Conditions Precedent to the Initial Credit Event. The obligation of the Lenders to effect any Credit Event is subject to the condition precedent that, on or before the day of the first Credit Event, and in any event on or before January 31, 2007, the Administrative Agent shall have received the following, each in form and substance satisfactory to the Required Lenders: (a) Such Notes as shall be requested by any Lenders, each properly executed on behalf of the Borrower. (b) The Guaranties, each properly executed on behalf of the appropriate Guarantor. (c) The Mezzanine Subordination Agreement, properly executed on behalf of each of the parties thereto. (d) The Spell Management Fee Subordination Agreement, properly executed by the Spell Manager and acknowledged by the Borrower. (e) The Security Documents (other than the Owner Pledge Agreements), each properly executed on behalf of the appropriate Obligor, together with: (i) Financing statements with respect to each Obligor to be filed in each jurisdiction which, in the opinion of the Administrative Agent, is reasonably necessary to perfect the Liens created by the Security Documents, to the extent such Liens can be perfected by filing. (ii) Current searches of appropriate filing offices in each jurisdiction in which an Obligor is organized, has an office or otherwise conducts business (including but not limited to patent and trademark offices, secretaries of state and county recorders) showing that no state or federal tax liens have been filed and remain in effect against any Obligor, and that no financing statements or other notifications or filings have been filed and remain in effect against any Obligor, other than those for which the Administrative Agent has received an appropriate release, termination or satisfaction or those permitted in accordance with Section 6.1. (iii) An acknowledgment and waiver of Liens, signed by any warehouse owner in which Inventory of an Obligor is located, acknowledging the Administrative Agent’s prior security interest in all property located in such warehouse and agreeing to turn over such property to the Administrative Agent upon request at any time. (f) The following documents relating to real property owned by the Borrower: (i) Each Mortgage, duly executed and acknowledged on behalf of the appropriate Obligor, together with (A) evidence of recording thereof in the real estate records of the jurisdiction where the related real property is located and (B) a final mortgagee’s title policy issued by a title insurance company acceptable to the Administrative Agent, in favor of the Administrative Agent, for the benefit of the Lender Parties, insuring that the Mortgages are valid and enforceable first priority Liens on such Obligor’s fee simple title (or leasehold estate, as the case may be) to the real estate and other real property therein described, free and clear of all standard exceptions and defects and Liens except such as the Administrative Agent in its sole discretion may approve, including the following endorsements: ALTA form 9.0, ALTA form 3.1 (with parking), contiguity, access to open street, utility, last dollar, separate tax parcel, no special assessments, usury, forced removal, revolving credit, mortgage registry tax and such other endorsements as the Administrative Agent may reasonably require. (ii) A certified environmental audit of the real estate referred to in each Mortgage and the improvements thereon. (g) A copy of each lease governing any real property leased by the Borrower, including any amendments thereto and assignments thereof, together with a copy of any subordination, non-disturbance, attornment or similar agreement in effect with respect thereto. (h) Evidence of all insurance required by the terms of the Security Documents, including but not limited to flood insurance if the real estate described in any Mortgage is located within the 100-year flood plain, together with certificates and loss payable endorsements showing the Administrative Agent, for the benefit of the Lender Parties, as mortgagee, additional insured and loss payee thereunder. (i) Certificates of the secretary or other appropriate officer of each Obligor (i) certifying that the execution, delivery and performance of the Loan Documents and other documents contemplated hereunder to which such Obligor is a party have been duly approved by all necessary action of the Governing Board of such Obligor, and attaching true and correct copies of the applicable resolutions granting such approval, (ii) certifying that attached to such certificate are true and correct copies of the Organizational Documents of such Obligor, together with such copies, and (iii) certifying the names of the officers of such Obligor that are authorized to sign the Loan Documents and other documents contemplated hereunder, together with the true signatures of such officers. The Administrative Agent and the Lenders may conclusively rely on such certificate until it shall receive a further certificate of the Secretary or Assistant Secretary of such Obligor canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate. (j) A certificate of good standing for each Obligor from the Secretary of State (or the appropriate official) of the state of formation of such Obligor, dated not more than 30 days prior to the Closing Date. (k) A Borrowing Base Certificate as of a date not earlier than December 31, 2006. (l) Collateral audit reports in all respects satisfactory to the Required Lenders. (m) A signed copy of an opinion of counsel for each Obligor addressed to the Administrative Agent, on behalf of the Lenders, with respect to the matters contemplated by the Loan Documents. (n) The following financial information of the Consolidated Group: (i) Evidence that EBITDA of the Borrower during the 12-month period ending December 31, 2006 was not less than $5,750,000. (ii) Evidence that the Total Leverage Ratio of the Borrower, determined on a pro forma basis using the Funded Debt of the Borrower immediately after consummation of the transactions contemplated hereby as the numerator and the EBITDA of the Borrower as of December 31, 2006 as the numerator, is not greater than 3.60 to 1. (iii) Evidence that the Senior Leverage Ratio of the Borrower, determined on a pro forma basis using the Funded Debt of the Borrower (excluding Subordinated Debt) immediately after consummation of the transactions contemplated hereby as the numerator and the EBITDA of the Borrower as of December 31, 2006 as the numerator, is not greater than 3.05 to 1. (iv) Evidence that, after giving effect to the Revolving Advances to be made on the Closing Date for the purpose of facilitating the Initial Merger, the Borrowing Base exceeds the Revolving Facility Outstanding Amount by not less than $1,500,000. (o) Evidence that, concurrent with the making of the Term A Advances, the Term B Advances and the initial Revolving Borrowing hereunder, (i) all conditions to the Initial Merger have been satisfied (without regard to any waiver thereof by any applicable party), and (ii) the transactions contemplated by the Initial Merger Agreement will be fully consummated and the Borrower will have no Debt, other than Debt not prohibited by Section 6.2. (p) Payment of all fees and expenses then due and payable pursuant to Sections 2.12 and 9.6(a).
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Conditions Precedent to the Initial Credit Event. The obligation of each Lender to make any Loan on or after the Lenders to effect any Credit Event date hereof for the account of either Borrower is subject to the condition precedent that, on or before the day of the first Credit Event, and in any event on or before January 31, 2007, the following conditions:
(a) The Administrative Agent shall have received the following:
(i) this Agreement executed by each party hereto;
(ii) the appropriate Notes of the Borrowers, if any, payable to each applicable Lender, duly completed and executed and dated the Effective Date;
(iii) a certificate of a Responsible Officer of WIL, dated the Effective Date, certifying (which certifications shall constitute representations and warranties made by WIL to the Lenders and the Administrative Agent hereunder) that, as of the Effective Date, (A) except for actions, suits or proceedings described in the filings made by WIL with the Securities and Exchange Commission pursuant to the Exchange Act, (1) there are no actions, suits or proceedings pending or, to the best knowledge of WIL, threatened against any Obligor or against any of their respective properties or assets that are reasonably likely to have (individually or collectively) a Material Adverse Effect and (2) to the best knowledge of WIL, there are no actions, suits or proceedings pending or threatened that purport to affect or pertain to the Loan Documents, any transactions contemplated thereby or the Acquisition; and (B) there has been no material adverse change since December 31, 2004 in the financial condition, business or operations of WIL and its Subsidiaries taken as a whole which could reasonably be expected to have a Material Adverse Effect;
(iv) a certificate of a Responsible Officer and of the secretary or an assistant secretary of each Obligor, dated the date hereof and certifying, inter alia (A) true and complete copies of the memorandum of association and bye-laws or the bylaws and certificate of incorporation or other organizational documents, each as amended and in effect, of such Obligor and the resolutions adopted by the Board of Directors of such Obligor (1) authorizing the execution, delivery and performance by such Obligor of this Agreement and the other Loan Documents to which it is or shall be a party and the borrowing of the Loans to be made hereunder and (2) authorizing officers of such Obligor to execute and deliver the Loan Documents to which it is or shall be a party and any related documents, including any agreement contemplated by this Agreement, (B) the incumbency and specimen signatures of the officers of such Obligor executing any documents on its behalf and (C) (1) that the representations and warranties made by such Obligor in any Loan Document to which such Obligor is a party and which shall be delivered at or prior to the Effective Date are true and correct in all material respects as of the Effective Date, except for those that by their express terms apply to an earlier date which shall be true and correct in all material respects as of such earlier date, (2) the absence of any proceedings for the dissolution, liquidation or winding up of such Obligor, and (3) the absence of the occurrence and continuance of any Default or Event of Default;
(v) favorable, signed opinions addressed to the Administrative Agent and the Lenders dated the Effective Date from (A) Fulbright & Jaworski L.L.P., counsel to the Obligors, (B) Conyers Dill & Pea▇▇▇▇, ▇▇ecial Bermuda counsel to WIL, and (C) ▇▇▇▇▇▇▇ ▇▇▇ Fir▇, ▇▇▇▇ial Hungarian counsel to HOC, each given upon the express instruction of the applicable Obligor;
(vi) one or more letters from CT Corporation System in form and substance satisfactory to the Required Lenders:
(a) Such Notes as shall be requested by any Lenders, each properly executed Administrative Agent and the Lenders evidencing the obligation of CT Corporation System to accept service of process in the State of New York on behalf of each Obligor that is not authorized to do business as a foreign corporation in the BorrowerState of New York;
(vii) copies of the memorandum of association, articles or certificates of incorporation or other similar organizational documents of each Obligor certified as of a recent date prior to the Effective Date by the appropriate Governmental Authority and certificates of appropriate public officials as to the existence, good standing and qualification to do business as a foreign corporation, of each Obligor in each jurisdiction in which the ownership of its properties or the conduct of its business requires such qualification and where the failure to so qualify would, individually or collectively, have a Material Adverse Effect; and
(viii) an executed copy of the Acquisition Document (including all exhibits, schedules and supplements thereto), accompanied by a certificate of a Responsible Officer of WIL to the effect that such copy is true and complete as of the Effective Date.
(b) The Guaranties, each properly executed on behalf of the appropriate Guarantor.
(c) The Mezzanine Subordination Agreement, properly executed on behalf Administrative Agent shall have received evidence satisfactory to it that all material consents of each Governmental Authority and of the parties thereto.
(d) The Spell Management Fee Subordination Agreementeach other Person, properly executed by the Spell Manager and acknowledged by the Borrower.
(e) The Security Documents (other than the Owner Pledge Agreements)if any, each properly executed on behalf of the appropriate Obligor, together with:
(i) Financing statements with respect to each Obligor to be filed reasonably required in each jurisdiction which, in the opinion of the Administrative Agent, is reasonably necessary to perfect the Liens created by the Security Documents, to the extent such Liens can be perfected by filing.
(ii) Current searches of appropriate filing offices in each jurisdiction in which an Obligor is organized, has an office or otherwise conducts business (including but not limited to patent and trademark offices, secretaries of state and county recorders) showing that no state or federal tax liens have been filed and remain in effect against any Obligor, and that no financing statements or other notifications or filings have been filed and remain in effect against any Obligor, other than those for which the Administrative Agent has received an appropriate release, termination or satisfaction or those permitted in accordance with Section 6.1.
(iii) An acknowledgment and waiver of Liens, signed by any warehouse owner in which Inventory of an Obligor is located, acknowledging the Administrative Agent’s prior security interest in all property located in such warehouse and agreeing to turn over such property to the Administrative Agent upon request at any time.
(f) The following documents relating to real property owned by the Borrower:
(i) Each Mortgage, duly executed and acknowledged on behalf of the appropriate Obligor, together connection with (Aa) evidence of recording thereof in the real estate records of the jurisdiction where the related real property is located Loans and (Bb) a final mortgagee’s title policy issued by a title insurance company acceptable to the Administrative Agent, in favor of the Administrative Agent, for the benefit of the Lender Parties, insuring that the Mortgages are valid and enforceable first priority Liens on such Obligor’s fee simple title (or leasehold estate, as the case may be) to the real estate and other real property therein described, free and clear of all standard exceptions and defects and Liens except such as the Administrative Agent in its sole discretion may approve, including the following endorsements: ALTA form 9.0, ALTA form 3.1 (with parking), contiguity, access to open street, utility, last dollar, separate tax parcel, no special assessments, usury, forced removal, revolving credit, mortgage registry tax and such other endorsements as the Administrative Agent may reasonably require.
(ii) A certified environmental audit of the real estate referred to in each Mortgage and the improvements thereon.
(g) A copy of each lease governing any real property leased by the Borrower, including any amendments thereto and assignments thereof, together with a copy of any subordination, non-disturbance, attornment or similar agreement in effect with respect thereto.
(h) Evidence of all insurance required by the terms of the Security Documents, including but not limited to flood insurance if the real estate described in any Mortgage is located within the 100-year flood plain, together with certificates and loss payable endorsements showing the Administrative Agent, for the benefit of the Lender Parties, as mortgagee, additional insured and loss payee thereunder.
(i) Certificates of the secretary or other appropriate officer of each Obligor (i) certifying that the execution, delivery and performance of this Agreement and the other Loan Documents and other documents contemplated hereunder to which such Obligor is a party have been duly approved by all necessary action of satisfactorily obtained.
(c) The Borrowers shall have paid (i) to the Governing Board of such Obligor, and attaching true and correct copies of the applicable resolutions granting such approval, (ii) certifying that attached to such certificate are true and correct copies of the Organizational Documents of such Obligor, together with such copies, and (iii) certifying the names of the officers of such Obligor that are authorized to sign the Loan Documents and other documents contemplated hereunder, together with the true signatures of such officers. The Administrative Agent and the Lenders may conclusively rely Lenders, as applicable, all fees and expenses agreed upon by such parties to be paid on such certificate until it shall receive a further certificate of the Secretary or Assistant Secretary of such Obligor canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate.
(j) A certificate of good standing for each Obligor from the Secretary of State (or the appropriate official) of the state of formation of such Obligor, dated not more than 30 days prior to the Closing Effective Date.
(k) A Borrowing Base Certificate as of a date not earlier than December 31, 2006.
(l) Collateral audit reports in all respects satisfactory to the Required Lenders.
(m) A signed copy of an opinion of counsel for each Obligor addressed to the Administrative Agent, on behalf of the Lenders, with respect to the matters contemplated by the Loan Documents.
(n) The following financial information of the Consolidated Group:
(i) Evidence that EBITDA of the Borrower during the 12-month period ending December 31, 2006 was not less than $5,750,000.
(ii) Evidence that the Total Leverage Ratio of the Borrower, determined on a pro forma basis using the Funded Debt of the Borrower immediately after consummation of the transactions contemplated hereby as the numerator and the EBITDA of the Borrower as of December 31, 2006 as the numerator, is not greater than 3.60 to 1.
(iii) Evidence that the Senior Leverage Ratio of the Borrower, determined on a pro forma basis using the Funded Debt of the Borrower (excluding Subordinated Debt) immediately after consummation of the transactions contemplated hereby as the numerator and the EBITDA of the Borrower as of December 31, 2006 as the numerator, is not greater than 3.05 to 1.
(iv) Evidence that, after giving effect to the Revolving Advances to be made on the Closing Date for the purpose of facilitating the Initial Merger, the Borrowing Base exceeds the Revolving Facility Outstanding Amount by not less than $1,500,000.
(o) Evidence that, concurrent with the making of the Term A Advances, the Term B Advances and the initial Revolving Borrowing hereunder, (i) all conditions to the Initial Merger have been satisfied (without regard to any waiver thereof by any applicable party), and (ii) to Baker Botts L.L.P. pursuant to Section 11.03 all fees and disbursement▇ ▇▇▇o▇▇▇▇ at or before 10:00 a.m. (New York City time) on the transactions contemplated Effective Date by said firm to the Initial Merger Agreement will be fully consummated and Borrowers, on the Borrower will have no Debt, other than Debt not prohibited by Section 6.2Effective Date.
(pd) Payment The Lenders shall have received, sufficiently in advance of the Effective Date, all fees documentation and expenses then due other information requested in writing by the Administrative Agent or any Lender and payable pursuant to Sections 2.12 required by bank regulatory authorities under applicable "know your customer" and 9.6(aanti-money laundering rules and regulations, including without limitation, the United States PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), including, without limitation, the information described in Section 11.20.
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Sources: 364 Day Revolving Credit Agreement (Weatherford International LTD)