Exhibit 1.1
EXECUTION VERSION
WEATHERFORD INTERNATIONAL LTD.
(a Bermuda exempted company)
5.15% Senior Notes due 2013
6.00% Senior Notes due 2018
7.00% Senior Notes due 2038
Guaranteed by
WEATHERFORD INTERNATIONAL, INC.
(a Delaware corporation)
UNDERWRITING AGREEMENT
Dated: March 19, 2008
WEATHERFORD INTERNATIONAL LTD.
(a Bermuda exempted company)
$500,000,000 5.15% Senior Notes due 2013
$500,000,000 6.00% Senior Notes due 2018
$500,000,000 7.00% Senior Notes due 2038
Guaranteed by
WEATHERFORD INTERNATIONAL, INC.
(a Delaware corporation)
UNDERWRITING AGREEMENT
March 19, 2008
Goldman, Sachs & Co.
Deutsche Bank Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
as Representatives of the several Underwriters
c/o Goldman, Sachs & Co.,
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Weatherford International Ltd., a Bermuda exempted company (the “Company”), and Weatherford
International, Inc., a Delaware corporation (the “Guarantor”), confirm their agreement with
Goldman, Sachs & Co. (the “Lead Representative”) and each of the other Underwriters named in
Schedule A hereto (collectively, the “Underwriters”, which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Goldman, Sachs & Co., Deutsche
Bank Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated are acting as
representatives (in such capacity, the “Representatives”), with respect to the issue and sale by
the Company and the purchase by the Underwriters, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule A of $500,000,000 aggregate principal
amount of the Company’s 5.15% Senior Notes due 2013, $500,000,000 aggregate principal amount of the
Company’s 6.00% Senior Notes due 2018 and $500,000,000 aggregate principal amount of the Company’s
7.00% Senior Notes due 2038 (collectively, the “Notes”), guaranteed on an unsecured basis pursuant
to guarantees (the “Guarantees”) provided by the Guarantor. The Notes and the Guarantees are
hereinafter collectively referred to as the “Securities”. The Securities are to be issued pursuant
to an indenture dated as of October 1, 2003 (the “Indenture”) between the Company, the Guarantor
and Deutsche Bank Trust Company Americas, as trustee (the “Trustee”). The term “Indenture,” as
used herein, includes the First Supplemental Indenture to be dated the Closing Time establishing
the form and terms of the Securities (the “Supplemental Indenture”). Securities issued in
book-entry form will be issued to Cede & Co. as nominee of The
1
Depository Trust Company (“DTC”) pursuant to a letter agreement, to be dated as of the Closing
Time (as defined in Section 2(b) hereof), among the Company, the Trustee and DTC.
The Company and the Guarantor understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after this Agreement has
been executed and delivered and the Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the “1939 Act”).
The Company and the Guarantor have filed with the U.S. Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (No. 333-135244), including the related base
prospectus (the “Base Prospectus”), covering the registration of the Securities under the U.S.
Securities Act of 1933, as amended (the “1933 Act”). The Company and the Guarantor have also filed
with the Commission a preliminary prospectus supplement relating to the Securities and
supplementing the Base Prospectus. Promptly after execution and delivery of this Agreement, the
Company and the Guarantor will prepare and file a final prospectus supplement in accordance with
the provisions of Rule 430A (“Rule 430A”) of the rules and regulations of the Commission under the
1933 Act (the “1933 Act Regulations”) and paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act
Regulations. The information included in such prospectus supplement that was omitted from such
registration statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective pursuant to paragraph (b) of Rule 430A is
referred to as “Rule 430A Information.” The Base Prospectus and the preliminary prospectus
supplement to the Base Prospectus relating to the offering of the Securities, as of the Applicable
Time, is herein called the “preliminary prospectus.” Such registration statement, including the
exhibits and any schedules thereto, at the time it became effective, and including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at such time
and the Rule 430A Information, is herein called the “Registration Statement.” Any registration
statement relating to the Securities filed pursuant to Rule 462(b) of the 1933 Act Regulations is
herein referred to as the “Rule 462(b) Registration Statement,” and after such filing the term
“Registration Statement” shall include the Rule 462(b) Registration Statement. The final
prospectus, including the prospectus supplement, in the form first furnished to the Underwriters
for use in connection with the offering of the Securities, is herein called the “Prospectus”. Each
issuer free writing prospectus (as defined in Rule 433 of the 1933 Act) is identified on Schedule B
hereto and referred to herein as an “Issuer Free Writing Prospectus”. For purposes of this
Agreement, all references to the Registration Statement, any preliminary prospectus, the
Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system (“EDGAR”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is incorporated by
reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case
may be; and all references in this Agreement to the Registration Statement, any Issuer Free Writing
Prospectus, any preliminary prospectus or the Prospectus shall be deemed to mean and include the
filing of any document under the U.S. Securities Exchange Act of 1934, as amended (the “1934 Act”),
and the rules and regulations of the Commission thereunder (the “1934 Act Regulations”) which is
incorporated by reference in the Registration Statement, such Issuer Free Writing Prospectus, such
preliminary prospectus or the Prospectus, as the case may be. The term “Disclosure Package” shall
mean, collectively, as of the Applicable Time, the Base Prospectus, the preliminary prospectus, any
Issuer Free Writing Prospectus, including any Permitted Free Writing Prospectus (as defined
herein), and the Final Term Sheet (as defined herein).
2
SECTION 1.
Representations and Warranties
.
(a)
Representations and Warranties by the Company and the Guarantor
. The Company and the
Guarantor jointly and severally represent and warrant to each Underwriter as of the date hereof and
as of the Closing Time referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
1.
Compliance with Registration Requirements
. The Company and the Guarantor
meet the requirements for use of Form S-3 under the 1933 Act. Each of the Registration
Statement, any Rule 462(b) Registration Statement and any post-effective amendment thereto
has become effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement, any Rule 462(b) Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company or the Guarantor,
are contemplated by the Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b) Registration
Statement and any parts thereof or post-effective amendments thereto became effective (for
the avoidance of doubt, including at the Applicable Time) and at the Closing Time, the
Registration Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and regulations
of the Commission under the 1939 Act (the “1939 Act Regulations”), and did not and will not
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading. Neither the
Prospectus nor any Issuer Free Writing Prospectus nor any amendments or supplements to the
Prospectus or any Issuer Free Writing Prospectus, at the time such document or any such
amendment or supplement was issued and at the Closing Time, included or will include an
untrue statement of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. As of 5:25p.m. (Eastern time) on the date of this
Agreement (the “Applicable Time”), the Disclosure Package did not include any untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were made, not
misleading. The representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement, the Prospectus or the Disclosure
Package made in reliance upon and in conformity with information furnished to the Company by
any Underwriter through the Representatives expressly for use in the Registration Statement
(or any amendment thereto), the Prospectus (or any amendment or supplement thereto) or the
Disclosure Package (or any amendment or supplement thereto), it being understood and agreed
that the only such information furnished by any Underwriter consists of the information
described as such in Section 6(b) hereof.
Each preliminary prospectus and the Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto complied when so filed in
all material respects with the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
2.
Company is Well-Known Seasoned Issuer
. (i) At the time the Company or any
person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the
1933
3
Act) made any offer relating to the Securities in reliance on the exemption of Rule 163
of the 1933 Act, and (ii) as of the date of the execution and delivery of this Agreement
(with such date being used as the determination date for purposes of this clause (ii)), the
Company was and is a “well-known seasoned issuer” as defined in Rule 405 of the 1933 Act.
3.
Company Not Ineligible Issuer
. (i) At the earliest time after the filing of
the most recent amendment to the Registration Statement relating to the Securities that the
Company or another offering participant made a
bona fide
offer (within the meaning of Rule
164(h)(2) of the 1933 Act), and (ii) as of the date of the execution and delivery of this
Agreement (with such date being used as the determination date for purposes of this clause
(ii)), the Company was not and is not an “Ineligible Issuer” (as defined in Rule 405 of the
1933 Act), without taking account of any determination by the Commission pursuant to Rule
405 of the 1933 Act that it is not necessary that the Company be considered an Ineligible
Issuer.
4.
Issuer Free Writing Prospectuses
. No Issuer Free Writing Prospectus, as of
its issue date and at all subsequent times through the completion of the offering of the
Securities or until any earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did, does or will include any information
that conflicted, conflicts or will conflict with the information contained in the
Registration Statement, including any document incorporated by reference therein that has
not been superseded or modified. If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict with the information
contained in the Registration Statement, the Company has promptly notified or will promptly
notify the Representatives and has promptly amended or supplemented or will promptly amend
or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or
correct such conflict. The foregoing two sentences do not apply to statements in or
omissions from any Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in Section 6(b)
hereof.
5.
Distribution of Offering Material By the Company and the Guarantor
.
The
Company and the Guarantor have not distributed and will not distribute, prior to the later
of the Closing Date and the completion of the Underwriters’ distribution of the Securities,
any offering material in connection with the offering and sale of the Securities other than
a preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus included in
Schedule B hereto, any Permitted Free Writing Prospectus or the Registration Statement.
6.
Incorporated Documents
. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement, the Prospectus and the Disclosure
Package at the time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and the 1934 Act
Regulations, and, when read together with the other information in such Registration
Statement, Prospectus or Disclosure Package, as the case may be, at the time the
Registration Statement became effective, at the time the Prospectus was issued, at the
Applicable Time and at the Closing Time, did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
7.
Independent Accountants
. The accountants who certified the financial
statements and supporting schedules included in the Registration Statement, the Disclosure
Package and the
4
Prospectus are an independent registered public accounting firm as required by the 1933
Act and the 1933 Act Regulations.
8.
Financial Statements
. The consolidated financial statements included in the
Registration Statement, the Prospectus and the Disclosure Package present fairly in all
material respects the financial position of the Company and its consolidated subsidiaries at
the dates indicated and the statement of operations, shareholders’ equity and cash flows of
the Company and its consolidated subsidiaries for the periods specified all prepared in
conformity with generally accepted accounting principles (“GAAP”) (subject, in the case of
interim statements, to normal year-end audit adjustments); and the Company has no material
contingent obligation that is not disclosed in such financial statements or in the
Registration Statement, Prospectus or Disclosure Package. The supporting schedules, if any,
included in the Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The summary financial information, the
capitalization table and the ratio of earnings to fixed charges included in the Prospectus
and Disclosure Package present fairly the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements included in the
Registration Statement.
9.
No Material Adverse Change in Business
. Since the respective dates as of
which information is given in the Registration Statement, the Prospectus and the Disclosure
Package, except as otherwise stated therein, (A) there has been no material adverse change
in the consolidated financial position, shareholders’ equity, results of operations or
business of the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have
been no transactions entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of its share
capital.
10.
Good Standing of the Company and the Guarantor
. The Company has been duly
organized and is validly existing as an exempted company in good standing under the laws of
Bermuda and has corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and the Disclosure Package and to
enter into and perform its obligations under this Agreement, the Indenture and the Notes;
the Guarantor has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate power and authority to
own, lease and operate its properties and to conduct its business as described in the
Prospectus and the Disclosure Package and to enter into and perform its obligations under
this Agreement, the Indenture and the Guarantees; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each other jurisdiction
in which such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; the Guarantor is duly qualified as a
foreign corporation to transact business and is in good standing in each other jurisdiction
in which such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, expect where the failure to so qualify or to be in good
standing would not result in a material adverse change in the consolidated financial
position, shareholders’ equity, results of operations or business of the Guarantor and its
subsidiaries considered as one enterprise, whether or not arising in the ordinary course of
business.
5
11.
Good Standing of Subsidiaries
. Each of the Company’s subsidiaries (as
defined in Rule 405 of the 1933 Act Regulations) have been duly incorporated or formed and
are validly existing as corporations, limited liability companies, limited partnerships or
other forms of entities, as the case may be, in good standing under the laws of their
respective jurisdictions of incorporation or formation, have the requisite power and
authority to own their respective properties and conduct their respective businesses, are
duly qualified to do business and are in good standing as foreign corporations, limited
liability companies, limited partnerships or other forms of entities in each jurisdiction in
which their respective ownership or lease of property or the conduct of their respective
businesses requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse Effect.
12.
Capitalization
. The Company has an authorized capitalization as set forth
in the Disclosure Package and the Prospectus, and all of the issued shares of the Company,
have been duly and validly authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the Disclosure Package and the Prospectus;
and all of the issued shares, share capital or other equity interests of each subsidiary of
the Company, have been duly and validly authorized and issued and are fully paid and
non-assessable and (except for directors’ qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
13.
Authorization of Agreement
. This Agreement has been duly authorized,
executed and delivered by the Company and the Guarantor.
14.
Authorization of the Indenture
. The Indenture has been duly authorized by
the Company and the Guarantor, duly qualified under the 1939 Act and duly executed and
delivered by the Company and the Guarantor. The Indenture constitutes a valid and binding
agreement of the Company and the Guarantor, enforceable against the Company and the
Guarantor in accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’
rights generally and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in equity or at
law).
15.
Authorization of the Securities
. The Securities have been duly authorized
and, at the Closing Time, will have been duly executed by the Company and the Guarantor, as
the case may be, for issuance and sale pursuant to this Agreement. The Securities, when
authenticated, issued and delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as provided in this Agreement, will
have been duly executed, authenticated, issued and delivered and will constitute valid and
binding obligations of the Company and the Guarantor, enforceable against the Company and
the Guarantor, as the case may be, in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and will be in the form contemplated by, and entitled to
the benefits of, the Indenture.
16.
Description of the Securities and the Indenture
. The Securities and the
Indenture will conform in all material respects to the respective statements relating
thereto contained in the Prospectus and the Disclosure Package and will be in substantially
the respective forms filed or incorporated by reference, as the case may be, as exhibits to
the Registration Statement.
6
17.
Absence of Defaults and Conflicts
. Neither the Company nor any of its
subsidiaries is (i) in violation of its charter, memorandum of association or bye-laws or
similar governing document, as applicable, (ii) in default, and no event has occurred which,
with notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement,
lease or other agreement or instrument to which it is a party or by which it is bound or
which any of its properties or assets may be subject (collectively, “Agreements and
Instruments”) or (iii) in violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject, except with respect to
(ii) or (iii), for any such violations or defaults that would not be reasonably likely,
singly or in the aggregate, to have a Material Adverse Effect; and the execution, delivery
and performance of this Agreement, the Indenture and the Securities and the consummation of
the transactions contemplated herein and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Disclosure Package and the Prospectus under the caption “Use
of Proceeds”) and compliance by the Company and the Guarantor with their respective
obligations hereunder and under the Indenture and the Securities have been duly authorized
by all necessary corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default or Repayment Event
(as defined below) under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any subsidiary pursuant to, the
Agreements and Instruments, (ii) result in any violation of the provisions of the charter,
memorandum of association or bye-laws (or similar governing document) of the Company or any
of its subsidiaries or (iii) result in any violation of any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any subsidiary or any of
their assets, properties or operations; except for such conflict, breach, violation or
default which would, for purposes of clauses (i) and (iii) above, either individually or in
the aggregate, not have a Material Adverse Effect. As used herein, a “Repayment Event”
means any event or condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by the Company
or any subsidiary.
18.
Absence of Labor Dispute
. No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the Company or the Guarantor, is
imminent, which would reasonably be expected to have a Material Adverse Effect; and there
are no significant unfair labor practice complaints pending against the Company or any of
its subsidiaries or, to the knowledge of the Company or the Guarantor, threatened against
any of them.
19.
Absence of Proceedings
. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting
the Company or any subsidiary, which is required to be disclosed in the Registration
Statement or the Prospectus (other than as disclosed therein), or which would reasonably be
expected to result in a Material Adverse Effect, or which would reasonably be expected to
materially and adversely affect the consummation of the transactions contemplated in this
Agreement or the performance by the Company and the Guarantor of their respective
obligations hereunder; the aggregate of all pending legal or governmental proceedings to
which the Company or any subsidiary is a party or of which any of their respective property
or assets is the subject which are not described in the Registration Statement, the
Prospectus or the Disclosure Package, including ordinary routine
7
litigation incidental to the business, would not reasonably be expected to result in a
Material Adverse Effect.
20.
Accuracy of Exhibits
. There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which have not been so
described and filed as required.
21.
Possession of Intellectual Property
. The Company and its subsidiaries own
or possess adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark registrations, copyrights
and licenses necessary for the conduct of their respective businesses and have no reason to
believe that the conduct of their respective businesses will conflict with, and have not
received any notice of any claim of conflict with, any such rights of others, except where
such conflict could not reasonably be expected to have a Material Adverse Effect.
22.
Absence of Manipulation
. None of the Company, the Guarantor or any of
their affiliates has taken, nor will the Company, the Guarantor or any of their affiliates
take, directly or indirectly, any action which is designed to or which has constituted or
which would be expected to cause or result in stabilization or manipulation of the price of
any security of the Company or the Guarantor to facilitate the sale or resale of the
Securities.
23.
Absence of Further Requirements
. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by the Company
and the Guarantor of their respective obligations hereunder, in connection with the
offering, issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement or for the due execution, delivery or
performance of the Indenture by the Company and the Guarantor, except (A) as may be required
under the 1933 Act or the 1933 Act Regulations or state or securities laws and the Companies
Act 1981 of Bermuda and except for the qualification of the Indenture under the 1939 Act or
(B) as have already been made, obtained or rendered, as applicable, and except where the
failure to so make, obtain or render, singly or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.
24.
Possession of Licenses and Permits
. The Company and its subsidiaries
possess such permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now operated by them, except
where the failure so to possess would not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, reasonably be expected to result
in a Material Adverse Effect; all of the Governmental Licenses are valid and in full force
and effect, except when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; and neither the Company nor
any of its subsidiaries has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
8
25.
Title to Property
. The Company and its subsidiaries have good and
indefeasible title in fee simple to all real property owned by the Company and its
subsidiaries and good and valid title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the Disclosure Package and the
Prospectus or (b) would not, singly or in the aggregate, reasonably be expected to result in
a Material Adverse Effect; and all of the leases and subleases material to the business of
the Company and its subsidiaries, considered as one enterprise, and under which the Company
or any of its subsidiaries holds properties described in the Disclosure Package and the
Prospectus, are in full force and effect, and neither the Company nor any subsidiary has any
notice of any material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or such subsidiary to the
continued possession of the leased or subleased premises under any such lease or sublease.
26.
Investment Company Act
. Neither the Company nor the Guarantor is, and upon
the issuance and sale of the Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Disclosure Package and the Prospectus, neither
the Company nor the Guarantor will be, an “investment company” or an entity “controlled” by
an “investment company”, as such terms are defined in the U.S. Investment Company Act of
1940, as amended (the “1940 Act”).
27.
Environmental Laws
. Except as described in the Registration Statement, the
Prospectus and the Disclosure Package and except as would not, singly or in the aggregate,
result in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is
in violation of any federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products, asbestos-containing
materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, “Environmental Laws”), (B) the Company and its subsidiaries have
all permits, authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, (C) there are no pending or, to the
knowledge of the Company, threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that would reasonably be expected
to form the basis of an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or affecting the Company or any
of its subsidiaries relating to Hazardous Materials or any Environmental Laws.
28.
Subsequent Events
. Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements included in the
Registration Statement, the Prospectus and the Disclosure Package, any material loss or
interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Registration Statement, the
Prospectus or the Disclosure Package;
9
and, since such date, there has not been any material change in the share capital or
long-term debt of the Company or any of its subsidiaries, or any material adverse change or
any development involving a prospective material adverse change in the condition, financial
or otherwise, or in the earnings or business of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Registration Statement, the Prospectus or the
Disclosure Package.
29.
Insurance
. The Company and each of its subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as they reasonably deem sufficient for
the conduct of their respective businesses and the value of their respective properties, and
neither the Company nor any subsidiary has received notice of cancellation or non-renewal of
such insurance.
30.
Books and Records
. The Company and each of its subsidiaries (i) makes and
keeps books and records, which accurately reflect transactions and dispositions of its
assets, (ii) maintains internal accounting controls which provide reasonable assurance that
(A) transactions are executed in accordance with management’s general and specific
authorization, (B) transactions are recorded as necessary to permit preparation of its
financial statements and to maintain accountability for its assets, (C) access to its assets
is permitted only in accordance with management’s general and specific authorization and (D)
the recorded accountability for its assets is compared with existing assets at reasonable
intervals.
31.
Foreign Corrupt Practices Act
. Except as would not reasonably be expected
to (i) result in a Material Adverse Effect or (ii) materially and adversely affect the
consummation of the transactions contemplated in this Agreement or the performance by the
Company and the Guarantor of their respective obligations hereunder, neither the Company nor
any of its subsidiaries, nor any director, officer, agent, employee or shareholder acting on
behalf of the Company or any of its subsidiaries, is aware of or has used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful expense relating
to political activity; made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; violated or is in violation
of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder (collectively, the “FCPA”) or similar law, ordinance, rule
or regulation applicable to the Company and its subsidiaries; or made any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment. Except as would not
reasonably be expected to (i) result in a Material Adverse Effect or (ii) materially and
adversely affect the consummation of the transactions contemplated in this Agreement or the
performance by the Company and the Guarantor of their respective obligations hereunder, the
Company, its subsidiaries and, to the knowledge of the Company, its affiliates, have
conducted their business in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.
32.
No Conflict with Money Laundering Laws
.
The operations of the Company and
its subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the U.S. Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of all
applicable jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened.
10
33.
No Conflict with OFAC Laws
. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds, to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC, in each case
other than in compliance with all applicable OFAC rules, regulations and procedures.
34.
Borrowing Regulations
. The Company and its subsidiaries have not taken, and
will not take, any action that might cause this Agreement or the issuance or sale of the
Securities to violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221)
or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve
System.
35.
Disclosure Controls and Procedures
. (i) The Company has established and
maintains disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and
15d-15(e) under the 1934 Act); (ii) such disclosure controls and procedures are designed to
ensure that information required to be disclosed by the Company in the reports it files or
submits under the 1934 Act is accumulated and communicated to the Company’s management,
including its principal executive officer and its principal financial officer, as
appropriate, to allow timely decisions regarding required disclosure; and (iii) such
disclosure controls and procedures are effective in all material respects to perform the
functions for which they were established. Since the date of the most recent evaluation of
such disclosure controls and procedures, there have been no significant changes in internal
controls or in other factors that could significantly affect internal controls, including
any corrective actions with regard to significant deficiencies and material weaknesses.
36.
Internal Controls
. Except as disclosed in the Registration Statement, the
Disclosure Package and the Prospectus, since December 31, 2007, there has not been (i) any
significant deficiency in the design or operation of internal controls which could adversely
affect the Company’s or the Guarantor’s ability to record, process, summarize and report
financial data nor any material weaknesses in internal controls; or (ii) any fraud, whether
or not material, that involves management or other employees who have a significant role in
the Company’s or the Guarantor’s internal controls. Except as disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, since December 31, 2007, there have
been no significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses. The Company and the Guarantor have
designed and maintain internal control over financial reporting (as such term is defined in
Rules 13a-15(f) and Rules 15d-15(f) under the 1934 Act, referred to herein as “Reporting
Controls”), and the Reporting Controls are (i) designed to, and sufficient to, provide
reasonable assurance (A) that transactions are executed in accordance with management’s
general or specific authorizations; (B) that transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (C) that access to assets is permitted only
in accordance with management’s general or specific authorization; (D) that the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and (E) regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles and include, without
limitation, those processes specifically referred to in
11
Rule 13a-15(f) and Rule 15d-15(f) and (ii) to the knowledge of the Company and the
Guarantor, effective to perform the functions for which they are maintained.
(b)
Officer’s Certificates
. Any certificate signed by any officer of the Company or
the Guarantor delivered to the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company or the Guarantor, as the case may be, to each
Underwriter as to the matters covered thereby.
SECTION 2.
Sale and Delivery to Underwriters; Closing
.
(a)
Securities
.
1. On the basis of the representations, warranties and agreements herein contained and
subject to the terms and conditions herein set forth, the Company and the Guarantor agree to
sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company and the Guarantor, at a price equal to 99.194%
of the principal amount thereof, the aggregate principal amount of the 5.15% Senior Notes
due 2013 set forth in Schedule A opposite the name of such Underwriter, plus any additional
principal amount of Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
2. On the basis of the representations, warranties and agreements herein contained and
subject to the terms and conditions herein set forth, the Company and the Guarantor agree to
sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company and the Guarantor, at a price equal to 98.812%
of the principal amount thereof, the aggregate principal amount of the 6.00% Senior Notes
due 2018 set forth in Schedule A opposite the name of such Underwriter, plus any additional
principal amount of Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
3. On the basis of the representations, warranties and agreements herein contained and
subject to the terms and conditions herein set forth, the Company and the Guarantor agree to
sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company and the Guarantor, at a price equal to 98.780%
of the principal amount thereof, the aggregate principal amount of the 7.00% Senior Notes
due 2038 set forth in Schedule A opposite the name of such Underwriter, plus any additional
principal amount of Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b)
Payment
. Payment of the purchase price for, and delivery of certificates for, the
Securities shall be made at the offices of Andrews Kurth LLP, Houston, Texas 77002, or at such
other place as shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (Eastern
time) on the third business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days after such date as
shall be agreed upon by the Representatives and the Company (such time and date of payment and
delivery being herein called “Closing Time”).
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and
12
make payment of the purchase price for, the Securities which it has agreed to purchase. The
Lead Representative, individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such payment shall not
relieve such Underwriter from its obligations hereunder. Delivery of the Securities shall be made
through the facilities of DTC.
(c)
Denominations; Registration
. Certificates for the Securities shall be in such
denominations ($2,000 or integral multiples of $1,000 in excess of $2,000) and registered in such
names as the Representatives may request in writing at least one full business day before the
Closing Time. The Securities will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to the Closing Time.
SECTION 3.
Covenants of the Company and the Guarantor
. The Company and the Guarantor
jointly and severally covenant with each Underwriter as follows:
(a)
Compliance with Securities Regulations and Commission Requests
. The Company and the
Guarantor, subject to Section 3(b), will comply with the requirements of Rule 430A and will notify
the Representatives immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or when any supplement to the
Prospectus, any amended Prospectus, or any Issuer Free Writing Prospectus or supplement or
amendment thereto shall have been filed, (ii) of the receipt of any comments from the Commission,
(iii) of any request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the preliminary prospectus, the Prospectus or any Issuer Free Writing
Prospectus or any document incorporated by reference therein or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any preliminary
prospectus, of the Prospectus or of any Issuer Free Writing Prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company and the Guarantor will
promptly effect the filings necessary pursuant to Rule 424(b) and Rule 433 and will take such steps
as they deem necessary to ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) and the Final Term Sheet transmitted for filing under Rule 433 were received for
filing by the Commission and, in the event that any such document was not, they will promptly file
such document. The Company and the Guarantor will use their reasonable best efforts to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof as soon
as possible. The Company shall pay the required Commission filing fees relating to the Securities
within the time period required by Rule 456(b)(i) of the 1933 Act Regulations without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act
Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in
accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration
Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b)
Filing of Amendments
. The Company and the Guarantor will give the Representatives notice
of their intention to file or prepare any amendment to the Registration Statement (including any
filing under Rule 462(b)) or any amendment, supplement or revision to any of the prospectus
included in the Registration Statement at the time it became effective, the preliminary prospectus,
the Prospectus or any Issuer Free Writing Prospectus, whether pursuant to the 1933 Act, the 1934
Act or otherwise, will furnish the Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and will not file or use
any such document without the consent of the Representatives, which consent shall not be
unreasonably withheld.
13
(c)
Final Term Sheet
. The Company and the Guarantor will file, pursuant to Rule 433(d) under
the 1933 Act and within the time required by such rule, the final term sheet containing only the
description of the Securities in the form attached hereto as Schedule D (the “Final Term Sheet”).
(d)
Permitted Free Writing Prospectuses
. Each of the Company and the Guarantor represents
that it has not made, and agrees that, unless it obtains the prior written consent of the
Representatives, it will not make, any offer relating to the Securities that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as
defined in Rule 405 of the 1933 Act) required to be filed by the Company or the Guarantor with the
Commission or retained by the Company under Rule 433 of the 1933 Act; provided that the prior
written consent of the Representatives hereto shall be deemed to have been given in respect of the
Issuer Free Writing Prospectuses identified on Schedule B hereto. Any such free writing prospectus
consented to by the Representatives is herein referred to as a “Permitted Free Writing Prospectus”.
Each of the Company and the Guarantor agrees that (i) it has treated and will treat, as the case
may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has
complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the
1933 Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping. The Company and the Guarantor consent to the
use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing
prospectus” as defined in Rule 433, and (b) contains only (i) information describing the
preliminary terms of the Securities or their offering, (ii) information permitted by Rule 134 under
the 1933 Act or (iii) information that describes the final terms of the Securities or their
offering and that is included in the Final Term Sheet.
(e)
Delivery of Registration Statements
. The Company and the Guarantor have furnished or will
deliver to the Representatives and counsel for the Underwriters, without charge, signed copies of
the Registration Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and certificates of experts,
and will also deliver to the Representatives, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(f)
Delivery of Prospectuses
. The Company and the Guarantor have delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus and Issuer Free Writing
Prospectus as such Underwriter reasonably requested, and the Company and the Guarantor hereby
consent to the use of such copies for purposes permitted by the 1933 Act. The Company and the
Guarantor will furnish to each Underwriter, without charge, during the period when the Prospectus
is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended
or supplemented) and any Issuer Free Writing Prospectuses as such Underwriter may reasonably
request. The preliminary prospectus, preliminary prospectus supplement, Prospectus, and each
Issuer Free Writing Prospectus and any amendments or supplements to such documents furnished to the
Underwriters will be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(g)
Continued Compliance with Securities Laws
. The Company and the Guarantor will comply with
the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939
Act and the 1939 Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Disclosure Package and the Prospectus.
From the Applicable Time until such time as it is determined that a prospectus is no longer
required by the 1933
14
Act to be delivered in connection with the sale of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company or the Guarantor, to amend the Registration Statement or amend or
supplement the Prospectus or the Disclosure Package in order that the Prospectus or the Disclosure
Package will not include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of
such counsel or pursuant to notice from the Commission, at any such time to amend the Registration
Statement, file a new registration statement or amend or supplement the Prospectus or the
Disclosure Package in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company and the Guarantor will promptly prepare and file with the Commission,
subject to Section 3(b), such new registration statement, amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration Statement, the
Prospectus or the Disclosure Package comply with such requirements, the Company and the Guarantor
will furnish to the Underwriters such number of copies of such new registration statement,
amendment or supplement as the Underwriters may reasonably request and use its commercially
reasonable efforts to cause such new registration statement or amendment to be declared effective
as soon as practicable. In any such case, the Company will promptly notify the Representatives of
such filings and effectiveness.
(h)
Blue Sky Qualifications
. The Company and the Guarantor will use their best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as the Representatives may
designate and to maintain such qualifications in effect for a period of not less than one year from
the later of the effective date of the Registration Statement and any Rule 462(b) Registration
Statement; provided, however, that the Company and the Guarantor shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or so subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company
and the Guarantor will also supply the Underwriters with such information as is necessary for the
determination of the legality of the Securities for investment under the laws of such jurisdictions
as the Underwriters may request.
(i)
Rule 158
. The Company will timely file such reports pursuant to the 1934 Act as are
necessary in order to make generally available to its securityholders an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of
the 1933 Act.
(j)
Use of Proceeds
. The Company will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Prospectus under “Use of Proceeds”.
(k)
Reporting Requirements
. The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(l)
Rating of Securities
. The Company and the Guarantor will take all reasonable action
necessary to enable Standard & Poor’s, a division of The McGraw-Hill Companies, Inc. (“S&P”), and
Moody’s Investors Service Inc. (“Moody’s”) to provide their respective credit ratings of the
Securities.
(m)
DTC
. The Company and the Guarantor will cooperate with the Representatives and use
commercially reasonable efforts to permit the Securities to be eligible for clearance and
settlement through the facilities of DTC.
15
(n)
Renewal of Registration Statement.
If by the third anniversary (the “Renewal Deadline”)
of the initial effective date of the Registration Statement, any of the Securities remain unsold by
the Underwriters, the Company will, upon reasonable written request from the Underwriters, promptly
file, (i) if it has not already done so and is eligible to do so, a new automatic shelf
registration statement relating to the Securities, in a form reasonably satisfactory to the
Representatives or (ii) if it has not already done so but is no longer eligible to file an
automatic shelf registration statement, a new shelf registration statement relating to the
Securities, in a form reasonably satisfactory to the Representatives, and will use its commercially
reasonable efforts to cause such registration statement to be declared effective within 180 days
after the Renewal Deadline. The Company will take all other action necessary or appropriate to
permit the public offering and sale of the Securities to continue as contemplated in the expired
registration statement relating to the Securities. References herein to the Registration Statement
shall include such new automatic shelf registration statement or such new shelf registration
statement, as the case may be.
SECTION 4.
Payment of Expenses
.
(a)
Expenses
. The Company and the Guarantor will pay all expenses incident to the performance
of their respective obligations under this Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and exhibits) as originally
filed and of each amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the Underwriters,
(iv) the fees and disbursements of the Company’s and Guarantor’s counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(h) hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey and any supplement thereto, (vi) the printing and delivery to the Underwriters
of copies of each preliminary prospectus and of the Prospectus, any Issuer Free Writing Prospectus
and any amendments or supplements to such documents, (vii) the preparation, printing and delivery
to the Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii) the fees
and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities, (ix) the costs and expenses of the Company
relating to investor presentations on any “road show” undertaken in connection with the marketing
of the Securities, including without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in connection with the road
show presentations, travel and lodging expenses of the representatives and officers of the Company
and the Guarantor and any such consultants, and the cost of aircraft and other transportation
chartered in connection with the road show, (x) any fees payable in connection with the rating of
the Securities, and (xi) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review, if any, by the Financial Industry
Regulatory Authority, Inc. of the terms of the sale of the Securities; provided that, the
Underwriters shall pay their own costs and expenses, including the costs and expenses of counsel,
any transfer taxes on the Securities that they may sell and the expenses of advertising any
offering of the Securities made by the Underwriters.
(b)
Termination of Agreement
. If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5, Section 9(a)(i) or the first clause of Section
9(a)(iii) hereof, the Company and the Guarantors shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5.
Conditions of Underwriters’ Obligations
. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company
16
and the Guarantor contained in Section 1 hereof or in certificates of any officer of the
Company or any subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company and the Guarantor of their covenants and other obligations hereunder,
and to the following further conditions:
(a)
Effectiveness of Registration Statement
. The Registration Statement, including any Rule
462(b) Registration Statement, has become effective and at Closing Time no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the reasonable satisfaction
of counsel to the Underwriters. A prospectus containing the Rule 430A Information shall have been
filed with the Commission in accordance with Rule 424(b) (or a post-effective amendment providing
such information shall have been filed and declared effective in accordance with the requirements
of Rule 430A). In addition, the Final Term Sheet shall have been filed in accordance with the
requirements of Rule 433. The Company shall have paid the required Commission filing fees relating
to the Securities within the time period required by Rule 456(b)(i) of the 1933 Act Regulations
without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of
the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration
Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the
Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b)
Opinion of Counsel for Company and Guarantor
.
1. At Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of Andrews Kurth LLP, counsel for the Company and the Guarantor,
in form and substance reasonably satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters to the effect
set forth in Exhibit A-1 hereto.
2. At Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of the Senior Vice President and General Counsel for the Company
and the Guarantor, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit A-2 hereto.
3. At Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of Conyers Dill & Pearman, special Bermuda counsel for the
Company, in form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other Underwriters
to the effect set forth in Exhibit A-3 hereto.
(c)
Opinion of Counsel for Underwriters
.
1. At Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of Baker Botts L.L.P., counsel for the Underwriters, in form and
substance reasonably satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to the effect set forth
in Exhibit A-4 hereto.
2. At Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of Appleby Spurling Hunter, counsel for the Underwriters, in form
and
17
substance reasonably satisfactory to counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other Underwriters to the effect set
forth in Exhibit A-5 hereto.
(d)
Officers’ Certificate
. At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the Prospectus or the Disclosure
Package, any material adverse change in the consolidated financial position, shareholders’ equity,
results of operations or business of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and the Guarantor and of
the chief financial or chief accounting officer of the Company and the Guarantor, dated as of
Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company and the Guarantor have
complied with all agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have been instituted or
are pending or, to such officer’s knowledge, contemplated by the Commission.
(e)
Accountants’ Comfort Letter
. At the time of the execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP a letter dated such date, in form and
substance satisfactory to the Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial information relating to the Company and its subsidiaries contained
in the Registration Statement, the preliminary prospectus and the Disclosure Package.
(f)
Bring-down Comfort Letter
. At Closing Time, the Representatives shall have received from
Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e)(i) of this Section, except that
the specified date referred to shall be a date not more than two business days prior to Closing
Time, and providing information of the type ordinarily included in accountants’ “comfort letters”
to underwriters with respect to the financial statements and certain financial information relating
to the Company and its subsidiaries contained in the Prospectus.
(g)
Company and Guarantor Certifications Regarding Earnings and Financial Information for the
Year Ended December 31, 2007
. At the time of the execution of this Agreement and again at the
Closing Time, the Representatives shall have received from the Chief Accounting Officer and the
Controller of the Company and the Guarantor a certificate dated such date, in form and substance
satisfactory to the Representatives, together with signed or reproduced copies of such certificate
for each of the other Underwriters containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to (i) earnings and
financial information relating to the Company, the Guarantor and their respective subsidiaries for
the period from January 1, 2008 to the Closing Date and (ii) unaudited financial information,
including pro forma financial information, in the consolidated financial statements of the Company
included in its Annual Report on Form 10-K for the year ended December 31, 2007 filed with the
Commission.
(h)
Maintenance of Rating
. At Closing Time, the Securities shall be rated at least Baa1 by
Moody’s and BBB+ by S&P, and the Company and the Guarantor shall have delivered to the
Representatives a letter dated within 7 business days of the Closing Time, from each such rating
agency, or other evidence satisfactory to the Representatives, confirming that the Securities have
such ratings; and since the date of this Agreement, there shall not have occurred a downgrading in
the rating assigned to the
18
Securities or any of the Company’s or Guarantor’s other debt securities by any “nationally
recognized statistical rating agency”, as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the 1933 Act, and no such organization shall have publicly announced that it
has under surveillance or review its rating of the Securities or any debt securities of the Company
or the Guarantor.
(i)
Additional Documents
. At Closing Time, counsel for the Underwriters shall have been
furnished with such other documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the Company and the Guarantor
in connection with the issuance and sale of the Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(j)
Termination of Agreement
. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time at or prior to Closing Time, and such
termination shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such termination and remain in
full force and effect.
SECTION 6.
Indemnification
.
(a)
Indemnification of the Underwriters.
Each of the Company and the Guarantor, jointly and
severally, agree to indemnify and hold harmless each Underwriter, its directors, officers,
employees and agents, and each person, if any, who controls any Underwriter within the meaning of
the 1933 Act and the 1934 Act against any loss, claim, damage, liability or expense, as incurred,
to which such Underwriter or such controlling person may become subject, insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises
out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including the Rule 430A
Information, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or
alleged untrue statement of a material fact contained in any preliminary prospectus, any Issuer
Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading, and to reimburse each
Underwriter, its officers, directors, employees, agents and each such controlling person for any
and all expenses (including the fees and disbursements of counsel chosen by the Representatives) as
such expenses are reasonably incurred by such Underwriter, or its officers, directors, employees
and agents or such controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action; provided,
however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company and the Guarantor by the
Representatives expressly for use in the Registration Statement, any preliminary prospectus, any
Issuer Free Writing Prospectus (including any Permitted Free Writing Prospectus) or the Prospectus
(or any amendment or supplement thereto), which information is identified in Section 6(b) hereof.
The indemnity agreement set forth in this Section 6(a) shall be in addition to any liabilities that
the Company and the Guarantor may otherwise have.
(b)
Indemnification of the Company, its Directors and Officers and the Guarantor.
Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the
Guarantor, their respective directors, their respective officers and employees and each person, if
any, who
19
controls the Company or the Guarantor within the meaning of the 1933 Act or the 1934 Act,
against any loss, claim, damage, liability or expense, as incurred, to which the Company, the
Guarantor or any such director, officer, employee or controlling person may become subject, insofar
as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment thereto), including the
Rule 430A Information, or the omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to the extent, and only to
the extent, that such untrue statement or alleged untrue statement or omission or alleged omission
was made in the Registration Statement, any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), in reliance upon and in conformity with written information
furnished to the Company and the Guarantor by the Representatives expressly for use therein; and to
reimburse the Company, the Guarantor or any such director, officer, employee or controlling person
for any legal and other expense reasonably incurred by the Company, the Guarantor or any such
director, officer, employee or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability, expense or action. Each
of the Company and the Guarantor hereby acknowledges that the only information that the
Underwriters have furnished to the Company and the Guarantor expressly for use in the Registration
Statement, any Issuer Free Writing Prospectus, any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) are the statements set forth in the fifth, eighth and ninth
paragraphs under the caption “Underwriting” in the Prospectus. The indemnity agreement set forth
in this Section 6(b) shall be in addition to any liabilities that each Underwriter may otherwise
have.
(c)
Notifications and Other Indemnification Procedures.
Promptly after receipt by an
indemnified party under this Section 6 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 6, notify the indemnifying party in writing of the commencement thereof; but the
failure to so notify the indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any liability other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any such action is
brought against any indemnified party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the
extent that it shall elect, jointly with all other indemnifying parties similarly notified, by
written notice delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall have reasonably
concluded that a conflict may arise between the positions of the indemnifying party and the
indemnified party in conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying party’s election so to assume the
defense of such action and reasonable approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in accordance with
20
the proviso to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel (other than reasonably
necessary local counsel) reasonably approved by the indemnifying party (or the Representatives in
the case of Section 6), representing the indemnified parties who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d)
Settlements.
The indemnifying party under this Section 6 shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final, non-appealable judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of
such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by Section 6(c) hereof, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days before such settlement is entered into, and (iii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the entry of judgment in any
pending or threatened action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity was or could have been sought hereunder by such indemnified
party, unless such settlement, compromise or consent (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of such action, suit or
proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of any indemnified party.
SECTION 7.
Contribution
. To the extent the indemnification provided for in Section 6
is for any reason unavailable to or otherwise insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantor, on the one hand, and the Underwriters, on the other hand, from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative fault of the
Company and the Guarantor, on the one hand, and the Underwriters, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantor, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company and the Guarantor,
and the total underwriting discount received by the Underwriters, in each case as set forth on the
front cover page of the Prospectus bear to the aggregate initial public offering price of the
Securities as set forth on such cover. The relative fault of the Company and the Guarantor, on the
one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact or any such inaccurate or alleged inaccurate
representation or warranty relates to information supplied by the Company or the Guarantor, on the
one hand, or the Underwriters, on the other hand, and the parties’
21
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 6(c), any legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The Company, the Guarantor and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account of the equitable
considerations referred to in this Section 7.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or the alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this Section 7 are several, and not joint, in
proportion to their respective underwriting commitments as set forth opposite their names in
Schedule A. For purposes of this Section 7, each director, officer, employee and agent of an
Underwriter and each person, if any, who controls an Underwriter within the meaning of the 1933 Act
and the 1934 Act shall have the same rights to contribution as such Underwriter, and each director
of the Company or of the Guarantor, each officer or employee of the Company or of the Guarantor and
each person, if any, who controls the Company or the Guarantor within the meaning of the 1933 Act
and the 1934 Act shall have the same rights to contribution as the Company or the Guarantor.
SECTION 8.
Representations, Warranties and Agreements to Survive
. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain
operative and in full force and effect regardless of (i) any investigation made by or on behalf of
any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its
officers or directors or any person controlling the Company or the Guarantor, and (ii) delivery of
and payment for the Securities.
SECTION 9.
Termination of Agreement
.
(a)
Termination; General
. The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since the time of execution
of this Agreement or since the respective dates as of which information is given in the Prospectus
(exclusive of any supplement thereto), any material adverse change in the consolidated financial
position, shareholders’ equity, results of operations or business of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a prospective change in
national or international political, financial or economic conditions, in each case the effect of
which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable
to market the Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially limited by the
Commission, or if trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the Financial Industry Regulatory
Authority,
22
Inc. or any other governmental authority, or a material disruption has occurred in commercial
banking or securities settlement, or (iv) a material disruption has occurred in commercial banking
or securities settlement or clearance services in the United States or Bermuda, or (v) if a banking
moratorium has been declared by either Federal or New York or Bermuda authorities.
(b)
Liabilities
. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 6 and 7 shall survive such termination and remain in full force
and effect.
SECTION 10.
Default by One or More of the Underwriters
. If one or more of the
Underwriters shall fail at Closing Time to purchase the Securities which it or they are obligated
to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however,
the Representatives shall not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the aggregate principal
amount of the Securities to be purchased hereunder, each of the non-defaulting Underwriters shall
be obligated, severally and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate principal amount of the
Securities to be purchased hereunder, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement,
either the Representatives or the Company shall have the right to postpone Closing Time for a
period not exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11.
No Advisory or Fiduciary Responsibility
.
Each of the Company and the
Guarantor acknowledges and agrees that: (i) the purchase and sale of the Securities pursuant to
this Agreement, including the determination of the public offering price of the Securities and any
related discounts and commissions, is an arm’s-length commercial transaction between the Company
and the Guarantor, on the one hand, and the several Underwriters, on the other hand, and the
Company and the Guarantor are capable of evaluating and understanding and understand and accept the
terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection
with each transaction contemplated hereby and the process leading to such transaction each
Underwriter is and has been acting solely as a principal and is not the financial advisor, agent or
fiduciary of the Company, the Guarantor or their respective affiliates, shareholders, creditors or
employees or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency
or fiduciary responsibility in favor of the Company or the Guarantor with respect to any of the
transactions contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company or the Guarantor on other matters) and
no Underwriter has any obligation to the Company or the Guarantor with respect to the offering
contemplated hereby except the obligations expressly set forth in this Agreement;
23
(iv) the several Underwriters and their respective affiliates may be engaged in a broad range
of transactions that involve interests that differ from those of the Company and the Guarantor and
that the several Underwriters have no obligation to disclose any of such interests by virtue of any
advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated hereby and the
Company and the Guarantor have consulted their own legal, accounting, regulatory and tax advisors
to the extent they deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company, the Guarantor and the several Underwriters, or any of them, with respect to
the subject matter hereof. The Company and the Guarantor hereby waive and release, to the fullest
extent permitted by law, any claims that the Company and the Guarantor may have against the several
Underwriters with respect to any breach or alleged breach of agency or fiduciary duty with respect
to the transactions contemplated by this Agreement.
SECTION 12.
Notices
. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication as follows:
(a) if to the Company:
Weatherford International Ltd.
515 Post Oak Blvd., Suite 600
Houston, Texas 77027
Attention: Burt M. Martin
Facsimile: (713) 693-4484
(b) if to the Guarantor:
Weatherford International, Inc.
515 Post Oak Blvd., Suite 600
Houston, Texas 77027
Attention: Burt M. Martin
Facsimile: (713) 693-4484
(c) if to the Underwriters:
Goldman, Sachs & Co.
85 Broad Street
23rd Floor
New York, New York 10004
Attention: Registration Department
with a copy to the general counsel or to such other person or address as any party will specify by
giving notice in writing to the other party. All notices and other communications given to a party
in accordance with the provisions of this Agreement will be deemed to have been given (i) three
business days after the same are sent by certified or registered mail, postage prepaid, return
receipt requested, (ii) when delivered by hand or transmitted by telecopy (answer back received) or
(iii) one business day after the same are sent by a reliable overnight courier service, with
acknowledgment of receipt requested. Notwithstanding the preceding sentence, notice of change of
address will be effective only upon actual receipt thereof.
24
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the Underwriters to properly identify their respective clients.
SECTION 13.
Parties
. This Agreement shall each inure to the benefit of and be binding
upon the Underwriters, the Company, the Guarantor and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to give any person,
firm, company or corporation, other than the Underwriters, the Company, the Guarantor and their
respective successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs, estates and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the Underwriters, the Company, the Guarantor and their respective successors, and said
controlling persons and officers and directors and their heirs, estates and legal representatives,
and for the benefit of no other person, firm, company or corporation. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 14.
GOVERNING LAW
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICTS OF LAWS
PRINCIPLES THEREOF TO THE EXTENT THEY WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION.
SECTION 15.
SUBMISSION TO JURISDICTION AND WAIVER
. By the execution and delivery of
this Agreement, the Company and the Guarantor submit to the non-exclusive jurisdiction of any
federal or New York State court located in the City of New York in any suit or proceeding arising
out of or relating to the Securities or this Agreement. Each of the parties hereto 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 in any New York State or federal court in
the City of New York, or any appellate court with respect to any of the foregoing. 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. To the extent
that the Company or the Guarantor has or hereafter may acquire any immunity from jurisdiction of
any court (including, without limitation, any court in the United States, the State of New York,
Bermuda or any political subdivision thereof) or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property or assets, this Agreement, or any other actions to enforce
judgments in respect of any thereof, the Company and the Guarantor hereby irrevocably waive such
immunity, and any defense based on such immunity, in respect of their respective obligations under
the above-referenced documents and the transactions contemplated thereby, to the fullest extent
permitted by law.
In addition to the foregoing, each of the Company and the Guarantor agrees to irrevocably
appoint CT Corporation Systems as its authorized agent on which any and all legal process may be
served in any such action, suit or proceeding brought in the courts specified in the preceding
paragraph. Each of the Company and the Guarantor agrees that service of process in respect of it
upon such agent shall be deemed to be effective service of process upon it in any such action, suit
or proceeding. Each of the Company and the Guarantor agrees that the failure of such agent to give
notice to it of any such service shall not impair or affect the validity of such service or any
judgment rendered in any such action, suit or proceeding based thereon. If for any reason such
agent shall cease to be available to act as such, each of
25
the Company and the Guarantor agrees to irrevocably appoint another such agent in New York
City as its authorized agent for service of process, on the terms and for the purposes of this
Section 15. Nothing herein shall in any way be deemed to limit the ability of the Underwriters,
the Trustee or any other person to serve any such legal process in any other manner permitted by
applicable law or to obtain jurisdiction over the Company or the Guarantor or bring actions, suits
or proceedings against them in such other jurisdiction, and in such matter, as may be permitted by
applicable law.
SECTION 16.
Counterparts
. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
SECTION 17.
Effect of Headings
. The Section headings herein are for convenience only
and shall not affect the construction hereof.
[signatures on following page]
26
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters, the Company and the Guarantor in accordance
with its terms.
|
|
|
|
|
|
|
|
Very truly yours,
WEATHERFORD INTERNATIONAL LTD.
|
|
|
|
By
|
/s/ Burt M. Martin
|
|
|
|
|
Burt M. Martin, Senior Vice President
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WEATHERFORD INTERNATIONAL, INC.
|
|
|
|
By
|
/s/ Burt M. Martin
|
|
|
|
|
Burt M. Martin, Senior Vice President
|
|
|
|
|
|
|
|
|
27
CONFIRMED AND ACCEPTED,
as of the date first above written:
|
|
|
|
|
|
GOLDMAN, SACHS & CO.
|
|
|
By
|
|
/s/ Goldman, Sachs & Co.
|
|
|
|
|
|
(Goldman, Sachs & Co.)
|
|
|
|
|
|
|
|
|
|
|
|
|
DEUTSCHE BANK SECURITIES INC.
|
|
|
By
|
|
/s/ Ben Smilchensky
|
|
|
|
|
|
Ben Smilchensky
|
|
|
|
|
Managing Director
|
|
|
|
|
|
|
|
|
|
|
|
By
|
|
/s/ Ryan Montgomery
|
|
|
|
|
Ryan Montgomery
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
MERRILL LYNCH, PIERCE, FENNER AND SMITH,
INCORPORATED
|
|
|
By
|
|
/s/ Aaron R. Hoover
|
|
|
|
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
28
SCHEDULE A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5.15% Senior Notes
|
|
6.00% Senior Notes
|
|
7.00% Senior Notes
|
|
Underwriter
|
|
due 2013
|
|
due 2018
|
|
due 2038
|
|
Goldman, Sachs & Co.
|
|
$
|
125,000,000
|
|
|
$
|
125,000,000
|
|
|
$
|
125,000,000
|
|
|
|
|
Deutsche Bank
Securities Inc.
|
|
$
|
125,000,000
|
|
|
$
|
125,000,000
|
|
|
$
|
125,000,000
|
|
|
|
|
Merrill Lynch,
Pierce, Fenner &
Smith Incorporated
|
|
$
|
125,000,000
|
|
|
$
|
125,000,000
|
|
|
$
|
125,000,000
|
|
|
|
|
ABN AMRO
Incorporated
|
|
$
|
50,000,000
|
|
|
$
|
50,000,000
|
|
|
$
|
50,000,000
|
|
|
|
|
J.P. Morgan
Securities Inc.
|
|
$
|
50,000,000
|
|
|
$
|
50,000,000
|
|
|
$
|
50,000,000
|
|
|
|
|
Simmons & Company
International
|
|
$
|
25,000,000
|
|
|
$
|
25,000,000
|
|
|
$
|
25,000,000
|
|
|
|
|
Total
|
|
$
|
500,000,000
|
|
|
$
|
500,000,000
|
|
|
$
|
500,000,000
|
|
Sch A-1
SCHEDULE B
FREE WRITING PROSPECTUSES
The Final Term Sheet attached to the Agreement as Schedule D
Sch B-1
SCHEDULE C
SCHEDULED SUBSIDIARIES
|
|
|
|
|
List Company Name
|
|
Jurisdiction
|
|
Weatherford Bermuda Holdings Ltd.
|
|
Bermuda
|
|
|
|
Weatherford Canada Ltd.
|
|
Alberta, Canada
|
|
|
|
Weatherford Canada Partnership
|
|
Alberta, Canada
|
|
|
|
Weatherford U.S. Holdings, L.L.C.
|
|
Delaware, USA
|
Sch C-1
SCHEDULE D
Filed Pursuant to Rule 433
Registration No. 333-135244
March 19, 2008
FINAL TERM SHEET
$500,000,000 5.15% due March 15, 2013
$500,000,000 6.00% due March 15, 2018
$500,000,000 7.00% due March 15, 2038
|
|
|
|
|
Issuer:
|
|
Weatherford International Ltd. (Bloomberg Ticker: “WFT”)
|
|
Guarantor:
|
|
Weatherford International, Inc.
|
|
Ratings:
|
|
Baa1 (stable) Moody’s / BBB+ (stable) S&P
|
|
Securities:
|
|
$500,000,000 5.15% Senior Notes due March 15, 2013
|
|
|
|
$500,000,000 6.00% Senior Notes due March 15, 2018
|
|
|
|
$500,000,000 7.00% Senior Notes due March 15, 2038
|
|
Format:
|
|
SEC registered (global) (No. 333-135244)
|
|
CUSIP / ISIN No.
|
|
2013 Notes: 947075 AC1 / US947075AC16
|
|
|
|
2018 Notes: 947075 AD9 / US947075AD98
|
|
|
|
2038 Notes: 947075 AE7 / US947075AE71
|
|
Trade Date:
|
|
March 19, 2008
|
|
Expected Settlement:
|
|
March 25, 2008
|
|
Maturity:
|
|
2013 Notes: March 15, 2013
|
|
|
|
2018 Notes: March 15, 2018
|
|
|
|
2038 Notes: March 15, 2038
|
|
Price To Public:
|
|
2013 Notes: 99.794% of principal amount
|
|
|
|
2018 Notes: 99.462% of principal amount
|
|
|
|
2038 Notes: 99.655% of principal amount
|
|
Coupon:
|
|
2013 Notes: 5.15% per year (payable semi-annually)
|
|
|
|
2018 Notes: 6.00% per year (payable semi-annually)
|
|
|
|
2038 Notes: 7.00% per year (payable semi-annually)
|
|
|
|
from March 25, 2008 to but excluding March 15, 2013, March 15,
|
|
|
|
2018, and March 15, 2038 for the 2013 Notes, 2018 Notes and 2038
|
|
|
|
Notes, respectively
|
|
Interest Payment Dates:
|
|
March 15 and September 15, beginning September 15, 2008
|
|
Benchmark Treasury:
|
|
2013 Notes: 2.75% due February 28, 2013
|
|
|
|
2018 Notes: 3.50% due February 15, 2018
|
|
|
|
2038 Notes: 5.00% due May 15, 2037
|
|
Benchmark Treasury Spot:
|
|
2013 Notes: 2.368%
|
|
|
|
2018 Notes: 3.373%
|
|
|
|
2038 Notes: 4.198%
|
Sch D-1
|
|
|
|
|
Spread:
|
|
2013 Notes: +283 basis points over Benchmark Treasury
|
|
|
|
2018 Notes: +270 basis points over Benchmark Treasury
|
|
|
|
2038 Notes: +283 basis points over Benchmark Treasury
|
|
Yield:
|
|
2013 Notes: 5.198%
|
|
|
|
2018 Notes: 6.073%
|
|
|
|
2038 Notes: 7.028%
|
|
Make Whole Call At Any Time:
|
|
The greater of 100% of principal amount or discounted present value
|
|
|
|
at Adjusted Treasury Rate +45 bps (0.45%) for the 2013 Notes,
|
|
|
|
+40 bps (0.40%) for the 2018 Notes, and +45 bps (0.45%) for the
|
|
|
|
2038 Notes
|
|
Denominations:
|
|
$2,000 and multiples of $1,000 in excess of $2,000
|
|
Joint Bookrunners:
|
|
Goldman, Sachs & Co.
|
|
|
|
Deutsche Bank Securities Inc.
|
|
|
|
Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
|
Co-Managers:
|
|
ABN AMRO Incorporated
|
|
|
|
J.P. Morgan Securities Inc.
|
|
|
|
Simmons & Company International
|
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
Goldman, Sachs & Co. toll-free at 1-866-471-2526, Deutsche Bank Securities Inc. toll-free at
1-800-503-4611, or Merrill Lynch, Pierce, Fenner & Smith Incorporated toll-free at 1-866-500-5408.
Sch D-2
Exhibit A-1
FORM OF OPINION OF COMPANY’S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
|
1.
|
|
The statements in the Disclosure Package and the Prospectus under the caption “Description of
Notes,” and “Description of Debt Securities,” insofar as such statements purport to summarize
certain provisions of documents referred to therein and reviewed by us as described above,
constitute descriptions of agreements or refer to statements of law or legal conclusions,
fairly summarize the matters referred to therein in all material respects, subject to the
qualifications and assumptions stated therein.
|
|
2.
|
|
The Company is not required, and upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds therefrom as described in the Prospectus
and the Disclosure Package will not be required, to register as an “investment company” within
the meaning of said term as used in the 1940 Act.
|
|
3.
|
|
No Governmental Approval is required on the part of any Weatherford Entity for the execution,
delivery and performance by such Weatherford Entity of the Underwriting Agreement and the
sale, issuance and delivery of the Securities under the Underwriting Agreement, except for
Governmental Approvals that have been obtained. As used in this paragraph, “
Governmental
Approval
” means any consent, approval, license, authorization or validation of, or filing,
recording or registration with, any executive, legislative, judicial, administrative or
regulatory body of the State of New York, the State of Texas, the State of Delaware or the
United States of America, pursuant to (i) applicable laws of the State of New York, (ii)
applicable laws of the State of Texas, (iii) the General Corporation Law of the State of
Delaware (the “
DGCL
”) or (iv) applicable laws of the United States of America.
|
|
4.
|
|
The Notes are in the form contemplated by the Indenture.
|
|
5.
|
|
The Indenture has been duly authorized, executed and delivered by the Guarantor and
constitutes the valid and binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms, under the applicable laws of the State of New York,
except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent conveyances or transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), including, without limitation,
the possible unavailability of specific performance, injunctive relief or any other equitable
remedy and concepts of materiality, reasonableness, good faith and fair dealing.
|
|
6.
|
|
The Guarantee has been duly authorized by the Guarantor and, when the Notes have been duly
authenticated by the Trustee in accordance with the provisions of the Indenture (which fact we
have not determined by an inspection of the Securities) and delivered to and paid for by the
Underwriters in accordance with the Underwriting Agreement, the Guarantee will constitute a
valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance
|
A-1-1
|
|
|
with its terms, under the applicable laws of the State of New York, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent conveyances or transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors’ rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), including, without limitation, the possible
unavailability of specific performance, injunctive relief or any other equitable remedy and
concepts of materiality, reasonableness, good faith and fair dealing.
|
|
7.
|
|
Assuming the due authorization, execution and delivery of the Indenture by the Company, the
Indenture constitutes the valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, under the applicable laws of the State of New York,
except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent conveyances or transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), including, without limitation,
the possible unavailability of specific performance, injunctive relief or any other equitable
remedy and concepts of materiality, reasonableness, good faith and fair dealing.
|
|
8.
|
|
Assuming the due authorization by the Company of the Notes, when the Notes have been issued
and executed by the Company and duly authenticated by the Trustee in accordance with the
provisions of the Indenture (which fact we have not determined by an inspection of the
Securities) and delivered to and paid for by the Underwriters in accordance with the
Underwriting Agreement, the Notes will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with their terms, under the applicable
laws of the State of New York, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent conveyances or
transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’
rights generally and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at law),
including, without limitation, the possible unavailability of specific performance, injunctive
relief or any other equitable remedy and concepts of materiality, reasonableness, good faith
and fair dealing, and will be entitled to the benefits of the Indenture.
|
|
9.
|
|
(a) The Registration Statement and the Prospectus, as of their respective effective or issue
dates (other than the financial statements and the notes and supporting schedules, and other
financial and related accounting data, included therein or excluded therefrom or the exhibits
to the Registration Statement, as to which no opinion is rendered), appeared on their face to
be appropriately responsive in all material respects to the requirements of the Securities Act
and the Rules and Regulations; and (b) the Incorporated Documents, when they were filed with
the Commission, appeared on their face to be appropriately responsive in all material respects
with the requirements of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder.
|
10. The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended.
In addition, we have participated in conferences with certain officers and other
representatives of the Company and the Guarantor, representatives of the independent public
accountants of the Company and the Guarantor and the Underwriters’ representatives, at which the
contents of the Registration Statement, the Disclosure Package and the Prospectus and related
matters were discussed. Although we
A-1-2
are not (except with respect to the opinion set forth in paragraph 1 above) passing upon and
do not (except with respect to the opinion set forth in paragraph 1 above) assume any
responsibility for and shall not be deemed to have independently verified the accuracy,
completeness or fairness of the statements contained in the Registration Statement, the Disclosure
Package or the Prospectus, or incorporated by reference therein, on the basis of the foregoing
(relying with respect to factual matters to the extent we deem appropriate upon statements made by
officers and other representatives of the Company and the Guarantor), no facts have come to our
attention that have led us to believe that (i) the Registration Statement, at the most recent time
such Registration Statement became effective, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Disclosure Package, as of the Applicable Time (which
you have informed us is a time prior to the time of the first sale of the Securities by any
Underwriter), contained an untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, (iii) as of its date, the Prospectus contained an untrue
statement of a material fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
or (iv) as of the date hereof, the Prospectus contains an untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, it being understood that we did not
participate in the preparation of the Incorporated Documents and that we express no statement or
belief in this letter with respect to (A) the financial statements and related schedules, including
the notes and schedules thereto and the auditor’s report thereon, and (B) any other financial or
accounting data, included or incorporated or deemed incorporated by reference in, or excluded from,
the Registration Statement, the Prospectus or the Disclosure Package.
Furthermore, we advise you that (i) the Registration Statement has become effective under the
Securities Act and (ii) to our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no proceeding for that purpose
has been instituted or is pending or threatened by the Commission. The Prospectus was filed with
the Commission on March ___, 2008 in the manner and within the time period required by Rule 424(b)
of the Rules and Regulations. The Term Sheet was filed with the Commission on March ___, 2008 in
the manner and within the time period required by Rule 433 of the Rules and Regulations.
In rendering such opinion, such counsel may state that their opinion is limited to matters
governed by the Federal laws of the United States of America, the laws of the State of Texas and
the State of New York and the General Corporation Law of the State of Delaware. In addition, such
counsel may state that their opinion is subject to customary exceptions and qualifications. In
giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York, the State of Texas and the federal law of the United
States and the General Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public officials.
A-1-3
Exhibit A-2
FORM OF OPINION OF COMPANY’S IN-HOUSE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(ii)
|
1.
|
|
The Company is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not reasonably be expected to result in a Material
Adverse Effect.
|
|
2.
|
|
The Guarantor is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not reasonably be expected to result in a material
adverse change in the consolidated financial position, shareholders’ equity, results of
operations or business of the Guarantor and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a “
Guarantor Material Adverse
Effect
”).
|
|
3.
|
|
Each of the Significant Subsidiaries set forth on
Schedule I
hereto (the
“
Scheduled Subsidiaries
”), if a corporation, is duly incorporated, and if a general
partnership or limited liability company, is duly formed or organized. Each of the Scheduled
Subsidiaries, if a corporation, is a corporation validly existing in good standing under the
laws of the jurisdiction of its incorporation, with due corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the Disclosure
Package and the Prospectus, if a general partnership, is validly subsisting under the laws of
the jurisdiction of its formation, with due power and authority to own, lease and operate its
properties and conduct its business as described in the Disclosure Package and the Prospectus,
and if a limited liability company, is validly existing in good standing (where applicable)
under the laws of the jurisdiction of its formation, with due power and authority to own,
lease and operate its properties and conduct its business as described in the Disclosure
Package and the Prospectus; and all of the outstanding shares of capital stock of each of the
corporate Scheduled Subsidiaries have been duly authorized and validly issued, are fully paid
and non-assessable, and all of the outstanding partnership interests of the general partner
Scheduled Subsidiaries and the limited liability company interests of the limited liability
company Scheduled Subsidiaries are held of record, directly or indirectly, by the Company.
|
|
4.
|
|
To my knowledge, there is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending or threatened against
or affecting the Company or any of its subsidiaries, or to which any of their respective
properties are subject that would reasonably be expected to result in a Material Adverse
Effect, or which could reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in the Underwriting Agreement and the Indenture
or the performance by the Company and the Guarantor of their respective obligations
thereunder.
|
|
5.
|
|
The (i) execution and delivery of, and the performance by each of the Company and the
Guarantor of its respective obligations under, the Transactions Agreements to which it is a
party, (ii) consummation of the transactions contemplated in the Underwriting Agreement
(including the
|
A-2-1
|
|
|
use of the proceeds from the sale of the Securities as described in the Prospectus under the
caption “Use of Proceeds”), and (iii) compliance by each of the Company and the Guarantor
with its respective obligations under the Transaction Agreements to which it is a party, do
not and will not, whether with or without the giving of notice or lapse of time or both,
constitute a breach of, or default or Repayment Event (as defined in Section 1(a)(17) of the
Underwriting Agreement) under any indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to me, to which the
Company or any subsidiary is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any subsidiary is subject (except for such
breaches, defaults or Repayment Events that would not reasonably be expected to have a
Material Adverse Effect, or in the case of Guarantor, a Guarantor Material Adverse Effect),
nor will such action result in any violation of the provisions of the charter or by-laws of
the Scheduled Subsidiaries or any applicable law, judgment, order, writ or decree known to
me of any government, government instrumentality or court domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their respective properties,
assets or operations.
|
|
6.
|
|
All descriptions in the Registration Statement of contracts and other documents to which the
Company or its subsidiaries are a party are accurate in all material respects; and to my
knowledge, there are no franchises, contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits to the Registration Statement other than those described
or referred to therein or filed or incorporated by reference as exhibits thereto.
|
|
7.
|
|
The Registration Statement and the Prospectus, as of their respective effective or issue
dates (other than the financial statements and the notes and supporting schedules, and other
financial and related accounting data, included therein or excluded therefrom, the documents
incorporated by reference therein, or the exhibits to the Registration Statement, as to which
no opinion is rendered), appeared on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act and the Rules and Regulations.
|
In addition, I have participated in conferences with certain officers and other
representatives of the Company and the Guarantor, representatives of the independent public
accountants of the Company and the Guarantor and the Underwriters’ representatives, at which the
contents of the Registration Statement, the Disclosure Package and the Prospectus and related
matters were discussed. Although I am not (except with respect to the opinion set forth in
paragraph 6 above) passing upon and do not (except with respect to the opinion set forth in
paragraph 6 above) assume any responsibility for and shall not be deemed to have independently
verified the accuracy, completeness or fairness of the statements contained in the Registration
Statement, the Disclosure Package or the Prospectus, or incorporated by reference therein, on the
basis of the foregoing (relying with respect to factual matters to the extent I deem appropriate
upon statements made by officers and other representatives of the Company and the Guarantor), no
facts have come to my attention that have led me to believe that (i) the Registration Statement, at
the most recent time such Registration Statement became effective, contained an untrue statement of
a material fact or omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the Disclosure Package, as of the Applicable Time
(which you have informed me is a time prior to the time of the first sale of the Securities by any
Underwriter), contained an untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, (iii) as of its date, the Prospectus contained an untrue
statement of a material fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
or (iv) as of the date hereof, the Prospectus contains an untrue statement of a material fact or
omits to state any material fact necessary in order to
A-2-2
make the statements therein, in the light of the circumstances under which they were made, not
misleading, it being understood I express no statement or belief in this letter with respect to (A)
the financial statements and related schedules, including the notes and schedules thereto and the
auditor’s report thereon, and (B) any other financial or accounting data, included or incorporated
or deemed incorporated by reference in, or excluded from, the Registration Statement, the
Prospectus or the Disclosure Package.
In rendering such opinion, such counsel may state that his opinion is limited to matters
governed by the Federal laws of the United States of America, the laws of the State of Texas and
the General Corporation Law of the State of Delaware. In addition, such counsel may state that his
opinion is subject to customary exceptions and qualifications.
A-2-3
Exhibit A-3
FORM OF OPINION OF COMPANY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(iii)
|
1.
|
|
The Company is duly incorporated and existing under the laws of Bermuda in good standing
(meaning solely that it has not failed to make any filing with any Bermuda governmental
authority, or to pay any Bermuda government fee or tax, which would make it liable to be
struck off the Register of Companies and thereby cease to exist under the laws of Bermuda).
|
|
2.
|
|
The Company has the necessary corporate power and authority to execute, deliver and perform
its obligations under the Underwriting Agreement, the Indenture and the Notes (collectively,
the “Documents”), including the execution and delivery of the Notes, and the necessary
corporate power to conduct its business as described under the captions “Weatherford
International Ltd.” and “Weatherford International, Inc.” in the Base Prospectus and as
otherwise described in the Preliminary Prospectus and the Prospectus. The execution and
delivery of the Documents by the Company and the performance by the Company of its obligations
thereunder will not violate the memorandum of association or bye-laws of the Company nor any
applicable law, regulation, order or decree in Bermuda.
|
|
3.
|
|
The Company has taken all corporate action required to authorise its execution, delivery and
performance of the Documents, including the execution and delivery of the Notes. The
Documents have been duly executed and delivered by or on behalf of the Company, and constitute
the valid and binding obligations of the Company, enforceable against the Company in
accordance with the terms thereof.
|
|
4.
|
|
No order, consent, approval, licence, authorisation or validation of, filing with or
exemption by any government or public body or authority of Bermuda or any sub-division thereof
is required to authorise or is required in connection with the execution, delivery,
performance and enforcement of the Documents, including the execution and delivery of the
Notes, except such as have been duly obtained or filed in accordance with Bermuda law.
|
|
5.
|
|
It is not necessary or desirable to ensure the enforceability in Bermuda of the Documents
that they be registered in any register kept by, or filed with, any governmental authority or
regulatory body in Bermuda. However, to the extent that any of the Documents creates a charge
over assets of the Company, it may be desirable to ensure the priority in Bermuda of the
charge that it be registered in the Register of Charges in accordance with Section 55 of the
Companies Act 1981. On registration, to the extent that Bermuda law governs the priority of a
charge, such charge will have priority in Bermuda over any unregistered charges, and over any
subsequently registered charges, in respect of the assets which are the subject of the charge.
A registration fee of $515 will be payable in respect of the registration.
|
|
|
|
|
|
While there is no exhaustive definition of a charge under Bermuda law, a charge includes any
interest created in property by way of security (including any mortgage, assignment, pledge,
lien or hypothecation). As the Documents are governed by the Foreign Laws, the question of
whether they create such an interest in property would be determined under the Foreign Laws.
|
A-3-1
|
6.
|
|
The Documents will not be subject to ad valorem stamp duty in Bermuda and no registration,
documentary, recording, transfer or other similar tax, fee or charge is payable in Bermuda
other than as stated in paragraph 5 hereof in connection with the execution, delivery, filing,
registration or performance of the Documents or in connection with the admissibility in
evidence thereof (other than ordinary court filing fees).
|
|
7.
|
|
The Company has received an assurance from the Minister of Finance under the Exempted
Undertakings Tax Protection Act, 1966 that in the event of there being enacted in Bermuda any
legislation imposing tax computed on profits or income or computed on any capital asset, gain
or appreciation, or any tax in the nature of estate duty or inheritance tax, then the
imposition of any such tax shall not until 28 March 2016 be applicable to the Company or any
of its operations or its shares, debentures or other obligations except insofar as such tax
applies to persons ordinarily resident in Bermuda or to tax payable in accordance with the
provisions of the Land Tax Act 1967 or otherwise payable in relation to any land leased to the
Company.
|
|
8.
|
|
Based solely upon a review of the register of members of the Company dated March ___, 2008,
prepared by American Stock Transfer & Trust Company, the branch registrar of the Company, the
issued share capital of the Company consists of ___common shares, par value US$1.00, each of
which is validly issued, fully paid and non-assessable (which term when used herein means that
no further sums are required to be paid by the holders thereof in connection with the issue
thereof). The issued shares of the Company are not subject to any statutory pre-emptive or
similar rights.
|
|
9.
|
|
The statements contained (a) in the Base Prospectus under the section “Description of Share
Capital”, and (b) in “Item 15 — Indemnification of Directors and Officers” of the Registration
Statement, to the extent that they constitute statements of Bermuda law are accurate in all
material respects.
|
|
10.
|
|
Based solely on a search of the public records in respect of the Company maintained at the
offices of the Registrar of Companies at ___on March ___, 2008 (which would not reveal details
of matters which have not been lodged for registration or have been lodged for registration
but not actually registered at the time of our search) and a search of the Cause Book of the
Supreme Court of Bermuda conducted at ___on March ___, 2008 (which would not reveal details of
proceedings which have been filed but not actually entered in the Cause Book at the time of
our search), no steps have been, or are being, taken in Bermuda for the appointment of a
receiver or liquidator to, or for the winding-up, dissolution, reconstruction or
reorganisation of, the Company.
|
|
11.
|
|
The choice of the Foreign Laws as the governing law of the Documents is a valid choice of law
and would be recognised and given effect to in any action brought before a court of competent
jurisdiction in Bermuda, except for those laws (i) which such court considers to be procedural
in nature, (ii) which are revenue or penal laws or (iii) the application of which would be
inconsistent with public policy, as such term is interpreted under the laws of Bermuda. The
submission in the Underwriting Agreement and the Indenture to the non-exclusive jurisdiction
of the Foreign Courts, and the appointment of CT Corporation Systems by the Company as its
agent for service of legal process in connection with proceedings in the Foreign Courts
pursuant to the Underwriting Agreement, is valid and binding upon the Company.
|
|
12.
|
|
The courts of Bermuda would recognise as a valid judgment, a final and conclusive judgment in
personam obtained in the Foreign Courts against the Company based upon the Documents under
which a sum of money is payable (other than a sum of money payable in respect of multiple
|
A-3-2
|
|
|
damages, taxes or other charges of a like nature or in respect of a fine or other penalty)
and would give a judgment based thereon provided that (a) such courts had proper
jurisdiction over the parties subject to such judgment, (b) such courts did not contravene
the rules of natural justice of Bermuda, (c) such judgment was not obtained by fraud, (d)
the enforcement of the judgment would not be contrary to the public policy of Bermuda, (e)
no new admissible evidence relevant to the action is submitted prior to the rendering of the
judgment by the courts of Bermuda and (f) there is due compliance with the correct
procedures under the laws of Bermuda.
|
|
13.
|
|
The authorised capital of the Company conforms, as to legal matters, to the description
thereof contained in the Base Prospectus contained in the Registration Statement in all
material respects.
|
|
14.
|
|
There is no income or other tax of Bermuda imposed by withholding or otherwise on any payment
to be made by the Company to the holders of the Notess.
|
|
15.
|
|
The Company has been designated as non-resident of Bermuda for the purposes of the Exchange
Control Act, 1972 and, as such, is free to acquire, hold, transfer and sell foreign currency
(including the payment of dividends or other distributions) and securities without
restriction.
|
|
16.
|
|
The Company is not entitled to any immunity under the laws of Bermuda, whether characterised
as sovereign immunity or otherwise, from any legal proceedings to enforce the Documents in
respect of itself or its property.
|
|
17.
|
|
The obligations of the Company under the Notes will rank at least pari passu in priority of
payment with all other unsecured unsubordinated indebtedness of the Company, other than
indebtedness which is preferred by virtue of any provision of the laws of Bermuda of general
application.
|
A-3-3
Exhibit A-4
FORM OF OPINION OF UNDERWRITERS’ COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)(i)
|
1.
|
|
The Indenture has been duly authorized on behalf of the Guarantor. The Indenture has been
duly executed and delivered by the Guarantor, and constitutes the valid and binding obligation
of the Guarantor, and, assuming that (a) the Indenture has been duly authorized, executed and
delivered by the Company and (b) the Company has the necessary exempted company power and
authority to execute and deliver, and perform its obligations under, the Indenture, the
Indenture constitutes a valid and binding obligation of the Company and the Guarantor,
enforceable against the Company and the Guarantor in accordance with its terms, under the
applicable laws of the State of New York, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’
rights generally and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at law) and
judicial discretion.
|
|
2.
|
|
Assuming that (a) the Global Note has been duly authorized, executed and delivered by the
Company and (b) the Company has the necessary exempted company power and authority to execute
and deliver, and perform its obligations under, the Global Note, when the Global Note has been
issued, executed and authenticated in accordance with the terms of the Indenture and delivered
against payment therefor in accordance with the terms of the Indenture and the Agreement, the
Global Note will constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, under the applicable laws of the State of New York,
except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and judicial discretion, and will be entitled to the benefits
of the Indenture.
|
|
3.
|
|
The Global Note is in the form contemplated by the Indenture.
|
|
4.
|
|
The Guarantee has been duly authorized on behalf of the Guarantor and, when the Global Note
has been duly authenticated by the Trustee in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the Agreement, the
Guarantee will constitute a valid and binding obligation of the Guarantor, enforceable against
the Guarantor in accordance with its terms, under the applicable laws of the State of New
York, except as the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors’ rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and judicial discretion.
|
|
5.
|
|
The Registration Statement has become effective under the 1933 Act and any required filing of
the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period
|
A-4-1
|
|
|
required by Rule 424(b). The Final Term Sheet has been filed with the Commission in
accordance with the requirements of Rule 433 under the 1933 Act.
|
|
6.
|
|
To our knowledge, no stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceeding for that purpose has been instituted or
is pending or threatened by the Commission.
|
During the course of the preparation of the Preliminary Prospectus Supplement and the
Prospectus Supplement, we have participated in conferences with officers and other representatives
of the Company and the Guarantor and your representatives, at which the contents of the
Registration Statement, the Disclosure Package and the Prospectus and related matters were
discussed, and, although we are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of any portion of the Registration Statement, the Disclosure
Package and Prospectus (except for financial statements and notes and related schedules and other
related financial and accounting data included or incorporated by reference therein or omitted
therefrom and the Form T-1, as to which we make no statement), and we have not checked the accuracy
or completeness of, or otherwise verified any information contained in the Registration Statement,
the Disclosure Package and Prospectus, on the basis of the foregoing (relying as to materiality to
a certain extent upon officers and other representatives of the Company and the Guarantor), no
facts have come to our attention which have caused us to believe that, (i) as of the most recent
effective date of the Registration Statement, the Registration Statement contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) as of the Applicable Time (which you
have informed us is the time of the first sale of the Securities by any Underwriter), the
Disclosure Package contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the circumstances in which
they were made, not misleading, or (iii) as of its date, the Prospectus contained, or, as of the
date hereof, contains, an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
in which they were made, not misleading, except that we make no comment with respect to (A) the
financial statements and related schedules, including the notes and schedules thereto and the
auditor’s report thereon, and (B) any other financial or accounting data, included or incorporated
or deemed incorporated by reference in, or excluded from, the Registration Statement, the
Prospectus or the Disclosure Package.
In rendering such opinion, such counsel may state that their opinion is limited to matters
governed by the Federal laws of the United States of America, the laws of the State of Texas and
the State of New York and the General Corporation Law of the State of Delaware. In addition, such
counsel may state that their opinion is subject to customary exceptions and qualifications. In
giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York, the State of Texas and the federal law of the United
States and the General Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public officials.
A-4-2
Exhibit A-5
FORM OF OPINION OF UNDERWRITERS’ COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)(ii)
|
(1)
|
|
The Company is an exempted company incorporated with limited liability and existing under the
laws of Bermuda. The Company possesses the capacity to sue and be sued in its own name and is
in good standing under the laws of Bermuda.
|
|
(2)
|
|
The Company has all requisite corporate power and authority to enter into, execute, deliver,
and perform its obligations under the Subject Agreements including the issuance and delivery
of the Note to the Underwriters, and to take all action as may be necessary to complete the
transactions contemplated thereby.
|
|
(3)
|
|
The Company has the necessary corporate power to conduct the business authorised in its
Memorandum of Association and therefore, to conduct its business as described under the
captions “Weatherford International Ltd.” and “Our Business” in the Registration Statement.
|
|
(4)
|
|
The execution, delivery and performance by the Company of the Subject Agreements to which it
is a party and the transactions contemplated thereby (including the issue, sale and delivery
of the Note to the Underwriters) have been duly authorised by all necessary corporate action
on the part of the Company, pursuant to Bermuda law.
|
|
(5)
|
|
The Underwriting Agreement and the Indenture have been duly executed by the Company and each
constitutes legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with its terms.
|
|
(6)
|
|
The Note has been duly executed by the Company and, when authenticated and delivered in the
manner contemplated in the Indenture, will constitute a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms.
|
|
(7)
|
|
Subject as otherwise provided in this opinion, and except as provided in this paragraph, no
consent, licence or authorisation of, filing with, registration on any register kept by, or
other act by or in respect of, any governmental authority or court of Bermuda is required to
be obtained by the Company in connection with the execution, delivery or performance by the
Company of the Subject Agreements, including the issue and delivery of the Note, or to ensure
the legality,
|
A-5-1
|
|
|
validity, admissibility into evidence or enforceability as to the Company, of the Subject
Agreements except as have been duly obtained in accordance with Bermuda law.
|
|
(8)
|
|
The execution, delivery and performance by the Company of the Subject Agreements and the
transactions contemplated thereby and the issue of the Note do not and will not violate,
conflict with or constitute a default under (i) any requirement of any law or any regulation
of Bermuda or (ii) the Constitutional Documents.
|
|
(9)
|
|
Under Bermuda law, the Underwriters will not be deemed to be resident, domiciled, carrying on
any commercial activity in Bermuda or subject to any taxation in Bermuda by reason only of the
entry into, performance or enforcement of the Subject Agreements to which they are a party or
the transactions contemplated thereby. It is not necessary under Bermuda law that the
Underwriters be authorised, qualified or otherwise entitled to carry on business in Bermuda
for their execution, delivery, performance or enforcement of the Subject Agreements.
|
|
(10)
|
|
The choice of the laws of the State of New York as the proper law to govern the Underwriting
Agreement and the Indenture respectively (together the “Agreements”) is a valid choice of law
under Bermuda law and such choice of law would be recognised, upheld and applied by the courts
of Bermuda as the proper law of the Agreements in proceedings brought before them in relation
to the Agreements, provided that (i) the point is specifically pleaded; (ii) such choice of
law is valid and binding under the laws of the State of New York; and (iii) recognition would
not be contrary to public policy as that term is understood under Bermuda law.
|
|
(11)
|
|
The submission by the Company to the jurisdiction of the federal or New York State courts
located in the City of New York in respect of the Underwriting Agreement and any federal or
state court located in the Borough of Manhattan in the City of New York in respect of the
Indenture is not contrary to Bermuda law and would be recognised by the courts of Bermuda as a
legal, valid and binding submission to the jurisdiction of the said courts, if such submission
is accepted by such courts and is legal, valid and binding under the laws of the State of New
York.
|
|
(12)
|
|
A final and conclusive judgment of a foreign court against the Company based upon the Subject
Agreements (other than a court of jurisdiction to which The Judgments (Reciprocal Enforcement)
Act 1958 applies, and it does not apply to the courts of the State of New York) under which a
sum of money is payable (not being a sum payable in respect of taxes or other charges of a
like nature, in respect of a fine or other penalty, or in respect of multiple damages as
defined in The Protection of Trading Interests Act 1981) may be the subject of enforcement
proceedings in the
|
A-5-2
|
|
|
Supreme Court of Bermuda under the common law doctrine of obligation by action on the debt
evidenced by the foreign court’s judgment. A final opinion as to the availability of this
remedy should be sought when the facts surrounding the foreign court’s judgment are known,
but, on general principles, we would expect such proceedings to be successful provided that:
|
|
|
(i)
|
|
the court which gave the judgment was competent to hear the action in
accordance with private international law principles as applied in Bermuda; and
|
|
|
|
|
(ii)
|
|
the judgment is not contrary to public policy in Bermuda, has not been obtained
by fraud or in proceedings contrary to natural justice and is not based on an error in
Bermuda law.
|
Enforcement of such a judgment against assets in Bermuda may involve the conversion of the
judgment debt into Bermuda dollars, but the Bermuda Monetary Authority has indicated that its
present policy is to give the consents necessary to enable recovery in the currency of the
obligation.
|
(13)
|
|
Charges over the assets of Bermuda companies (other than real property in Bermuda or a ship
or aircraft registered in Bermuda) wherever situated, and charges on assets situated in
Bermuda (other than real property in Bermuda or a ship or aircraft registered in Bermuda)
which belong to companies incorporated outside Bermuda, are capable of being registered in
Bermuda in the office of the Registrar of Companies pursuant to the provisions of Part V of
the Companies Act 1981 (the “Act”). Registration under the Act is the only method of
registration of charges over the assets of Bermuda companies in Bermuda except charges over
real property in Bermuda or ships or aircraft registered in Bermuda. Registration under the
Act is not compulsory and does not affect the validity or enforceability of a charge and there
is no time limit within which registration of a charge must be effected. However, in the
event that questions of priority fall to be determined by reference to Bermuda law, any charge
registered pursuant to the Act will take priority over any other charge which is registered
subsequently in regard to the same assets, and over all other charges created over such assets
after 1 July, 1983, which are not registered.
|
|
|
|
|
|
As the Subject Agreements are governed by the laws of the State of New York, the question as
to whether any of the Subject Agreements creates a charge would be determined under the laws
of the State of New York.
|
|
|
|
|
|
Based solely upon the Company Search, there is one charge registered in Bermuda over assets
of the Company bearing registration number 14645 which was registered on 14
|
A-5-3
|
|
|
November 2002 being an Unlimited Guarantee dated 12 November 2002 made between the Company
and The Royal Bank of Scotland plc.
|
|
(14)
|
|
The appointment by the Company of CT Corporation Systems as agent for the receipt of any
service of process in respect of any court in the State of New York in connection with any
matter arising out of or in connection with the Agreements is a valid and effective
appointment, if such appointment is valid and binding under the laws of the State of New York
and if no other procedural requirements are necessary in order to validate such appointment.
|
A-5-4
EXHIBIT 4.1
WEATHERFORD INTERNATIONAL LTD.,
as Issuer
WEATHERFORD
INTERNATIONAL, INC.,
as
Guarantor
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 25, 2008
To
INDENTURE
Dated as
of October 1, 2003
5.15%
SENIOR
NOTES DUE
2013
6.00% SENIOR NOTES DUE 2018
7.00% SENIOR NOTES DUE 2038
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
Page
|
|
|
ARTICLE 1
Relation to Indenture; Definitions
|
|
|
1
|
|
|
|
|
|
|
|
|
SECTION 1.01.
Relation to Indenture
|
|
|
1
|
|
|
SECTION 1.02.
Definitions
|
|
|
1
|
|
|
SECTION 1.03.
General References
|
|
|
1
|
|
|
|
|
|
|
|
|
ARTICLE 2
The Series of Securities
|
|
|
1
|
|
|
|
|
|
|
|
|
SECTION 2.01.
The Form and Title of the Securities
|
|
|
1
|
|
|
SECTION 2.02.
Amount
|
|
|
2
|
|
|
SECTION 2.03.
Stated Maturity and Denominations
|
|
|
2
|
|
|
SECTION 2.04.
Interest and Interest Rates
|
|
|
2
|
|
|
SECTION 2.05.
Place of Payment
|
|
|
2
|
|
|
SECTION 2.06.
Optional Redemption
|
|
|
2
|
|
|
SECTION 2.07.
Unconditional Guarantee
|
|
|
2
|
|
|
|
|
|
|
|
|
ARTICLE 3
Other Amendments to Indenture
|
|
|
3
|
|
|
|
|
|
|
|
|
SECTION 3.01.
Amendments to Indenture
|
|
|
3
|
|
|
|
|
|
|
|
|
ARTICLE 4
Miscellaneous
|
|
|
6
|
|
|
|
|
|
|
|
|
SECTION 4.01.
Certain Trustee Matters
|
|
|
6
|
|
|
SECTION 4.02.
Continued Effect
|
|
|
6
|
|
|
SECTION 4.03.
Governing Law
|
|
|
6
|
|
|
SECTION 4.04.
Counterparts
|
|
|
7
|
|
|
|
|
|
|
|
|
EXHIBIT
|
|
|
|
|
|
Exhibit A:
|
|
Form of 2013 Note
|
|
|
|
|
|
Form of 2018 Note
|
|
|
|
|
|
Form of 2038 Note
|
|
|
|
Exhibit B:
|
|
Form of Guarantee Notation
|
|
|
First Supplemental Indenture
FIRST SUPPLEMENTAL INDENTURE dated as of March 25, 2008 (this “
First Supplemental Indenture
”),
among
Weatherford International Ltd.
, a Bermuda exempted company (the “
Company
”),
Weatherford International, Inc.
, a corporation duly organized and existing under the laws
of the State of Delaware (the “
Guarantor
”), and
Deutsche Bank Trust Company Americas
, a
New York banking corporation, as trustee under the Indenture referred to below (in such capacity,
the “
Trustee
”).
RECITALS OF THE COMPANY
WHEREAS, the Company, the Guarantor and the Trustee are parties to an Indenture dated as of
October 1, 2003 (the “
Original Indenture
”) (the Original Indenture, as supplemented from time to
time, including without limitation pursuant to this First Supplemental Indenture being referred to
herein as the “
Indenture
”); and
WHEREAS, under the Original Indenture, a new series of Securities may at any time be
established in accordance with the provisions of the Original Indenture, and the terms of such
series may be established by a supplemental indenture executed by the Company, the Guarantor and
the Trustee; and
WHEREAS, the Company and the Guarantor propose to create under the Indenture three new series
of Securities, which will be guaranteed by the Guarantor pursuant to its Guarantees as set forth in
Article Fourteen of the Original Indenture (as made applicable to the Notes, defined herein,
pursuant to this First Supplemental Indenture); and
WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee as provided in the Original Indenture and this First
Supplemental Indenture, the valid and binding obligations of the Company, to make the Guarantees of
such Notes by the Guarantor the valid and binding obligation of the Guarantor, and to make this
First Supplemental Indenture a valid and binding agreement in accordance with the Original
Indenture, have been done or performed;
NOW, THEREFORE, in consideration of the premises, agreements and obligations set forth herein
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree, for the equal and proportionate benefit of all
Holders of the Notes, as follows:
ARTICLE 1
Relation to Indenture; Definitions
SECTION 1.01.
Relation to Indenture.
With respect to the Notes and the Guarantees thereof by the Guarantor, this First Supplemental
Indenture constitutes an integral part of the Indenture.
SECTION 1.02.
Definitions.
For all purposes of this First Supplemental Indenture, capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned thereto in the Original Indenture.
SECTION 1.03.
General References.
All references in this First Supplemental Indenture to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this First Supplemental Indenture;
and the terms “
herein
”, “
hereof
”, “
hereunder
” and any other word of similar import refers to this
First Supplemental Indenture.
ARTICLE 2
The Series of Securities
SECTION 2.01.
The Form and Title of the Securities.
There is hereby established three new series of Securities to be issued under the Indenture
and to be designated as the Company’s 5.15% Senior Notes due 2013 (the “
2013 Notes
”), the Company’s
6.00% Senior Notes due 2018 (the “
2018 Notes
”) and the Company’s 7.00% Senior Notes due 2038 (the
“
2038 Notes
” and collectively
First Supplemental Indenture
with the 2013 Notes and the 2018 Notes, the “
Notes
”). The Notes shall be substantially in the
forms attached as
Exhibit A
hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by the Indenture, and
may have such letters, numbers or other marks of identification and such legends or endorsements
placed thereon as the Company may deem appropriate or as may be required or appropriate to comply
with any laws or with any rules made pursuant thereto or with the rules of any securities exchange
or automated quotation system on which the Notes may be listed or traded, or to conform to general
usage, or as may, consistently with the Indenture, be determined by the officers executing such
Notes, as evidenced by their execution thereof.
The Notes shall be executed, authenticated and delivered in accordance with the provisions of,
and shall in all respects be subject to, the terms, conditions and covenants of the Original
Indenture as supplemented by this First Supplemental Indenture (including the forms of Note set
forth as
Exhibit A
hereto (the terms of which are incorporated in and made a part of this
First Supplemental Indenture for all intents and purposes)).
SECTION 2.02.
Amount.
The aggregate principal amount of the Notes which may be authenticated and delivered pursuant
hereto is unlimited. The Trustee shall initially authenticate and deliver Notes for original issue
in initial aggregate principal amounts of up to $500,000,000 of the 2013 Notes, up to $500,000,000
of the 2018 Notes and up to $500,000,000 of the 2038 Notes upon delivery to the Trustee of a
Company Order for the authentication and delivery of such Notes. The Company may, from time to
time, without notice to or the consent of the Holders of the Notes, increase the principal amount
of the Notes under the Indenture and issue such increased principal amount (or any portion
thereof), in which case any additional Notes so issued will have the same form and terms (other
than the date of issuance and, under certain circumstances, the date from which interest thereon
will begin to accrue), and will carry the same right to receive accrued and unpaid interest, as the
Notes previously issued, and such additional Notes will form a single series with the Notes
previously issued.
SECTION 2.03.
Stated Maturity and Denominations.
The Stated Maturity of the 2013 Notes shall be March 15, 2013, of the 2018 Notes shall be
March 15, 2018 and of the 2038 Notes shall be March 15, 2038. The Notes are issuable only in
registered form without coupons in denominations of U.S. $2,000 and any integral multiple of $1,000
in excess thereof.
SECTION 2.04.
Interest and Interest Rates.
The rate or rates at which the Notes shall bear interest, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and
the Regular Record Date for any interest payable on any Interest Payment Date, in each case, shall
be as set forth in the form of applicable Note set forth as
Exhibit A
hereto.
SECTION 2.05.
Place of Payment.
As long as any Notes are outstanding, the Company shall maintain an office or agency in the
Borough of Manhattan, The City of New York, where Notes may be presented for payment.
SECTION 2.06.
Optional Redemption.
At its option, the Company may redeem any series of Notes, in whole or in part, in principal
amounts of $2,000 or an integral multiple of $1,000 in excess thereof, at any time or from time to
time, at the applicable redemption price determined as set forth in the form of applicable Note
attached hereto as
Exhibit A
, in accordance with the terms set forth in the Note and in
accordance with Article Eleven of the Original Indenture.
SECTION 2.07.
Unconditional Guarantee.
Article Fourteen of the Original Indenture (as amended and supplemented by this First
Supplemental Indenture) shall be applicable to the Notes, and accordingly, as more fully set forth
in such Article Fourteen, the Guarantor fully, irrevocably, unconditionally and absolutely
guarantees to the Holders of Notes and to the Trustee the due and punctual payment of the principal
of, and premium, if any, and interest on the Notes, and all other
First Supplemental Indenture
2
Indenture Obligations, when and as the same shall become due and payable, whether at the
Stated Maturity, upon redemption or by declaration of acceleration or otherwise.
To further evidence the Guarantees of the Notes, the Guarantor hereby agrees that a notation
of such Guarantees in substantially in the form attached as
Exhibit B
hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by the Indenture, shall be endorsed on each Note authenticated and delivered by the
Trustee and executed by either manual or facsimile signature of an officer of the Guarantor. The
Guarantor hereby agrees that its Guarantees of the Notes shall remain in full force and effect
notwithstanding any failure to endorse on any such Notes a notation relating to the Guarantees
thereof.
ARTICLE 3
Other Amendments to Indenture
SECTION 3.01.
Amendments to Indenture
The amendments contained in this Section 3.01 shall apply to the Notes only and not to any
other series of Securities issued under the Indenture. Such amendments shall be effective only for
so long as there remain outstanding any Notes. The Original Indenture is hereby amended, subject
to the preamble of this Section 3.01 and with respect to the Notes only, by adding the following as
a new Section 10.10 thereto:
Section 10.10 Change of Control Repurchase at the Option of Holders
(a) Upon the occurrence of a Change of Control Triggering Event, Holders of
Securities will have the right to require the Company to make an offer (the “Change
of Control Offer”) to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of their Securities at a purchase price in
cash equal to 101% of the aggregate principal amount of Securities repurchased plus
accrued and unpaid interest, if any, on the Securities repurchased, to the date of
purchase (the “Change of Control Payment”). Within 30 days following any Change of
Control Triggering Event, the Company will mail a notice to each Holder of
Securities describing the transaction or transactions that constitute the Change of
Control Triggering Event and stating:
(1) that the Change of Control Offer is being made pursuant to this
Section 10.10 and that all Securities tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no earlier
than 30 days and no later than 60 days from the date such notice is mailed
(the “Change of Control Payment Date”);
(3) that any Securities not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of
Control Payment, all Securities accepted for payment pursuant to the Change
of Control Offer will cease to accrue interest after the Change of Control
Payment Date;
(5) that Holders electing to have any Securities repurchased pursuant
to a Change of Control Offer will be required to surrender the Securities,
with the form entitled “Option of Holder to Elect Purchase” attached to the
Securities completed, or transfer by book-entry transfer, to the Paying
Agent at the address specified in the notice prior to the close of business
on the third Business Day preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile, transmission or letter setting forth the name of the
Holder, the principal amount of Securities delivered for purchase, and a
statement that such Holder is withdrawing his election to have the
Securities purchased; and
First Supplemental Indenture
3
(7) that Holders whose Securities are being purchased only in part will
be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered, which unpurchased portion must be
equal to $2,000 in principal amount or in any integral multiple of $1,000 in
excess thereof.
The Company will comply with the requirements of Rule 14e-1 under the Exchange
Act, and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with the repurchase of the
Securities as a result of a Change of Control Triggering Event. To the extent that
the provisions of any securities laws or regulations conflict with the provisions of
this Section 10.10 (or compliance with this Section 10.10 would constitute a
violation of any such laws or regulations), the Company will comply with the
applicable securities laws and regulations and will not be deemed to have breached
its obligations under this Section 10.10 by virtue of such conflicts.
(b) On or before the Change of Control Payment Date, the Company will be
required, to the extent lawful, to:
(1) accept for payment all Securities or portions of Securities
properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Securities or portions of Securities
properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Securities
properly accepted.
The Paying Agent will promptly (but in any case not later than five days after
the Change of Control Payment Date) mail to each Holder of Securities properly
tendered the Change of Control Payment for such Securities, and the Trustee will
promptly authenticate and mail (or cause to be transferred by book entry) to each
Holder a new Security equal in principal amount to any unpurchased portion of the
Securities surrendered, if any; provided that each new Security will be in a
principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The
Company will publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.
If Holders of not less than 95% in aggregate principal amount of a series of
outstanding Securities validly tender and do not withdraw such Securities in a
Change of Control Offer and the Company, or any third party making a Change of
Control Offer in lieu of the Company as described below, purchases all of such
Securities validly tendered and not withdrawn by such Holders, the Company will have
the right, upon not less than 30 nor more than 60 days’ prior notice, given not more
than 30 days following such purchase pursuant to the Change of Control Offer
described above, to redeem such Securities that remain outstanding following such
purchase at a redemption price in cash equal to the applicable Change of Control
Payment plus, to the extent not included in the Change of Control Payment, accrued
and unpaid interest, if any, to the date of redemption.
(d) Notwithstanding anything to the contrary in this Section 10.10, the Company
will not be required to make a Change of Control Offer with respect to a series of
Securities upon a Change of Control Triggering Event if (1) a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with
the requirements set forth in this Section 10.10 and purchases all Securities
properly tendered and not withdrawn under the Change of Control Offer, or (2) notice
of redemption has been given pursuant to Section 11.4 with respect to a redemption
of all such Securities then outstanding pursuant to Article Eleven, unless and until
there is a default in payment of the applicable redemption price.
(e) For purposes of this Section 10.10, the following definitions shall be
applicable:
First Supplemental Indenture
4
(1) “Below Investment Grade Rating Event” means, with respect to a
series of Securities, the Securities are rated below an Investment Grade
Rating by each of the Rating Agencies on any date from the date of the
public notice of an arrangement that could result in a Change of Control
until the end of the 60-day period following public notice of the occurrence
of the Change of Control (which 60-day period shall be extended so long as
the rating of the Securities is under publicly announced consideration for
possible downgrade by either of the Rating Agencies).
(2) “Change of Control” means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other disposition
(other than by way of merger, amalgamation or consolidation of the Company),
in one or a series of related transactions, of all or substantially all of
the properties or assets of the Company and its Subsidiaries taken as a
whole to any person (as such term is used in Section 13(d) of the Exchange
Act) other than the Company or one of its Subsidiaries or a Person
controlled by the Company or one of its Subsidiaries; (2) the consummation
of any transaction (including, without limitation, any merger, amalgamation
or consolidation) the result of which is that any person (as such term is
used in Section 13(d) of the Exchange Act) becomes the beneficial owner,
directly or indirectly, of more than 50% of the then outstanding number of
the Company’s voting shares (excluding a Redomestication of the Company); or
(3) the first day on which a majority of the members of the Company’s Board
of Directors are not Continuing Directors.
(3) “Change of Control Triggering Event” means the occurrence of both a
Change of Control and a Below Investment Grade Rating Event.
(4) “Continuing Directors” means, as of any date of determination, any
member of the Board of Directors of the Company who (1) was a member of such
Board of Directors on the date of the issuance of the Securities; or (2) was
nominated for election or appointed or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were members
of such Board of Directors at the time of such nomination, appointment or
election (either by a specific vote or by approval of the Company’s proxy
statement in which such member was named as a nominee for election as a
director, without objection to such nomination).
(5) “Investment Grade Rating” means a rating equal to or higher than
Baa3 (or the equivalent under any successor ratings categories of Moody’s)
by Moody’s and BBB- (or the equivalent under any successor ratings
categories of S&P) by S&P.
(6) “Moody’s” means Moody’s Investors Service, Inc.
(7) “Rating Agencies” means (1) each of Moody’s and S&P; and (2) if
either of Moody’s or S&P ceases to rate the Securities or fails to make a
rating of the Securities publicly available for reasons outside of the
Company’s control, a “nationally recognized statistical rating organization”
within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act,
selected by the Company (as certified by a resolution of the Company’s Board
of Directors) as a replacement agency for Moody’s or S&P, or both of them,
as the case may be.
(8) “Redomestication” means:
(a) any amalgamation, merger, conversion or consolidation of the Company with
or into any other person (as such term is used in Section 13(d) of the Exchange
Act), or of any other person (as such term is used in Section 13(d) of the Exchange
Act) with or into the Company, or the sale or other disposition (other than by
lease) of all or substantially all of the properties or assets of the Company and
its Subsidiaries taken as a whole to any other person (as such term is used in
Section 13(d) of the Exchange Act),
First Supplemental Indenture
5
(b) any continuation, discontinuation, amalgamation, merger, conversion,
consolidation or domestication or similar action with respect to the Company
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 voting shares of the Company (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 the Company 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 under the laws of any other jurisdiction,
whose voting shares of each class of capital stock 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 such
capital stock or shares of the entity constituting the Company immediately
prior thereto and, if the Surviving Person is the New Parent, the Surviving
Person continues to be owned, directly or indirectly, 100% by Persons who
were shareholders of the Company immediately prior to such transaction.
(9) “S&P” means Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc.
ARTICLE 4
Miscellaneous
SECTION 4.01.
Certain Trustee Matters.
The recitals contained herein shall be taken as the statements of the Company and the
Guarantor, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this First
Supplemental Indenture or the Notes or the proper authorization or the due execution hereof or
thereof by the Company.
SECTION 4.02.
Continued Effect.
Except as expressly supplemented and amended by this First Supplemental Indenture, the
Original Indenture shall continue in full force and effect in accordance with the provisions
thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This First
Supplemental Indenture and all of its provisions shall be deemed a part of the Original Indenture
in the manner and to the extent herein and therein provided.
SECTION 4.03.
Governing Law.
This First Supplemental Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
First Supplemental Indenture
6
SECTION 4.04.
Counterparts.
This instrument may be executed in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute but one and the same
instrument.
(Signature Pages Follow)
First Supplemental Indenture
7
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed and delivered, all as of the day and year first above written.
|
|
|
|
|
|
|
|
|
|
|
WEATHERFORD INTERNATIONAL LTD.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Burt M. Martin
|
|
|
|
|
|
Name:
|
|
Burt M. Martin
|
|
|
|
|
|
Title:
|
|
Senior Vice President and Corporate Secretary
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WEATHERFORD INTERNATIONAL, INC.,
|
|
|
|
|
|
as Guarantor
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Burt M. Martin
|
|
|
|
|
|
Name:
|
|
Burt M. Martin
|
|
|
|
|
|
Title:
|
|
Senior Vice President
|
|
|
First Supplemental Indenture
|
|
|
|
|
|
|
|
DEUTSCHE BANK TRUST COMPANY AMERICAS,
by Deutsche Bank National Trust Company,
as Trustee
|
|
|
|
By:
|
/s/ Irina Golovashchuk
|
|
|
|
|
Name:
|
Irina Golovashchuk
|
|
|
|
|
Title:
|
Assistant Vice President
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ David Contino
|
|
|
|
|
Name:
|
David Contino
|
|
|
|
|
Title:
|
Vice President
|
|
|
|
EXHIBIT A
Form of 2013 Note
[FORM OF FACE OF NOTE]
[If a Global Security, insert—THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES
REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH
TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If a Global Security, insert—EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF
TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO
THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
[If a Global Security, insert—UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (“DTC”) (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO., OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
First Supplemental Indenture
A-1-1
WEATHERFORD INTERNATIONAL LTD.
5.15% Senior Note due 2013
|
|
|
|
|
|
|
Rate of Interest
|
|
Maturity Date
|
|
Original Issue Date
|
|
5.15%
|
|
March 15, 2013
|
|
March 25, 2008
|
|
|
|
|
|
No. 1
|
|
U.S.$500,000,000
|
|
|
|
|
|
CUSIP No. 947075 AC1
|
|
|
Weatherford International Ltd., a Bermuda exempted company (herein called the “
Company
”), for
value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of
FIVE HUNDRED MILLION United States Dollars on the maturity date shown above, and to pay interest
thereon, at the annual rate of interest shown above, from the original issue date shown above or
from the most recent Interest Payment Date (as hereinafter defined) to which interest has been paid
or duly provided for, payable semi-annually on March 15 and September 15 of each year (each, an
"
Interest Payment Date
”) and at such maturity date, commencing on the first such date after the
original issue date hereof, except that if such original issue date is on or after a Regular Record
Date (as defined below) but before the next Interest Payment Date, interest payments will commence
on the second Interest Payment Date following the original issue date.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the person in whose name this Note is
registered at the close of business on the “
Regular Record Date
” for any such Interest Payment
Date, which shall be the fourteenth calendar day (whether or not a Business Day) preceding the
applicable Interest Payment Date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such defaulted interest (to the extent lawful), will forthwith cease to
be payable to the Holder on such Regular Record Date and shall be paid to the person in whose name
this Note is registered at the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Company, notice of which shall be given to Holders of Notes
not less than 14 days prior to such special record date. Payment of the principal of and interest
on this Note will be made at the agency of the Company maintained for that purpose in New York, New
York and at any other office or agency maintained by the Company for such purpose, in United States
dollars;
provided
,
however
, that, at the option of the Company, payment of interest, other than
interest due on the maturity date shown above, may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
(Signature Page Follows)
First Supplemental Indenture
A-1-2
IN WITNESS WHEREOF, Weatherford International Ltd. has caused this instrument to be executed
in its corporate name by the signature of its duly authorized officer.
|
|
|
|
|
|
|
|
|
WEATHERFORD INTERNATIONAL LTD.
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
DATED: March 25, 2008
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the 5.15% Senior Notes due 2013 referred to in the within-mentioned Indenture.
|
|
|
|
|
|
|
|
DEUTSCHE BANK TRUST COMPANY AMERICAS,
by Deutsche Bank National Trust Company,
as Trustee
|
|
|
|
By:
|
|
|
|
|
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
First Supplemental Indenture
A-1-3
[REVERSE OF NOTE]
WEATHERFORD INTERNATIONAL LTD.
5.15% Senior Note due 2013
This Note is one of a duly authorized issue of Securities of the Company (which term includes
any successor corporation under the Indenture hereinafter referred to) designated as its 5.15%
Senior Notes due 2013 (the “
Notes
”), issued or to be issued pursuant to an Indenture dated as of
October 1, 2003, between the Company and Deutsche Bank Trust Company Americas, a New York banking
corporation, as Trustee (the “
Trustee
,” which term includes any successor trustee under such
Indenture), as amended and supplemented by the First Supplemental Indenture thereto dated as of
March 25, 2008 (such Indenture, as so amended and supplemented being referred to herein as the
“
Indenture
”). The terms of this Note include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended. Reference is hereby
made to the Indenture and all further supplemental indentures thereto for a statement of the
respective rights, limitation of rights, duties and immunities thereunder of the Company, the
Guarantor, the Trustee and the Holders and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
As provided in the Indenture, Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at different times, may
bear interest, if any, at different rates, may be subject to different redemption provisions, if
any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as in the Indenture provided or
permitted. This Note is one of the series designated on the face hereof.
This Note is the general, unsecured, senior obligation of the Company and is guaranteed
pursuant to a guarantee (the “
Guarantee
”) by Weatherford International, Inc., a Delaware
corporation (the “
Guarantor
”).
The Notes are subject to redemption upon not less than 30 nor more than 60 days’ notice by
mail, at any time, as a whole or in part, at the election of the Company at a Redemption Price
equal to the greater of: (a) 100% of the principal amount of Securities then outstanding to be
redeemed, plus accrued and unpaid interest thereon to the redemption date; or (b) the sum of the
present values of the remaining scheduled payments of principal and interest on the Securities then
outstanding to be redeemed (not including any portion of such payments of interest accrued as of
the redemption date), discounted to the redemption date on a semi-annual basis (computed based on a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus 45 basis
points (0.45%), as calculated by an Independent Investment Banker, plus accrued and unpaid interest
thereon to the redemption date; but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
“
Adjusted Treasury Rate
” means, with respect to any redemption date: (a) the yield, under the
heading which represents the average for the immediately preceding week, appearing in the most
recently published statistical release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant maturity under the
caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the remaining life, as defined below,
yields for the two published maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Adjusted Treasury Rate will be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month); or (b) if such release (or any
successor release) is not published during the week preceding the calculation date or does not
contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption
date. The Adjusted Treasury Rate will be calculated on the third business day preceding the
redemption date.
“
Comparable Treasury Issue
” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be used, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
First Supplemental Indenture
A-1-4
“
Comparable Treasury Price
” means (1) the average of five Reference Treasury Dealer Quotations
for the redemption date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (2) if an Independent Investment Banker obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such quotations.
“
Independent Investment Banker
” means Goldman, Sachs & Co., Deutsche Bank Securities Inc. or
Merrill Lynch, Pierce, Fenner & Smith Incorporated or any of their respective successors, as
designated by us, or if all such firms are unwilling or unable to serve as such, an independent
investment and banking institution of national standing appointed by the Company.
“
Reference Treasury Dealer
” means: (a) Goldman, Sachs & Co., Deutsche Bank Securities Inc. and
Merrill Lynch, Pierce, Fenner & Smith Incorporated and each of their respective successors;
provided that, if any such Reference Treasury Dealer ceases to be a primary U.S. Government
securities dealer in the United States (Primary Treasury Dealer), the Company will substitute
another Primary Treasury Dealer; and (b) up to two other Primary Treasury Dealer selected by the
Company.
“
Reference Treasury Dealer Quotations
” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by an Independent Investment Banker, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to an Independent Investment Banker at 3:00 p.m., New York City
time, on the third business day preceding such redemption date.
In the event of redemption of this Note in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the Guarantor and the rights of
the Holders of the Securities of each series to be affected under the Indenture at any time by the
Company and the Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company and the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Note at the times, place(s) and rate, and
in the coin or currency, herein prescribed.
This Global Security or portion hereof may not be exchanged for Definitive Securities of this
series except in the limited circumstances provided in the Indenture. The holders of beneficial
interests in this Global Security will not be entitled to receive physical delivery of Definitive
Securities except as described in the Indenture and will not be considered the Holders thereof for
any purpose under the Indenture.
The Notes are issuable only in registered form without coupons in denominations of U.S. $2,000
and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee
and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this
Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and
none of the Company, the Guarantor, the Trustee nor any such agent shall be affected by notice to
the contrary.
First Supplemental Indenture
A-1-5
No recourse under or upon any obligation, covenant or agreement of or contained in the
Indenture or of or contained in any Note, or the Guarantee endorsed thereon, or for any claim based
thereon or otherwise in respect thereof, or in any Security or in the Guarantee, or because of the
creation of any indebtedness represented thereby, shall be had against any incorporator,
shareholder, member, officer, manager or director, as such, past, present or future, of the Company
or the Guarantor or of any successor Person, either directly or through the Company or the
Guarantor or any successor Person, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment, penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released by the acceptance hereof and as a
condition of, and as part of the consideration for, the Notes and the execution of the Indenture.
The Indenture provides that the Company and the Guarantor (a) will be discharged from any and
all obligations in respect of the Notes (except for certain obligations described in the
Indenture), or (b) need not comply with certain restrictive covenants of the Indenture, in each
case if the Company or the Guarantor deposits, in trust, with the Trustee money or U.S. Government
Obligations (or a combination thereof) which through the payment of interest thereon and principal
thereof in accordance with their terms will provide money, in an amount sufficient to pay all the
principal of and interest on the Notes, but such money need not be segregated from other funds
except to the extent required by law.
As more fully provided in the Indenture, no Holder may pursue any remedy under the Indenture
unless the Trustee shall have failed to act after notice of an Event of Default and written request
by Holders of at least 25% in principal amount of a series of the Securities and the offer to the
Trustee of indemnity satisfactory to it; however, such provision does not affect the right to sue
for enforcement of any overdue payment on any Security.
Except as otherwise defined herein, all terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Customary abbreviations may be used in the name of a Holder or any assignee, such as: TEN COM
( = tenants in common), TEN ENT ( = tenants by the entireties), JT TEN ( = joint tenants with right
of survivorship and not as tenants in common), CUST ( = Custodian) and U/G/M/A ( = Uniform Gifts to
Minors Act).
The Company will furnish to any holder of record of this Note, upon written request, without
charge, a copy of the Indenture. Requests may be made to: Weatherford International Ltd., 515 Post
Oak Blvd., Suite 600, Houston, Texas 77027, Attention: Corporate Secretary.
This Note shall be governed by and construed in accordance with the laws of the State of New
York without regard to principles of conflicts of law.
First Supplemental Indenture
A-1-6
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please Print or Typewrite Name and Address of Assignee) the within
instrument of WEATHERFORD INTERNATIONAL LTD. and does hereby irrevocably constitute and appoint
Attorney to transfer said instrument on the books of the within-named
Company, with full power of substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
(Participant in a
Recognized Signature
Guaranty Medallion Program)
NOTICE: The signature to this assignment must correspond with the name as written upon the
face of the within instrument in every particular, without alteration or enlargement or any change
whatever.
First Supplemental Indenture
A-1-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 10.10 or
11.6 of the Indenture, check the appropriate box below:
|
|
|
|
|
|
|
|
|
|
|
o
Section 10.10
|
|
o
Section 11.6
|
|
|
If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 10.10 or Section 11.6 of the Indenture, state the amount you elect to have purchased:
$
Date:
|
|
|
|
|
|
|
|
|
Your Signature:
|
|
|
|
|
|
(Sign exactly as your name appears on the face of this Note)
|
|
|
|
|
|
|
|
|
|
Tax Identification No.:
|
|
|
|
|
|
|
Signature Guarantee*:
|
|
|
|
|
*
|
|
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).
|
First Supplemental Indenture
A-1-8
[If a Global Security, insert as a separate page—
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount of
|
|
|
|
Principal Amount of
|
|
|
|
|
|
Decrease in
|
|
Amount of Increase
|
|
this Global Security
|
|
Signature of
|
|
|
|
Principal
|
|
in Principal Amount
|
|
following such
|
|
authorized signatory
|
|
|
|
Amount of this
|
|
of this
|
|
decrease
|
|
of Trustee or
|
|
Date of Exchange
|
|
Global Security
|
|
Global Security
|
|
(or increase)
|
|
Depositary
|
|
|
|
|
|
|
|
|
|
|
First Supplemental Indenture
A-1-9
EXHIBIT A
Form of 2018 Note
[FORM OF FACE OF NOTE]
[If a Global Security, insert—THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES
REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH
TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If a Global Security, insert—EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF
TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO
THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
[If a Global Security, insert—UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (“DTC”) (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO., OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
First Supplemental Indenture
A-2-1
WEATHERFORD INTERNATIONAL LTD.
6.00% Senior Note due 2018
|
|
|
|
|
|
|
|
|
|
|
Rate of Interest
|
|
Maturity Date
|
|
Original Issue Date
|
|
6.00%
|
|
March 15, 2018
|
|
March 25, 2008
|
CUSIP No. 947075 AD9
Weatherford International Ltd., a Bermuda exempted company (herein called the “
Company
”), for
value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of
FIVE HUNDRED MILLION United States Dollars on the maturity date shown above, and to pay interest
thereon, at the annual rate of interest shown above, from the original issue date shown above or
from the most recent Interest Payment Date (as hereinafter defined) to which interest has been paid
or duly provided for, payable semi-annually on March 15 and September 15 of each year (each, an
"
Interest Payment Date
”) and at such maturity date, commencing on the first such date after the
original issue date hereof, except that if such original issue date is on or after a Regular Record
Date (as defined below) but before the next Interest Payment Date, interest payments will commence
on the second Interest Payment Date following the original issue date.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the person in whose name this Note is
registered at the close of business on the “
Regular Record Date
” for any such Interest Payment
Date, which shall be the fourteenth calendar day (whether or not a Business Day) preceding the
applicable Interest Payment Date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such defaulted interest (to the extent lawful), will forthwith cease to
be payable to the Holder on such Regular Record Date and shall be paid to the person in whose name
this Note is registered at the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Company, notice of which shall be given to Holders of Notes
not less than 14 days prior to such special record date. Payment of the principal of and interest
on this Note will be made at the agency of the Company maintained for that purpose in New York, New
York and at any other office or agency maintained by the Company for such purpose, in United States
dollars;
provided
,
however
, that, at the option of the Company, payment of interest, other than
interest due on the maturity date shown above, may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
(Signature Page Follows)
First Supplemental Indenture
A-2-2
IN WITNESS WHEREOF, Weatherford International Ltd. has caused this instrument to be executed
in its corporate name by the signature of its duly authorized officer.
WEATHERFORD INTERNATIONAL LTD.
DATED: March 25, 2008
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the 6.00% Senior Notes due 2018 referred to in the within-mentioned Indenture.
|
|
|
|
|
|
|
|
|
DEUTSCHE BANK TRUST COMPANY AMERICAS,
|
|
|
|
by Deutsche Bank National Trust Company,
|
|
|
|
as Trustee
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Authorized Signatory
|
First Supplemental Indenture
A-2-3
[REVERSE OF NOTE]
WEATHERFORD INTERNATIONAL LTD.
6.00% Senior Note due 2018
This Note is one of a duly authorized issue of Securities of the Company (which term includes
any successor corporation under the Indenture hereinafter referred to) designated as its 6.00%
Senior Notes due 2018 (the “
Notes
”), issued or to be issued pursuant to an Indenture dated as of
October 1, 2003, between the Company and Deutsche Bank Trust Company Americas, a New York banking
corporation, as Trustee (the “
Trustee
,” which term includes any successor trustee under such
Indenture), as amended and supplemented by the First Supplemental Indenture thereto dated as of
March 25, 2008 (such Indenture, as so amended and supplemented being referred to herein as the
“
Indenture
”). The terms of this Note include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended. Reference is hereby
made to the Indenture and all further supplemental indentures thereto for a statement of the
respective rights, limitation of rights, duties and immunities thereunder of the Company, the
Guarantor, the Trustee and the Holders and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
As provided in the Indenture, Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at different times, may
bear interest, if any, at different rates, may be subject to different redemption provisions, if
any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as in the Indenture provided or
permitted. This Note is one of the series designated on the face hereof.
This Note is the general, unsecured, senior obligation of the Company and is guaranteed
pursuant to a guarantee (the “
Guarantee
”) by Weatherford International, Inc., a Delaware
corporation (the “
Guarantor
”).
The Notes are subject to redemption upon not less than 30 nor more than 60 days’ notice by
mail, at any time, as a whole or in part, at the election of the Company at a Redemption Price
equal to the greater of: (a) 100% of the principal amount of Securities then outstanding to be
redeemed, plus accrued and unpaid interest thereon to the redemption date; or (b) the sum of the
present values of the remaining scheduled payments of principal and interest on the Securities then
outstanding to be redeemed (not including any portion of such payments of interest accrued as of
the redemption date), discounted to the redemption date on a semi-annual basis (computed based on a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus 40 basis
points (0.40%), as calculated by an Independent Investment Banker, plus accrued and unpaid interest
thereon to the redemption date; but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
“
Adjusted Treasury Rate
” means, with respect to any redemption date: (a) the yield, under the
heading which represents the average for the immediately preceding week, appearing in the most
recently published statistical release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant maturity under the
caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the remaining life, as defined below,
yields for the two published maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Adjusted Treasury Rate will be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month); or (b) if such release (or any
successor release) is not published during the week preceding the calculation date or does not
contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption
date. The Adjusted Treasury Rate will be calculated on the third business day preceding the
redemption date.
“
Comparable Treasury Issue
” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be used, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
First Supplemental Indenture
A-2-4
“
Comparable Treasury Price
” means (1) the average of five Reference Treasury Dealer Quotations
for the redemption date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (2) if an Independent Investment Banker obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such quotations.
“
Independent Investment Banker
” means Goldman, Sachs & Co., Deutsche Bank Securities Inc. or
Merrill Lynch, Pierce, Fenner & Smith Incorporated or any of their respective successors, as
designated by us, or if all such firms are unwilling or unable to serve as such, an independent
investment and banking institution of national standing appointed by the Company.
“
Reference Treasury Dealer
” means: (a) Goldman, Sachs & Co., Deutsche Bank Securities Inc. and
Merrill Lynch, Pierce, Fenner & Smith Incorporated and each of their respective successors;
provided that, if any such Reference Treasury Dealer ceases to be a primary U.S. Government
securities dealer in the United States (Primary Treasury Dealer), the Company will substitute
another Primary Treasury Dealer; and (b) up to two other Primary Treasury Dealer selected by the
Company.
“
Reference Treasury Dealer Quotations
” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by an Independent Investment Banker, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to an Independent Investment Banker at 3:00 p.m., New York City
time, on the third business day preceding such redemption date.
In the event of redemption of this Note in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the Guarantor and the rights of
the Holders of the Securities of each series to be affected under the Indenture at any time by the
Company and the Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company and the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Note at the times, place(s) and rate, and
in the coin or currency, herein prescribed.
This Global Security or portion hereof may not be exchanged for Definitive Securities of this
series except in the limited circumstances provided in the Indenture. The holders of beneficial
interests in this Global Security will not be entitled to receive physical delivery of Definitive
Securities except as described in the Indenture and will not be considered the Holders thereof for
any purpose under the Indenture.
The Notes are issuable only in registered form without coupons in denominations of U.S. $2,000
and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee
and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this
Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and
none of the Company, the Guarantor, the Trustee nor any such agent shall be affected by notice to
the contrary.
First Supplemental Indenture
A-2-5
No recourse under or upon any obligation, covenant or agreement of or contained in the
Indenture or of or contained in any Note, or the Guarantee endorsed thereon, or for any claim based
thereon or otherwise in respect thereof, or in any Security or in the Guarantee, or because of the
creation of any indebtedness represented thereby, shall be had against any incorporator,
shareholder, member, officer, manager or director, as such, past, present or future, of the Company
or the Guarantor or of any successor Person, either directly or through the Company or the
Guarantor or any successor Person, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment, penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released by the acceptance hereof and as a
condition of, and as part of the consideration for, the Notes and the execution of the Indenture.
The Indenture provides that the Company and the Guarantor (a) will be discharged from any and
all obligations in respect of the Notes (except for certain obligations described in the
Indenture), or (b) need not comply with certain restrictive covenants of the Indenture, in each
case if the Company or the Guarantor deposits, in trust, with the Trustee money or U.S. Government
Obligations (or a combination thereof) which through the payment of interest thereon and principal
thereof in accordance with their terms will provide money, in an amount sufficient to pay all the
principal of and interest on the Notes, but such money need not be segregated from other funds
except to the extent required by law.
As more fully provided in the Indenture, no Holder may pursue any remedy under the Indenture
unless the Trustee shall have failed to act after notice of an Event of Default and written request
by Holders of at least 25% in principal amount of a series of the Securities and the offer to the
Trustee of indemnity satisfactory to it; however, such provision does not affect the right to sue
for enforcement of any overdue payment on any Security.
Except as otherwise defined herein, all terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Customary abbreviations may be used in the name of a Holder or any assignee, such as: TEN COM
( = tenants in common), TEN ENT ( = tenants by the entireties), JT TEN ( = joint tenants with right
of survivorship and not as tenants in common), CUST ( = Custodian) and U/G/M/A ( = Uniform Gifts to
Minors Act).
The Company will furnish to any holder of record of this Note, upon written request, without
charge, a copy of the Indenture. Requests may be made to: Weatherford International Ltd., 515 Post
Oak Blvd., Suite 600, Houston, Texas 77027, Attention: Corporate Secretary.
This Note shall be governed by and construed in accordance with the laws of the State of New
York without regard to principles of conflicts of law.
First Supplemental Indenture
A-2-6
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please Print or Typewrite Name and Address of Assignee) the
within instrument of WEATHERFORD INTERNATIONAL LTD. and does hereby irrevocably constitute and
appoint
Attorney to transfer said instrument on the books of the
within-named Company, with full power of substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
|
|
|
|
|
Signature Guarantee:
|
|
|
|
|
|
|
|
|
|
(Participant in a Recognized Signature
Guaranty Medallion Program)
|
NOTICE: The signature to this assignment must correspond with the name as written upon the
face of the within instrument in every particular, without alteration or enlargement or any change
whatever.
First Supplemental Indenture
A-2-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 10.10 or
11.6 of the Indenture, check the appropriate box below:
|
|
|
|
|
|
|
o
Section 10.10
|
|
o
Section 11.6
|
|
|
If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 10.10 or Section 11.6 of the Indenture, state the amount you elect to have purchased:
$
|
|
|
|
|
|
|
|
|
|
|
Date:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Your Signature:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Sign exactly as your name appears on the face of this Note)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Identification No.:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).
|
First Supplemental Indenture
A-2-8
[If a Global Security, insert as a separate page—
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Principal Amount of
|
|
|
|
|
|
Decrease in
|
|
Amount of Increase
|
|
this Global Security
|
|
Signature of
|
|
|
|
Principal
|
|
in Principal Amount
|
|
following such
|
|
authorized signatory
|
|
|
|
Amount of this
|
|
of this
|
|
decrease
|
|
of Trustee or
|
|
Date of Exchange
|
|
Global Security
|
|
Global Security
|
|
(or increase)
|
|
Depositary
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First Supplemental Indenture
A-2-9
EXHIBIT A
Form of 2038 Note
[FORM OF FACE OF NOTE]
[If a Global Security, insert—THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES
REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH
TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If a Global Security, insert—EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF
TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO
THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
[If a Global Security, insert—UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (“DTC”) (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO., OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
|
|
|
|
|
HOU:2784235.5
|
|
First Supplemental Indenture
|
A-3-1
WEATHERFORD INTERNATIONAL LTD.
7.00% Senior Note due 2038
|
|
|
|
|
|
|
Rate of Interest
|
|
Maturity Date
|
|
Original Issue Date
|
|
7.00%
|
|
March 15, 2038
|
|
March 25, 2008
|
|
|
|
|
|
No. 1
|
|
U.S.$500,000,000
|
|
|
|
|
|
|
|
CUSIP No. 947075 AE7
|
|
|
Weatherford International Ltd., a Bermuda exempted company (herein called the “
Company
”), for
value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of
FIVE HUNDRED MILLION United States Dollars on the maturity date shown above, and to pay interest
thereon, at the annual rate of interest shown above, from the original issue date shown above or
from the most recent Interest Payment Date (as hereinafter defined) to which interest has been paid
or duly provided for, payable semi-annually on March 15 and September 15 of each year (each, an
“
Interest Payment Date
”) and at such maturity date, commencing on the first such date after the
original issue date hereof, except that if such original issue date is on or after a Regular Record
Date (as defined below) but before the next Interest Payment Date, interest payments will commence
on the second Interest Payment Date following the original issue date.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the person in whose name this Note is
registered at the close of business on the “
Regular Record Date
” for any such Interest Payment
Date, which shall be the fourteenth calendar day (whether or not a Business Day) preceding the
applicable Interest Payment Date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such defaulted interest (to the extent lawful), will forthwith cease to
be payable to the Holder on such Regular Record Date and shall be paid to the person in whose name
this Note is registered at the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Company, notice of which shall be given to Holders of Notes
not less than 14 days prior to such special record date. Payment of the principal of and interest
on this Note will be made at the agency of the Company maintained for that purpose in New York, New
York and at any other office or agency maintained by the Company for such purpose, in United States
dollars;
provided
,
however
, that, at the option of the Company, payment of interest, other than
interest due on the maturity date shown above, may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
(Signature Page Follows)
|
|
|
|
|
|
|
First Supplemental Indenture
|
A-3-2
IN WITNESS WHEREOF, Weatherford International Ltd. has caused this instrument to be executed
in its corporate name by the signature of its duly authorized officer.
|
|
|
|
|
|
|
|
|
WEATHERFORD
|
|
INTERNATIONAL LTD.
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
DATED: March 25, 2008
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the 7.00% Senior Notes due 2038 referred to in the within-mentioned Indenture.
|
|
|
|
|
|
|
|
|
DEUTSCHE BANK TRUST COMPANY AMERICAS,
|
|
|
|
by Deutsche Bank
National Trust Company,
as Trustee
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Authorized Signatory
|
|
|
|
|
|
|
|
First Supplemental Indenture
|
A-3-3
[REVERSE OF NOTE]
WEATHERFORD INTERNATIONAL LTD.
7.00% Senior Note due 2038
This Note is one of a duly authorized issue of Securities of the Company (which term includes
any successor corporation under the Indenture hereinafter referred to) designated as its 7.00%
Senior Notes due 2038 (the “
Notes
”), issued or to be issued pursuant to an Indenture dated as of
October 1, 2003, between the Company and Deutsche Bank Trust Company Americas, a New York banking
corporation, as Trustee (the “
Trustee
,” which term includes any successor trustee under such
Indenture), as amended and supplemented by the First Supplemental Indenture thereto dated as of
March 25, 2008 (such Indenture, as so amended and supplemented being referred to herein as the
“
Indenture
”). The terms of this Note include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended. Reference is hereby
made to the Indenture and all further supplemental indentures thereto for a statement of the
respective rights, limitation of rights, duties and immunities thereunder of the Company, the
Guarantor, the Trustee and the Holders and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
As provided in the Indenture, Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at different times, may
bear interest, if any, at different rates, may be subject to different redemption provisions, if
any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as in the Indenture provided or
permitted. This Note is one of the series designated on the face hereof.
This Note is the general, unsecured, senior obligation of the Company and is guaranteed
pursuant to a guarantee (the “
Guarantee
”) by Weatherford International, Inc., a Delaware
corporation (the “
Guarantor
”).
The Notes are subject to redemption upon not less than 30 nor more than 60 days’ notice by
mail, at any time, as a whole or in part, at the election of the Company at a Redemption Price
equal to the greater of: (a) 100% of the principal amount of Securities then outstanding to be
redeemed, plus accrued and unpaid interest thereon to the redemption date; or (b) the sum of the
present values of the remaining scheduled payments of principal and interest on the Securities then
outstanding to be redeemed (not including any portion of such payments of interest accrued as of
the redemption date), discounted to the redemption date on a semi-annual basis (computed based on a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus 45 basis
points (0.45%), as calculated by an Independent Investment Banker, plus accrued and unpaid interest
thereon to the redemption date; but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
“
Adjusted Treasury Rate
” means, with respect to any redemption date: (a) the yield, under the
heading which represents the average for the immediately preceding week, appearing in the most
recently published statistical release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant maturity under the
caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the remaining life, as defined below,
yields for the two published maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Adjusted Treasury Rate will be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month); or (b) if such release (or any
successor release) is not published during the week preceding the calculation date or does not
contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption
date. The Adjusted Treasury Rate will be calculated on the third business day preceding the
redemption date.
“
Comparable Treasury Issue
” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be used, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
|
|
|
|
|
|
|
First Supplemental Indenture
|
A-3-4
“
Comparable Treasury Price
” means (1) the average of five Reference Treasury Dealer Quotations
for the redemption date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (2) if an Independent Investment Banker obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such quotations.
“
Independent Investment Banker
” means Goldman, Sachs & Co., Deutsche Bank Securities Inc. or
Merrill Lynch, Pierce, Fenner & Smith Incorporated or any of their respective successors, as
designated by us, or if all such firms are unwilling or unable to serve as such, an independent
investment and banking institution of national standing appointed by the Company.
“
Reference Treasury Dealer
” means: (a) Goldman, Sachs & Co., Deutsche Bank Securities Inc. and
Merrill Lynch, Pierce, Fenner & Smith Incorporated and each of their respective successors;
provided that, if any such Reference Treasury Dealer ceases to be a primary U.S. Government
securities dealer in the United States (Primary Treasury Dealer), the Company will substitute
another Primary Treasury Dealer; and (b) up to two other Primary Treasury Dealer selected by the
Company.
“
Reference Treasury Dealer Quotations
” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by an Independent Investment Banker, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to an Independent Investment Banker at 3:00 p.m., New York City
time, on the third business day preceding such redemption date.
In the event of redemption of this Note in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the Guarantor and the rights of
the Holders of the Securities of each series to be affected under the Indenture at any time by the
Company and the Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company and the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Note at the times, place(s) and rate, and
in the coin or currency, herein prescribed.
This Global Security or portion hereof may not be exchanged for Definitive Securities of this
series except in the limited circumstances provided in the Indenture. The holders of beneficial
interests in this Global Security will not be entitled to receive physical delivery of Definitive
Securities except as described in the Indenture and will not be considered the Holders thereof for
any purpose under the Indenture.
The Notes are issuable only in registered form without coupons in denominations of U.S. $2,000
and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee
and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this
Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and
none of the Company, the Guarantor, the Trustee nor any such agent shall be affected by notice to
the contrary.
|
|
|
|
|
|
|
First Supplemental Indenture
|
A-3-5
No recourse under or upon any obligation, covenant or agreement of or contained in the
Indenture or of or contained in any Note, or the Guarantee endorsed thereon, or for any claim based
thereon or otherwise in respect thereof, or in any Security or in the Guarantee, or because of the
creation of any indebtedness represented thereby, shall be had against any incorporator,
shareholder, member, officer, manager or director, as such, past, present or future, of the Company
or the Guarantor or of any successor Person, either directly or through the Company or the
Guarantor or any successor Person, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment, penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released by the acceptance hereof and as a
condition of, and as part of the consideration for, the Notes and the execution of the Indenture.
The Indenture provides that the Company and the Guarantor (a) will be discharged from any and
all obligations in respect of the Notes (except for certain obligations described in the
Indenture), or (b) need not comply with certain restrictive covenants of the Indenture, in each
case if the Company or the Guarantor deposits, in trust, with the Trustee money or U.S. Government
Obligations (or a combination thereof) which through the payment of interest thereon and principal
thereof in accordance with their terms will provide money, in an amount sufficient to pay all the
principal of and interest on the Notes, but such money need not be segregated from other funds
except to the extent required by law.
As more fully provided in the Indenture, no Holder may pursue any remedy under the Indenture
unless the Trustee shall have failed to act after notice of an Event of Default and written request
by Holders of at least 25% in principal amount of a series of the Securities and the offer to the
Trustee of indemnity satisfactory to it; however, such provision does not affect the right to sue
for enforcement of any overdue payment on any Security.
Except as otherwise defined herein, all terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Customary abbreviations may be used in the name of a Holder or any assignee, such as: TEN COM
( = tenants in common), TEN ENT ( = tenants by the entireties), JT TEN ( = joint tenants with right
of survivorship and not as tenants in common), CUST ( = Custodian) and U/G/M/A ( = Uniform Gifts to
Minors Act).
The Company will furnish to any holder of record of this Note, upon written request, without
charge, a copy of the Indenture. Requests may be made to: Weatherford International Ltd., 515 Post
Oak Blvd., Suite 600, Houston, Texas 77027, Attention: Corporate Secretary.
This Note shall be governed by and construed in accordance with the laws of the State of New
York without regard to principles of conflicts of law.
|
|
|
|
|
|
|
First Supplemental Indenture
|
A-3-6
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please Print or Typewrite Name and Address of Assignee) the within instrument of WEATHERFORD INTERNATIONAL LTD. and does hereby irrevocably constitute and appoint
Attorney to transfer said instrument on the books of the within-named Company, with full power of substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dated:
|
|
(Signature)
|
|
|
|
Signature Guarantee:
|
|
|
|
|
(Participant in a Recognized Signature
Guaranty Medallion Program)
NOTICE: The signature to this assignment must correspond with the name as written upon the
face of the within instrument in every particular, without alteration or enlargement or any change
whatever.
|
|
|
|
|
|
|
First Supplemental Indenture
|
A-3-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 10.10 or
11.6 of the Indenture, check the appropriate box below:
|
|
|
|
|
o
Section 10.10
|
|
o
Section 11.6
|
If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 10.10 or Section 11.6 of the Indenture, state the amount you elect to have purchased:
$
Date:
Your
Signature:
(Sign exactly as your name appears on the face of this Note)
Tax
Identification No.:
Signature
Guarantee*:
|
|
|
|
|
*
|
|
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).
|
|
|
|
|
|
|
|
First Supplemental Indenture
|
A-3-8
[If a Global Security, insert as a separate page—
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Principal Amount of
|
|
|
|
|
|
Decrease in
|
|
Amount of Increase
|
|
this Global Security
|
|
Signature of
|
|
|
|
Principal
|
|
in Principal Amount
|
|
following such
|
|
authorized signatory
|
|
|
|
Amount of this
|
|
of this
|
|
decrease
|
|
of Trustee or
|
|
Date of Exchange
|
|
Global Security
|
|
Global Security
|
|
(or increase)
|
|
Depositary
|
First
Supplemental Indenture
A-3-9
EXHIBIT B
[FORM OF GUARANTEE NOTATION]
The Guarantor (which term includes any successor Person in such capacity under the Indenture),
has fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and
subject to the provisions in the Indenture, the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities of this series and all other amounts due and
payable under the Indenture and such Securities by the Company.
The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to
the Guarantee and the Indenture are expressly set forth in Article Fourteen of the Indenture and
reference is hereby made to the Indenture for the precise terms of the Guarantee.
|
|
|
|
|
|
|
|
|
Guarantor:
|
|
|
|
|
|
|
|
|
|
WEATHERFORD INTERNATIONAL, INC.
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First Supplemental Indenture
|
B-1
Exhibit 4.6
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
WILLIAM STREET LLC
AS SYNDICATION AGENT,
MERRILL LYNCH BANK USA
AS DOCUMENTATION AGENT,
THE LENDERS PARTY HERETO,
AND
DEUTSCHE BANK SECURITIES INC.
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-
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of March 19, 2008, is among:
|
|
(a)
|
|
Weatherford 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)
|
|
Weatherford 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
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 Moody’s 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 Moody’s 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 Moody’s 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 Moody’s
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 Moody’s 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 Moody’s 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 Moody’s and S&P for the Index Debt shall be changed (other than as a result of a
change in the rating system of Moody’s 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 Moody’s 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 Weatherford 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 Moody’s 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 Goldman,
Sachs & Co., Deutsche Bank Securities Inc and Merrill Lynch, Pierce, Fenner & Smith 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 McGraw-Hill, 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.
21
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
22
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
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
23
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
24
(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.
26
(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) WIL may 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 WIL may
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.
27
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
29
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.
30
(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.
31
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
32
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
33
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, WIL may, 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.
34
(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
35
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
36
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
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
37
(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
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 60 Wall Street, New York, New York
10005, 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 WIL may, 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 WIL may, 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
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 & Jaworski L.L.P., counsel to the Obligors,
(B) Conyers Dill & Pearman, 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 Baker Botts 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.
48
ARTICLE VI
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.
50
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
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:
51
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 “EDGAR” and/or on its home page on the worldwide web (as the date of this Agreement
located at
www.weatherford.com
) 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 “EDGAR” and/or on its home page on the
worldwide web (at the date of this Agreement located at
www.weatherford.com
) 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 “EDGAR” 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.
54
ARTICLE VIII
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 WIL may 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
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
58
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
59
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.
60
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
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,
61
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
62
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
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
63
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:
64
(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 vires
, (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;
65
(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
66
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
67
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
68
the Lenders of any
termination of the Guaranty or automatic reinstatement of the Guaranty pursuant to this
Section 11.07
.
ARTICLE XII
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.
69
(c) From time to time, WIL may 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, WIL may 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
70
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-
71
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
72
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
73
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
74
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
75
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
76
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
:
WEATHERFORD INTERNATIONAL LTD.
By: /S/ Burt M. Martin
Name: Burt M. Martin
Title: Senior Vice President
Notice Information
:
c/o Weatherford International, Inc.
515 Post Oak Blvd.
Houston, Texas 77027
Attention: General Counsel
Telephone: (713) 693-4000
Telecopy: (713) 693-4484
WII
:
WEATHERFORD INTERNATIONAL, INC.
By: /S/ Burt M. Martin
Name: Burt M. Martin
Title: Senior Vice President
Notice Information
:
515 Post Oak Blvd.
Houston, Texas 77027
Attention: General Counsel
Telephone: (713) 693-4000
Telecopy: (713) 693-4484
Signature Page to Credit Agreement
ADMINISTRATIVE AGENT
:
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH
as Administrative Agent
By: /S/ Marcus Tarkington
Name: Marcus Tarkington
Title: Director
By: /S/ Erin Morrissey
Name: Erin Morrissey
Title: Vice President
Notice Information
:
60 Wall Street
New York, New York 10005
Telephone: (212) 250-1014
Telecopy: (212) 797-0403
ARRANGER
:
DEUTSCHE BANK SECURITIES INC.
as Arranger
By: /S/ Rainer Meier
Name: Rainer Meier
Title: Vice President
By: /S/ Russell A. Johnson
Name: Russell A. Johnson
Title: Managing Director
Signature Page to Credit Agreement
LENDERS
:
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH
By: /S/ Marcus Tarkington
Name: Marcus Tarkington
Title: Director
By: /S/ Erin Morrissey
Name: Erin Morrissey
Title: Vice President
WILLIAM
STREET LLC
By: /S/ Mark Walton
Name: Mark Walton
Title: Authorized Signatory
MERRILL
LYNCH BANK USA
By: /S/ Louis Alder
Name: Louis Alder
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:
|
|
Weatherford 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 Weatherford International Ltd., the other
Borrowers from time to time thereunder, Weatherford 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 Exposure
2
|
|
$
|
|
|
|
|
|
$
|
|
|
|
|
%
|
|
|
$
|
|
|
|
|
|
$
|
|
|
|
|
%
|
|
|
$
|
|
|
|
|
|
$
|
|
|
|
|
%
|
|
|
|
|
|
|
|
|
7.
|
|
Effective Date:
|
|
, 20___[TO BE INSERTED
BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
TRANSFER IN THE REGISTER THEREFOR.]
|
The terms set forth in this Assignment and Assumption are hereby agreed to:
|
|
|
|
|
|
|
|
|
|
|
ASSIGNOR
:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[NAME OF ASSIGNOR]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ASSIGNEE
:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[NAME OF ASSIGNEE]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2
|
|
Set forth, to at least 9 decimals, as a percentage of
the 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
[Consented to:]
2
WEATHERFORD INTERNATIONAL LTD., as Borrower
|
|
|
|
|
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-3
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1.
Representations and Warranties
.
1.1
Assignor
. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of any Obligor, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by any Obligor, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.
1.2
Assignee
. The Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to
Section 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-5
EXHIBIT B-1
FORM OF BORROWING REQUEST
, 20__
Deutsche Bank AG Cayman Islands Branch
60 Wall Street
New York, NY 10005
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
Weatherford International Ltd., Weatherford 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 Borrowing
2
:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(E)
|
|
Interest Period and the last day thereof
3
:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(F)
|
|
Funds are requested to be disbursed to the following account of the Borrower
4
:
|
|
|
|
|
|
|
|
|
|
|
|
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-1-2
EXHIBIT B-2
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 212 797-0403
|
|
|
|
|
|
|
|
|
|
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 Weatherford International
Ltd., as Borrower, Weatherford 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 Wall Street
New York, New York 10005
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
Weatherford International Ltd., Weatherford 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 applies
2
:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(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 thereof
3
:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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
, 200
WEATHERFORD 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 Wall Street, New York 10005, 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, Weatherford 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
|
|
|
)
|
|
|
WEATHERFORD INTERNATIONAL LTD.
|
|
|
)
|
|
|
was hereunto affixed
|
|
|
)
|
|
|
in the presence of:
|
|
|
)
|
|
D-2
SCHEDULE A
TO
PROMISSORY NOTE
This note evidences the Loans owed to the Lender under the Credit Agreement, in the principal
amount set forth below and the applicable Interest Periods and rates for each such Loan, subject to
the payments of principal set forth below:
SCHEDULE
OF
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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 Wall Street
New York, New York 10005
Ladies and Gentlemen:
The undersigned, Weatherford 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, Weatherford 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,
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WEATHERFORD 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
]
LENDERS INCREASING COMMITMENTS:
[
ADD SIGNATURE BLOCK FOR EACH APPLICABLE LENDER
]
E-2
Annex I to
Notice of Commitment Increase
COMMITMENTS
(after giving effect to the applicable Commitment Increase)
E-3
EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
The undersigned hereby certifies that such officer is the
of
Weatherford 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
”), Weatherford 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)
(b)
Section 8.06
– Consolidated Indebtedness to Total Capitalization
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 Weatherford International Ltd.
(“
WIL
”), the other Borrowers from time to time thereunder, Weatherford 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 WIL may 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
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
|
|
|
G-2
SCHEDULE 1.01
LENDERS
Deutsche Bank AG Cayman Islands Branch
William Street LLC
Merrill Lynch Bank USA
S-1
SCHEDULE 2.01
COMMITMENTS
|
|
|
|
|
|
|
Bank
|
|
Allocation
|
|
|
Deutsche Bank AG Cayman Islands Branch
|
|
$
|
83,333,334
|
|
|
|
|
William Street LLC
|
|
|
83,333,333
|
|
|
|
|
Merrill Lynch Bank USA
|
|
|
83,333,333
|
|
|
|
|
TOTAL
|
|
$
|
250,000,000
|
|
|
|
|
|
|
S-2
