Funding Date The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent shall have received from each party thereto either (i) a counterpart of each Loan Document (excluding the Mortgages, which shall be delivered in accordance with Section 5.13) signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile transmission or other electronic imaging of a signed signature page of each Loan Document) that such party has signed a counterpart of each Loan Document (excluding the Mortgages, which shall be delivered in accordance with Section 5.13).
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for Holdings, the Borrower and the Restricted Subsidiaries, and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, Indiana counsel for Holdings, the Borrower and the Restricted Subsidiaries, (i) dated as of the Funding Date and (ii) covering such matters relating to the Loan Parties or the Loan Documents as the Administrative Agent shall reasonably request. Each of Holdings and the Borrower hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan Parties or the Loan Documents, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by a Financial Officer or the President or a Vice President of the Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.03 (for purposes of the conditions set forth in paragraphs (a) and (b) of Section 4.03, after giving effect to the consummation of the Spin-Off).
(e) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Funding Date, including, to the extent invoiced at least two Business Days prior to the Funding Date, reimbursement or payment of all reasonable out-of-pocket expenses (including fees, charges and disbursements of counsel) incurred between the Effective Date and the Funding Date required to be reimbursed or paid by any Loan Party hereunder, under any other Loan Document or under any other agreement entered into by any of the Arrangers, the Administrative Agent and the Lenders, on the one hand, and any of the Loan Parties, on the other hand; provided that such amounts may be offset against the proceeds of the Tranche A Term Loans.
(f) The Collateral and Guarantee Requirement shall have been satisfied to the extent applicable and the Administrative Agent, on behalf of the Secured Parties, shall have a security interest in the Collateral of the type and priority described in each Security Document, except as otherwise set forth in the Collateral and Guarantee Requirement or Section 5.13. The Administrative Agent shall have received a completed Perfection Certificate dated the Funding Date and signed by a Financial Officer or legal officer of each of Holdings and the Borrower, together with all attachments contemplated thereby, including (i) the results of a bring-down search of the Uniform Commercial Code (or equivalent) filings and Federal and State tax filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate, in each case that are reasonably requested by the Administrative Agent, (ii) copies of the financing statements (or similar documents) disclosed by such search and (iii) evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been or will contemporaneously with the initial funding of the Loans on the Funding Date be released or terminated.
(g) The Administrative Agent shall have received evidence that the flood insurance required by Section 5.07 is in effect.
(h) The Lenders shall have received a certificate from a Financial Officer of Holdings, substantially in the form of Exhibit J, certifying as to the solvency of Holdings and its Restricted Subsidiaries as of the Spin-Off Date on a consolidated basis after giving effect to the Transactions and the other transactions contemplated hereby.
(i) The Transactions shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing, in accordance with applicable law in all material respects and, in all material respects, consistent with the information set forth in the Form 10 (it being understood that the Spin-Off shall be deemed to have been consummated substantially concurrently with the initial Borrowing to the extent that the Spin-Off occurs promptly after 12:00 a.m., New York City time, on the first calendar day following the date on which the initial Borrowing occurs).
(j) The Lenders shall have received a copy of the most recently available version of each material Spin-Off Document and each other Spin-Off Document requested by the Administrative Agent, each certified by a Financial Officer of Holdings as being complete and correct. The terms of the Distribution Agreement shall not contain any modifications from the information set forth in the Form 10, as filed with and declared effective by the SEC and as the same may be amended, supplemented or modified on or prior to the date that is three Business Days prior to the Effective Date, that are material and adverse to the rights or interests of the Lenders without the prior written approval of the Administrative Agent (it being understood that the inclusion of information in the Distribution Agreement for which there is a placeholder in the Form 10, such as the distribution ratio and the distribution and record, dates, shall not be deemed to be material and adverse to the rights or interests of the Lenders), and no term or condition of the Distribution Agreement or any related agreement shall have been waived, amended or otherwise modified in a manner material and adverse to the rights or interests of the Lenders without the prior written approval of the Administrative Agent.
(k) All conditions to the Spin-Off set forth in the Form 10 and in the Distribution Agreement (other than the funding of the Loans) shall have been satisfied or shall be satisfied substantially concurrently with the initial Borrowing (or shall have been waived, amended or otherwise modified in a manner not material and adverse to the rights or interests of the Lenders without the prior written approval of the Administrative Agent), it being understood that such conditions shall be deemed to have been satisfied substantially concurrently with the initial Borrowing to the extent that such conditions are satisfied promptly after 12:00 a.m., New York City time, on the first calendar day following the date on which the initial Borrowing occurs. There shall be no material payments or distributions by Holdings or any of its subsidiaries to Exelis or any of its subsidiaries (other than Holdings and its subsidiaries) in connection with the Spin-Off, other than the payment of the Funding Date Distribution and, if applicable, the Working Capital Adjustment.
(l) The Lenders that have executed a non-reliance letter in form and substance satisfactory to the applicable solvency opinion provider shall have received a copy of the solvency opinion delivered to the Board of Directors of Exelis (or, if applicable, of Holdings or the Borrower) in connection with the Spin-Off (provided that the Administrative Agent and the Lenders shall not be required to be addressees or beneficiaries of such opinion).
(m) Immediately after giving effect to the Transactions and the other transactions contemplated hereby, none of Holdings, the Borrower or any Restricted Subsidiary shall have outstanding any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents and (ii) other Indebtedness permitted under Section 6.01.
(n) The Borrower shall have delivered to the Administrative Agent the notice required by Section 2.03.
(o) On the Funding Date, immediately after giving effect to the Transactions (other than the Spin-Off), Holdings, the Borrower and the Subsidiaries (determined after giving pro forma effect to the Spin-Off) will have cash on hand of not less than $25,000,000.
(p) The Borrower shall have received written notice from the Defense Contract Management Agency, either through the Divisional Administrative Contracting Officer (DACO) or her delegate, that its accounting system is approved (i.e., is an “acceptable accounting system” as defined in the Department of Defense Federal Acquisition Regulation Supplement (“DFARS”) § 252.242-7006) and that the withholds applied on April 30, 2014, under DFARS § 252.242-7005 have been discontinued.
(q) No action or event shall have occurred during the period from and including the Effective Date to and including the Funding Date which would have constituted a non-compliance by Holdings or the Borrower with each of the covenants set forth in Articles V (other than Sections 5.01, 5.03, the second sentence of 5.07, 5.10, 5.11, 5.12, 5.13 and 5.15) and VI (other than Sections 6.12 and 6.13 and provided that, solely for purposes of this clause (q), transactions with Exelis or any of its subsidiaries under or in connection with the Transactions or conducted consistent with prior practice shall not be deemed to constitute non-compliance by Holdings or the Borrower with the covenant set forth in Section 6.09) of this Agreement as if such covenants had been effective from and including the Effective Date (it being understood, for the avoidance of doubt, that the covenants in Articles V and VI of this Agreement shall not be effective prior to the Funding Date); provided that if any such action or event shall have occurred with respect to any such covenant, the condition precedent in this paragraph (q) shall nonetheless be satisfied if such action or event has been cured with respect to such covenant if, as of the Funding Date, Holdings and the Borrower are in compliance with such covenant.
(r) The Borrower shall have delivered an executed promissory note to each Lender that has requested a promissory note pursuant to Section 2.09(c) prior to the Funding Date. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on the date that is 150 days after the Effective Date.
