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EXHIBIT 4.1
364-DAY REVOLVING
CREDIT AGREEMENT
DATED AS OF AUGUST 25, 2005
AMONG
WEATHERFORD INTERNATIONAL LTD.
AND
WEATHERFORD LIQUIDITY MANAGEMENT
HUNGARY LIMITED LIABILITY COMPANY,
AS BORROWERS,
WEATHERFORD INTERNATIONAL, INC.,
AS GUARANTOR,
UBS AG, STAMFORD BRANCH,
AS ADMINISTRATIVE AGENT,
BANK OF AMERICA, N.A.
AND
MORGAN STANLEY SENIOR FUNDING, INC.,
AS CO-SYNDICATION AGENTS,
THE LENDERS PARTY HERETO,
AND
UBS SECURITIES LLC,
BANC OF AMERICA SECURITIES LLC
AND
MORGAN STANLEY SENIOR FUNDING, INC.,
AS JOINT BOOKRUNNERS AND JOINT LEAD ARRANGERS
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TABLE OF CONTENTS
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Article I DEFINITIONS; ACCOUNTING TERMS;
INTERPRETATION..........................................................
1
SECTION 1.01.
Definitions...............................................................................
1
SECTION 1.02.
Types of
Borrowings.......................................................................
18
SECTION 1.03.
Accounting Terms; Changes in
GAAP.........................................................
18
SECTION 1.04.
Interpretation............................................................................
19
Article II COMMITMENTS;
LOANS....................................................................................
20
SECTION 2.01.
Loans.....................................................................................
20
SECTION 2.02.
Requests for
Loans........................................................................
21
SECTION 2.03.
Funding of
Borrowings.....................................................................
21
SECTION 2.04.
Interest
Elections........................................................................
22
SECTION 2.05.
Optional Termination and Reduction of
Commitments......................................... 23
SECTION 2.06.
Repayment of Loans; Evidence of
Debt......................................................
24
SECTION 2.07.
Optional Prepayment of
Loans..............................................................
24
SECTION 2.08.
Mandatory Termination and Reduction of Commitments; Mandatory
Prepayment of Loans......... 25
SECTION 2.09.
Fees......................................................................................
25
SECTION 2.10.
Interest..................................................................................
26
SECTION 2.11.
Alternate Rate of
Interest................................................................
27
SECTION 2.12.
Increased
Costs...........................................................................
27
SECTION 2.13.
Break Funding
Payments....................................................................
28
SECTION 2.14. Agreement to Defer
Exercise of Right of Contribution,
Etc................................. 29
Article III PAYMENTS; PRO RATA TREATMENT;
TAXES..................................................................
29
SECTION 3.01.
Payments Generally; Pro Rata Treatment; Sharing of
Set-offs............................... 29
SECTION 3.02.
Taxes.....................................................................................
31
SECTION 3.03.
Mitigation Obligations; Replacement of
Lenders............................................ 33
Article IV CONDITIONS
PRECEDENT..................................................................................
33
SECTION 4.01.
Conditions Precedent to the Initial Credit
Event.......................................... 33
SECTION 4.02.
Conditions Precedent to All Credit
Events.................................................
35
SECTION 4.03.
Delivery of
Documents.....................................................................
36
Article V REPRESENTATIONS AND
WARRANTIES.........................................................................
36
SECTION 5.01.
Organization and
Qualification............................................................
36
SECTION 5.02.
Authorization, Validity,
Etc..............................................................
36
SECTION 5.03.
Governmental Consents,
Etc................................................................
37
SECTION 5.04. No
Breach or Violation of Law or
Agreements...............................................
37
SECTION 5.05.
Title to
Assets...........................................................................
37
SECTION 5.06.
Information; Financial
Statements.........................................................
37
SECTION 5.07.
Investment Company
Act....................................................................
38
SECTION 5.08.
Public Utility Holding Company
Act........................................................
38
SECTION 5.09.
ERISA.....................................................................................
38
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SECTION 5.10. Tax
Returns and
Payments..................................................................
38
SECTION 5.11.
Requirements of Law; Environmental
Matters................................................
39
SECTION 5.12.
Purpose of
Loans..........................................................................
39
SECTION 5.13.
Designation of the
Obligations............................................................
39
SECTION 5.14. No
Default................................................................................
39
Article VI AFFIRMATIVE
COVENANTS.................................................................................
40
SECTION 6.01.
Information
Covenants.....................................................................
40
SECTION 6.02.
Books, Records and
Inspections............................................................
41
SECTION 6.03.
Insurance and Maintenance of
Properties...................................................
42
SECTION 6.04.
Payment of Taxes and other
Claims.........................................................
42
SECTION 6.05.
Existence.................................................................................
42
SECTION 6.06.
ERISA Information and
Compliance..........................................................
42
Article VII NEGATIVE
COVENANTS...................................................................................
43
SECTION 7.01.
Material Change in
Business...............................................................
43
SECTION 7.02.
Consolidation, Merger, or Sale of Assets,
Etc............................................. 43
SECTION 7.03.
Liens.....................................................................................
45
SECTION 7.04.
Indebtedness..............................................................................
45
SECTION 7.05.
Ownership of
WII..........................................................................
45
SECTION 7.06.
Financial
Covenant........................................................................
45
SECTION 7.07.
Limitation on Transactions with
Affiliates................................................
45
SECTION 7.08.
Restrictions on Subsidiary
Dividends......................................................
46
SECTION 7.09. The
Debenture
Indentures..................................................................
46
Article VIII EVENTS OF DEFAULT AND
REMEDIES......................................................................
46
SECTION 8.01.
Events of Default and
Remedies............................................................
46
SECTION 8.02.
Right of
Setoff...........................................................................
49
SECTION 8.03.
Other
Remedies............................................................................
49
SECTION 8.04.
Application of Moneys During Continuation of Event of
Default............................. 49
Article IX ADMINISTRATIVE
AGENT..................................................................................
50
Article X
GUARANTY...............................................................................................
52
SECTION 10.01.
Guaranty..................................................................................
52
SECTION 10.02. Continuing
Guaranty.......................................................................
52
SECTION 10.03. Effect of
Debtor Relief
Laws..............................................................
55
SECTION 10.04.
Waiver....................................................................................
55
SECTION 10.05. Agreement
to Defer Exercise of
Subrogation................................................
56
SECTION 10.06. Full Force
and
Effect.....................................................................
56
Article XI
MISCELLANEOUS.........................................................................................
56
SECTION 11.01. Waiver;
Amendments........................................................................
56
SECTION 11.02.
Notices...................................................................................
57
SECTION 11.03. Expenses,
Etc.............................................................................
57
SECTION 11.04.
Indemnity.................................................................................
58
SECTION 11.05.
Amendments,
Etc...........................................................................
58
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SECTION 11.06. Successors
and
Assigns....................................................................
59
SECTION 11.07.
Confidentiality...........................................................................
63
SECTION 11.08. Survival
of Representations and
Warranties................................................
63
SECTION 11.09. Governing
Law.............................................................................
63
SECTION 11.10.
Independence of
Covenants.................................................................
64
SECTION 11.11. Binding
Effect............................................................................
64
SECTION 11.12.
Severability..............................................................................
64
SECTION 11.13. Conflicts
Between This Agreement and the Other Loan
Documents............................. 64
SECTION 11.14. Limitation
of
Interest....................................................................
64
SECTION 11.15. Execution
in
Counterparts.................................................................
64
SECTION 11.16. Submission
to
Jurisdiction................................................................
64
SECTION 11.17. Waiver of
Jury
Trial......................................................................
65
SECTION 11.18. Judgment
Currency.........................................................................
66
SECTION 11.19. Final
Agreement of the
Parties............................................................
66
SECTION 11.20. USA
Patriot
Act...........................................................................
66
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EXHIBITS
EXHIBIT A Form of Assignment and
Assumption
EXHIBIT B Form of Promissory
Note
EXHIBIT C Form of Compliance
Certificate
EXHIBIT D Form of Borrowing
Request
EXHIBIT E Form of Interest
Election Request
SCHEDULES
Pricing Schedule
SCHEDULE 1.01 Lenders
SCHEDULE 2.01 Commitments
SCHEDULE 5.01 Material Subsidiaries
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364-DAY REVOLVING CREDIT AGREEMENT
THIS
364-DAY REVOLVING CREDIT AGREEMENT, dated as of August 25, 2005,
is
among:
(a) Weatherford International
Ltd., a Bermuda exempted company ("WIL");
(b) Weatherford International,
Inc., a Delaware corporation ("WII" or the
"Guarantor");
(c) Weatherford Liquidity
Management Hungary Limited Liability Company, a
Hungarian
limited liability company ("HOC" and together with WIL,
collectively, the "Borrowers");
(d) UBS AG, Stamford Branch, as
administrative agent for the other Lenders (in
such
latter capacity together with any other Person that becomes the
Administrative Agent pursuant to Article IX, the "Administrative
Agent");
and
(e) the banks and other
financial institutions listed on the signature pages
hereof
under the caption "Lenders" (together with each other Person
that
becomes a
Lender pursuant to Section 11.06, collectively, the "Lenders").
The
parties hereto agree as follows:
Article I
DEFINITIONS; ACCOUNTING TERMS; INTERPRETATION
Section
1.01. Definitions. As used in this Agreement the following
terms
shall have the following meanings:
"ABR",
when used in reference to any Loan or Borrowing, refers to
whether
such Loan, or the Loans comprising such
Borrowing, are bearing interest at a
rate determined by reference to the
Alternate Base Rate.
"Acquisition" means the acquisition by certain subsidiaries of WIL
of
Precision Drilling Corporation's Energy
Services Division and International
Contract Drilling Division pursuant to the
Acquisition Document.
"Acquisition Document" means the Stock Purchase Agreement dated as
of June
6, 2005 by and between Precision Drilling
Corporation and WIL.
"Acquisition Borrowing" means any Borrowing comprised of Loans,
the
proceeds of which will be used to fund the
Acquisition, including any related
post-closing purchase price adjustment.
"Acquisition Borrowing Date" means any date (whether one or more)
on which
the Loans comprising any Acquisition
Borrowing are made.
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"Adjusted
LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per
annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the
LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve
Rate.
"Administrative Agent" has the
meaning specified in paragraph (d) on page
one.
"Administrative Questionnaire" means an Administrative
Questionnaire in a
form supplied by the Administrative
Agent.
"Affiliate" means, with respect to any Person, any other Person
that,
directly or indirectly, controls, is
controlled by or is under direct or
indirect common control with, such Person.
For the purposes of this definition,
"control" (including, with correlative
meanings, the terms "controlling" and
"controlled"), when used with respect to
any Person, means the power to direct
the management and policies of such Person,
directly or indirectly, whether
through the ownership of voting securities,
by contract or otherwise.
"Agreement" means this 364-Day Revolving Credit Agreement, as it
may from
time to time be further amended, modified,
restated or supplemented.
"Alternate
Base Rate" means, for any day, a rate per annum (rounded
upward, if necessary, to the nearest
1/100th of 1%) equal to the greater of (a)
the Base Rate in effect on such day and (b)
the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. If the
Administrative Agent shall have
determined (which determination shall be
presumed correct absent manifest error)
that it is unable to ascertain the Federal
Funds Effective Rate for any reason,
including the inability or failure of the
Administrative Agent to obtain
sufficient quotations in accordance with
the terms of the definition thereof,
the Alternate Base Rate shall be determined
without regard to clause (b) of the
preceding sentence until the circumstances
giving rise to such inability no
longer exist. Any change in the Alternate
Base Rate due to a change in the Base
Rate or the Federal Funds Effective Rate
shall be effective from and including
the effective date of such change in the
Base Rate or the Federal Funds
Effective Rate, respectively.
"Applicable Margin" means the per annum rate of interest set forth
in the
definition of Applicable Rate under the
heading "Applicable Margin", based upon
the ratings by Moody's and S&P,
respectively, applicable on such date to the
Index Debt.
"Applicable Rate" means, for any day, with respect to any
Eurodollar Loan,
or with respect to the facility fees
payable hereunder, as the case may be, the
applicable rate per annum set forth on the
Pricing Schedule under the caption
"Utilization Fee", "Facility Fee" or
"Applicable Margin", as the case may be,
based upon the ratings by Moody's and
S&P, respectively, applicable on such date
to the Index Debt.
"Approved
Fund" has the meaning specified in Section 11.06.
"Assignment and Assumption" means an assignment and assumption
entered
into by a Lender and an assignee (with the
consent of any party whose consent is
required by Section 11.06) and accepted by
the Administrative Agent, in the form
of Exhibit A.
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"Assurance" means, as to any Person, any guaranty or other
contingent
liability of such Person (other than any
endorsement for collection or deposit
in the ordinary course of business) or
obligations as an account party in
respect of letters of credit, direct or
indirect, with respect to any obligation
of another Person, through an agreement or
otherwise, including (a) any other
endorsement or discount with recourse or
undertaking substantially equivalent to
or having economic effect similar to a
guarantee in respect of any such
obligation and (b) any agreement (i) to
purchase, or to advance or supply funds
for the payment or purchase of, any such
obligation, (ii) to purchase securities
or to purchase, sell or lease property
(whether as lessee or lessor), products,
materials or supplies, or transportation or
services, in respect of enabling
such other Person to pay any such
obligation or to assure the owner thereof
against loss regardless of the delivery or
non-delivery of the securities,
property, products, materials or supplies,
or transportation or services or
(iii) to make any loan, advance or capital
contribution to or other investment
in, or to otherwise provide funds to or
for, such other Person in respect of
enabling such Person to satisfy any
obligation (including any liability for a
dividend, stock liquidation payment or
expense) or to assure a minimum equity,
working capital or other balance sheet
condition in respect of any such
obligation. The amount of any Assurance
shall be an amount equal to the lesser
of the stated or determinable amount of the
primary obligation in respect of
which such Assurance is made or, if not
stated or determinable, the maximum
reasonably anticipated liability in respect
thereof (assuming such Person is
required to perform thereunder) as
determined by such Person in good faith.
"Availability Period" means, for each Lender, the period from
the
Effective Date to the earlier of the
Maturity Date and the date of termination
of the Commitments.
"Bankruptcy Code" means the United States Bankruptcy Code, as the
same may
be amended and together with any successor
statutes.
"Base
Rate" means the rate of interest per annum that is equal to the
corporate base rate of interest established
by the Administrative Agent from
time to time; each change in the Base Rate
shall be effective on the date such
change is effective. The corporate base
rate is not necessarily the lowest rate
charged by the Administrative Agent to its
customers.
"Board"
means the Board of Governors of the Federal Reserve System of
the
United States (or any successor).
"Board of
Directors" means, with respect to any Person, the Board of
Directors of such Person (or of its
(managing) general partner or managing
member, as the case may be), or any
committee thereof duly authorized to act on
behalf of such Board of Directors.
"Borrowers" has the meaning specified in paragraph (c) on page
one.
"Borrowing" means Loans of the same Type, made, converted or
continued on
the same date and, in the case of
Eurodollar Loans, as to which a single
Interest Period is in effect.
"Borrowing
Request" means a request by a Borrower for a Loan in accordance
with Section 2.02 and substantially in the
form of Exhibit D, or such other form
as shall be approved by the Administrative
Agent.
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"Business
Day" means any day that is not a Saturday, Sunday or other day
on which commercial banks in New York City
are authorized or required by law to
remain closed; provided that, when used in
connection with a Eurodollar Loan,
the term "Business Day" shall also exclude
any day on which banks are not open
for dealings in dollar deposits in the
London interbank market.
"Capital
Lease" means, as to any Person, any lease in respect of which
the
rental obligation of such Person
constitutes a Capitalized Lease Obligation.
"Capital
Markets Takeout Financing" means (a) any public or private
issuance or sale of debt securities and/or
preferred equity securities
(including mezzanine loans or securities)
and/or (b) any public or private
offering or sale of equity securities or
equity-linked securities (including
convertible securities), in each case (i)
issued or guaranteed by one or more of
the Obligors, (ii) to Persons other than an
Obligor or a Subsidiary of an
Obligor and (iii) the proceeds of which are
cash; provided that none of the
following shall constitute a "Capital
Markets Takeout Financing": (w) the sale
of equity interests issued by any Person
that is not an Obligor in a transaction
involving a disposition of such Person, (x)
the New Revolving Credit Facility,
(y) the issuance of any commercial paper,
or the short term notes equivalent of
commercial paper, or any notes with
maturities of greater than 270 days but less
than 397 days, by any Obligor and (z) the
issuance of any equity securities or
equity-linked securities by any Obligor to
support employee and director
compensation programs.
"Capital
Stock" means, with respect to any Person, any and all shares,
interests, rights to purchase, warrants,
options, participations or other
equivalents (however designated) of such
Person's equity, including all common
stock and preferred stock, common shares
and preference shares, any limited or
general partnership interest and any
limited liability company membership.
"Capitalized Lease Obligation" means, with respect to any Person,
the
obligation of such Person to pay rent or
other amounts under a lease of (or
other agreement conveying the right to use)
real or personal property that is
required to be classified and accounted for
as a capital lease obligation on a
balance sheet of such Person under GAAP
and, for purposes of this Agreement, the
amount of such obligation at any date shall
be the capitalized amount thereof at
such date, determined in accordance with
GAAP.
"Change of
Control" means an event or series of events by which (a) in the
case of WIL (i) any "person" (as such term
is used in Sections 13(d) and 14(d)
of the Exchange Act as in effect on the
Effective Date) or related persons
constituting a "group" (as such term is
used in Rule 13d-5 under the Exchange
Act in effect on the Effective Date) is or
becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the
Exchange Act, as in effect on the
Effective Date, except that a person or
such group shall be deemed to have
"beneficial ownership" of all shares that
any such person or such group has the
right to acquire without condition, other
than the passage of time, whether such
right is exercisable immediately or only
after the passage of time), directly or
indirectly, of 50% or more of the total
voting power of the Voting Stock of WIL,
except as a result of a Redomestication in
which the Persons who were the
shareholders of WIL immediately prior to
such Redomestication continue to own,
directly or indirectly, 100% of the issued
and outstanding Capital Stock of each
class of WIL; (ii) the shareholders of WIL
approve any plan of liquidation,
winding up or dissolution of WIL,
except
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in connection with a Redomestication of
WIL; (iii) WIL conveys, transfers or
leases all or substantially all of its
assets to any Person except in connection
with a Redomestication of WIL; or (iv)
during any period of twelve consecutive
months, individuals who, at the beginning
of such period, constituted the Board
of Directors of WIL (together with any new
directors whose appointment or
election by such Board of Directors or
whose nomination for election by the
shareholders of WIL, as applicable, was
approved by a vote of not less than a
majority of the directors then still in
office who were either directors at the
beginning of such period or whose
appointment, election or nomination for
election was previously so approved) cease
for any reason to constitute a
majority of the Board of Directors of WIL
then in office, but excluding from the
foregoing clause any change in the
composition or membership of the Board of
Directors of WIL resulting (i) from a
Redomestication of WIL or (ii) from the
addition thereto or removal therefrom of
directors in connection with WIL's
compliance with the United States Sarbanes
Oxley Act of 2002 or the rules and
regulations of any stock exchange on which
WIL's securities are listed, pursuant
to the recommendation of WIL's legal
counsel, (b) in the case of WII, except in
a transaction permitted by Section
7.02(a)(ii)(B) or 7.02(b), the Persons who
are the shareholders of WII immediately
prior to a transaction cease to own,
after giving effect to such transaction,
directly or indirectly, 100% of the
issued and outstanding Capital Stock of
each class of WII, or (c) in the case of
HOC, except in a transaction permitted by
Section 7.02, WIL or the New Parent
ceases to own, after giving effect to such
transaction, directly or indirectly,
100% of the issued and outstanding Capital
Stock of each class of HOC.
"Change of
Control Event" means (a) the execution of any definitive
agreement which when fully performed by the
parties thereto, would result in a
Change of Control; or (b) the commencement
of a tender offer pursuant to Section
14(d) of the Exchange Act that would result
in a Change of Control if completed.
"Change in
Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any
change in any law, rule or regulation
or in the interpretation or application
thereof by any Governmental Authority
after the date of this Agreement or (c)
compliance by any Lender (or, for
purposes of Section 2.12, by any lending
office of such Lender or by such
Lender's holding company, if any) with any
request, guideline or directive
(whether or not having the force of law) of
any Governmental Authority made or
issued after the date of this
Agreement.
"Charges"
has the meaning specified in Section 11.14.
"Code"
means the United States Internal Revenue Code of 1986, as
amended,
from time to time, and the regulations
promulgated thereunder.
"Commitment" means, with respect to each Lender, the commitment of
such
Lender to make Loans hereunder, expressed
as an amount representing the maximum
aggregate amount of such Lender's Revolving
Credit Exposure hereunder, as such
commitment may be (a) reduced from time to
time pursuant to Section 2.05 or 2.08
and (b) reduced or increased from time to
time pursuant to assignments by or to
such Lender pursuant to Section 11.06. The
initial amount of each Lender's
Commitment is set forth on Schedule 2.01,
or in the Assignment and Assumption
pursuant to which such Lender shall have
assumed its Commitment, as applicable.
The initial aggregate amount of the
Lenders' Commitments is $1,200,000,000.
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"Communications" has the meaning specified in Section 11.02.
"consolidated" means any Person whose financial condition and
results of
operations are required in accordance with
GAAP to be shown on a consolidated
basis with the financial condition and
results of operations of WIL.
"Consolidated Indebtedness" means, for any Person, at the date of
any
determination thereof, Indebtedness of such
Person and its consolidated
Subsidiaries (other than Interest Rate Risk
Indebtedness, Derivatives
Obligations, and contingent obligations in
respect of letters of credit)
determined on a consolidated basis in
accordance with GAAP.
"CP Borrowing" means
any Borrowing comprised of Loans, the proceeds of
which will be used to refinance commercial
paper, or the short term notes
equivalent of commercial paper, issued by
either Borrower or the Guarantor.
"Credit
Event" means the making of any Loan pursuant hereto.
"Default"
means the occurrence of any event which with the giving of
notice or the passage of time or both would
become an Event of Default.
"Derivatives Obligations" means, as to any Person all obligations
of such
Person in respect of any swap transaction,
forward rate transaction, commodity
swap, commodity option, interest rate
option, foreign exchange transaction, cap
transaction, floor transaction, collar
transaction, currency swap transaction,
cross-currency rate swap transaction,
currency option or any other similar
transaction (including any option with
respect to any of the foregoing
transactions) or any combination of the
foregoing transactions, entered into in
the ordinary course of business of such
Person for the purpose of hedging and
not for speculative purposes.
"Dollars,"
"dollars" and "$" means lawful money of the United States of
America.
"domestic"
means, when used with respect to a Subsidiary of a Person, a
Subsidiary organized under the laws of any
State of the United States or the
District of Columbia.
"Domestic
Intercompany Debt" means Indebtedness owed by any domestic
Subsidiary of WIL to WIL or to any
Wholly-Owned Subsidiary of WIL.
"Effective
Date" means the date on which the conditions set forth in
Section 4.01 are first satisfied or
waived.
"Environmental Law" means all federal, state, provincial or local
laws,
statutes, rules, regulations, ordinances
and codes, together with all final
administrative orders, licenses,
authorizations and permits of, and written
agreements with, any Governmental
Authorities, in each case relating to the
protection of the environment or the
disposal of hazardous waste.
"ERISA"
means the United States Employee Retirement Income Security Act
of
1974, as amended from time to time, and all
rules, regulations, rulings and
interpretations adopted by the U.S.
Department of Labor thereunder.
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"ERISA
Affiliate" means (a) all members of a controlled group of
corporations and all trades or businesses
(whether or not incorporated) under
common control which, together with WIL,
are treated as a single employer under
Section 414 of the Code and (b) any
Subsidiary of any of the Obligors.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to
whether such Loan, or the Loans comprising
such Borrowing, are bearing interest
at a rate determined by reference to the
Adjusted LIBO Rate.
"Event of
Default" shall have the meaning specified in Article VIII.
"Exchange
Act" means the United States Securities Exchange Act of 1934,
as
amended.
"Excluded
Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any
payment to be made by or on account of any
obligation of either Borrower hereunder,
(a) income or franchise taxes imposed
on (or measured by) its net income by the
United States of America, or by the
jurisdiction under the laws of which such
recipient is organized or in which its
principal office is located or, in the case
of any Lender, in which its
applicable lending office is located, (b)
any branch profits taxes imposed by
the United States of America or any similar
tax imposed by any other
jurisdiction in which a Borrower, the
Administrative Agent, any Lender or any
other such recipient is located, (c) in the
case of a Foreign Lender (other than
an assignee pursuant to a request by a
Borrower under Section 3.03(b)), any
withholding tax that is imposed on amounts
payable to such Foreign Lender at the
time such Foreign Lender becomes a party to
this Agreement (or designates a new
lending office) or would have been so
imposed if a Borrower were a United States
corporation, or is attributable to such
Foreign Lender's failure to comply with
Section 3.02(c) or 3.02(e), except to the
extent that such Foreign Lender (or
its assignor, if any) was entitled, at the
time of designation of a new lending
office (or assignment), to receive
additional amounts from such Borrower with
respect to such withholding tax pursuant to
Section 3.02(a) and (d) in the case
of any Lender that becomes a party to this
Agreement after the date hereof (or
designates a new lending office after the
date hereof) without the prior written
consent of WIL pursuant to Section 11.06
(other than a Lender that becomes a
party to this Agreement or designates a new
lending office when an Event of
Default has occurred and is continuing),
any withholding tax that is imposed on
amounts payable to such Lender pursuant to
this Agreement (and including any
additional withholding tax that is imposed
on amounts payable to such Lender as
a result of a change in treaty, law or
regulation).
"Existing
Revolving Credit Facility" means that certain Amended and
Restated Credit Agreement dated as of
January 14, 2005 among the Borrowers, the
Guarantor, JPMorgan Chase Bank, N.A.,
individually and as Administrative Agent,
and the other lenders party thereto, as it
may from time to time be amended.
"Facility
Fee" has the meaning set forth in Section 2.09(a).
"Facility
Fee Rate" means the per annum rate of interest set forth under
the heading "Facility Fee" in the
definition of Applicable Rate, based upon the
ratings by Moody's and S&P,
respectively, applicable on such date to the Index
Debt.
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<PAGE>
"Federal
Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on
overnight Federal funds transactions with
members of the Federal Reserve System
arranged by Federal funds brokers, as
published on the next succeeding Business
Day by the Federal Reserve Bank of New
York, or, if such rate is not so
published for any day that is a Business
Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the
quotations for such day for such
transactions received by the Administrative
Agent from three Federal funds
brokers of recognized standing selected by
it.
"foreign"
means, when used with respect to a Subsidiary of any Person, a
Subsidiary of such Person organized under
the laws of any jurisdiction other
than a State of the United States or the
District of Columbia.
"Foreign
Lender" means any Lender that is organized under the laws of a
jurisdiction other than the United States
of America or any State thereof.
"GAAP"
means generally accepted accounting principles as in effect
from
time to time as set forth in the opinions,
statements and pronouncements of the
Accounting Principles Board of the American
Institute of Certified Public
Accountants and the Financial Accounting
Standards Board.
"Governmental Authority" means any governmental authority of the
United
States of America, any State of the United
States, Bermuda, the Republic of
Hungary or of any other foreign
jurisdiction and any political subdivision of
any of the foregoing, and any central bank,
agency, department, commission,
board, bureau, court or other tribunal
having or lawfully asserting jurisdiction
over the Administrative Agent, any Lender,
any Obligor or their respective
properties.
"Guaranteed Obligations" has the meaning specified in Section
10.01.
"Guarantor" has the meaning specified in paragraph (b) on page
one.
"Guaranty"
means the guaranty contained in Article X.
"HOC" has
the meaning specified in paragraph (c) on page one.
"Indebtedness" means (without duplication), with respect to any
Person,
(a) any liability of such Person (i) for
borrowed money (whether or not the
recourse of the lender is to the whole of
the assets of such Person or only to a
portion thereof), or under any
reimbursement obligation relating to a letter of
credit, bankers' acceptance or note
purchase facility, (ii) evidenced by a bond,
note, debenture or similar instrument,
(iii) for the balance deferred and unpaid
of the purchase price for any property or
any obligation upon which interest
charges are customarily paid (except for
trade payables arising in the ordinary
course of business), or (iv) for the
payment of money relating to the principal
portion of any Capitalized Lease
Obligation; (b) any obligation of any Person
secured by (or for which the holder of such
obligation has an existing right,
contingent or otherwise, to be secured by)
a consensual Lien on property owned
or acquired, whether or not any obligation
secured thereby has been assumed, by
such Person; (c) all net obligations of
such Person as of the date of a required
calculation of any Derivatives
Obligations;
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<PAGE>
(d) all Assurances of such Person of the
Indebtedness of any other Person of the
type referred to in clause (a) or (c); (e)
Interest Rate Risk Indebtedness of
such Person; and (f) any amendment,
supplement, modification, deferral, renewal,
extension or refunding of any liability of
the types referred to above.
"Indemnified Taxes" means any Taxes other than Excluded Taxes and
Other
Taxes.
"Indemnitee" has the meaning specified in Section 11.04.
"Index
Debt" means senior, unsecured, long-term indebtedness for
borrowed
money of WIL that is not guaranteed by any
other Person or subject to any other
credit enhancement.
"Interest
Election Request" means a request by a Borrower to convert or
continue a Loan in accordance with Section
2.04 and substantially in the form of
Exhibit E, or such other form as shall be
approved by the Administrative Agent.
"Interest
Payment Date" means (a) with respect to any ABR Borrowing, the
last day of each March, June, September and
December, and (b) with respect to
any Eurodollar Loan, the last day of the
Interest Period applicable to the
Borrowing of which such Loan is a part and,
in the case of a Eurodollar
Borrowing with an Interest Period of more
than three months' duration, each day
prior to the last day of such Interest
Period that occurs at intervals of three
months' duration after the first day of
such Interest Period.
"Interest
Period" means, with respect to a Eurodollar Borrowing, the
period commencing on the date of such
Borrowing and ending on the numerically
corresponding day in the calendar month
that is one, two, three or six months
(or, with the consent of each Lender, nine
or twelve months) thereafter, as a
Borrower may elect; provided that (i) if
any Interest Period would end on a day
other than a Business Day, such Interest
Period shall be extended to the next
succeeding Business Day unless, in the case
of a Eurodollar Borrowing only, such
next succeeding Business Day would fall in
the next calendar month, in which
case such Interest Period shall end on the
next preceding Business Day and (ii)
any Interest Period pertaining to a
Eurodollar Borrowing that commences on the
last Business Day of a calendar month (or
on a day for which there is no
numerically corresponding day in the last
calendar month of such Interest
Period) shall end on the last Business Day
of the last calendar month of such
Interest Period. For purposes hereof, the
date of a Borrowing initially shall be
the date on which such Borrowing is made
and, in the case of a Loan, thereafter
shall be the effective date of the most
recent conversion or continuation of
such Borrowing.
"Interest
Rate Risk Indebtedness" means, with respect to any Person, all
obligations and Indebtedness of such Person
with respect to the program for the
hedging of interest rate risk provided for
in any interest rate swap agreement,
interest rate cap agreement, interest rate
collar agreement or similar
arrangement entered into such Person for
the purpose of reducing its exposure to
interest rate fluctuations and not for
speculative purposes, approved in writing
by the Administrative Agent (such approval
not to be unreasonably withheld), as
it may from time to time be amended,
modified, restated or supplemented.
"ISDA"
means the International Swaps and Derivatives Association, Inc.
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<PAGE>
"Lenders"
means the Persons listed on Schedule 1.01 and any other Person
that shall have become a party hereto
pursuant to an Assignment and Assumption,
other than any such Person that ceases to
be a party hereto pursuant to an
Assignment and Assumption.
"LIBO
Rate" means the Applicable Margin from time to time in effect
plus
the applicable British Bankers' Association
London interbank offered rate for
deposits in Dollars for such Loan, as
reported by any generally recognized
financial information service as of 11:00
a.m. (London time) two Business Days
prior to the first day of such Interest
Period, and having a maturity equal to
such Interest Period, provided that if no
such British Bankers' Association
London interbank offered rate is available
to the Administrative Agent, the
applicable LIBO Rate for the relevant
Interest Period shall instead be the rate
at which deposits in Dollars and in
immediately available funds are offered to
first class banks in the London interbank
market by the Reference Bank at 11:00
a.m. (London time) two Business Days before
the first day of the applicable
Interest Period and for a period equal to
such Interest Period and in amounts
substantially equal to the amount of the
requested LIBO Rate Loan of the
Reference Bank comprising a part of such
Borrowing.
"Lien"
means any lien, mortgage, pledge, assignment (including any
assignment of rights to receive payments of
money), security interest, charge or
encumbrance of any kind including any
conditional sale or other title retention
agreement or any lease (excluding, however,
any lease that is not a Capital
Lease) in the nature thereof (whether
voluntary or involuntary and whether
imposed or created by operation of law or
otherwise), and any agreement to give
a lien, mortgage, pledge, assignment
(including any assignment of rights to
receive payments of money), security
interest, charge or other encumbrance of
any kind; provided that "Lien" shall not
include or cover (i) setoff rights and
other standard arrangements for netting
payment obligations in the settlement of
obligations, arising under ISDA standard
documents or otherwise customary in
swap or hedging transactions; and (ii)
setoff rights of banks party to
Derivatives Obligations which rights arise
in the ordinary course of customary
banking relationships.
"Loan"
means a loan made pursuant to Section 2.01.
"Loan
Documents" means, collectively, this Agreement, the Notes, all
instruments, certificates (including all
Borrowing Requests) and agreements now
or hereafter executed or delivered by any
Obligor to the Administrative Agent or
any Lender pursuant to any of the foregoing
or in connection with the
Obligations or any commitment regarding the
Obligations, and all amendments,
modifications, renewals, extensions,
increases and rearrangements of, and
substitutions for, any of the
foregoing.
"Material
Adverse Effect" means, relative to any occurrence of whatever
nature (including any adverse determination
in any litigation, arbitration or
governmental investigation or proceeding)
and after taking into account actual
insurance coverage and effective
indemnification with respect to such
occurrence, (a) a material adverse effect
on the financial condition, business
or operations of WIL and its consolidated
Subsidiaries taken as a whole, (b) the
impairment of (i) the ability of the
Obligors to collectively perform their
payment or other material obligations
hereunder or under the Notes and other
Loan Documents or (ii) the ability of the
Administrative Agent or the Lenders to
realize the material benefits intended to
be provided
- 10 -
<PAGE>
by the Obligors under the Loan Documents or
(c) the subjection of the
Administrative Agent or any Lender to any
civil or criminal liability arising in
connection with the Loan Documents.
"Material
Subsidiary" means, at any date, a consolidated Subsidiary the
Capital Stock of which is owned by WIL
and/or one or more of its Subsidiaries
and that either (a) has total assets in
excess of 5% of the total assets of WIL
and its consolidated Subsidiaries, in each
case as determined in accordance with
GAAP or (b) has gross net revenues in
excess of 5% of the consolidated gross
revenues of WIL and its consolidated
Subsidiaries based, in each case, on the
most recent audited consolidated financial
statements of WIL.
"Maturity
Date" means August 23, 2006.
"Maximum
Rate" has the meaning set forth in Section 11.14.
"May 1996
Debenture Indenture" means the Indenture dated as of May 17,
1996, from WII to The Bank of New York, as
Trustee, as amended and supplemented
to the Effective Date.
"May 1996
Debentures" means WII's debentures issued pursuant to the May
1996 Debenture Indenture, which are
guaranteed by WIL.
"Moody's"
means 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 Cash
Proceeds" means the cash proceeds of any Capital Markets
Takeout
Financing, net of customary fees,
commissions, costs and other expenses incurred
in connection therewith.
"Net
Worth" means, for any Person, at the date of any determination
thereof, on a consolidated basis, the sum
of (a) the par value or stated value
of its Capital Stock, plus (b) capital in
excess of par or stated value of
shares of its Capital Stock, plus (or minus
in the case of a deficit) (c)
retained earnings or accumulated deficit,
as the case may be, plus (d) any other
account which, in accordance with GAAP,
constitutes stockholders' equity, but
excluding (i) any treasury stock, (ii)
non-cash charges incurred in connection
with the Acquisition in an aggregate amount
not to exceed $350,000,000 and (iii)
the effects upon net worth resulting from
the translation of foreign currency
denominated assets into Dollars.
"New
Parent" has the meaning specified in the definition of the term
"Redomestication".
"New
Revolving Credit Facility" means any new revolving credit
facility
that replaces the Existing Revolving Credit
Facility. For the avoidance of
doubt, the term "New Revolving Credit
Facility" includes any amendment and
restatement of the Existing Revolving
Credit Facility.
"New
Revolving Credit Facility Agreement" means the agreement that
evidences the New Revolving Credit
Facility.
- 11 -
<PAGE>
"New Revolving Credit Facility Effective Date" means the date
of
effectiveness of the New Revolving Credit
Facility.
"Notes"
has the meaning specified in Section 2.06(e).
"Obligations" means, as at any date of determination thereof, the
sum of
the following: (a) the aggregate principal
amount of Loans outstanding hereunder
on such date, plus (b) all other
outstanding liabilities, obligations and
indebtedness of either Borrower under any
Loan Document on such date.
"Obligors"
means WIL, WII and HOC.
"October
2003 Debenture Indenture" means the Indenture dated as of
October
1, 2003, among WIL, as the issuer, WII, as
the guarantor, and Deutsche Bank
Trust Company Americas, as Trustee, as
amended and supplemented to the Effective
Date.
"October
2003 Debentures" means WIL's debentures issued pursuant to the
October 2003 Debenture Indenture, which are
guaranteed by WII.
"Other
Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property
taxes, charges or similar levies, other
than Excluded Taxes, arising from any
payment made hereunder or from the
execution, delivery or enforcement of, or
otherwise with respect to, this
Agreement, but only to the extent that any
of the foregoing is imposed by (i)
Bermuda, Barbados, the Republic of Hungary
or the United States or any other
jurisdiction in which WIL is Redomesticated
or is resident for tax purposes with
respect to a Foreign Lender or (ii)
Bermuda, Barbados, the Republic of Hungary
or any other jurisdiction (other than the
United States) in which WIL is
Redomesticated or is resident for tax
purposes with respect to a Lender which is
not a Foreign Lender.
"Participant" has the meaning specified in Section 11.06(c).
"Past Due
Rate" means, on any day, a rate per annum equal to (a) for ABR
Borrowings, the applicable Alternate Base
Rate plus 2% and (b) for Eurodollar
Borrowings, the applicable Adjusted LIBO
Rate plus 2%.
"PBGC"
means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions
under ERISA.
"Performance Level" means a reference to one of Performance Level
I,
Performance Level II, Performance Level
III, Performance Level IV or Performance
Level V.
"Performance Level I" means, at any date of determination, WIL
shall have
an Index Debt rating in effect on such date
of A- or better by S&P and A3 or
better by Moody's.
"Performance Level II" means, at any date of determination, (a)
the
Performance Level does not meet the
requirements of Performance Level I and (b)
WIL shall have an Index Debt rating in
effect on such date of BBB+ or better by
S&P and Baa1 or better by Moody's.
- 12 -
<PAGE>
"Performance Level III" means, at any date of determination, (a)
the
Performance Level does not meet the
requirements of Performance Level I or
Performance Level II and (b) WIL shall have
an Index Debt rating in effect on
such date of BBB or better by S&P and
Baa2 or better by Moody's.
"Performance Level IV" means, at any date of determination, (a)
the
Performance Level does not meet the
requirements of Performance Level I,
Performance Level II or Performance Level
III and (b) WIL shall have an Index
Debt rating in effect on such date of BBB-
or better by S&P and Baa3 or better
by Moody's.
"Performance Level V" means, at any date of determination, the
Performance
Level does not meet the requirements of
Performance Level I, Performance Level
II, Performance Level III or Performance
Level IV.
"Permitted
Liens" means, without duplication,
(a) Liens, not otherwise permitted under any other provision of
this
definition, securing Indebtedness permitted under this Agreement in
an
aggregate
principal amount at any time outstanding which does not exceed
12% of
WIL's Net Worth;
(b) Liens for Taxes or unpaid utilities not yet delinquent or
which
are being
contested in good faith by appropriate proceedings; provided
that
adequate reserves with respect thereto are maintained on the books
of
WIL or its
Subsidiaries, as the case may be, in conformity with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or
other like Liens arising in the ordinary course of business
and not
overdue for a period of more than 60 days or which are being
contested
in good faith by appropriate proceedings and for which adequate
reserves
have been made in accordance with GAAP;
(d) pledges or deposits or deemed trusts in connection with
workers'
compensation, unemployment insurance, pension, employment or other
social
security
legislation;
(e) easements, rights-of-way, use restrictions, minor defects
or
irregularities in title, reservations (including reservations in
any
original
grant from any government of any land or interests therein and
statutory
exceptions to title) and other similar encumbrances incurred in
the
ordinary course of business which, in the aggregate, are not
substantial in amount and which do not in any case materially
detract from
the value
of the property subject thereto or materially interfere with
the
ordinary conduct
of the business of WIL or any of its Subsidiaries;
(f) judgment and attachment Liens not giving rise to an Event
of
Default or
Liens created by or existing from any litigation or legal
proceeding
that are currently being contested in good faith by appropriate
proceedings, promptly instituted and diligently conducted, and for
which
adequate
reserves have been made to the extent required by GAAP;
- 13 -
<PAGE>
(g) Liens on the assets of any entity or asset existing at the
time
such asset
or entity is acquired by WIL or any of its Subsidiaries,
whether by
merger, amalgamation, consolidation, purchase of assets or
otherwise;
provided that such Liens (i) are not created, incurred or
assumed by
such entity in contemplation of such entity's being acquired by
WIL or any
of its Subsidiaries; (ii) do not extend to any other assets of
WIL or any
of its Subsidiaries; and (iii) the Indebtedness secured by such
Lien is
permitted pursuant to this Agreement;
(h) Liens securing Indebtedness of WIL or its Subsidiaries not
prohibited
by Section 7.04 incurred to finance the acquisition of fixed or
capital
assets, provided that (i) such Liens shall be created not more
than 90
days after the acquisition of such fixed or capital assets,
(ii)
such Liens
do not at any time encumber any property other than the
property
financed by such Indebtedness and (iii) the Liens are not
modified
to secure other Indebtedness and the amount of Indebtedness
secured
thereby is not increased;
(i) Liens incurred to secure the performance of tenders, bids,
leases,
statutory obligations, surety and appeal bonds, government
contracts,
performance and return-of-money bonds and other obligations of
a like
nature incurred in the ordinary course of business (exclusive
of
obligations for the payment of borrowed money);
(j) leases or subleases granted to others not interfering in
any
material
respect with the business of WIL or any of its Subsidiaries;
(k) Liens to secure obligations arising from statutory or
regulatory
requirements;
(l) any interest or title of a lessor in property subject to
any
Capitalized Lease Obligation or operating lease which, in each
case, is
permitted
under this Agreement;
(m) Liens in favor of collecting or payor banks having a right
of
setoff,
revocation, refund or chargeback with respect to money or
instruments of WIL or any of its Subsidiaries on deposit with or
in
possession
of such bank; and
(n) any renewal or refinancing of or substitution for, or any
extension
or modification of any maturity date for any Indebtedness
secured
by, any Lien permitted by any of the preceding clauses;
provided
that the
debt secured is not increased nor the Lien extended to any
additional
assets.
"Person"
means any individual, corporation, company, limited or general
partnership, limited liability company,
joint venture, association, joint stock
company, trust, unincorporated organization
or other entity, or any Governmental
Authority.
"Plan"
means an employee pension benefit plan which is covered by Title
IV
of ERISA or subject to the minimum funding
standards under Section 412 of the
Code and is either (a) maintained by WIL or
any ERISA Affiliate for employees of
WIL or any ERISA Affiliate or (b)
maintained pursuant to a collective bargaining
agreement or any other arrangement under
which more than one employer makes
contributions and to which WIL or any ERISA
Affiliate is then
- 14 -
<PAGE>
making or accruing an obligation to make
contributions or has within the
preceding five plan years made
contributions.
"Pricing
Schedule" means the Pricing Schedule attached hereto, which
Pricing Schedule shall be, on the New
Revolving Credit Facility Effective Date,
automatically (without any further action
by any party hereto) deemed to be
amended and restated such that, for any
given Performance Level, (i) the
Facility Fee for such Performance Level
after giving effect to such deemed
amendment and restatement shall be the same
as the Facility Fee for such
Performance Level prior to giving effect to
such deemed amendment and
restatement, (ii) the sum of the Facility
Fee and the Applicable Margin for such
Performance Level after giving effect to
such deemed amendment and restatement
shall equal the sum of the facility fee and
the applicable margin for the
equivalent performance level contained in
the New Revolving Credit Facility
Agreement, and (iii) the Utilization Fee
for such Performance Level shall equal
the utilization fee for the equivalent
performance level contained in the New
Revolving Credit Facility Agreement (it
being the intention of the parties
hereto that on the New Revolving Credit
Facility Effective Date, amounts loaned
under this Agreement will be subject to the
same "all-in drawn spread" as
amounts loaned under the New Revolving
Credit Facility, but that commitments to
lend may or may not be subject to the same
rates of compensation as commitments
to lend under the New Revolving Credit
Agreement). The Administrative Agent
shall replace the Pricing Schedule attached
hereto with a replacement Pricing
Schedule that evidences the changes
described above as soon after the New
Revolving Credit Facility Effective Date as
is reasonably practicable, and the
Administrative Agent shall distribute a
copy of such replacement Pricing
Schedule to all parties hereto.
"Redemption" means, at any time, the redemption of all the Zero
Coupon
Debentures outstanding at such time.
"Redemption Borrowing" means the Borrowing comprised of Loans,
the
proceeds of which will be used to fund (i)
the Redemption or (ii) the repurchase
of common shares or other equity securities
issued by WIL, provided that such
shares or securities are cancelled, and not
held in treasury for reissuance,
immediately following the repurchase
thereof.
"Redemption Borrowing Date" means the date on which the Loans
comprising
the Redemption Borrowing are made.
"Redomestication" means:
(a) any amalgamation, merger, conversion or consolidation of WIL
or
WII with
or into any other Person, or of any other Person with or into
WIL
or WII, or
the sale or other disposition (other than by lease) of all or
substantially all of its assets by WIL or WII to any other
Person,
(b) any continuation, discontinuation, amalgamation, merger,
conversion, consolidation or domestication or similar action with
respect
to WIL or
WII pursuant to the law of the jurisdiction of its organization
and of any
other jurisdiction, or
(c) the formation of a Person that becomes, as part of the
transaction, the owner of 100% of the Capital Stock of WIL (the
"New
Parent"),
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<PAGE>
if as a result thereof
(x) in the case of any action specified in clause (a), the
entity
that is
the surviving, resulting or continuing Person in such merger,
amalgamation, conversion or consolidation, or the transferee in
such sale
or other
disposition,
(y) in the case of any action specified in clause (b), the
entity
that
constituted such Obligor, immediately prior thereto (but
disregarding
for this
purpose any change in its jurisdiction of organization), or
(z) in the case of any action specified in clause (c), the New
Parent
(in any such case the "Surviving Person")
is a corporation or other entity,
validly incorporated or formed and existing
in good standing (to the extent the
concept of good standing is applicable)
under the laws of Delaware or another
State of the United States or under the
laws of the United Kingdom, The Kingdom
of the Netherlands or (with the consent of
the Required Lenders, such consent
not to be unreasonably withheld) under the
laws of any other jurisdiction, whose
Capital Stock of each class issued and
outstanding immediately following such
action, and giving effect thereto, shall be
beneficially owned by the same
Persons, in the same percentages, as was
the Capital Stock of the entity
constituting WIL immediately prior thereto
and, if the Surviving Person is WII
or the New Parent, the Surviving Person
continues to be Sowned, directly or
indirectly, 100% by Persons who were
shareholders of WIL immediately prior to
such transaction and the Surviving Person
shall have delivered to the
Administrative Agent (i) a certificate to
the effect that, both before and after
giving effect to such transaction, no
Default or Event of Default exists, (ii)
an opinion, reasonably satisfactory in
form, scope and substance to the
Administrative Agent, of counsel reasonably
satisfactory to the Administrative
Agent, addressing such matters in
connection with the Redomestication as the
Administrative Agent or any Lender may
reasonably request, and (iii) if the
Surviving Person is the New Parent, a
guaranty of the Obligations in form and
substance reasonably satisfactory to the
Administrative Agent.
"Reference
Bank" means UBS AG, Stamford Branch.
"Register"
has the meaning specified in Section 11.06(b)(iv).
"Regulation D" means Regulation D of the Board (respecting
reserve
requirements), as the same is from time to
time in effect, and all official
rulings and interpretations thereunder or
thereof.
"Regulation T" means Regulation T of the Board (respecting
eligible
securities and margin requirements), as the
same is from time to time in effect,
and all official rulings and
interpretations thereunder or thereof.
"Regulation U" means Regulation U of the Board (respecting margin
credit
extended by banks), as the same is from
time to time in effect, and all official
rulings and interpretations thereunder or
thereof.
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<PAGE>
"Regulation X" means Regulation X of the Board (respecting
borrowers who
obtain margin credit), as the same is from
time to time in effect, and all
official rulings and interpretations
thereunder or thereof.
"Related
Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective
directors, officers, employees, agents
and advisors of such Person and such
Person's Affiliates.
"Reportable Event" means an event described in Section 4043(c) of
ERISA
with respect to a Plan as to which the 30
day notice requirement has not been
waived by the PBGC.
"Required
Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments
representing at least fifty-one percent (51%)
of the sum of the total Revolving Credit
Exposures and unused Commitments at
such time.
"Requirement of Law" means, as to any Person, any law, treaty, rule
or
regulation or determination of an
arbitrator or a court or other Governmental
Authority, in each case applicable to or
binding upon such Person or any of its
property or to which such Person or any of
its property is subject.
"Responsible Officer" means, with respect to any Obligor, the
president,
the chief financial officer, the controller
or any vice president of such
Obligor, or an individual specifically
authorized by the Board of Directors of
such Obligor to sign on behalf of such
Obligor.
"Revolving
Credit Exposure" means, with respect to any Lender at any time,
the outstanding principal amount of such
Lender's Loans at such time.
"S&P"
means Standard & Poor's Ratings Group, a division of
McGraw-Hill,
Inc.
"Statutory
Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and
the denominator of which is the number
one minus the aggregate of the maximum
reserve percentages (including any
marginal, special, emergency or
supplemental reserves) expressed as a decimal
established by the Board to which the
Administrative Agent is subject, with
respect to the Adjusted LIBO Rate, for
eurocurrency funding (currently referred
to as "eurocurrency liabilities" in
Regulation D of the Board). Such reserve
percentages shall include those imposed
pursuant to such Regulation D.
Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be
subject to such reserve requirements
without benefit of or credit for proration,
exemptions or offsets that may be available
from time to time to any Lender
under such Regulation D or any comparable
regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as
of the effective date of any change in
any reserve percentage.
"Subsidiary" of a Person means (a) a company or corporation a
majority of
whose Voting Stock is at the time, directly
or indirectly, owned by such Person,
by one or more subsidiaries of such Person
or by such Person and one or more
subsidiaries of such Person, (b) a
partnership in which such Person or a
subsidiary of such Person is, at the date
of determination, a general or limited
partner of such partnership, but only if
such Person or its subsidiary is
entitled to receive
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<PAGE>
more than 50% of the assets of such
partnership upon its dissolution, or (c) any
other Person (other than a corporation or
partnership) in which such Person,
directly or indirectly, at the date of
determination thereof, has (i) at least a
majority ownership interest or (ii) the
power to elect or direct the election of
a majority of the directors or other
governing body of such Person. Unless the
context otherwise clearly requires,
references in this Agreement to a
"Subsidiary" or the "Subsidiaries" refer to
a Subsidiary or the Subsidiaries of
WIL.
"Taxes"
means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings
imposed by any Governmental
Authority.
"Termination Date" means the earlier of (a) the Maturity Date and
(b) the
earlier date of the acceleration of the
maturity of the Obligations pursuant to
Section 8.01.
"Total
Capitalization" means, for any Person, at the date of
determination
thereof, the sum of (a) Consolidated
Indebtedness of such Person, plus (b) Net
Worth of such Person.
"Type",
when used in reference to any Loan or Borrowing, refers to
whether
the rate of interest on such Loan, or on
the Loans comprising such Borrowing, is
determined by reference to the Adjusted
LIBO Rate or the Alternate Base Rate.
"Utilization Fee" means the per annum rate specified in Section
2.09(c),
as determined under the heading
"Utilization Fee" in the definition of
"Applicable Rate" and based upon the
ratings by Moody's and S&P, respectively,
applicable on such date to the Index
Debt.
"Voting
Stock" means, with respect to any Person, securities of any
class
or classes of Capital Stock in such Person
entitling holders thereof (whether at
all times or only so long as no senior
class of stock has voting power by reason
of any contingency) to vote in the election
of members of the Board of Directors
or other governing body of such Person.
"Wholly-Owned Subsidiary" of a Person means a Subsidiary of which
all
issued and outstanding Capital Stock
(excluding directors' qualifying shares or
similar jurisdictional requirements) is
directly or indirectly owned by such
Person.
"WII" has
the meaning specified in paragraph (b) on page one.
"WIL" has
the meaning specified in paragraph (a) on page one.
"Zero
Coupon Debentures" means the zero coupon convertible debentures
due
June 30, 2020, issued by WII on August 22,
2000, pursuant to the Indenture dated
as of May 17, 1996, from WII to The Bank of
New York, as Trustee, as amended and
supplemented thereafter, and guaranteed by
WIL.
SECTION
1.02. Types of Borrowings. Borrowings hereunder are
distinguished
by "Type." The "Type" of a Loan refers to
the determination whether such Loan is
a part of a Loan bearing interest at the
Adjusted LIBO Rate or at the Alternate
Base Rate.
SECTION
1.03. Accounting Terms; Changes in GAAP. All accounting and
financial terms used herein and not
otherwise defined herein and the compliance
with each covenant
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contained herein which relates to financial
matters shall be determined in
accordance with GAAP applied on a
consistent basis, except to the extent that a
deviation therefrom is expressly stated.
Should there be a change in GAAP from
that in effect on the Effective Date, such
that the defined terms set forth in
Section 1.01 or the covenants set forth in
Article VII would then be calculated
in a different manner or with different
components or would render the same not
meaningful criteria for evaluating the
matters contemplated to be evidenced by
such covenants, (a) WIL and the Lenders
agree, within the 60-day period
following any such change, to negotiate in
good faith and enter into an
amendment to this Agreement in order to
conform the defined terms set forth in
Section 1.01 or the covenants set forth in
Article VII, or both, in such
respects as shall reasonably be deemed
necessary by the Required Lenders so that
the criteria for evaluating the matters
contemplated to be evidenced by such
covenants are substantially the same
criteria as were effective prior to any
such change in GAAP, and (b) the Obligors
shall be deemed to be in compliance
with such covenants during the 60-day
period following any such change, or until
the earlier date of execution of such
amendment, if and to the extent that the
Obligors would have been in compliance
therewith under GAAP as in effect
immediately prior to such change.
SECTION
1.04. Interpretation. (a) In this Agreement, unless a clear
contrary intention appears:
(i) the singular number includes the plural number and vice
versa;
(ii) reference to any gender includes each other gender;
(iii) the words "herein," "hereof" and "hereunder" and other
words
of similar
import refer to this Agreement as a whole and not to any
particular
Article, Section or other subdivision;
(iv) unless the context indicates otherwise, reference to any
Person
includes
such Person's successors and assigns but, if applicable, only
if
such
successors and assigns are permitted by this Agreement, including
any
Person that becomes a
successor to WIL or WII as a result of a
Redomestication, and reference to a Person in a particular
capacity
excludes
such Person in any other capacity or individually, provided
that
nothing in
this clause (iv) is intended to authorize any assignment not
otherwise
permitted by this Agreement;
(v) except as expressly provided to the contrary herein,
reference
to any
agreement, document or instrument (including this Agreement)
means
such
agreement, document or instrument as amended, supplemented or
modified
and in effect from time to time in accordance with the terms
thereof
and, if applicable, the terms hereof, and reference to any Note
or
other note
includes any note issued pursuant hereto in extension or
renewal
thereof and in substitution or replacement therefor;
(vi) unless the context indicates otherwise, reference to any
Article,
Section, Schedule or Exhibit means such Article or Section
hereof
or such
Schedule or Exhibit hereto;
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<PAGE>
(vii) the word "including" (and with correlative meaning
"include")
means
including, without limiting the generality of any description
preceding such
term;
(viii) with respect to the determination of any period of time,
except as
expressly provided to the contrary, the word "from" means "from
and
including" and the word "to" means "to but excluding"; and
(ix) reference to any law, rule or regulation means such as
amended,
modified,
codified or reenacted, in whole or in part, and in effect from
time to
time.
(b) The Article and Section headings herein and the Table of
Contents are for convenience only and shall
not affect the construction hereof.
(c) No provision of this Agreement shall be interpreted or
construed
against any Person solely because that
Person or its legal representative
drafted such provision.
Article II
COMMITMENTS; LOANS
SECTION
2.01. Loans. Subject to the terms and conditions set forth
herein,
each Lender agrees to make Loans
denominated in Dollars to the Borrowers from
time to time during the Availability Period
in an aggregate principal amount
that shall not result in (x) such Lender's
Revolving Credit Exposure exceeding
such Lender's Commitment or (y) the sum of
the total Revolving Credit Exposures
exceeding the total Commitments. Within the
foregoing limits and subject to the
terms and conditions set forth herein, the
Borrowers may borrow, prepay and
reborrow Loans. Each Lender severally
agrees, subject to all of the terms and
conditions of this Agreement to make Loans
as follows:
(a) Each Loan shall be made as part of a Borrowing consisting
of
Loans made by the Lenders ratably in
accordance with their respective
Commitments. The failure of any Lender to
make any Loan required to be made by
it shall not relieve any other Lender of
its obligations hereunder; provided
that the Commitments of the Lenders are
several and no Lender shall be
responsible for any other Lender's failure
to make Loans as required.
(b) Subject to Section 2.11, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans
as a Borrower may request in
accordance herewith. Each Lender at its
option may make any Eurodollar Loan by
causing any domestic or foreign branch or
Affiliate of such Lender to make such
Loan; provided that any exercise of such
option shall not affect the joint and
several obligation of the Borrowers to
repay such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar
Borrowing, such Borrowing shall be in an
aggregate amount that is an integral
multiple of $3,000,000 and not less than
$3,000,000. At the time that each ABR
Borrowing is made, such ABR Borrowing shall
be in an aggregate amount that is an
integral multiple of $500,000 and not less
than $1,000,000; provided that an ABR
Borrowing may be in an aggregate amount
that is equal to the entire unused
balance of the total Commitments.
Borrowings of more than one Type
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<PAGE>
may be outstanding at the same time;
provided that there shall not at any time
be more than a total of seven Eurodollar
Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or
to elect to convert or continue, any
Borrowing if the Interest Period requested
with respect thereto would end after
the Maturity Date.
SECTION
2.02. Requests for Loans. To request a Borrowing, a Borrower
shall
deliver, by hand delivery or telecopier, a
duly completed and executed Borrowing
Request to the Administrative Agent, who
shall promptly thereafter notify the
Lenders, of such request (a) in the case of
a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three
Business Days before the date of the
proposed Borrowing or (b) in the case of an
ABR Borrowing, not later than 11:00
a.m., New York City time, on the date of
the proposed Borrowing. Each such
Borrowing Request shall be irrevocable and
shall specify the following
information in compliance with Section
2.01:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest
Period to
be applicable thereto, which shall be a period contemplated by
the
definition of the term "Interest Period"; and
(v) the
location and number of the account of the requesting
Borrower
to which funds are to be disbursed, which shall comply with the
requirements of Section 2.03.
If no election as to the Type of Borrowing
is specified, then the requested
Borrowing shall be an ABR Borrowing. If no
Interest Period is specified with
respect to any requested Eurodollar
Borrowing, then the requesting Borrower
shall be deemed to have selected an
Interest Period of one month's duration.
Promptly following receipt of a Borrowing
Request in accordance with this
Section, the Administrative Agent shall
advise each Lender of the details
thereof and of the amount of such Lender's
Loan to be made as part of the
requested Borrowing.
SECTION
2.03. Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder
on
the proposed date thereof by wire transfer
of immediately available funds by
12:00 noon, New York City time for
Borrowings consisting of Eurodollar Loans,
and 1:00 p.m. New York City time for
Borrowings consisting of ABR Loans, to the
account of the Administrative Agent most
recently designated by it for such
purpose by notice to the Lenders. The
Administrative Agent shall make such Loans
available to the requesting Borrower by
promptly crediting the amounts so
received from the Lenders, in like funds,
to an account of such Borrower
designated by such Borrower in the
applicable Borrowing Request; provided that,
if a Borrowing shall not occur on such
date
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because any condition precedent herein
specified shall not have been met, the
Administrative Agent shall return the
amounts so received from the Lenders to
the respective Lenders.
(b) Unless the Administrative Agent shall have received notice
from
a Lender prior to the proposed date of any
Borrowing that such Lender shall not
make available to the Administrative Agent
such Lender's share of such
Borrowing, the Administrative Agent may
assume that such Lender has made such
share available on such date in accordance
with paragraph (a) of this Section
and may, in reliance upon such assumption,
make available to the requesting
Borrower a corresponding amount. In such
event, if a Lender has not in fact made
its share of the applicable Borrowing
available to the Administrative Agent,
then the Borrowers, jointly and severally,
and the applicable Lender severally
agree to pay to the Administrative Agent
forthwith on demand such corresponding
amount with interest thereon, for each day
from and including the date such
amount is made available to the requesting
Borrower to but excluding the date of
payment to the Administrative Agent, at (i)
in the case of such Lender, the
greater of the Federal Funds Effective Rate
and a rate determined by the
Administrative Agent in accordance with
banking industry rules on interbank
compensation or (ii) in the case of the
Borrowers, the interest rate applicable
to ABR Borrowings. If such Lender pays such
amount to the Administrative Agent,
then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION
2.04. Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in
the
applicable Borrowing Request and, in the
case of a Eurodollar Borrowing, shall
have an initial Interest Period as
specified in such Borrowing Request.
Thereafter, a Borrower may elect to convert
such Borrowing to a different Type
or to continue such Borrowing and, in the
case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as
provided in this Section. A Borrower may
elect different options with respect to
different portions of the affected
Borrowing, in which case each such portion
shall be allocated ratably among the
Lenders holding the Loans comprising such
Borrowing, and the Loans comprising
each such portion shall be considered a
separate Borrowing.
(b) To make an election pursuant to this Section, a Borrower
shall
notify the Administrative Agent of such
election by telephone by the time that a
Borrowing Request would be required under
Section 2.02 if such Borrower were
requesting a Borrowing of the Type
resulting from such election to be made on
the effective date of such election. Each
such telephonic Interest Election
Request shall be irrevocable and shall be
confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a
written Interest Election Request in
the form of Exhibit E or such other form
approved by the Administrative Agent,
in each case signed by such Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in
compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies
and, if
different options are being elected with respect to different
portions
thereof, the portions thereof to be allocated to each resulting
Borrowing
(in which case the information to be
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specified
pursuant to clauses (iii) and (iv) below shall be specified for
each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or
a
Eurodollar
Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest
Period to be applicable thereto after giving effect to such
election,
which shall be a period contemplated by the definition of the
term
"Interest Period".
If any such Interest Election Request
requests a Eurodollar Borrowing but does
not specify an Interest Period, then the
Borrower making such Interest Election
Request shall be deemed to have selected an
Interest Period of one month's
duration.
(d) Promptly following receipt of an Interest Election Request,
the
Administrative Agent shall advise each
Lender of the details thereof and of such
Lender's portion of each resulting
Borrowing.
(e) If a Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar
Borrowing prior to the end of the Interest
Period applicable thereto, then, unless
such Borrowing is repaid as provided
herein, at the end of such Interest Period
such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any
contrary provision hereof, if an Event of
Default has occurred and is continuing, the
Administrative Agent may, or at the
request of the Required Lenders shall,
notify WIL that, so long as an Event of
Default is continuing, (i) no outstanding
Borrowing may be converted to or
continued as a Eurodollar Borrowing and
(ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR
Borrowing at the end of the Interest
Period applicable thereto.
SECTION
2.05. Optional Termination and Reduction of Commitments.
(a) 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.
(b) WIL shall notify the Administrative Agent of any election
to
terminate or reduce the Commitments under
paragraph (b) of this Section at least
three Business Days prior to the effective
date of such termination or
reduction, specifying such election and the
effective date thereof. Promptly
following receipt of any notice, the
Administrative Agent shall advise the
Lenders of the contents thereof. Each
notice delivered by WIL pursuant to this
Section shall be irrevocable; provided that
a notice of termination of the
Commitments delivered by 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
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<PAGE>
specified effective date) if such condition
is not satisfied. Any termination or
reduction of the Commitments shall be
permanent. Each reduction of the
Commitments shall be made ratably among the
Lenders in accordance with their
respective Commitments.
SECTION
2.06. Repayment of Loans; Evidence of Debt.
(a) The Borrowers hereby jointly and severally and
unconditionally
promise to pay to the Administrative Agent
for the account of each Lender the
then unpaid principal amount of each Loan
on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice
an account or accounts evidencing the
indebtedness of the Borrowers to such
Lender resulting from each Loan made by
such Lender, including the amounts of
principal and interest payable and paid to
such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it
shall record (i) the amount of each Loan
made hereunder, the Type thereof and
the Interest Period applicable thereto,
(ii) the amount of any principal or
interest due and payable or to become due
and payable from each Borrower to each
Lender hereunder and (iii) the amount of
any sum received by the Administrative
Agent hereunder for the account of the
Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall
be prima facie evidence of the
existence and amounts of the obligations
recorded therein; provided that the
failure of any Lender or the Administrative
Agent to maintain such accounts or
any error therein shall not in any manner
affect the obligation of the
Borrowers, jointly and severally, to repay
the Loans in accordance with the
terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by
a
promissory note (all of such notes being
hereinafter collectively referred to as
the "Notes"). In such event, the Borrowers
shall prepare, execute and deliver to
such Lender a promissory note payable,
jointly and severally, to the order of
such Lender and in the form of Exhibit B.
Thereafter, the Loans evidenced by
such promissory note and interest thereon
shall at all times (including after
assignment pursuant to Section 11.06) be
represented by one or more Notes in
such form payable to the order of the payee
named therein.
SECTION
2.07. Optional Prepayment of Loans.
(a) The Borrowers shall have the right at any time and from time
to
time to prepay any Borrowing in whole or in
part, subject to prior notice in
accordance with paragraph (b) of this
Section.
(b) A Borrower shall notify the Administrative Agent by
telephone
(promptly confirmed by telecopy) of any
prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not
later than 11:00 a.m., New York City
time, three Business Days before the date
of prepayment, or (ii) in the case of
prepayment of an ABR Borrowing, not later
than 11:00 a.m., New York City time,
one Business Day before the date of
prepayment. Each such notice shall be
irrevocable and shall specify the
prepayment date and the principal amount
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of each Borrowing or portion thereof to be
prepaid; provided that, if a notice
of prepayment is given in connection with a
conditional notice of termination of
the Commitments as contemplated by Section
2.05, then such notice of prepayment
may be revoked if such notice of
termination is revoked in accordance with
Section 2.05. Promptly following receipt of
any such notice relating to a
Borrowing, the Administrative Agent shall
advise the Lenders of the contents
thereof. Each partial prepayment of any
Borrowing shall be in an amount that
would be permitted in the case of an
advance of a Borrowing of the same Type as
provided in Section 2.02. Each prepayment
of a Borrowing shall be applied
ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the
extent required by Section 2.10. All
prepayments under this Section 2.07 shall
be subject to Section 2.13.
SECTION
2.08. Mandatory Termination and Reduction of Commitments;
Mandatory Prepayment of Loans.
(a) Unless previously terminated, the Commitments shall terminate
on
the Maturity Date.
(b) On the date that a Change of Control of the type described
in
clause (a)(iii) of the definition of such
term occurs and on the date that is 15
days after the occurrence of any other type
of Change of Control, the
Commitments shall terminate and the
Borrowers, jointly and severally, shall
prepay the principal amount of the Loans
and all accrued and unpaid interest
thereon in immediately available funds.
(c) Within 30 days of receipt by an Obligor of the Net Cash
Proceeds
of any Capital Markets Takeout Financing,
an amount equal to the lesser of (i)
100% of such Net Cash Proceeds and (ii) a
portion of such Net Cash Proceeds
equal to the aggregate amount of Loans then
outstanding shall be applied to
prepay the Loans then outstanding, and the
Commitments shall be permanently
reduced by an amount equal to 100% of such
Net Cash Proceeds. Each such
reduction of the Commitments shall be made
ratably among the Lenders in
accordance with their respective
Commitments.
(d) If the New Revolving Credit Facility provides for commitments
by
the lenders party thereto greater than
$500,000,000 in the aggregate, upon
effectiveness of such New Revolving Credit
Facility, the Commitments shall be
permanently reduced by an amount equal to
the difference between the aggregate
amount of the commitments under such New
Revolving Credit Facility and
$500,000,000. Such reduction of the
Commitments shall be made ratably among the
Lenders in accordance with their respective
Commitments.
(e) If the Acquisition is not consummated on or prior to
December
31, 2005, on January 1, 2006, the
Commitments shall be permanently reduced by an
amount equal to $600,000,000. Such
reduction of the Commitments shall be made
ratably among the Lenders in accordance
with their respective Commitments.
SECTION
2.09. Fees.
(a) The Borrowers, jointly and severally, agree to pay to the
Administrative Agent for the account of
each Lender a facility fee (the
"Facility Fee"), which shall accrue at the
Facility Fee Rate on the daily amount
of the Commitment of such Lender (whether
used or
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unused) during the period from and
including the Effective Date to but excluding
the date on which such Lender ceases to
have any Revolving Credit Exposure.
Accrued Facility Fees shall be payable in
arrears on the last day of March,
June, September and December of each year
and on the date on which the
Commitments terminate, commencing on the
first such date to occur after the date
hereof; provided that any Facility Fees
accruing after the date on which the
Commitments terminate shall be payable on
demand. All Facility Fees shall be
computed on the basis of a year of 365 or
366 days, as applicable, and shall be
payable for the actual number of days
elapsed (including the first day but
excluding the last day).
(b) The Borrowers, jointly and severally, agree to pay to the
Administrative Agent, for its own account,
fees payable in the amounts and at
the times separately agreed upon between
WIL and the Administrative Agent.
(c) The Borrowers, jointly and severally, agree to pay to the
Administrative Agent for the account of
each Lender a utilization fee (the
"Utilization Fee") which shall accrue (i)
during the period from and including
the Effective Date to but excluding the New
Revolving Credit Facility Effective
Date, at the Applicable Rate on the daily
amount of the Revolving Credit
Exposure of such Lender at all times when
the amount of the total Revolving
Credit Exposures exceeds $600,000,000
(provided that the Utilization Fee shall
only accrue on that portion of the total
Revolving Credit Exposure that exceeds
$600,000,000) and (ii) from and after the
New Revolving Credit Facility
Effective Date, at the Applicable Rate on
the daily amount of the Revolving
Credit Exposure of such Lender at all times
when the amount of the total
Revolving Credit Exposures exceeds 50% of
the total Commitments. Utilization
Fees shall be computed on the basis of a
year of 360 days and shall be payable
in arrears on the last day of March, June,
September and December of each year
and the Maturity Date.
(d) All fees payable hereunder shall be paid on the dates due,
in
immediately available funds, to the
Administrative Agent for distribution, in
the case of Facility Fees and Utilization
Fees, to the Lenders. Fees paid shall
not be refundable under any
circumstances.
SECTION
2.10. Interest.
(a) The Loans comprising each ABR Borrowing shall bear interest
at
the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the
Interest Period in effect for such
Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, if any principal of or
interest
on any Loan or any fee or other amount
payable by the Borrowers hereunder is not
paid when due, whether at stated maturity,
upon acceleration or otherwise, such
overdue amount shall bear interest, after
as well as before judgment, at a rate
per annum equal to (i) in the case of
overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as
provided in the preceding paragraphs
of this Section or (ii) in the case of any
other amount, 2% plus the rate
applicable to ABR Borrowings as provided in
paragraph (a) of this Section.
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(d) Accrued interest on each Loan shall be payable in arrears
on
each Interest Payment Date for such Loan
and upon termination of the
Commitments; provided that (i) interest
accrued pursuant to paragraph (c) of
this Section shall be payable on demand,
(ii) in the event of any repayment or
prepayment of any Loan (other than a
prepayment of an ABR Loan prior to the
Termination Date), accrued interest on the
principal amount repaid or prepaid
shall be payable on the date of such
repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar
Loan prior to the end of the current
Interest Period therefor, accrued interest
on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year
of 360 days, except that interest computed
by reference to the Alternate Base
Rate at times when the Alternate Base Rate
is based on the Base Rate shall be
computed on the basis of a year of 365 days
(or 366 days in a leap year), and in
each case shall be payable for the actual
number of days elapsed (including the
first day but excluding the last day). The
applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be
determined by the Administrative Agent,
and such determination shall be presumed
correct absent manifest error.
SECTION 2.11. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a
Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall
be presumed correct absent manifest error)
that adequate and reasonable means do
not exist for ascertaining the Adjusted
LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period;
or
(b) the Administrative Agent is advised by the Required Lenders
that
the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period
shall not adequately and fairly reflect the
cost to such Lenders of making or
maintaining their Loans included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give
notice thereof to WIL and the Lenders
by telephone or telecopy as promptly as
practicable thereafter and, until the
Administrative Agent notifies WIL and the
Lenders that the circumstances giving
rise to such notice no longer exist, (x)
any Interest Election Request that
requests the conversion of any ABR
Borrowing to, or continuation of any
Eurodollar Borrowing as, a Eurodollar
Borrowing shall be ineffective, and (y) if
any Borrowing Request requests a Eurodollar
Borrowing, such Borrowing shall be
made as an ABR Borrowing.
SECTION 2.12. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit
or similar
requirement against assets of, deposits with or for the account
of, or
credit extended by, any Lender (except any such reserve
requirement
reflected in the
Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other
condition
affecting this Agreement or Eurodollar Loans made by such
Lender;
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and the result of any of the foregoing
shall be to increase the cost to such
Lender of making or maintaining any
Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to
reduce the amount of any sum received or
receivable by such Lender hereunder
(whether of principal, interest or
otherwise), then the Borrowers, jointly and
severally, shall pay to such Lender
such additional amount or amounts as shall
compensate such Lender for such
additional costs incurred or reduction
suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the
effect of reducing the rate of return
on such Lender's capital or on the capital
of such Lender's holding company, if
any, as a consequence of this Agreement or
the Loans made by such Lender to a
level below that which such Lender or such
Lender's holding company could have
achieved but for such Change in Law (taking
into consideration such Lender's
policies and the policies of such Lender's
holding company with respect to
capital adequacy), then from time to time
the Borrowers, jointly and severally,
shall pay to such Lender such additional
amount or amounts as shall compensate
such Lender or such Lender's holding
company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts
necessary to compensate such Lender or its
holding company as specified in
paragraph (a) or (b) of this Section, along
with (i) a calculation of such
amount or amounts, (ii) a description of
the specific Change in Law that
justifies such amounts due, and (iii) such
other pertinent information related
to the foregoing as either Borrower may
reasonably request, shall be delivered
to such Borrower and shall be presumed
correct absent manifest error. The
Borrowers, jointly and severally, shall pay
such Lender the correct amount shown
as due on any such certificate within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall
not constitute a waiver of such
Lender's right to demand such compensation;
provided that no Borrower shall be
required to compensate a Lender pursuant to
this Section for any increased costs
or reductions incurred more than 120 days
prior to the date that such Lender
notifies the Borrowers of the Change in Law
giving rise to such increased costs
or reductions and of such Lender's
intention to claim compensation therefor;
provided further that, if the Change in Law
giving rise to such increased costs
or reductions is retroactive, then the
120-day period referred to above shall be
extended to include the period of
retroactive effect thereof.
SECTION
2.13. Break Funding Payments. In the event of (a) the payment
of
any principal of any Eurodollar Loan other
than on the last day of an Interest
Period applicable thereto (including as a
result of an Event of Default), (b)
the conversion of any Eurodollar Loan other
than on the last day of the Interest
Period applicable thereto, (c) the failure
to borrow, convert, continue or
prepay any Eurodollar Loan on the date
specified in any notice delivered
pursuant hereto (regardless of whether such
notice may be revoked under Section
2.07(b) and is revoked in accordance
therewith), or (d) the assignment of any
Eurodollar Loan other than on the last day
of the Interest Period applicable
thereto as a result of a request by a
Borrower pursuant to Section 3.03, then,
in any such event, the Borrowers, jointly
and severally, shall compensate each
Lender for the loss, cost and expense
attributable to such event. In the case of
a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed to
include an amount determined
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by such Lender to be the excess, if any, of
(i) the amount of interest which
would have accrued on the principal amount
of such Loan had such event not
occurred, at the Adjusted LIBO Rate that
would have been applicable to such
Loan, for the period from the date of such
event to the last day of the then
current Interest Period therefor (or, in
the case of a failure to borrow,
convert or continue, for the period that
would have been the Interest Period for
such Loan), over (ii) the amount of
interest which would accrue on such
principal amount for such period at the
interest rate which such Lender would
bid were it to bid, at the commencement of
such period, for dollar deposits of a
comparable amount and period from other
banks in the eurodollar market. A
certificate of any Lender setting forth any
amount or amounts that such Lender
is entitled to receive pursuant to this
Section shall be delivered to the
Borrowers and shall be presumed correct
absent manifest error, and shall set
forth a calculation of such amounts and
such other information as either
Borrower may reasonably request. The
Borrowers, jointly and severally, shall pay
such Lender the amount shown as due on any
such certificate within 10 days after
receipt thereof.
SECTION
2.14. Agreement to Defer Exercise of Right of Contribution,
Etc.
Notwithstanding any payment or payments
made by a Borrower (a "Paying Borrower")
hereunder, or any setoff or application by
the Administrative Agent or any
Lender of any security furnished by, or of
any credits or claims against, such
Paying Borrower, if an Event of Default has
occurred and is continuing, such
Paying Borrower will not assert or exercise
any rights of the Administrative
Agent or any Lender or of its own, against
the other Borrower to recover the
amount of any such payment, setoff or
application by the Administrative Agent or
any Lender, whether by way of assertion of
any claim, or exercise of any remedy
or right of subrogation, reimbursement,
exoneration, contribution,
indemnification, participation or
otherwise, and whether arising by contract, by
statute, under common law or otherwise,
and, if an Event of Default has occurred
and is continuing, such Paying Borrower
shall not have any right to exercise any
right of recourse to or any claim against
assets or property of the other
Borrower for such amounts, in each case
unless and until all of the Obligations
of the Borrowers have been fully and
finally satisfied. If any amount shall be
paid to a Paying Borrower by the other
Borrower after payment in full of the
Obligations, and the Obligations shall
thereafter be reinstated in whole or in
part and the Administrative Agent or any
Lender forced to repay to either
Borrower any sums received in payment of
the Obligations, the obligations of
each Borrower hereunder shall be
automatically pro tanto reinstated and such
amount shall be held in trust by the payee
thereof for the benefit of the
Administrative Agent and the Lenders and
shall forthwith be paid to the
Administrative Agent to be credited and
applied to the Obligations, whether
matured or unmatured.
Article III
PAYMENTS; PRO RATA TREATMENT; TAXES
SECTION
3.01. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) Each Borrower shall make each payment
required to be made by it hereunder
(whether of principal, interest or fees, or
of amounts payable under Section
2.12, 2.13 or 3.02, or otherwise) prior to
12:00 noon, New York City time, on
the date when due, in immediately available
funds, without set-off or
counterclaim. Any amounts received after
such time on any date may, in the
discretion of the Administrative Agent, be
deemed to have been received on the
next succeeding Business Day for purposes
of calculating interest thereon. All
such payments shall be made to
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the Administrative Agent at its offices at
677 Washington Boulevard, Stamford,
Connecticut, except that payments pursuant
to Sections 2.12, 2.13, 3.02 and
11.04 shall be made directly to the Persons
entitled thereto. The Administrative
Agent shall distribute any such payments
received by it for the account of any
other Person to the appropriate recipient
promptly following receipt thereof. If
any payment hereunder shall be due on a day
that is not a Business Day, the date
for payment shall be extended to the next
succeeding Business Day, and, in the
case of any payment accruing interest,
interest thereon shall be payable for the
period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and
available
to the Administrative Agent to pay fully
all amounts of principal, interest and
fees then due hereunder, such funds shall
be applied (i) first, towards payment
of interest and fees then due hereunder,
ratably among the parties entitled
thereto in accordance with the amounts of
interest and fees then due to such
parties, and (ii) second, towards payment
of principal then due hereunder,
ratably among the parties entitled thereto
in accordance with the amounts of
principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment
in respect of any principal of or
interest on any of its Loans resulting in
such Lender receiving payment of a
greater proportion of the aggregate amount
of its Loans and accrued interest
thereon than the proportion received by any
other Lender, then the Lender
receiving such greater proportion shall
purchase (for cash at face value)
participations in the Loans of other
Lenders to the extent necessary so that the
benefit of all such payments shall be
shared by the Lenders ratably in
accordance with the aggregate amount of
principal of and accrued interest on
their respective Loans; provided that (i)
if any such participations are
purchased and all or any portion of the
payment giving rise thereto is
recovered, such participations shall be
rescinded and the purchase price
restored to the extent of such recovery,
without interest, and (ii) the
provisions of this paragraph shall not be
construed to apply to any payment made
by a Borrower pursuant to and in accordance
with the express terms of this
Agreement or any payment obtained by a
Lender as consideration for the
assignment of or sale of a participation in
any of its Loans to any assignee or
participant, other than to a Borrower or
any Subsidiary or Affiliate thereof (as
to which the provisions of this paragraph
shall apply). Each Borrower consents
to the foregoing and agrees, to the extent
it may effectively do so
