11.05. Agreement to Defer Exercise of Subrogation |
68 | |||
SECTION 11.06. Full Force and Effect |
68 | |||
SECTION 11.07. Guaranty Fall-Away |
68 | |||
ARTICLE XII |
||||
MISCELLANEOUS |
||||
SECTION 12.01. Waiver; Amendments; Joinder; Removal of Certain Borrowers |
69 | |||
SECTION 12.02. Notices |
71 | |||
SECTION 12.03. Expenses, Etc. |
71 | |||
SECTION 12.04. Indemnity |
72 | |||
SECTION 12.05. Successors and Assigns |
73 | |||
SECTION 12.06. Confidentiality |
76 | |||
SECTION 12.07. Survival |
77 | |||
SECTION 12.08. Governing Law |
77 | |||
SECTION 12.09. Independence of Covenants |
77 | |||
SECTION 12.10. Counterparts; Integration; Effectiveness |
78 | |||
SECTION 12.11. Severability |
78 | |||
SECTION 12.12. Conflicts Between This Agreement and the Other Loan Documents |
78 | |||
SECTION 12.13. Headings |
78 | |||
SECTION 12.14. Limitation of Interest |
78 | |||
SECTION 12.15. Submission to Jurisdiction; Consent to Service of Process |
78 | |||
SECTION 12.16. Waiver of Jury Trial |
79 | |||
SECTION 12.17. Judgment Currency |
79 | |||
SECTION 12.18. USA Patriot Act |
80 | |||
SECTION 12.19. No Fiduciary Duty |
80 |
-iii-
EXHIBITS
EXHIBIT A
|
Form of Assignment and Assumption | |
EXHIBIT B-1
|
Form of Borrowing Request | |
EXHIBIT B-2
|
Form of Letter of Credit Request | |
EXHIBIT C
|
Form of Interest Election Request | |
EXHIBIT D
|
Form of Promissory Note | |
EXHIBIT E
|
Form of Notice of Commitment Increase | |
EXHIBIT F
|
Form of Compliance Certificate | |
EXHIBIT G
|
Form of Joinder Agreement |
SCHEDULES
SCHEDULE 1.01
|
Lenders | |
SCHEDULE 2.01
|
Commitments |
-iv-
THIS CREDIT AGREEMENT, dated as of March 19, 2008, is among:
(a) | Xxxxxxxxxxx International Ltd., a Bermuda exempted company (“WIL”), and together with WIL and any other Persons from time to time becoming Borrowers hereunder pursuant to Section 12.01(c), but excluding any Persons who from time to time cease to be Borrowers hereunder pursuant to Section 12.01(d), collectively, the “Borrowers”); | ||
(b) | Xxxxxxxxxxx International, Inc., a Delaware corporation (“WII” or the “Guarantor”); | ||
(c) | Deutsche Bank AG Cayman Islands Branch, individually as a Lender and as administrative agent for the other Lenders (in such latter capacity together with any other Person that becomes the Administrative Agent pursuant to Article X, the “Administrative Agent”); and | ||
(d) | 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 12.05, collectively, the “Lenders”). |
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; ACCOUNTING TERMS; INTERPRETATION
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.
“Adjusted LIBO Rate” means, with respect to any Eurocurrency Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 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 (c) 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
1
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 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 equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) 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 (c) 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 Prime Rate, the Base
CD Rate or the Federal Funds Effective Rate shall be effective from and including the effective
date of such change in the Prime Rate, the Base CD 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 Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.
“Applicable Rate” means, for any day, with respect to any Eurocurrency Loan, or with
respect to the facility fees payable hereunder, as the case may be, the applicable rate per annum
set forth below under the captions “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:
Index
|
Facility | Applicable | ||||||
Debt Ratings: |
Fee | Margin | ||||||
Performance Level I |
.050 | % | .150 | % | ||||
Performance Level II |
.060 | % | .190 | % | ||||
Performance Level III |
.080 | % | .270 | % | ||||
Performance Level IV |
.090 | % | .410 | % | ||||
Performance Level V |
.110 | % | .590 | % |
; provided that for each day on which the total Revolving Credit Exposures of all Lenders
exceeds 50% of the total Commitments, (a) if the ratings established or deemed to have been
established by Xxxxx’x and S&P for the Index Debt on such day shall fall within Performance
2
Level I, Performance Level II or Performance Level III, the Applicable Margin on such day shall be
increased by 0.05% and (b) if the ratings established or deemed to have been established by Xxxxx’x
and S&P for the Index Debt on such day shall fall within Performance Level IV or Performance Level
V, the Applicable Margin on such day shall be increased by 0.10%.
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.
“Approved Fund” has the meaning specified in Section 12.05.
“Assessment Rate” means, for any day, the annual assessment rate in effect on such day
that is payable by a member of the Bank Insurance Fund classified as “well-capitalized” and within
supervisory subgroup “B” (or a comparable successor risk classification) within the meaning of 12
C.F.R. Part 327 (or any successor provision) to the Federal Deposit Insurance Corporation for
insurance by such Corporation of time deposits made in dollars at the offices of such member in the
United States; provided that if, as a result of any change in any law, rule or regulation, it is no
longer possible to determine the Assessment Rate as aforesaid, then the Assessment Rate shall be
such annual rate as shall be determined by the Administrative Agent to be representative of the
cost of such insurance to the Lenders.
“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
12.05) and accepted by the Administrative Agent, in the form of Exhibit A.
“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
3
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.
“Australian Dollar Sublimit” means, at any time, an amount equal to the product of (a)
the aggregate amount of the Commitments at such time multiplied by (b) a fraction,
the numerator of which is $16,000,000 and the denominator of which is $250,000,000.
“Australian Dollars” means the lawful currency of Australia.
“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 CD Rate” means the sum of (a) the Three-Month Secondary CD Rate multiplied by
the Statutory Reserve Rate plus (b) the Assessment Rate.
“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 (or
other governing body) 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 (or other governing body).
“Borrowers” has the meaning specified in paragraph (a) on page one.
“Borrowing” means Loans of the same Type, made, converted or continued on the same
date and, in the case of Eurocurrency Loans, denominated in a single Currency and as to which a
single Interest Period is in effect.
“Borrowing Minimum” means (a) in the case of a Eurocurrency Borrowing denominated in
Dollars, $2,000,000 and (b) in the case of a Eurocurrency Borrowing denominated in any
4
Optional
Currency, the smallest amount of such Optional Currency that has a Dollar Equivalent equal to or in
excess of $2,000,000.
“Borrowing Multiple” means (a) in the case of a Eurocurrency Borrowing denominated in
Dollars, $1,000,000 and (b) in the case of a Eurocurrency Borrowing denominated in any Optional
Currency, the smallest amount of such Optional Currency that has a Dollar Equivalent equal to or in
excess of $1,000,000.
“Borrowing Request” means a request by a Borrower for a Loan in accordance with
Section 2.02, which, if in writing, shall be substantially in the form of Exhibit
B-1.
“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 Eurocurrency Loan, the term “Business Day” shall also
exclude any day on which banks are not open for dealings in Dollar deposits or deposits in any
Optional Currency, as applicable, in the London interbank market.
“Canadian Dollar Sublimit” means, at any time, an amount equal to the product of (a)
the aggregate amount of the Commitments at such time multiplied by (b) a fraction,
the numerator of which is $33,000,000 and the denominator of which is $250,000,000.
“Canadian Dollars” means the lawful currency of Canada.
“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 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
5
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 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 8.02, 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 (to the
extent it becomes a Borrower), except in a transaction permitted by Section 8.02, 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 the Issuing Bank (or, for purposes of Section 2.11(b), by any
lending office of such Lender or by such Lender’s or the Issuing Bank’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 12.14.
“CI Lender” has the meaning specified in Section 2.15.
“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 and to acquire participations in Letters of Credit hereunder, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite such
6
Lender’s name
on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall
have assumed its Commitment, as applicable, as such amount may be (a) reduced from time to time
pursuant to Section 2.05, (b) increased from time to time pursuant to Section 2.15
and (c) reduced or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 12.05. The initial aggregate amount of the Lenders’ Commitments is
$250,000,000.
“Commitment Increase” has the meaning specified in Section 2.15.
“Commitment Increase Effective Date” has the meaning specified in Section
2.15.
“Commitment Percentage” means, as to any Lender, the percentage equivalent of a
fraction, the numerator of which is the amount of such Lender’s Commitment, and the denominator of
which is the aggregate amount of the Commitments of all Lenders.
“Communications” has the meaning specified in Section 12.02.
“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.
“Credit Event” means the making of any Loan or the issuance of any Letter of Credit
pursuant hereto.
“Currency” means Dollars or any Optional Currency.
“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.
“Deutsche Bank” means Deutsche Bank AG Cayman Islands Branch.
“Dollar Equivalent” means, on any date of determination, (a) with respect to any
amount denominated in Dollars, such amount and (b) with respect to any amount denominated in an
Optional Currency, the equivalent in Dollars of such amount determined by the Administrative Agent
in accordance with normal banking industry practice using the Exchange Rate on such
7
date of
determination. In making any determination of the Dollar Equivalent (for purposes of calculating
the amount of Loans to be borrowed from the respective Lenders on any date or for any other
purpose), the Administrative Agent shall use the relevant Exchange Rate in effect on the date on
which any Borrower delivers a Borrowing Request for Loans or on such other date on which a Dollar
Equivalent is required to be determined pursuant to the provisions of this Agreement. As
appropriate, amounts specified herein as amounts in Dollars shall be or include any relevant Dollar
Equivalent amount.
“Dollars”, “dollars” and “$” means the lawful currency 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.
“Effective Date” means the date on which the conditions set forth in Section
5.01 are first satisfied or waived.
“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.
“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.
“Euro” means the euro referred to in Council Regulation (EC) No. 1103/97 dated June
17, 1997, passed by the council of the European Union, or, if different, the then lawful currency
of the member states of the European Union that participate in the third stage of economic and
monetary union.
“Euro Sublimit” means, at any time, an amount equal to the product of (a) the
aggregate amount of the Commitments at such time multiplied by (b) a fraction, the
numerator of which is $66,000,000 and the denominator of which is $250,000,000.
“Eurocurrency”, 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 IX.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
“Exchange Rate” shall mean, with respect to any Optional Currency on a particular
date, the rate at which such Optional Currency may be exchanged into Dollars, as set forth at 11:00
a.m., London time, on such date on the applicable Reuters currency page with respect to such
Optional Currency. If such rate does not appear on the applicable Reuters currency page, the
Exchange Rate with respect to such Optional Currency shall be determined by reference to such other
publicly available service for displaying exchange rates as may be agreed upon by the
8
Administrative Agent and the Borrowers or, in the absence of such agreement, such Exchange Rate
shall instead be the spot rate of exchange of the Administrative Agent in the London Interbank
market or other market where its foreign currency exchange operations in respect of such Optional
Currency are then being conducted, at or about 11:00 a.m., London time, at such date for the
purchase of Dollars with such Optional Currency, for delivery two Business Days later; provided
that if at the time of any such determination, for any reason, no such spot rate is being quoted,
the Administrative Agent may use any reasonable method it deems appropriate to determine such rate,
and such determination shall be presumed correct absent manifest error.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
any 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, the Issuing Bank or any other such recipient is located, (c) in
the case of a Foreign Lender (other than an assignee pursuant to an assignment required by WIL
under Section 4.03(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 4.02(c) or
4.02(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 4.02(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 12.05 (other than (i) 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, (ii) a
Lender that designates a new lending office after the date hereof pursuant to Section
4.03(a), (iii) an assignee pursuant to an assignment by a Lender under Section 4.03(a),
(iv) an assignee pursuant to an assignment required by WIL under Section 4.03(b) and (v) a
Lender that becomes party to this Agreement as a result of an assignment by a Lender or a Lender
that designates a new lending office, if such assignment or designation is necessary for the
applicable Lender to make a Loan denominated in any Optional Currency upon the request of a
Borrower for Loans in such Optional Currency pursuant to Section 2.02), 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).
“Extension Effective Date” has the meaning specified in Section 2.14.
“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.
9
“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 11.01.
“Guarantor” has the meaning specified in paragraph (b) on page one.
“Guaranty” means the guaranty contained in Article XI.
“HOC” means Xxxxxxxxxxx Liquidity Management Hungary Limited Liability Company a
Hungarian limited liability company.
“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
10
obligations of such Person as of the date of a required calculation of any Derivatives Obligations;
(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 12.04.
“Index Debt” means senior, unsecured, long-term indebtedness for borrowed money of WIL
that is not guaranteed by any other Person (other than WII) 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, which, if in writing, shall be substantially in the
form of Exhibit C.
“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 Eurocurrency 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 Eurocurrency 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 Eurocurrency 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 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 Eurocurrency 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 by 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.
11
“ISDA” means the International Swaps and Derivatives Association, Inc.
“Issuing Bank” means Deutsche Bank AG Cayman Islands Branch, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as provided in
Section 3.01(i). The Issuing Bank may, in its discretion, arrange for one or more Letters
of Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank”
shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.
“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrowers at such time. The LC Exposure
of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.
“Lenders” means the Persons listed in 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.
“Letter of Credit” means any letter of credit issued pursuant to this Agreement.
“Letter of Credit Request” means a request by a Borrower for the issuance, amendment,
renewal or extension of a Letter of Credit in accordance with Section 3.01, which shall be
substantially in the form of Exhibit B-2.
“LIBO Rate” means, for any Interest Period with respect to a Eurocurrency Loan, the
Applicable Margin from time to time in effect plus the applicable British Bankers’ Association
London interbank offered rate for deposits in the relevant currency for such Eurocurrency 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 such Interest
Period shall instead be the rate at which deposits in the relevant currency 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 such Interest Period and
for a period equal to such Interest Period and in amounts substantially equal to the amount of the
requested Eurocurrency 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
12
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 Derivative 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 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 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 May 2, 2011, and for any Lender agreeing to extend the Maturity
Date pursuant to Section 2.14, May 2 in each year thereafter to which the Maturity Date has
been extended, but in no event later than May 2, 2014.
“Maximum Rate” has the meaning set forth in Section 12.14.
“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 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
13
(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 Funds Amount” has the meaning specified in Section 2.15.
“New Parent” has the meaning specified in the definition of the term
“Redomestication”.
“Non-Extending Lender” means, with respect to any extension of the Maturity Date
pursuant to Section 2.14, any Lender that has not consented to or has been deemed not to
have consented to such extension pursuant to Section 2.14.
“Norwegian Kroner” means the lawful currency of the Kingdom of Norway.
“Norwegian Kroner Sublimit” means, at any time, an amount equal to the product of (a)
the aggregate amount of the Commitments at such time multiplied by (b) a fraction,
the numerator of which is $16,000,000 and the denominator of which is $250,000,000.
“Notes” has the meaning specified in Section 2.06(e).
“Notice of Commitment Increase” has the meaning specified in Section 2.15.
“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 reimbursement obligations with respect to then outstanding Letters of Credit,
plus (c) all other outstanding liabilities, obligations and indebtedness of any Borrower under any
Loan Document on such date.
“Obligors” means WIL, WII (unless the Guaranty has been terminated and not reinstated
pursuant to Section 11.07) and each other Borrower.
“Optional Currency” means Australian Dollars, Canadian Dollars, Euros, Norwegian
Kroner or Pounds Sterling, so long as such currency is freely traded and convertible into Dollars
in the London Interbank market and a Dollar Equivalent thereof can be calculated. If, after the
making of a Loan in an Optional Currency, such Optional Currency ceases to be lawful currency
freely convertible into Dollars and is replaced by the Euro, thereafter the Optional Currency for
purposes of such Loan shall be the Euro.
“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, the Republic of Hungary, the United States or any other jurisdiction in which any
Borrower is organized or is resident for tax purposes or any other jurisdiction in which WIL
is Redomesticated or is resident for tax purposes with respect to a Foreign Lender, or (ii)
Bermuda, the Republic of Hungary or any other jurisdiction in which any Borrower is organized or is
resident for tax purposes or any other jurisdiction (other than the United States) in which WIL is
14
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 12.05(c).
“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 A2 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 A- or better by S&P and A3 or better by Moody’s.
“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 Baa1 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
Baa2 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;
15
(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;
(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 (i) such Liens 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) such Liens do not extend to any other assets of WIL
or any of its Subsidiaries and (iii) the Indebtedness secured by such Liens is permitted
pursuant to this Agreement;
(h) Liens securing Indebtedness of WIL or its Subsidiaries not prohibited by
Section 8.04 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;
16
(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 making or accruing an
obligation to make contributions or has within the preceding five plan years made contributions.
“Pounds Sterling” means the lawful currency of the United Kingdom.
“Pounds Sterling Sublimit” means, at any time, an amount equal to the product of (a)
the aggregate amount of the Commitments at such time multiplied by (b) a fraction,
the numerator of which is $66,000,000 and the denominator of which is $250,000,000.
“Prime Rate” means the rate of interest per annum publicly announced from time to time
by Deutsche Bank as its prime rate in effect at its principal office in New York City; each change
in the Prime Rate shall be effective from and including the date such change is publicly announced
as being effective.
“Public Debt Offering” means the public offering and sale of one or more series of
senior notes of the Borrower, pursuant to the Borrower’s existing shelf registration statement on
Form S-3 (SEC Registration No. 333-135244), through a syndicate of underwriters for whom Xxxxxxx,
Xxxxx & Co., Deutsche Bank Securities Inc and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
shall act as Joint Book-Running Managers, which notes shall be in an aggregate principal amount of
not less than $1,500,000,000 and as to which the due and punctual payment of principal, interest
and premium (if any) shall be unconditionally guaranteed, on a senior unsecured basis, by the
Guarantor.
“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,
17
(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”),
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 owned, 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.
“Reducing Percentage Lender” has the meaning specified in Section 2.15.
“Reduction Amount” has the meaning specified in Section 2.15.
“Reference Bank” means Deutsche Bank.
“Register” has the meaning specified in Section 12.05(b)(iv).
18
“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.
“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 (x) at any time that there are three or fewer Lenders that are not
Affiliates of any other Lender, at least 70% and (y) at any time that there are four or more
Lenders that are not Affiliates of any other Lender, 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.
“Revaluation Date” means each of the following: (i) each date of a Borrowing of a
Eurocurrency Loan denominated in an Optional Currency, (ii) each date of a continuation of a
Eurocurrency Loan denominated in an Optional Currency, and (iii) such additional dates as the
Administrative Agent shall determine or the Required Lenders shall reasonably require as a result
of money or capital markets conditions or the occurrence and continuation of an Event of Default.
19
“Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the Dollar Equivalent of the outstanding principal amount of such Lender’s Loans and its LC
Exposure at such time.
“S&P” means Standard & Poor’s Ratings Group, a division of XxXxxx-Xxxx, Inc.
“Specified Debt” means any obligation created or assumed by any Person for the
repayment of money borrowed and any purchase money obligation created or assumed by such Person and
any guarantee of the foregoing.
“Statutory Reserve Rate” means with respect to any currency, 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, liquid asset or similar percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal established by any
Governmental Authority of the United States or of the jurisdiction of such currency or any
jurisdiction in which Loans in such currency are made to which banks in such jurisdiction are
subject for any category of deposits or liabilities customarily used to fund loans in such currency
or by reference to which interest rates applicable to loans in such currency are determined. Such
reserve, liquid asset or similar percentages shall include those imposed pursuant to Regulation D.
Eurocurrency 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 Regulation D or any other applicable law, rule or
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 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.
“Three-Month Secondary CD Rate” means, for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect on such day (or, if such day is not
a Business Day, the next preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for three-month certificates of
20
deposit of major money center banks in New York City received at approximately 10:00 a.m., New
York City time, on such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit dealers of recognized
standing selected by it.
“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.
“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.
SECTION 1.02. Types of Borrowings. Borrowings hereunder are distinguished by “Type” and the Currency in which each is denominated.
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 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 VIII 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 VIII, 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.
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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;
(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”;
(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 in 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.
(d) Unless otherwise specified herein, (i) all dollar amounts expressed herein shall refer to
Dollars and (ii) for purposes of calculating compliance with the terms of this Agreement
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and the other Loan Documents (including for purposes of calculating compliance with the covenants), each
obligation or calculation shall be converted to its Dollar Equivalent.
(e) The Administrative Agent shall determine the Exchange Rates as of each Revaluation Date to
be used for calculating Dollar Equivalent amounts in respect of Borrowings denominated in Optional
Currencies. Such Exchange Rates shall become effective as of such Revaluation Date and shall be
the Exchange Rates employed in converting any amounts between the applicable currencies until the
next Revaluation Date to occur. Except for purposes of financial statements delivered by Obligors
hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the
applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be
such Dollar Equivalent amount as so determined by the Administrative Agent.
ARTICLE II
COMMITMENTS; LOANS
COMMITMENTS; LOANS
SECTION 2.01. Loans.
(a) Subject to the terms and conditions set forth herein, each Lender agrees to make Loans to
the Borrowers, in Dollars or any Optional Currency, from time to time during the Availability
Period in an aggregate principal amount that shall not result in (i) such Lender’s Revolving Credit
Exposure exceeding such Lender’s Commitment, (ii) the sum of the total Revolving Credit Exposures
of all Lenders exceeding the total Commitments, (iii) the sum of the total Revolving Credit
Exposures of all Lenders in respect of Loans denominated in Australian Dollars exceeding the
Australian Dollar Sublimit, (iv) the sum of the total Revolving Credit Exposures of all Lenders in
respect of Loans denominated in Canadian Dollars exceeding the Canadian Dollar Sublimit, (v) the
sum of the total Revolving Credit Exposures of all Lenders in respect of Loans denominated in Euros
exceeding the Euro Sublimit, (vi) the sum of the total Revolving Credit Exposures of all Lenders in
respect of Loans denominated in Norwegian Kroner exceeding the Norwegian Kroner Sublimit or (vii)
the sum of the total Revolving Credit Exposures of all Lenders in respect of Loans denominated in
Pounds Sterling exceeding the Pounds Sterling Sublimit. Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Loans.
(b) 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.
(c) Subject to Section 2.10, each Borrowing shall be comprised entirely of ABR Loans
or Eurocurrency Loans as a Borrower may request in accordance herewith. Eurocurrency Loans may be
denominated in Dollars or in an Optional Currency. All Loans denominated in an Optional Currency
must be Eurocurrency Loans. Each Lender at its option may make any Eurocurrency 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
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joint and several obligation of the Borrowers to repay
such Loan in accordance with the terms of this Agreement.
(d) At the commencement of each Interest Period for any Eurocurrency Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less
than the Borrowing Minimum. 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 or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 3.01(e). Borrowings of more than one Type may be
outstanding at the same time; provided that there shall not at any time be more than a total of
seven Eurocurrency Borrowings outstanding.
(e) 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 Borrowings. To request a Borrowing, a Borrower shall notify the
Administrative Agent (and the Administrative Agent shall promptly thereafter notify the Lenders) of
such request by telephone (a) in the case of a Eurocurrency 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; provided that any such notice of an ABR Borrowing to finance the reimbursement
of an LC Disbursement as contemplated by Section 3.01(e) may be given not later than 10:00
a.m., New York City time, on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request signed by the Borrower requesting the
Borrowing. Each such telephonic and written Borrowing Request 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 Eurocurrency Borrowing;
(iv) in the case of a Eurocurrency Borrowing, the applicable Currency in which such
Borrowing is to be made;
(v) in the case of a Eurocurrency Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and
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(vi) 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 Currency is specified with respect to any requested Eurocurrency Borrowing,
then the requesting Borrower shall be deemed to have requested that such Eurocurrency Borrowing be
made in Dollars. If no Interest Period is specified with respect to any requested Eurocurrency
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, and applicable Currency 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 in the applicable Currency (i) by 12:00 noon, New
York City time, in the case of a Borrowing consisting of Eurocurrency Loans, and (ii) by 1:00 p.m.,
New York City time, in the case of a Borrowing 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 in like funds to an account of such Borrower maintained with the
Administrative Agent in New York, New York and designated by such Borrower in the applicable
Borrowing Request; provided that an ABR Borrowing made to finance the reimbursement of an LC
Disbursement as provided in Section 3.01(e) shall be remitted by the Administrative Agent
to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing of Eurocurrency Loans (or, in the case of any Borrowing of ABR
Loans, prior to 12:00 noon, New York City time, on the date of such 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 (A) the Federal Funds Effective Rate, in the case of Loans denominated in Dollars, and the rate reasonably
determined by the Administrative Agent to be the cost to it of funding such amount, in the case of
Loans denominated in an Optional Currency, and (B) 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, in the case of Loans denominated in
Dollars, and the interest rate applicable to such Borrowing, in the case of Loans denominated in
25
any other currency. 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 Eurocurrency Borrowing, shall have an initial Interest Period and
shall be denominated in such Currency, in each case 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 Eurocurrency Borrowing, may elect Interest Periods and Currencies
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 and Currency
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 a form
approved by the Administrative Agent and signed by such Borrower. Notwithstanding any other
provision of this Section, no Borrower shall be permitted to change the currency of any Borrowing.
(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 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 Eurocurrency
Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency 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 Eurocurrency 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.
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(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
Eurocurrency 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 (i) in the case of a Borrowing denominated in Dollars, be converted to an ABR Borrowing and
(ii) in the case of a Borrowing denominated in an Optional Currency, be converted to an ABR
Borrowing (denominated in Dollars) in an amount equal to the Dollar Equivalent of such Eurocurrency
Borrowing on the last day of such Interest Period. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative Agent, at the request
of the Required Lenders, so notifies WIL, then, so long as an Event of Default is continuing (1) no
outstanding Borrowing may be converted to or continued as a Eurocurrency Borrowing and (2) unless
repaid, each Eurocurrency Borrowing shall at the end of the Interest Period applicable thereto (A)
in the case of a Borrowing denominated in Dollars, be converted to an ABR Borrowing, and (B) in the
case of a Borrowing denominated in an Optional Currency, be converted to an ABR Borrowing
(denominated in Dollars) in an amount equal to the Dollar Equivalent of such Eurocurrency Borrowing
on the last day of such Interest Period.
SECTION 2.05. Termination and Reduction of Commitments.
(a) Unless previously terminated, the Commitments shall terminate on the Maturity Date.
(b) 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.
(c) 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
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, and each such reduction of each such
Lender’s Commitment shall be applied to the reduction of such Lender’s commitment to make Loans and
acquire LC Exposure in the same proportion as each such commitment bears to such Lender’s total
Commitment immediately prior to such reduction.
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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 D. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 12.05) be represented by one or more Notes in such form
payable to the order of the payee named therein.
SECTION 2.07. 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 Eurocurrency 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 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
28
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 2.09. All prepayments
under this Section 2.07(b) shall be subject to Section 2.12.
(c) 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 (i) jointly and
severally, shall prepay the principal amount of the Loans and all accrued and unpaid interest
thereon in immediately available funds and (ii) deposit in an account with the Administrative
Agent, in the name of the Administrative Agent for the benefit of the Lenders, an amount in cash
equal to the LC Exposure as of such date plus any accrued and unpaid interest thereon. Such
deposit shall be held by the Administrative Agent for the payment of LC Exposure. The
Administrative Agent shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Such deposits shall be invested so as to earn interest at such rate
on overnight deposits as the Administrative Agent may reasonably obtain, but such investments shall
be made at the Borrowers’ risk and expense. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the joint and several reimbursement
obligations of the Borrowers for the LC Exposure at such time. Moneys in such account (to the
extent not applied as aforesaid) shall be returned to the applicable Borrower within three Business
Days after all LC Exposure shall have been reduced to zero.
SECTION 2.08. Fees.
(a) The Borrowers, jointly and severally, agree to pay to the Administrative Agent for the
account of each Lender a facility fee, which shall accrue at the Facility Fee Rate on
the daily amount of the Commitment of such Lender (whether used or 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 (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations in Letters of Credit,
which shall accrue at the same Applicable Margin used to determine the interest rate applicable to
Eurocurrency Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion
thereof attributable to unreimbursed LC
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Disbursements) during the period from and including the Effective Date to but excluding the later of the date on which such Lender’s Commitment terminates
and the date on which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a
fronting fee, which shall accrue at the rate of .125% per annum on the average daily amount of the
LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during
the period from and including the Effective Date to but excluding the later of the date of
termination of the Commitments and the date on which there ceases to be any LC Exposure (which
shall in any event be a minimum of $500.00 per annum for each Letter of Credit), as well as the
Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any
Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees
accrued through and including the last day of March, June, September and December of each year
shall be payable in Dollars on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees shall be payable on
the date on which the Commitments terminate and any such fees accruing after the date on which the
Commitments terminate shall be payable on demand. Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable in Dollars within 10 days after demand. All
participation fees and fronting 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).
(c) 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.
(d) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of facility fees and participation fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.
SECTION 2.09. Interest.
(a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing.
(c) Interest on each Loan shall be paid in the Currency in which the principal amount of such
Loan is denominated.
(d) 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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(e) 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 (d) 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 end of the
Availability Period), 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
Eurocurrency 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.
(f) 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 Prime 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 2.10. Alternate Rate of Interest. If prior to the commencement of any Interest
Period for a Eurocurrency Borrowing denominated in any Currency:
(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 Currency 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 will 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, (i) any Interest
Election Request that requests the conversion of any ABR Borrowing to, or continuation of any
Eurocurrency Borrowing as, a Eurocurrency Borrowing in such Currency shall be ineffective, and, in
the case of any request for the continuation of a Eurocurrency Borrowing, such Eurocurrency
Borrowing shall on the last day of the Interest Period applicable thereto be converted to (A) in
the case of a Eurocurrency Borrowing denominated in Dollars, an ABR Borrowing or (B) in the case of
a Eurocurrency Borrowing denominated in an Optional Currency, an ABR Borrowing (denominated in
Dollars) in an amount equal to the Dollar Equivalent of the amount of such Eurocurrency Borrowing,
and (ii) if any Borrowing Request requests a Eurocurrency Borrowing in such Currency, such
Borrowing shall be made as an ABR Borrowing in an amount equal to the Dollar Equivalent of the
amount of the requested Eurocurrency Borrowing.
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SECTION 2.11. 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 the
Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter
of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining
any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
the Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrowers,
jointly and severally, shall pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as shall compensate such Lender or the Issuing Bank, as the case may
be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank 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 or the
Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if
any, as a consequence of this Agreement or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below
that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company
could have achieved but for such Change in Law (taking into consideration such Lender’s or the
Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy), then from time to
time the Borrowers, jointly and severally, shall pay to such Lender or the Issuing Bank, as the
case may be, such additional amount or amounts as shall compensate such Lender or the Issuing Bank
or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be,
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 any 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 or the Issuing Bank,
as the case may be, 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 or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the
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Issuing Bank’s right to demand such compensation; provided that no Borrower shall be required to compensate a Lender or
the Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than
120 days prior to the date that such Lender or the Issuing Bank, as the case may be, notifies the
Borrowers of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the Issuing Bank’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 2.12. Break Funding Payments. In the event of (a) the payment of any principal of
any Eurocurrency 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 Eurocurrency Loan other
than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurocurrency 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 Eurocurrency Loan other than on the
last day of the Interest Period applicable thereto as a result of an assignment required by WIL
pursuant to Section 4.03(b), 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 Eurocurrency Loan, such loss, cost or expense to any Lender shall be deemed to include an
amount determined 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 deposits in the applicable currency of a comparable amount and period from other banks
in the eurocurrency 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 any 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 2.13. 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 any 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
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Borrowers 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 any 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 any 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.
SECTION 2.14. Extension of Maturity Date.
(a) Not earlier than 90 days prior to, nor later than 30 days prior to, each May 2 occurring
hereafter, beginning with May 2, 2011, and on not more than three occasions, XXX xxx, upon notice
to the Administrative Agent (which shall promptly notify the Lenders), request a one-year extension
of the Maturity Date then in effect. Prior to the earlier of (i) 30 days after delivery of such
notice by the Administrative Agent to the Lenders and (ii) three Business Days prior to the then
existing Maturity Date, each Lender shall notify the Administrative Agent whether or not it
consents to such extension (which consent may be given or withheld in such Lender’s sole and
absolute discretion). Any Lender not responding within the above time period shall be deemed not
to have consented to such extension. The Administrative Agent shall promptly notify the Borrowers
and the Lenders of the Lenders’ responses.
(b) The Maturity Date shall be extended only if the Required Lenders (calculated excluding any
Lender in default in its obligation to fund Loans hereunder and after giving effect to any replacements of Non-Extending Lenders pursuant to Section
4.03(b)) have consented thereto, whereupon the Maturity Date shall be extended to the date
which is one year after the Maturity Date in effect prior to such extension (such existing Maturity
Date, the “Extension Effective Date”). The Administrative Agent shall promptly notify the
Lenders of such extension, specifying the Extension Effective Date and the new Maturity Date. As a
condition precedent to such extension, each Obligor shall deliver to the Administrative Agent a
certificate of such Obligor dated as of the Extension Effective Date (in sufficient copies for each
Lender) signed by a Responsible Officer of such Obligor (i) certifying and attaching the
resolutions adopted by such Obligor approving or consenting to such extension and (ii) certifying
that (A) before and after giving effect to such extension, the representations and warranties
contained in Article VI made by it are true and correct on and as of the Extension
Effective Date, except to the extent that such representations and warranties specifically refer to
an earlier date, (B) as of the Extension Effective Date, both before and immediately after giving
effect to such extension no Default or Event of Default has occurred and is continuing, and (C) as
of the Extension Effective Date, there has been no material adverse change, since the date of the
most recent Annual Report on Form 10-K furnished or deemed furnished to the Administrative Agent
and each Lender pursuant to Section 7.01(b), 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.
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(c) Notwithstanding any extension of the Maturity Date pursuant to this Section 2.14,
each Non-Extending Lender that has not been replaced by another Lender pursuant to Section
4.03 prior to the applicable Extension Effective Date shall continue to be subject to the
Maturity Date in effect prior to giving effect to such extension (the “Existing Maturity
Date”), and references herein to the “Maturity Date”, as to such Non-Extending Lender, shall be
deemed to refer to the Existing Maturity Date. On the Existing Maturity Date, the Borrowers shall
(i) prepay any Loans outstanding on such date (and pay any additional amounts required pursuant to
Section 2.12) to the extent necessary to keep outstanding Loans ratable with any revised
Applicable Percentages of the respective Lenders effective as of such date and (ii) pay all other
obligations accrued or owing hereunder to each Non-Extending Lender as of the Existing Maturity
Date.
SECTION 2.15. Increase in Commitments.
(a) Subject to the terms and conditions set forth herein, WIL shall have the right, without
the consent of the Lenders but with the prior approval of the Administrative Agent and the Issuing
Bank (not to be unreasonably withheld, delayed or conditioned), to cause from time to time an
increase in the aggregate Commitments (a “Commitment Increase”) by adding to this Agreement
one or more additional financial institutions that are not already Lenders hereunder and that are
reasonably satisfactory to the Administrative Agent and the Issuing Bank (each a “CI
Lender”) or by allowing one or more existing Lenders to increase their respective Commitments;
provided that (i) no Event of Default shall have occurred and be continuing on the effective date
of such Commitment Increase, (ii) no such Commitment Increase shall be in an amount less than
$15,000,000, (iii) no such Commitment Increase shall cause the aggregate Commitments to exceed
$500,000,000, (iv) no Lender’s Commitment shall be increased without such Lender’s prior written consent (which consent may be given or withheld in such Lender’s
sole and absolute discretion) and (v) if, on the effective date of such Commitment Increase, any
Loans have been funded, then the Borrowers shall be obligated to pay any breakage fees or costs or
other amounts owing hereunder in connection with the breakage or reallocation of such outstanding
Loans.
(b) Any Commitment Increase must be requested by written notice from WIL to the Administrative
Agent (a “Notice of Commitment Increase”) in the form of Exhibit E attached hereto
and shall be subject to the approval of the Administrative Agent and the Issuing Bank, such
approval not to be unreasonably withheld, delayed or conditioned. Each such Notice of Commitment
Increase shall specify (i) the proposed effective date of such Commitment Increase, which date
shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such
Notice of Commitment Increase, (ii) the amount of the requested Commitment Increase (provided that
after giving effect to such requested Commitment Increase, the aggregate Commitments do not exceed
the amount set forth in subparagraph (a)(iii) above), (iii) the identity of each CI Lender
or Lender that has agreed in writing to increase its Commitment hereunder, and (iv) the amount of
the respective Commitments of the then existing Lenders and the CI Lenders from and after the
Commitment Increase Effective Date. The Administrative Agent and the Issuing Bank shall review
each Notice of Commitment Increase and shall notify WIL whether or not the Administrative Agent and
the Issuing Bank approve the proposed Commitment Increase, such approval not to be unreasonably
withheld, delayed or conditioned. If the Administrative Agent and the Issuing Bank approve such
Commitment
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Increase, the Administrative Agent and the Issuing Bank shall execute a counterpart to
the Notice of Commitment Increase and such Commitment Increase shall be effective on the proposed
effective date set forth in such notice (if the Administrative Agent and the Issuing Bank consented
to such Commitment Increase prior to such proposed date) or on another date as determined by WIL
and agreed to by the Administrative Agent and the Issuing Bank (such date referred to herein as the
“Commitment Increase Effective Date”).
(c) On each Commitment Increase Effective Date, to the extent that there are Loans outstanding
as of such date, (i) each CI Lender shall, by wire transfer of immediately available funds, deliver
to the Administrative Agent such CI Lender’s New Funds Amount of each applicable Currency, which
amounts, for each such CI Lender, shall constitute Loans made by such CI Lender to the Borrowers
pursuant to this Agreement on such Commitment Increase Effective Date, (ii) the Administrative
Agent shall, by wire transfer of immediately available funds, pay to each Reducing Percentage
Lender its Reduction Amount of each applicable Currency, which amounts, for each such Reducing
Percentage Lender, shall constitute a prepayment by the Borrowers pursuant to Section
2.07(a), ratably in accordance with the respective principal amounts thereof, of the principal
amounts of all then outstanding Loans of such Reducing Percentage Lender, and (iii) the Borrowers
shall pay to each Lender any breakage fees or costs or other amounts owing hereunder in connection
with the breakage or reallocation of any outstanding Loans.
(d) For purposes of this Section 2.15 and Exhibit E, the following defined
terms shall have the following meanings: (i) “New Funds Amount” means, for any Lender or
CI Lender and for any Currency, the amount equal to the product of such Lender’s increased
Commitment or such CI Lender’s Commitment (as applicable) represented as a percentage of the
aggregate Commitments after giving effect to the Commitment Increase, times the aggregate
principal amount of the outstanding Loans denominated in such Currency immediately prior to giving
effect to the Commitment Increase, if any, as of a Commitment Increase Effective Date (without
regard to any increase in the aggregate principal amount of Loans as a result of borrowings made
after giving effect to the Commitment Increase on such Commitment Increase Effective Date); (ii)
“Reducing Percentage Lender” means each then existing Lender immediately prior to giving
effect to a Commitment Increase that does not increase its respective Commitment as a result of
such Commitment Increase and whose relative percentage of the aggregate Commitments shall be
reduced after giving effect to such Commitment Increase; and (iii) “Reduction Amount”
means, for any Reducing Percentage Lender and for any Currency, the amount by which such Reducing
Percentage Lender’s outstanding Loans denominated in such Currency decrease as of a Commitment
Increase Effective Date (without regard to the effect of any borrowings made on such Commitment
Increase Effective Date after giving effect to the applicable Commitment Increase).
(e) Each Commitment Increase shall become effective on the Commitment Increase Effective Date
with respect thereto and upon such effectiveness (i) the Administrative Agent shall record in the
register each CI Lender’s information as provided in the applicable Notice of Commitment Increase
and pursuant to an Administrative Questionnaire satisfactory to the Administrative Agent that shall
be executed and delivered by each CI Lender to the Administrative Agent on or before such
Commitment Increase Effective Date, (ii) Schedule 1.01 (if applicable) and Schedule
2.01 hereto shall be automatically amended and restated to set forth
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all Lenders (including any CI Lenders) that will be Lenders hereunder after giving effect to such Commitment Increase (as set
forth in Annex I to the applicable Notice of Commitment Increase), and the Administrative Agent
shall distribute to each Lender (including each CI Lender) a copy of such amended and restated
Schedule 1.01 (if applicable) and Schedule 2.01, and (iii) each CI Lender
identified on the Notice of Commitment Increase for such Commitment Increase shall be a “Lender”
for all purposes under this Agreement.
SECTION 2.16. Currency Fluctuation. If as a result of fluctuations in currency exchange
rates (which shall be calculated by the Administrative Agent on each Revaluation Date and in any
case no less often than monthly), the Administrative Agent notifies the Borrowers in writing that
the aggregate of the Revolving Credit Exposures of the Lenders exceeds 105% of the aggregate
Commitments, the Borrowers shall within 5 Business Days after receipt of such notice prepay
outstanding Loans in an amount equal to such excess or, if such excess is greater than the amount
of all outstanding Loans, shall within 5 Business Days prepay all outstanding Loans and deliver to
the Administrative Agent cash collateral in an amount equal to the remaining excess after giving
effect to such prepayment.
ARTICLE III
LETTERS OF CREDIT
LETTERS OF CREDIT
SECTION 3.01. Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein, a Borrower may
request the issuance of Letters of Credit, denominated in Dollars, for its own account, in a form
reasonably acceptable to the Administrative Agent and the Issuing Bank, at any time and from time
to time during the Availability Period. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by a Borrower to, or entered into by a Borrower with, the
Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall
control. Nothing contained in this Article III is intended to limit or restrict the rights
of any Borrower or any Subsidiary to obtain letters of credit from any Person, regardless of
whether such Person is a party hereto.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), a Borrower shall hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal
or extension) a Letter of Credit Request requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this Section
3.01), the amount of such Letter of Credit, the name and address of the beneficiary thereof and
such other information as shall be necessary to prepare, amend, renew or extend such Letter of
Credit. If requested by the Issuing Bank, a Borrower also shall submit a letter of credit
application on the Issuing Bank’s standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only if
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(and upon issuance, amendment, renewal or extension of each Letter of Credit the applicable
Borrower shall be deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension, the sum of the total Revolving Credit Exposures of all Lenders
shall not exceed the total Commitments. Unless the Issuing Bank has received written notice from
any Lender, the Administrative Agent or any Obligor, at least one Business Day prior to the
requested date of issuance, amendment, renewal or extension of the applicable Letter of Credit,
that one or more applicable conditions contained in Section 5.03 shall not then be
satisfied, then, subject to the terms and conditions hereof, the Issuing Bank shall, on the
requested date, issue, amend, renew or extend, as applicable, such Letter of Credit.
(c) Expiration Date. Each Letter of Credit shall expire no later than the close of
business on the earlier of (i) the date that is three years after the date of issuance of such
Letter of Credit (or, in the case of any renewal or extension thereof, three years after such
renewal or extension) and (ii) the date that is fifteen (15) days prior to the Maturity Date then
in effect, provided that any Letter of Credit may provide for the automatic renewal thereof for
additional one-year periods (which shall in no event extend beyond the date referred to in clause
(ii) above).
(d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lender’s
Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit.
In consideration and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrowers on the date due as provided in paragraph (e) of this
Section 3.01, or of any reimbursement payment required to be refunded to a Borrower for any
reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrowers, jointly and severally, shall reimburse such LC Disbursement by
paying to the Administrative Agent an amount equal to such LC Disbursement not later than 12:00
noon, New York City time, on the Business Day immediately following the date that such LC
Disbursement is made, if the Borrowers shall have received notice of such LC Disbursement on the
date that such LC Disbursement is made, or, if such notice has not been received by the Borrowers
on such date, then not later than 12:00 noon, New York City time, on the Business Day immediately
following the date that the Borrowers receive such notice; provided that, if such LC Disbursement
is not less than $1,000,000, the applicable Borrower may, subject to the conditions to borrowing
set forth herein, request in accordance with Section 2.02 or Section 2.03 that such
payment be financed with an ABR Borrowing in an equivalent amount and, to the extent so financed,
the Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting
ABR Borrowing. If the Borrowers fail
38
to make such payment when due, the Administrative Agent shall notify each Lender of the
applicable LC Disbursement, the payment then due from the Borrowers in respect thereof and such
Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Lender
shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the
Borrowers, in the same manner as provided in Section 2.03 with respect to Loans made by
such Lender (and Section 2.03 shall apply, mutatis mutandis, to the payment obligations of
the Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Lenders. Promptly following receipt by the Administrative Agent of any
payment from a Borrower pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their
interests may appear. Any payment made by a Lender pursuant to this paragraph to reimburse the
Issuing Bank for any LC Disbursement (other than the funding of ABR Borrowings as contemplated
above) shall not constitute a Loan and shall not relieve any Borrower of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrowers’ joint and several obligations to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this
Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity
or enforceability of any Letter of Credit or this Agreement, or any term or provision therein,
(ii) any draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the Issuing Bank under a Letter of Credit against presentation of a draft
or other document that does not comply with the terms of such Letter of Credit, excluding payments
by the Issuing Bank with respect to drafts or other documents that do not comply on their face with
the express terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrowers’
obligations hereunder. Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any
of their Affiliates, shall have any liability or responsibility by reason of or in connection with
the issuance or transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the Issuing Bank; provided that the foregoing shall not
be construed to excuse the Issuing Bank from liability to the Borrowers to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are hereby waived by the
Borrowers to the extent permitted by applicable law) suffered by a Borrower that are caused by the
Issuing Bank’s failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that, in the absence of gross negligence, willful misconduct or unlawful acts on the part of
the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank
shall be deemed to have exercised care in each such determination. In furtherance of the foregoing
and without limiting the generality thereof, the parties agree that, with respect to documents
presented which appear on their face to be in
39
substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower for whose
account the Letter of Credit was issued by telephone (confirmed by telecopy) of such demand for
payment and whether the Issuing Bank has made or shall make an LC Disbursement thereunder; provided
that any failure to give or delay in giving such notice shall not relieve any Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless such LC Disbursement is reimbursed by a Borrower in full on the date such LC Disbursement is
made, the unpaid amount thereof shall bear interest, for each day from and including the date such
LC Disbursement is made to but excluding the date that such LC Disbursement is reimbursed, at the
rate per annum then applicable to ABR Borrowings; provided that, if the Borrowers fail to reimburse
such LC Disbursement when due pursuant to paragraph (e) of this Section 3.01, then
Section 2.09(d)(ii) shall apply. Interest accrued pursuant to this paragraph shall be for
the account of the Issuing Bank, except that interest accrued on and after the date of payment by
any Lender pursuant to paragraph (d) of this Section 3.01 to reimburse the Issuing
Bank shall be for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any time by
written agreement among WIL, the Administrative Agent, the replaced Issuing Bank and the successor
Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the Borrowers, jointly and
severally, shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant
to Section 2.08(b). From and after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations of the Issuing Bank under this
Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to
the term “Issuing Bank” shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require.
After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not
be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day that the Borrowers receive notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure
representing greater than 51% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrowers shall deposit in an account
40
with the Administrative Agent, in the name of the Administrative Agent and for the benefit of
the Lenders, an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon; provided that the joint and several obligation of the Borrowers to deposit such
cash collateral shall become effective immediately, and such deposit shall become immediately due
and payable, without demand or other notice of any kind, upon the occurrence of any Event of
Default with respect to a Borrower described in clauses (f) or (g) of
Section 9.01. If the Borrowers are required to provide cash collateralization pursuant to
Section 2.16, the Borrowers shall deposit in an account with the Administrative Agent, in
the name of the Administrative Agent and for the benefit of the Lenders, Dollars in the amount
required by Section 2.16, plus any accrued and unpaid interest thereon. Any such deposits
pursuant to this paragraph (j) shall be held by the Administrative Agent as collateral for
the payment and performance of the obligations of the Borrowers under this Agreement. The
Administrative Agent shall have exclusive dominion and control, as defined in the Uniform
Commercial Code of the State of New York, including the exclusive right of withdrawal, over such
account. The Administrative Agent shall have no obligation to pay interest on the investment of
such deposits, but the Administrative Agent shall invest such deposits in a manner consistent with
the Administrative Agent’s management of its own overnight cash investments, which investments
shall be made at the Borrowers’ risk and expense. Interest or profits, if any, on such investments
shall accumulate in such account. Moneys in such account shall be applied by the Administrative
Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been reimbursed and,
to the extent not so applied, shall be held for the satisfaction of the joint and several
reimbursement obligations of the Borrowers for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of Lenders with LC Exposure representing
greater than 51% of the total LC Exposure), be applied to satisfy other obligations of the
Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the
extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days
after all Events of Default have been cured or waived.
ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; TAXES
PAYMENTS; PRO RATA TREATMENT; TAXES
SECTION 4.01. 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, fees or
reimbursement of LC Disbursements, or of amounts payable under Sections 2.11, 2.12
or 4.02, 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 the Administrative Agent at its offices at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, except payments to be made directly to the Issuing Bank as expressly provided herein and
except that payments pursuant to Sections 2.11, 2.12, 4.02 and
12.04 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
41
shall be payable for the period of such extension. All payments hereunder of principal or
interest in respect of any Loan (or of any breakage indemnity in respect of any Loan) shall be made
in the Currency of such Loan; all other payments hereunder and under each other Loan Document shall
be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be
deemed to have been made by the time required if the Administrative Agent shall, at or before such
time, have taken the necessary steps to make such payment in accordance with the regulations or
operating procedures of the clearing or settlement system used by the Administrative Agent to make
such payment. Any amount payable by the Administrative Agent to one or more Lenders in the national
currency of a member state of the European Union that has adopted the Euro as its lawful currency
shall be paid in Euro.
(b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, 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 and unreimbursed
LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and unreimbursed LC Disbursements 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 or participations in
LC Disbursements resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and participations in LC Disbursements 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 and participations in LC
Disbursements 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 and participations in LC Disbursements; 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 or participations in LC Disbursements 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 or the
Issuing Bank hereunder that such Borrower shall not make such payment, the Administrative Agent may
assume that such Borrower has made such payment on
42
such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be,
the amount due. In such event, if a Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank 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 (i) 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 (in the case of an amount denominated in Dollars) and (ii) the rate
reasonably determined by the Administrative Agent to be the cost to it of funding such amount (in
the case of an amount denominated in any Optional Currency).
(e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 3.01(d), 3.01(e), 2.03(b) or 4.01(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 4.02. 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 any 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, Lender or Issuing Bank (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, each
Lender and the Issuing Bank, within 20 days after written demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing
Bank, 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
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.
(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
43
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 4.02, 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 4.02 with respect to the Taxes or Other Taxes
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 any 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
44
to pay any
additional amounts or indemnify such a Lender pursuant to this Section 4.02 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.
SECTION 4.03. Mitigation Obligations; Replacement of Lenders; Replacement of Issuing Bank.
(a) If any Lender requests compensation under Section 2.11, 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 4.02, 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 2.11 or 4.02, 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 2.11, 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 4.02, 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, or (v) any Lender fails to agree to extend the Maturity Date pursuant
to Section 2.14 if the Required Lenders have agreed to do so, 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 12.05), 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 (1) WIL shall have received the prior written consent of
the Issuing Bank and, if such assignee is not already a Lender
hereunder, the Administrative Agent, which consent of the Issuing Bank and the Administrative
Agent (if applicable) shall not be unreasonably withheld, conditioned or delayed, (2) such Lender
shall have received payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements, 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 (3) in the
case of any such assignment resulting from a claim for compensation under Section 2.11 or
payments required to be made pursuant to Section 4.02, such assignment shall result in a
reduction in such compensation or payments. A Lender shall not be required to make
45
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.
(c) If the Issuing Bank refuses to approve any Commitment Increase under Section 2.15,
then XXX xxx, at its sole expense and effort, upon notice to the Issuing Bank and the
Administrative Agent, replace the Issuing Bank; provided that (i) if the successor Issuing Bank 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, conditioned or delayed and
(ii) if there are any Letters of Credit outstanding at the time of any such replacement, such
replacement shall not become effective until each such outstanding Letter of Credit (A) shall have
expired, (B) shall have been cancelled, (C) shall have been replaced with one or more Letters of
Credit issued by the replacement Issuing Bank on the effective date of such replacement or
(D) shall be supported by a “back-to-back” Letter of Credit issued by the replacement Issuing Bank
on the effective date of such replacement. The Administrative Agent shall notify the Lenders of
any such replacement of the Issuing Bank pursuant to this Section 4.03(c). At the time any
such replacement shall become effective, the Borrowers, jointly and severally, shall pay all unpaid
fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.08(b).
From and after the effective date of any such replacement, (x) the successor Issuing Bank shall
have all the rights and obligations of the Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (y) references herein to the term “Issuing
Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such
successor and all previous Issuing Banks, as the context shall require. After the replacement of
an Issuing Bank under this Section 4.03(c), to the extent any Letters of Credit issued by
the replaced Issuing Bank remain outstanding after such replacement, the replaced Issuing Bank
shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing
Bank under this Agreement with respect to such Letters of Credit, but shall not be required to
issue additional Letters of Credit.
ARTICLE V
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to the Effective Date. The obligation of each Lender to make any Loan
on or after the date hereof or the Issuing Bank to issue any Letter of Credit on or after the date
hereof (whichever event shall first occur) for the account of any Borrower is subject to the
following conditions:
(a) The Administrative Agent shall have received the following:
(i) this Agreement executed by each party hereto;
(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 each Obligor, dated the date hereof and
certifying, inter alia (A) true and complete copies of the memorandum of
46
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, and the request for the Letters of Credit to be
issued, 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, and (B) (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;
(iv) a certificate of the secretary or an assistant secretary of each of WIL and WII,
dated the date hereof and certifying the incumbency and specimen signatures of the officers
of such Obligor executing any documents on its behalf;
(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) with respect to any
other Borrower, counsel for such Borrower reasonably acceptable to the Administrative Agent,
each given upon the express instruction of the applicable Obligor; and
(vi) 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.
(vii) The Public Debt Offering shall have been completed and the Borrower shall have
received the net proceeds therefrom (after deducting underwriting discounts but before
deducting other expenses of the offering).
(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
47
the
Effective Date, and (ii) to Xxxxx Xxxxx L.L.P. pursuant to Section 12.03 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.
SECTION 5.02. Conditions Precedent to All Credit Events. The obligation of the Lenders to make any Loan
on the occasion of any Borrowing on or after the date hereof and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit on or after the date hereof is subject to the further
conditions precedent that, on the date such Loan is made or Letter of Credit is issued, amended,
renewed or extended:
(a) The conditions precedent set forth in Section 5.01 shall have theretofore been
satisfied.
(b) The representations and warranties set forth in Article VI 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 such Borrowing or the date of issuance, amendment, renewal
or extension of such Letter of Credit, as applicable (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 representations and warranties are true and
correct in all material respects by a Borrower’s delivery of (i) in the case of a Borrowing, a
Borrowing Request or (ii) in the case of an issuance, amendment, renewal or extension of a Letter
of Credit, a Letter of Credit Request.
(c) The Administrative Agent shall have received (i) in the case of a Borrowing, a duly
executed Borrowing Request by the time and on the Business Day specified under
Section 2.02, and (ii) in the case of an issuance, amendment, renewal or extension of a
Letter of Credit, a duly executed Letter of Credit Request as required by Section 3.01(b)
not later than 11:00 a.m., New York City time, three Business Days before the date such Letter of
Credit is to be issued, amended, renewed or extended.
(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 5.02 above have been satisfied as of that time.
SECTION 5.03. Delivery of Documents. All of the Notes, certificates, legal opinions and other documents
and papers referred to in this Article V, 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.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the Loans and issue or
participate in Letters of Credit, 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, the Issuing Bank and the
Administrative Agent as follows:
SECTION 6.01. 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.
SECTION 6.02. 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 request Letters of Credit, and all such action has
been duly authorized by all necessary corporate, partnership or other proceedings on its part or on
its 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 6.03. 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 are in full force and effect and such matters relating to performance
as would ordinarily be done in the ordinary course of business after the Effective Date.
SECTION 6.04. 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, or constitute a default under, or result in the creation or
49
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, 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 or by-laws of any
Obligor.
SECTION 6.05. Litigation. As of the Effective Date, 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 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.
SECTION 6.06. Information; Financial Statements. All information heretofore furnished by the Obligors to
the Administrative Agent or any Lender in connection with this Agreement, as an amendment and
restatement of the Existing Credit 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 Effective Date, 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. As of the Effective Date, there has been no
material adverse change since December 31, 2007 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.
SECTION 6.07. Investment Company Act; Sanctions; Etc. (a) 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.
(b) Neither Borrower nor any of its Subsidiaries (i) is a person on the list of Specially
Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any
other program administered or enforced by U.S. Department of Treasury’s Office of Foreign Assets
Control (“OFAC”) (a “Prohibited Person”), or (ii) will knowingly use any proceeds
of the Loans, directly or indirectly, (a) to support activities in any country subject to a
comprehensive sanctions program administered by OFAC, where such activities would be in violation
of the sanctions program, (b) to conduct business with a Prohibited Person or any individual or
entity controlled by a Prohibited Person, or (c) to facilitate terrorism, money laundering,
narcotics trafficking, nuclear proliferation, or other illegal activity.
(c) No part of the proceeds of the Loans will be used, directly or indirectly, for any
payments to any governmental official or employee, political party, official of a political party,
candidate for political office, or anyone else acting in an official capacity, or any close
relative of such person in order to obtain, retain, or direct business or obtain any improper
advantage.
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SECTION 6.08. 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.
(b) No accumulated funding deficiency (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived, exists or is reasonably expected to be incurred with respect to any
Plan, other than such accumulated funding deficiencies as would not in the aggregate reasonably be
expected to have a Material Adverse Effect.
(c) No Obligor and its ERISA Affiliates have incurred or reasonably expect to incur 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.
SECTION 6.09. Tax Returns and Payments. Each Obligor and each Material Subsidiary has caused to be filed
all United States 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 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 6.10. Requirements of Law. 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.
SECTION 6.11. No Default. No Default or Event of Default has occurred and is continuing.
ARTICLE VII
AFFIRMATIVE COVENANTS
AFFIRMATIVE COVENANTS
Each Obligor 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:
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SECTION 7.01. Information Covenants. Each Obligor 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 7.01(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 WIL shall have complied with Section 7.01(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 on Form 10-K, or its equivalent, of WIL for such fiscal year, 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 (i) WIL shall be deemed to have
furnished said Annual Report on Form 10-K for purposes of this Section 7.01(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 WIL
shall have complied with Section 7.01(c) in respect thereof, and (ii) 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), no Obligor 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
(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.
52
(e) Within five Business Days after the delivery of the financial statements provided for in
Sections 7.01(a) and 7.01(b), a certificate of a Responsible Officer of WIL in the
form of Exhibit F.
(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 (A) any Reportable Event with respect
to any Plan, (B) a failure to make any required contribution to a Plan, (C) any Lien in
favor of the PBGC or a Plan, or (D) any withdrawal from, or the termination, reorganization
or insolvency (within the meaning of such terms as used in ERISA) of, any Multiemployer
Plan, in each case which would reasonably be expected to have a Material Adverse Effect.
(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 termination, reorganization or insolvency (within the meaning of such terms as used in
ERISA) of, any Plan, which withdrawal, 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, and
(iii) of 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.
(g) From time to time and with reasonable promptness, such other non-confidential 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 7.02. Books, Records and Inspections. Such Obligor shall, and shall cause each of the Material
Subsidiaries and each other Borrower (to the extent such other Borrower is not a Material
Subsidiary), 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.
SECTION 7.03. Insurance. Such Obligor shall, and shall cause each of the Material Subsidiaries and each
other Borrower (to the extent such other Borrower is not a Material Subsidiary), to maintain or
cause to be maintained insurance with respect to its property and
53
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 7.04. Payment of Taxes and other Claims. Such Obligor shall, and shall cause each of the
Material Subsidiaries and each other Borrower (to the extent such other Borrower is not a Material
Subsidiary), 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 Borrower, as applicable, or upon the income, profits or property of
such Obligor or such Material Subsidiary or Borrower, 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 7.05. Existence. Except as expressly permitted pursuant to Section 8.02, 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 each other Borrower.
SECTION 7.06. ERISA Information and Compliance. 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.
SECTION 7.07. Purpose of Letters of Credit and Loans.
(a) All Letters of Credit and all proceeds of the Loans shall be used by the Borrowers for
working capital and general corporate purposes, including providing support for commercial paper
issued by any of the Borrowers and providing liquidity and other financial accommodations to the
Borrowers and their Subsidiaries.
(b) Neither any Letter of Credit nor the proceeds of any Loan under this Agreement 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 would constitute this transaction a “purpose” credit within the meaning of
Regulation U. No Obligor nor any agent acting on its behalf shall take any action which would
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.
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ARTICLE VIII
NEGATIVE COVENANTS
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 8.01. Material Change in Business. WIL shall not, and shall not permit its Material Subsidiaries
and each other Borrower (to the extent such other Borrower is not a Material Subsidiary), 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 any businesses reasonably related thereto.
SECTION 8.02. Consolidation, Merger, or Sale of Assets, Etc.
(a) WIL shall not, and shall not permit any consolidated Subsidiary to, merge into or
consolidate or amalgamate with any other Person, or permit any other Person to merge into or
consolidate or amalgamate with it, 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, WIL or any
consolidated Subsidiary may merge into or consolidate or amalgamate with any other Person, or
permit any other Person to merge into or consolidate or amalgamate with it, provided that:
(i) 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 an
opinion of counsel in form, scope and substance reasonably satisfactory to the
Administrative Agent; and
(ii) in the case of a merger, a consolidation or an amalgamation involving any Obligor
other than WIL, if neither such Obligor, WIL nor another Obligor that is a Wholly-Owned
Subsidiary of WIL is the surviving Person, then the surviving Person shall (A) be a
Wholly-Owned Subsidiary of WIL 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 (C) deliver to the Administrative Agent an opinion of counsel in form, scope
and substance reasonably satisfactory to the Administrative Agent.
(b) Except as permitted by Section 8.02(a)(i), neither WIL nor any consolidated
Subsidiary shall, directly or indirectly, in one transaction or a series of transactions, sell,
lease, transfer or otherwise dispose of (including by merger, consolidation or amalgamation), all
or substantially all of the assets of WIL and its consolidated Subsidiaries, taken as a whole.
55
(c) Notwithstanding the foregoing provisions, (i) this Section 8.02 shall not prohibit
any Redomestication and (ii) in the case of any transaction specified in the foregoing paragraphs
(a) and (b), 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 VIII 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.
(d) WIL shall not, and shall not 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 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, 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 8.03. 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 8.04. 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 VIII 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 8.04(a), the aggregate principal amount
of all Indebtedness of all Subsidiaries of WIL (other than Subsidiaries of WIL that are Obligors)
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 8.05. Ownership of WII. Except to the extent permitted under Section 8.02, 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.
56
SECTION 8.06. Financial Covenant. WIL shall not permit its Consolidated Indebtedness to exceed 60% of
its Total Capitalization at the end of any fiscal quarter.
SECTION 8.07. 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 or Weatherford Saudi
Arabia Limited, 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 restrictions set forth in
this covenant shall not apply to (w) the payment of reasonable and customary regular fees to
directors of an Obligor or a Subsidiary of such Obligor who are not employees of such Obligor;
(x) 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; (y) 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; and (z) non-exclusive licenses of patents, copyrights,
trademarks, trade secrets and other intellectual property.
SECTION 8.08. 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 8.08 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.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
EVENTS OF DEFAULT AND REMEDIES
SECTION 9.01. 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 or any reimbursement obligation in respect of any LC
Disbursement shall not be paid on the date on which such payment is due, or
57
(ii) any payment of
interest on any such Loan, Note or reimbursement obligation 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 V, 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
(c) any Obligor shall fail to perform or observe any covenant contained in
Section 7.01(e) or Article VIII or fail to give any notice required by
Section 7.01(d) or 7.01(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 9.01(a), 9.01(b)
or 9.01(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 notice of such failure shall have been
given to a Responsible Officer of WIL by the Administrative Agent or any Lender; 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 principal amount equal to or exceeding
$100,000,000; 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
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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 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 8.02,
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) would reasonably be expected to
have a Material Adverse Effect, whether or not waived, or a waiver of the minimum funding standard
or extension of any amortization period is sought under Section 412 of the Code with respect to a
Plan and the failure to obtain such a waiver or extension would reasonably be expected to have a
Material Adverse Effect; 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) would reasonably be expected to have a
Material Adverse Effect; 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 which would reasonably be expected to have a Material Adverse
Effect, or (ii) WIL, any consolidated Subsidiary and/or an ERISA Affiliate incurring a
liability(ies) or obligation(s) with respect thereto which would reasonably be expected to have a
Material Adverse Effect;
then, and in every such event (other than an event with respect to any Obligor described in
clause (f) or (g) of this Section 9.01), and at any time thereafter during
the continuance of such
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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 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 9.01, 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 9.02. 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 other obligations 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 4.01(a).
SECTION 9.03. 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.
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SECTION 9.04. 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:
first, to payment of the unreimbursed expenses for which the Administrative
Agent or any Lender is to be reimbursed pursuant to Section 12.03 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 secure the repayment and discharge of the outstanding amount of
all LC Exposure;
sixth, 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 9.04 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 9.02 of which the
Administrative Agent shall have been notified. For purposes of the foregoing, reimbursement
obligations with respect to the LC Exposure on outstanding Letters of Credit shall be deemed “paid”
for purposes of this Section 9.04 when amounts sufficient to secure such reimbursement
obligations have been delivered to the Administrative Agent.
ARTICLE X
ADMINISTRATIVE AGENT
ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Bank 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,
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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 12.01), 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 Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 12.01) 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 (v) any statement, warranty or
representation made in or in connection with this Agreement, (w) the contents of any certificate,
report or other document delivered hereunder or in connection herewith, (x) the performance or
observance of any of the covenants, agreements or other terms or conditions set forth herein,
(y) the validity, enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (z) the satisfaction of any condition set forth in
Article V 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 any
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
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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, the
Issuing Bank 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 and the Issuing Bank, 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
provisions of this Article and Sections 12.03 and 12.04 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.
Notwithstanding anything to the contrary contained herein, neither the Syndication Agent,
Documentation Agent, the Bookrunner nor the Lead Arranger listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the
Issuing Bank hereunder.
ARTICLE XI
GUARANTY
GUARANTY
SECTION 11.01. Guaranty.
(a) In consideration of, and in order to induce the Lenders 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 hereunder after the date hereof), WII hereby absolutely,
unconditionally and irrevocably guarantees in favor of all of the Lenders and the Issuing Bank, the
punctual payment and performance when due, whether at stated
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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 any Borrower 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 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 any Borrower or
any other action, occurrence or circumstance whatsoever.
(c) The obligations of WII 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 11.02. 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; provided that if payment in respect of
any Guaranteed Obligations shall be due in a currency other than Dollars and if, by reason of any
legal prohibition, disruption of currency or foreign exchange markets, war or civil disturbance or
other event, payment of such Guaranteed Obligations in such currency shall be impossible or, in the
reasonable judgment of the Administrative Agent or any Lender, not consistent with the protection
of its rights or interests, then, at the election of the Administrative Agent or such Lender, WII
shall make payment of the Dollar Equivalent of such Guaranteed Obligations and shall indemnify the
Administrative Agent or such Lender against any losses or expenses (including losses or expenses
resulting from fluctuations in exchange rates) that it shall sustain as a result of such
alternative payment. WII 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 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 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:
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(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,
the Issuing Bank 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, 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 WII, 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 WII or any Borrower, or any sale, lease or transfer of any or all of the
assets of WII or any Borrower, or any changes in the shareholders of WII or any Borrower, or
any reorganization of WII 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) WII 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 WII 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) 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 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 WII that WII may be required to pay the
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;
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(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 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 any 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 any 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 9.01 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, the
Obligations (whether or not due and payable) shall forthwith become due and payable by WII for the
purpose of this Guaranty.
SECTION 11.03. 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
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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, 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 or any
Lender with any such claimant (including any 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 had 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, 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 11.04. 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, 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 or any other Person or any collateral (it being the intention
of the Administrative Agent, the Issuing Bank, 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, the Issuing Bank 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, 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. WII expressly waives, to the
extent permitted by
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applicable law, the benefit of any and all laws providing for exemption of
property from execution or for valuation and appraisal upon foreclosure.
SECTION 11.05. 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 any 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 any
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 any 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 any 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 any 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 any Borrower by virtue of any
payment, court order or any federal or state law.
SECTION 11.06. Full Force and Effect. This Guaranty is a continuing guaranty and, subject
to Section 11.07, 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.
SECTION 11.07. Guaranty Fall-Away Notwithstanding anything contained herein to the
contrary, if at any time WII has no outstanding Specified Debt, exclusive of (a) the Guaranty,
(b) any guarantee that, by its terms, will be automatically released and discharged simultaneously
with the release and discharge of the Guaranty and (c) Specified Debt owed to WIL or any of WIL’s
other Subsidiaries, the Guaranty will terminate; provided that the Guaranty will be automatically
reinstated if WII incurs or guarantees any Specified Debt other than Specified Debt owed to WIL or
any of WIL’s other Subsidiaries. The Administrative Agent shall notify
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the Lenders of any
termination of the Guaranty or automatic reinstatement of the Guaranty pursuant to this
Section 11.07.
ARTICLE XII
MISCELLANEOUS
MISCELLANEOUS
SECTION 12.01. Waiver; Amendments; Joinder; Removal of Certain Borrowers.
(a) 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 Agreement or consent to any departure by
any Obligor therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, 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 or issuance of a Letter of Credit shall not be construed as a
waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Obligors and the Required
Lenders or by the Obligors and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce
the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of
each Lender affected thereby, (iii) postpone the scheduled date of payment of the principal amount
of any Loan or LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of
any Commitment, without the written consent of each Lender affected thereby, (iv) change
Section 4.01(b) or 4.01(c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of “Required Lenders” or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the written consent of
each Lender, (vi) except as provided in Section 12.01(d), release any Borrower from its
joint and several liability for the Obligations, without the written consent of each Lender, or
(vii) release any Person from its liability under a guaranty, without the written consent of each
Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights
or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written
consent of the Administrative Agent or the Issuing Bank, as the case may be. Subject to the
foregoing, the waiver, amendment or modification of any provision of Article VI,
VII or VIII or Section 9.01 may be effected with the consent of the
Required Lenders.
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(c) From time to time, XXX xxx cause one or more additional Subsidiaries to become Borrowers
hereunder by delivering, or causing to be delivered, to the Administrative Agent in respect of each
applicable Subsidiary, the following, each in form and substance satisfactory to the Administrative
Agent: (i) a Joinder Agreement in the form of Exhibit G attached hereto, executed and
delivered by such Subsidiary (the date of each such Joinder Agreement being referred to herein as a
“Joinder Date”, which date shall be at least ten days after WIL provides notice to the
Administrative Agent and each Lender of its intention to cause such
Subsidiary to become a Borrower hereunder), (ii) each of the documents or other closing
deliverables specified in Section 5.01 that would have been required to be delivered by or
on behalf of such Subsidiary had such Subsidiary been a Borrower on the Effective Date, each such
deliverable to be dated as of the applicable Joinder Date unless otherwise agreed by the
Administrative Agent, (iii) replacement Notes dated as of the applicable Joinder Date payable to
each Lender for which an existing Note is outstanding on such Joinder Date and (iv) such other
approvals, opinions or documents as the Administrative Agent may request; provided that no
Subsidiary may become a Borrower hereunder pursuant to this paragraph (c) if (y) a Default
or Event of Default shall have occurred and be continuing on the applicable Joinder Date, or shall
result from the joinder of such Subsidiary as a Borrower on such Joinder Date or (z) if WIL shall
designate an additional Subsidiary as a Borrower hereunder that is not organized under the laws of
any jurisdiction of the United States; and any Lender notifies the Administrative Agent that such
Subsidiary is organized in a jurisdiction in which it and its Affiliates cannot legally lend or do
business. Without limiting the foregoing, if the designation of any additional Subsidiary as a
Borrower hereunder obligates the Administrative Agent or any Lender to comply with “know your
customer” or similar regulatory requirements and the information necessary for such compliance is
not already available to the Administrative Agent or such Lender, as applicable, WIL shall,
promptly upon the request of the Administrative Agent or such Lender, as applicable, supply such
documentation and other evidence as is reasonably requested by the Administrative Agent or such
Lender, as applicable, in order for it to comply with all “know your customer” and/or similar
identification procedures required under all applicable laws and regulations. If WIL shall
designate an additional Subsidiary as a Borrower hereunder that is not organized under the laws of
any jurisdiction of the United States, any Lender may, with notice to the Administrative Agent and
WIL, fulfill its Commitment by causing an Affiliate of such Lender to act as the Lender in respect
of such Borrower (and such Lender shall, to the extent of Loans made to and participations in
Letters of Credit issued for the account of such Borrower, be deemed for all purposes hereof to
have pro tanto assigned such Loans and participations to such Affiliate in compliance with the
provisions of Section 12.05).
(d) From time to time, XXX xxx cause any Borrower (other than WIL) to cease to be a Borrower
hereunder by (i) delivering to the Administrative Agent a notice to such effect, specifying the
identity of the applicable Borrower and the proposed date on which such Borrower shall no longer be
a Borrower hereunder, which date shall be no earlier than three Business Days after delivery of
such notice (each such date being referred to herein as a “Borrower Removal Date”) and
(ii) delivering, or causing to be delivered, to the Administrative Agent replacement Notes dated as
of the applicable Borrower Removal Date payable to each Lender for which an existing Note is
outstanding on such Borrower Removal Date, executed by WIL and each other Borrower that shall not
cease to be a Borrower on such Borrower Removal Date, in form and substance satisfactory to the
Administrative Agent; provided that no Borrower may cease to be a Borrower hereunder pursuant to
this Section 12.01(d) if a Default or Event of
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Default shall have occurred and be
continuing on the applicable Borrower Removal Date, or shall result from such Borrower ceasing to
be a Borrower hereunder on such Borrower Removal Date. Upon satisfaction of the conditions set
forth in the preceding sentence, on the applicable Borrower Removal Date, the applicable Borrower
shall no longer be a “Borrower” or an “Obligor” hereunder or under any other Loan Document.
Notwithstanding anything to the contrary contained herein, in the event that any Borrower shall
cease to be a Borrower hereunder in accordance with this Section 12.01(d), the other
Obligors shall remain jointly and severally
liable with respect to each Loan made to such Borrower and each Letter of Credit issued for
the account of such Borrower outstanding on the applicable Borrower Removal Date.
SECTION 12.02. 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 12.02) (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 any Borrower and to the Administrative Agent. Except as otherwise provided in this
Agreement, all such Communications shall be deemed to have been duly given (1) when transmitted by
telecopier, confirmation received, (2) when personally delivered, (3) one Business Day after
deposit with an overnight mail or delivery service, postage prepaid or (4) 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, Article IV, Article X, Article XI
or Article XII 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 12.03. Expenses, Etc. The Borrowers, jointly and severally, shall pay (a) all
reasonable out of pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the Administrative Agent,
in connection with the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement and the other Loan Documents or any amendments, modifications
or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby
or thereby shall be consummated), (b) all reasonable out-of-
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pocket expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder, (c) 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) all out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank and/or any
Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent,
the Issuing Bank and/or any Lender, in connection with the enforcement or protection of its rights
in connection with this Agreement, including its rights under this Section, or in connection with
the Loans made or Letters of Credit issued hereunder, including all such out-of pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
SECTION 12.04. Indemnity.
(a) The Borrowers, jointly and severally, shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Affiliate thereof, and their respective directors, officers,
employees and agents (each such Person being called 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 claim, investigation,
litigation or proceeding (including any threatened claim, investigation, litigation or proceeding)
relating to this Agreement, any Loan, any Letter of Credit or any other Loan Document (whether or
not such Indemnitee is a party thereto) 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 or the Issuing
Bank 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
claim, investigation, litigation or 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. 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 12.04 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.
(b) To the extent that any Borrower fails to pay any amount required to be paid by it to the
Administrative Agent or the Issuing Bank under Section 12.03 or paragraph (a) of
this Section, each Lender severally agrees to pay to the Administrative Agent or the Issuing Bank,
as the case may be, such Lender’s Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or related
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expense, as the case may be, was incurred by or asserted against the Administrative Agent or
the Issuing Bank in its capacity as such.
(c) To the extent permitted by applicable law, no Obligor shall assert, and each hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the transactions contemplated hereby or thereby, any
Loan or Letter of Credit or the use of the proceeds thereof.
SECTION 12.05. 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 (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), 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 (including any Affiliate of the Issuing Bank
that issues any Letter of Credit), 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, the Issuing Bank 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 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;
(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; and
(C) the Issuing Bank.
(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
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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 Section 9.01(a), 9.01(f) or 9.01(g)
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 4.02(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 to any Lender if after giving effect to such
assignment, such Lender’s Commitment Percentage would exceed [35%]; and
(G) in the case of any assignee subject to the prior written consent of WIL
under Section 12.05(b)(i), no assignment shall be made to any such assignee
unless such assignee provides a written representation to WIL that such assignee 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 12.05, 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
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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
2.11, 2.12, 4.02, 12.03 and 12.04). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with
this Section 12.05 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 and LC Disbursements 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 presumed correct, in the absence of manifest error, and
the Obligors, the Administrative Agent, the Issuing Bank 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, the Issuing Bank 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; provided that if either the assigning Lender or the assignee shall have failed to
make any payment required to be made by it pursuant to Section 2.03, 3.01(d)
or (e), 4.01(d) or 12.04(b), the Administrative Agent shall have no
obligation to accept such Assignment and Assumption and record the information therein in
the Register unless and until such payment shall have been made in full, together with all
accrued interest thereon. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of any Obligor, the Administrative Agent or
the Issuing Bank, 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, the
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Issuing Bank 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 first proviso
to Section 12.01(b) 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 2.11, 2.12 and 4.02 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 9.02 as though it were a Lender,
provided such Participant agrees to be subject to Section 4.01(b), and to deliver
the forms required by Section 4.02(e), as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under
Sections 2.11 and 4.02 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 4.02 unless WIL is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 4.02(d) and Section 4.02(e) as though it were a Lender.
(d) 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 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.
SECTION 12.06. Confidentiality. Each of the Administrative Agent, the Issuing Bank and the
Lenders agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority or self-regulatory body having or claiming jurisdiction over such Person
or its Affiliates, (c) to the extent required by applicable laws or regulations or by any subpoena
or similar legal process, (d) to any other party to this Agreement or any other Loan Document,
(e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or
any other Loan Document or the enforcement of rights hereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or any other
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Loan Document or (ii) any actual or prospective counterparty (or
its advisors) to any swap or derivative transaction relating to any Obligors and their respective
obligations, (g) with the consent of the applicable Obligors or (h) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis
from a source other than an Obligor. For the purposes of this Section, “Information” means
all information received from any Obligor relating to such Obligor or any other Obligor or their
respective businesses, other than any such information that is available to the Administrative
Agent, the Issuing Bank or any Lender on a non-confidential basis prior to disclosure by the
applicable Obligor; provided that such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information. Each of the Administrative Agent, the
Issuing Bank and the Lenders shall endeavor to notify WIL as promptly as possible of any
Information that it is required to disclose pursuant to any subpoena or similar legal process so
long as it is not legally prohibited from providing such notice.
SECTION 12.07. Survival. All covenants, agreements, representations and warranties made by
the Obligors herein, in the other Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement and the other Loan Documents shall be
considered to have been relied upon by the other parties hereto and thereto and shall survive the
execution and delivery of this Agreement 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 such other 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 hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.11, 2.12,
4.02, 12.03 and 12.04 and Article X shall survive and remain in
full force and effect regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments
or the termination of this Agreement or any provision hereof.
SECTION 12.08. Governing Law. This Agreement, all 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 construed in accordance with and governed by the law of the
State of New York.
SECTION 12.09. 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.
77
SECTION 12.10. Counterparts; Integration; Effectiveness. This Agreement 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.
This Agreement, the Notes, the other Loan Documents and any separate letter agreements with respect
to fees payable to the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. This Agreement shall
become effective on the Effective Date, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 12.11. Severability. Any provision of this Agreement 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 12.12. 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 12.13. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 12.14. 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 12.15. Submission to Jurisdiction; Consent to Service of Process.
(a) Each Obligor hereby irrevocably and unconditionally submits, for itself and its property,
to the non-exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document, or for recognition or enforcement of
78
any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any
other Loan Document shall affect any right that the Administrative Agent, the Issuing Bank or any
Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other
Loan Document against any Obligor or its properties in the courts of any jurisdiction.
(b) Each Obligor hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (a) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 12.02. Nothing in this Agreement or any other Loan
Document will affect the right of any party to this Agreement or any other Loan Document to serve
process in any other manner permitted by law.
SECTION 12.16. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 12.17. Judgment Currency. The obligation of each Obligor to make payments on any
Obligation to the Lenders, to the Issuing Bank 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, Issuing Bank 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
79
full amount of the full currency payable and shall not be affected by a judgment being obtained for
any other sum due hereunder.
SECTION 12.18. USA Patriot Act. Each Lender that is subject to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”)
hereby notifies the Obligors that pursuant to the requirements of 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.
SECTION 12.19. No Fiduciary Duty. Each of the Administrative Agent, each Lender and their
Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic
interests that conflict with those of the Obligors. Each Obligor agrees that nothing in the Loan
Documents or otherwise associated with this facility will be deemed to create an advisory,
fiduciary or agency relationship or fiduciary or other implied duty between the Lenders and the
Borrower, its stockholders or its affiliates. Each Obligor acknowledges and agrees that (i) the
transactions contemplated by the Loan Documents are arm’s-length commercial transactions between
the Lenders, on the one hand, and the Obligors, on the other, (ii) in connection therewith and with
the process leading to such transaction each of the Lenders is acting solely as a principal and not
the agent or fiduciary of an Obligor, its management, stockholders, creditors or any other person,
(iii) no Lender has assumed an advisory or fiduciary responsibility in favor of an Obligor with
respect to the transactions contemplated hereby or the process leading thereto (irrespective of
whether any Lender or any of its affiliates has advised or is currently advising an Obligor on
other matters, including the Public Debt Offering, the terms of which advisory role, if any, shall
be governed by a separate agreement) or any other obligation to each Obligor except the obligations
expressly set forth in the Loan Documents and (iv) each Obligor has consulted its
own legal and financial advisors to the extent it deemed appropriate. Each Obligor further
acknowledges and agrees that it is responsible for making its own independent judgment with respect
to such transactions and the process leading thereto. Each Obligor agrees that it will not claim
that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to such Obligor, in connection with such transaction or the process leading thereto.
Nothing in this paragraph shall affect any obligations between affiliates of the Lenders and the
Obligors that may arise in connection with the Public Debt Offering or any other matter, the terms
of which obligations, if any, shall be solely as set forth in a separate agreement.
[Remainder of this page blank; signature pages follow.]
80
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
By: /S/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
Notice Information:
c/o Weatherford International, Inc.
000 Xxxx Xxx Xxxx.
Xxxxxxx, Xxxxx 00000
000 Xxxx Xxx Xxxx.
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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
By: /S/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
Notice Information:
000 Xxxx Xxx Xxxx.
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Signature Page to Credit Agreement
ADMINISTRATIVE AGENT:
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH
as Administrative Agent
By: /S/ Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: Director
By: /S/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Vice President
Notice Information:
as Administrative Agent
By: /S/ Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: Director
By: /S/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Vice President
Notice Information:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
ARRANGER:
DEUTSCHE BANK SECURITIES INC.
as Arranger
By: /S/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
By: /S/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.
as Arranger
By: /S/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
By: /S/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
Signature Page to Credit Agreement
LENDERS:
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH
By: /S/ Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: Director
By: /S/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Vice President
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH
By: /S/ Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: Director
By: /S/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Vice President
XXXXXXX
STREET LLC
By: /S/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Authorized Signatory
Name: Xxxx Xxxxxx
Title: Authorized Signatory
XXXXXXX
XXXXX BANK USA
By: /S/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: First Vice President
Name: Xxxxx Xxxxx
Title: First Vice President
Signature Page to 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 letters of credit and
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. | Borrower: | Xxxxxxxxxxx International Ltd. |
1 Select as applicable.
A-1
4.
|
Administrative Agent: | Deutsche Bank AG Cayman Islands Branch, as the administrative agent under the Credit Agreement | ||
5.
|
Credit Agreement: | The Credit Agreement dated as of March 19, 2008 among Xxxxxxxxxxx International Ltd., the other Borrowers from time to time thereunder, Xxxxxxxxxxx International, Inc., as Guarantor, the Lenders parties thereto and Deutsche Bank AG Cayman Islands Branch, as Administrative Agent | ||
6.
|
Assigned Interest: |
Aggregate Amount of | ||||||||||||
Commitments/Revolving | Amount of | Percentage Assigned of | ||||||||||
Credit Exposure for | Commitment/Revolving | Commitment/Revolving | ||||||||||
All Lenders | Credit Exposure Assigned | Credit Exposure2 | ||||||||||
$ | $ | % | ||||||||||
$ | $ | % | ||||||||||
$ | $ | % |
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 Commitments/Revolving Credit Exposure of all Lenders thereunder. |
A-2
[Consented to and]1 Accepted:
Deutsche Bank AG Cayman Islands Branch as Administrative Agent
By: |
||||
Name: | ||||
Title: | ||||
By: |
||||
Name: | ||||
Title: |
Consented to:
Deutsche Bank AG Cayman Islands Branch as Issuing Bank
By: |
||||
Name: | ||||
Title: |
By: |
||||
Name: | ||||
Title: |
[Consented to:]2
XXXXXXXXXXX INTERNATIONAL LTD., as Borrower
By: |
||||
Name: | ||||
Title: |
1 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. | |
2 | To be added only if the consent of WIL is required by the terms of the Credit Agreement. |
A-0
XXXXX 0
XXXXXXXX XXXXX XND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
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 7.01
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]3; 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.
3 | Only required if the consent of WIL is required by the terms of the Credit Agreement. |
A-4
[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
above.]4
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.
4 | Only required if the consent of WIL is required by the terms of the Credit Agreement. |
A-0
XXXXXXX X-0
FORM OF BORROWING REQUEST
, 20__
Deutsche Bank AG Cayman Islands Branch
60 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
60 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of March 19, 2008 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”) among
Xxxxxxxxxxx International Ltd., Xxxxxxxxxxx International, Inc., Deutsche Bank AG Cayman Islands
Branch, as Administrative Agent, and the lenders party thereto. Capitalized terms used but not
otherwise defined herein shall have the meanings specified therefor in the Credit Agreement.
[ ]1 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 : | |||||
(B) | Date of Borrowing (which is a Business Day): | |||||
(C) | Type of Borrowing: | [ABR] [Eurocurrency] | ||||
(D) | Currency of Borrowing2: | |||||
(E) | Interest Period and the last day thereof3: | |||||
(F) | Funds are requested to be disbursed to the following account of the Borrower4: | |||||
Bank name: | ||||||
ABA Routing No.: | ||||||
1 | Insert name of Borrower requesting the Borrowing. | |
2 | For Eurocurrency Borrowings only. Specify Dollars, Australian Dollars, Canadian Dollars, Euros, Norwegian Kroner or Pounds Sterling. | |
3 | For Eurocurrency Borrowings only. Shall be subject to the definition of “Interest Period” in the Credit Agreement. | |
4 | Which shall comply with the requirements of Section 2.03 of the Credit Agreement. |
B-1-1
Bank address: |
||||
Account No.: |
||||
Account Name: |
||||
Attn/Reference : |
||||
IN WITNESS WHEREOF, the undersigned has executed this Borrowing Request this ___day of
, 20___.
Very truly yours, | ||||||
[NAME OF REQUESTING BORROWER] | ||||||
By: | ||||||
Name: | ||||||
Title: |
B-0-0
XXXXXXX X-0
FORM OF LETTER OF CREDIT REQUEST FOR LETTER OF CREDIT
To:
|
Deutsche Bank AG New York Branch | [Date] | ||
as Issuing Lender | ||||
60 Wall Street | ||||
New York, NY 10005 | ||||
Attention: Standby LC Unit | ||||
Fax No 000 000-0000 | ||||
Copy to:
|
Deutsche Bank AG Cayman Islands Branch | |||
as Administrative Agent | ||||
C/O DB Services New Jersey, Inc | ||||
100 Plaza One | ||||
Jersey City, NJ 07311 | ||||
Attention: |
Ladies and Gentlemen:
This notice shall constitute a “Letter of Credit Request” for a Letter of Credit pursuant to
Section 3.01(b) of the Credit Agreement dated as of March 19, 2008 (as amended, modified or
supplemented from time to time, the “Credit Agreement”) among Xxxxxxxxxxx International
Ltd., as Borrower, Xxxxxxxxxxx International, Inc., as Guarantor, the banks and other financial
institutions form time to time party thereto. Capitalized terms defined in the Credit Agreement and
not otherwise defined herein have, as used herein, the respective meanings provided for therein.
The undersigned hereby requests that [ 1 ] issue a Letter of Credit on [
2 ] in
the aggregate amount of [ 3 ].
The beneficiary of the requested Letter of Credit will be [ 4 ], and such Letter of
Credit will be in support of
[ 5 ] and will have a stated termination date of
[ 6 ].
We certify that as of the date of issuance, after giving effect to the issuance of such Letter
of Credit requested hereby, total Revolving Credit Exposures shall not exceed the total
Commitments.
The Borrower agrees that, if prior to the date of issuance any of the foregoing certifications
shall cease to be true and correct, the Borrower shall forthwith notify the Administrative Agent
and the Issuing Bank thereof in writing (any such notice, a “Non-Compliance Notice”).
Except to the extent, if any, that prior to the date of issuance the Borrower shall deliver a
Non-Compliance Notice to the Administrative Agent and the Issuing Bank, each
B-2-1
of the foregoing
certifications shall be deemed to be made additionally on the date of issuance as if made on such
date.
Copies of all required documentation with respect to the supported transaction are attached
hereto.
IN WITNESS WHEREOF, the undersigned has executed this Letter of Credit Request this
, 20 .
Very truly yours, | ||||||
[NAME OF REQUESTING BORROWER] | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
1.
|
Insert name of Issuing Lender. | |
2.
|
Insert proposed date of issuance, which must be a Business Day at least three Business Days after the date of the Letter of Credit Request. | |
3.
|
Insert initial amount and currency of the Letter of Credit. | |
4
|
Insert full name and address of the Beneficiary. | |
5
|
Insert brief description of obligation to be supported by the Letter of Credit. | |
6.
|
Insert date which cannot be later than the earlier of (a) the date which is three years after the date of issuance and (b) the date which is fifteen days prior to the Maturity Date. |
B-2-2
EXHIBIT C
FORM OF INTEREST ELECTION REQUEST
, 20
Deutsche Bank AG Cayman Islands Branch
60 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
60 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of March 19, 2008 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”) among
Xxxxxxxxxxx International Ltd., Xxxxxxxxxxx International, Inc., Deutsche Bank AG Cayman Islands
Branch, as Administrative Agent, and the lenders party thereto. Capitalized terms used but not
otherwise defined herein shall have the meanings specified therefor in the Credit Agreement.
[ ]1 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 applies2: | |||||
(B) | The effective date of the election (which is a Business Day): | |||||
(C) | Type of Borrowing following [conversion] [continuation]: | [ABR] [Eurocurrency] | ||||
(D) | Interest Period and the last day thereof3: | |||||
1 | Insert name of Borrower requesting the conversion or continuation. | |
2 | 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 (B), (C) and (D) for each resulting Borrowing. | |
3 | For Eurocurrency Borrowings only. Shall be subject to the definition of “Interest Period” in the Credit Agreement. |
C-1
IN WITNESS WHEREOF, the undersigned has executed this Interest Election Request this day
of , 20 .
Very truly yours, | ||||||
[NAME OF REQUESTING BORROWER] | ||||||
By: | ||||||
Name: | ||||||
Title: |
C-2
EXHIBIT D
FORM OF
PROMISSORY NOTE
PROMISSORY NOTE
, 200
XXXXXXXXXXX INTERNATIONAL LTD., a Bermuda exempted company (the “Borrower”), for value
received promises and agrees to pay to (the “Lender”), or
order, at the principal office of Deutsche Bank AG Cayman Islands Branch, as Administrative Agent,
at 60 Xxxx Xxxxxx, Xxx Xxxx 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 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 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. All payments of principal and
interest hereunder in respect of each Loan shall be made in immediately available funds in the
Currency in which principal and interest on such Loan are payable as provided in the Credit
Agreement.
This note evidences the Loans owed to the Lender under that certain Credit Agreement dated as
of March 19, 2008, by and among the Borrower, Xxxxxxxxxxx International, Inc. (“WII”), as
Guarantor, Deutsche Bank AG Cayman Islands Branch, individually and as Administrative Agent and the
other financial institutions parties thereto (including the Lender) (such Credit Agreement,
together with all amendments or supplements thereto and restatements or modifications thereof,
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 Borrower to endorse on Schedule A (or a continuation
thereof) attached to this note, the 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 Borrower 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
Borrower and any and all co-makers, endorsers, guarantors and sureties severally waive notice
(including but not limited to notice of intent to accelerate and notice of acceleration, notice of
D-1
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 XI 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.
IN WITNESS WHEREOF: |
||||
The COMMON SEAL of
|
) | |||
XXXXXXXXXXX INTERNATIONAL LTD.
|
) | |||
was hereunto affixed
|
) | |||
in the presence of:
|
) |
By:
|
||||
Name: |
||||
Title: |
D-2
SCHEDULE A
TO
PROMISSORY NOTE
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
OF
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
Currency | Amount | |||||||||||||
and | of | |||||||||||||
Principal | Principal | Balance | Notation | |||||||||||
Interest | Amount of | Paid or | Interest | of | Made | |||||||||
Date | Period | Rate | Loan | Prepaid | Paid | Loans | by | |||||||
D-3
EXHIBIT E
FORM OF NOTICE OF COMMITMENT INCREASE
, 20
Deutsche Bank AG Cayman Islands Branch
60 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
60 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, Xxxxxxxxxxx International Ltd. (“WIL”), refers to the Credit
Agreement dated as of March 19, 2008 (as amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”) among WIL, Xxxxxxxxxxx International, Inc., Deutsche
Bank AG Cayman Islands Branch, as Administrative Agent, and the lenders party thereto. Capitalized
terms used but not otherwise defined herein shall have the meanings specified therefor in the
Credit Agreement.
WIL hereby notifies you, pursuant to Section 2.15 of the Credit Agreement, that (a) it
hereby requests that the aggregate amount of the Commitments under the Credit Agreement be
increased and (b) the CI Lenders agree to provide Commitments under the Credit Agreement. Set
forth below is the information relating to such proposed Commitment Increase as required by
Section 2.15(b) of the Credit Agreement:
(i) the proposed effective date of such increase of aggregate amount of the Lenders’
Commitments is , 20 , and such date [is] [is not] the last day of the Interest
Period applicable to each outstanding Eurocurrency Loan;
(ii) the aggregate amount of the requested increase of the Commitments is
$ ;
(iii) the CI Lenders that have agreed with WIL to provide their respective Commitments
are [NAMES OF CI LENDERS];
(iv) the Lenders that have agreed with WIL to increase their respective Commitments are
[NAMES OF APPLICABLE LENDERS]; and
(v) set forth on Annex I attached hereto is the amount of the respective
Commitments of all Lenders (including, without limitation, the CI Lenders) as of effective
date of such Commitment Increase and after giving effect thereto.
Delivery of an executed counterpart of this Notice of Commitment Increase by telecopier shall
be effective as delivery of an original executed counterpart hereof.
E-1
Very truly yours, | ||||||
XXXXXXXXXXX INTERNATIONAL LTD. | ||||||
By: | ||||||
Name: | ||||||
Title: |
Approved and Consented to by:
Deutsche Bank AG Cayman Islands Branch
as Administrative Agent and Issuing Bank
By:
|
||||
Name: |
||||
Title: |
||||
By: |
||||
Name: |
||||
Title: |
CI LENDERS:
[ADD SIGNATURE BLOCK FOR EACH CI LENDER]
By:
|
||||
Name: |
||||
Title: |
LENDERS INCREASING COMMITMENTS:
[ADD SIGNATURE BLOCK FOR EACH APPLICABLE LENDER]
By:
|
||||
Name: |
||||
Title: |
E-2
Annex I to
Notice of Commitment Increase
Notice of Commitment Increase
COMMITMENTS
(after giving effect to the applicable Commitment Increase)
Bank | Allocation | |||
TOTAL |
$ | |||
E-3
EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
The undersigned hereby certifies that such officer is the of
Xxxxxxxxxxx International Ltd. (“WIL”), and that such officer is authorized to execute this
certificate on behalf of such Borrower pursuant to the Credit Agreement (the “Credit
Agreement”) dated as of March 19, 2008 (as further restated, amended, modified, supplemented
and in effect from time to time, the “Credit Agreement”), among 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, together with the Borrowers, collectively the “Obligors”), the Lenders and Deutsche
Bank AG Cayman Islands 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 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’s Net Worth. |
F-1
DATED as of .
[SIGNATURE OF AUTHORIZED OFFICER OF WIL]
F-2
EXHIBIT G
FORM OF JOINDER AGREEMENT
This JOINDER AGREEMENT (this “Agreement”) is dated as of , 20
by
[Applicable Subsidiary], a (the “Additional Borrower”), in connection with the
Credit Agreement dated as of March 19, 2008, by and among Xxxxxxxxxxx International Ltd.
(“WIL”), the other Borrowers from time to time thereunder, Xxxxxxxxxxx International, Inc.,
as Guarantor, Deutsche Bank AG Cayman Islands Branch, as a Lender and as Administrative Agent, and
the other financial institutions from time to time parties thereto (such Credit Agreement, as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings
specified therefor in the Credit Agreement.
RECITALS
A. The Credit Agreement provides that XXX xxx cause the Additional Borrower to become a
Borrower thereunder by, among other things, causing the Additional Borrower to deliver to the
Administrative Agent this Agreement.
B. The Additional Borrower desires to become a Borrower under the Credit Agreement.
NOW THEREFORE, the Additional Borrower hereby agrees as follows:
The Additional Borrower agrees to be bound by all of the provisions of the Credit Agreement
and the other Loan Documents applicable to a “Borrower” thereunder and agrees that it shall, on and
as of the date this Agreement is accepted by the Administrative Agent and the other conditions
specified in Section 12.01(c) of the Credit Agreement are satisfied, become a party to the
Credit Agreement and a “Borrower” for all purposes thereunder to the same extent as if originally a
party thereto.
This Agreement shall be construed in accordance with and governed by the law of the State of
New York.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed and delivered by
a duly authorized officer on the date first above written.
G-1
[NAME OF ADDITIONAL BORROWER] | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
Address for notices: | ||||||
Accepted as of the date first above written:
Deutsche Bank AG Cayman Islands Branch,
as Administrative Agent
as Administrative Agent
By: |
||||
Name:
|
||||
Title: |
||||
By: |
||||
Name:
|
||||
Title: |
G-2
SCHEDULE 1.01
LENDERS
Deutsche Bank AG Cayman Islands Xxxxxx
Xxxxxxx Street LLC
Xxxxxxx Xxxxx Bank USA
S-1
SCHEDULE 2.01
COMMITMENTS
Bank | Allocation | |||
Deutsche Bank AG Cayman Islands Branch |
$ | 83,333,334 | ||
Xxxxxxx Street LLC |
83,333,333 | |||
Xxxxxxx Xxxxx Bank USA |
83,333,333 | |||
TOTAL |
$ | 250,000,000 | ||
S-2