Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before March 4, 2002; (b) Agent shall have received all financing statements required by Agent, duly authorized by Borrower or, as applicable, a Guarantor, and Agent shall have received confirmations reflecting the filing of all such financing statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect: (i) the Cash Management Agreements, including, without limitation, with respect to (A) lockbox account No. 0030134412 at Bank of America, N.A., (B) lockbox account N▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇.▇., (▇) Deposit Account No. 4113052459 at Bank of America, N.A., (D) lockbox account No. 0015891942 at Allfirst Bank, and (E) lockbox account Nos. 4950050062, 4950050070, 4950050054 at W▇▇▇▇ Fargo; (ii) to the extent required pursuant to Section 7.13, the Control Agreements; (iii) the Intellectual Property Security Agreement; (iv) the Disbursement Letter; (v) the Due Diligence Letter; (vi) the Fee Letter; (vii) the Guaranty; (viii) the Guarantor Security Agreement; (ix) the Mortgages; (x) the Officers’ Certificate; (xi) the Stock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank; (xii) a Borrowing Base Certificate dated as of the Closing Date; and (xiii) a Compliance Certificate dated as of the Closing Date; (d) Agent shall have received a certificate from the secretary or assistant secretary of Borrower (i) attesting to the resolutions of Borrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which Borrower is a party and authorizing specific officers of Borrower to execute the same, and (ii) certifying the names and true signatures of the officers of Borrower authorized to sign each Loan Document; (e) Agent shall have received copies of Borrower’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the secretary or assistant secretary of Borrower; (f) Agent shall have received a certificate of status with respect to Borrower, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction; (g) Agent shall have received certificates of status with respect to Borrower, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate from the secretary or assistant secretary of each Guarantor attesting to the resolutions of such Guarantor’s Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same; (i) Agent shall have received copies of each Guarantor’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the secretary or assistant secretary of such Guarantor; (j) Agent shall have received a certificate of status with respect to each of its Subsidiaries extant as of the Closing Date, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Subsidiary, which certificate shall indicate that such Subsidiary is in good standing in such jurisdiction; (k) Agent shall have received certificates of status with respect to each Subsidiary extant as of the Closing Date, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Subsidiary) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Subsidiary is in good standing in such jurisdictions; (l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Agent; (m) Agent shall have received an opinion of Borrower’s counsel in form and substance satisfactory to the Lenders, including, without limitation, Borrower’s Virginia counsel; (n) Agent shall have a certificate of the chief financial officer of Borrower certifying that all tax returns required to be filed by Borrower have been timely filed and all taxes upon Borrower or its properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (o) Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder; (p) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrower’s books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be satisfactory to the Lenders in their Permitted Discretion, and (ii) a lien search on Borrower and its Subsidiaries, the results of which are satisfactory to Agent; (q) Agent shall have received the unaudited financial statements for Borrower as of December 31, 2001, which shall be in form and substance satisfactory to the Lenders; (r) The Lenders shall have completed their review of the final enterprise valuation of Borrower calculated by A▇▇▇▇▇▇▇, the results of which shall be satisfactory to Lenders; (s) The Lenders shall have received Borrower’s Closing Date Business Plan; (t) Borrower shall pay, or shall have provided irrevocable directions to pay from the loan proceeds, all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (u) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to the Lenders, and (ii) mortgagee title insurance policies pursuant to ALTA Lender’s Policies of Title Insurance (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent, together with any endorsements thereto, (each a “Mortgage Policy” and, collectively, the “Mortgage Policies”) in amounts satisfactory to Agent assuring Agent that the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; (v) Agent shall have received (i) a copy of the Phase-I environmental report and a reliance letter issued to Agent for the benefit of the Lender Group for the unimproved Real Property Collateral located at Steeplechase Industrial Park, Lots 1-4, and (ii) an ALTA/ACSM survey certified to Agent for the benefit of the Lender Group with respect to each parcel composing the Real Property Collateral; the environmental consultants and surveyors retained for such ALTA/ACSM survey, the scope of the reports or surveys, and the results of both the survey and the Phase-I report shall be reasonably acceptable to Agent; (w) Agent shall have received copies of each of (i) the Indenture, (ii) the pay-off letter executed by JPMorgan, together with Uniform Commercial Code termination statements and other documentation evidencing the termination by JPMorgan of its Liens on and to the properties and assets of Borrower and its Subsidiaries, (iii) the pay-off letter executed by MetLife, together with Uniform Commercial Code termination statements and other documentation evidencing the termination by MetLife of its Liens on and to the properties and assets of Borrower and its Subsidiaries, except as in respect of any operating lease between Borrower and MetLife or one of its Affiliates, and (iv) termination statements for all other financing statements that have not otherwise lapsed, naming Borrower or its Subsidiaries as “debtor”, excluding the Permitted Liens; (x) Borrower shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; (y) Agent shall have received evidence satisfactory to it that Borrower has dissolved each of its Subsidiaries other than Orbital Communications, Orbital Holdings, and Orbital International; (z) Borrower shall have executed a final settlement agreement with Indostar, the terms of which are substantially similar to the terms previously provided to Agent; (aa) Agent shall have received evidence satisfactory to it that Borrower has prepared notices of assignment to be delivered to the relevant government contracting officers (or other authorized parties) pursuant to the Assignment of Claims Act and the applicable provisions of the F.A.R. with respect to all Accounts existing as of the date hereof with a remaining billable contract value equal to or greater than $2,000,000 after the Closing Date for which the United States or any department, agency or instrumentality thereof is the Account Debtor; (bb) Borrower shall have established a cash management system satisfying the requirements of Section 2.7 and Section 7.13; provided, however, that the Cash Management Accounts with Bank of America, N.A. referenced in Section 3.2(g) shall not be required to be in Agent’s name; and (cc) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Orbital Sciences Corp /De/)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before March 4September 16, 20022003;
(b) Agent shall have received filed all financing statements required by Agent, duly authorized executed by Borrower or, as applicable, a Guarantorthe applicable Borrowers, and Agent shall have received confirmations reflecting confirmation (satisfactory to Agent in its Permitted Discretion) of the filing of all such financing statements;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Cash Management Agreements, including, without limitation, with respect to (A) lockbox account No. 0030134412 at Bank of America, N.A., (B) lockbox account N▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇.▇., (▇) Deposit Account No. 4113052459 at Bank of America, N.A., (D) lockbox account No. 0015891942 at Allfirst Bank, and (E) lockbox account Nos. 4950050062, 4950050070, 4950050054 at W▇▇▇▇ Fargo;Canadian Security Agreement,
(ii) to the extent required pursuant to Section 7.13, the Control Agreements;
(iii) the Intellectual Property Security Agreement;
(iv) the Disbursement Letter;
(v) the Due Diligence Letter;
(vi) the Fee Letter;
(vii) the Guaranty;
(viii) the Guarantor Security Agreement;
(ix) the Mortgages;
(x) the Officers’ Certificate;
(xi) the Stock Pledge Agreements (other than the Hungarian Stock Pledge Agreement), together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank,
(iii) the Copyright Security Agreements,
(iv) the Patent Security Agreement,
(v) the Trademark Security Agreements,
(vi) the Control Agreements substantially in the form of Exhibits 3.1(c)(vi)(1), (2), (3), (4), (5), (6) and (7), respectively, with respect to accounts maintained with the following banks: (1) M and T; (2) SunTrust Bank; (3) CIBC; (4) BofA (other than with respect to the Designated Account); (5) Designated Account Bank; (6) Banc of America Securities LLC; and (7) Bank of America, N.A. (Pledging Unit),
(vii) the Intercompany Subordination Agreement to be signed by all Loan Parties,
(viii) the Fee Letter,
(ix) the Disbursement Letter, and
(x) the Perfection Certificate of each Loan Party other than the UK Guarantors and Geac Hungary;
(xiid) a Borrowing Base Certificate dated as Agent shall have received Collateral Access Agreements substantially in the forms of the Closing Date; andExhibits 3.1(d)(1), (2), (3) and (4), respectively, with respect to (i) ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, (▇▇) ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇, (▇▇▇) ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vienna, Virginia and (iv) ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
(xiiie) Agent shall have received a Closing Date Compliance Certificate dated as of the Closing Date;
(df) Agent shall have received a certificate from the secretary or assistant secretary Secretary of each Borrower (i) attesting to the resolutions of such Borrower’s 's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower or GCCL to execute the same, and (ii) certifying the names and true signatures of the officers of Borrower authorized to sign each Loan Document;
(eg) Agent shall have received copies of each Borrower’s 's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the secretary or assistant secretary Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to Borrower, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to Borrower, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate from the secretary or assistant secretary of each Guarantor attesting to the resolutions of such Guarantor’s Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the secretary or assistant secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each of its Subsidiaries extant as of the Closing DateBorrower, dated within ten (10) 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such SubsidiaryBorrower, which certificate shall indicate that such Subsidiary Borrower is in good standing as a corporation or other applicable organization in such jurisdiction (or the equivalent thereof under applicable law, if issued in such jurisdiction);
(ki) Agent shall have received certificates of status with respect to each Subsidiary extant as Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdiction of each such Borrower's chief executive office or principal place of business (if different than the jurisdiction of organization of such Borrower), which certificates shall indicate that such Borrower is in good standing as a corporation or other applicable organization in such jurisdictions;
(j) Agent shall have received a certificate from the Secretary of each Guarantor or other Loan Party attesting to the resolutions of such Guarantor's or other Loan Party's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor or other Loan Party is a party and authorizing officers of such Guarantor or other Loan Party to execute the same;
(k) Agent shall have received copies of each Guarantor's and other Loan Party's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor or other Loan Party;
(l) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall attest to such Guarantor's corporate or other applicable organizational existence and to the extent such jurisdiction certifies as to good standing, such Guarantor's good standing as a corporation or other applicable organization in such jurisdiction;
(m) Agent shall have received certificates of status with respect to each Canadian Guarantor and Other Guarantor, each dated within thirty (30) 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such SubsidiaryGuarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that attest, in the case of each Canadian Guarantor and NSULC, to such Subsidiary is Person's registration as a corporation or other applicable organization in such jurisdiction, and, in the case of US LLC, its good standing as a limited liability company in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Agent;
(m) Agent shall have received an opinion of Borrower’s counsel in form and substance satisfactory to the Lenders, including, without limitation, Borrower’s Virginia counseljurisdiction;
(n) Agent shall have received the certificate(s) of insurance, together with a certificate form of lender's loss payee endorsement (and the chief financial officer of Borrower certifying that all tax returns accompanying correspondence thereto previously provided to Agent) with respect to property coverage, as are required to be filed by Borrower have been timely filed and all taxes upon Borrower or its properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestSection 6.8;
(o) Borrower Agent shall have received opinions of the Required Availability Loan Parties' US (including appropriate local counsel opinions from the states of Georgia, Missouri and Colorado), Canadian (other than Nova Scotia), Nova Scotia and Hungarian counsel, and Agent's UK counsel, in the forms of Exhibits 3.1(o)(1), (2), (3), (4), (5), (6), (7), (8), respectively;
(p) Agent shall have received the Hungarian Stock Pledge Agreement duly executed by each of Geac Hungary, 2019856 and GCL;
(q) Borrowers shall have Liquidity of not less than $10,000,000 after giving effect to the initial extensions of credit hereunder, of which not more than $5,000,000 may be in the form of Qualified Cash Equivalents;
(pr) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrower’s Loan Parties' books and records and verification of Borrower’s Loan Parties' representations and warranties to the Lender Group, the results of which shall be satisfactory to the Lenders in their Permitted Discretion, and Agent;
(iis) a lien search on Borrower and its SubsidiariesAgent shall have received completed reference checks with respect to Loan Parties' senior management, the results of which are satisfactory to AgentAgent in its sole discretion;
(qt) Agent shall have received the unaudited financial statements for Borrower as an appraisal of December 31, 2001, which shall be in form and substance satisfactory to the Lenders;
(r) The Lenders shall have completed their review of the final enterprise valuation of Borrower calculated by A▇▇▇▇▇▇▇certain Borrowers' Eligible Recurring Maintenance Revenue, the results of which shall be satisfactory to LendersAgent, in its sole discretion;
(su) The Lenders Agent shall have received Borrower’s Closing Date the initial Business Plan;
(tv) Borrower shall pay, or Borrowers shall have provided irrevocable directions to pay from the loan proceeds, paid all Lender Group Expenses incurred through the Closing Date in connection with the transactions evidenced by this Agreement;
(u) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to the Lenders, and (ii) mortgagee title insurance policies pursuant to ALTA Lender’s Policies of Title Insurance (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent, together with any endorsements thereto, (each a “Mortgage Policy” and, collectively, the “Mortgage Policies”) in amounts satisfactory to Agent assuring Agent that the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent;
(v) Agent shall have received (i) a copy of the Phase-I environmental report and a reliance letter issued to Agent for the benefit of the Lender Group for the unimproved Real Property Collateral located at Steeplechase Industrial Park, Lots 1-4, and (ii) an ALTA/ACSM survey certified to Agent for the benefit of the Lender Group with respect to each parcel composing the Real Property Collateral; the environmental consultants and surveyors retained for such ALTA/ACSM survey, the scope of the reports or surveys, and the results of both the survey and the Phase-I report shall be reasonably acceptable to Agent;
(w) Agent shall have received copies of each the executed written consents (to the extent required under the underlying contracts) of (i) the Indenture, (ii) the pay-off letter executed by JPMorgan, together with Uniform Commercial Code termination statements and other documentation evidencing the termination by JPMorgan of its Liens on and to the properties and assets of Borrower and its Subsidiaries, (iii) the pay-off letter executed by MetLife, together with Uniform Commercial Code termination statements and other documentation evidencing the termination by MetLife of its Liens on and to the properties and assets of Borrower and its Subsidiaries, except as in respect of any operating lease between Borrower and MetLife or one of its Affiliates, and (iv) termination statements for all other financing statements that have not otherwise lapsed, naming Borrower or its Subsidiaries as “debtor”, excluding the Permitted Liens;
(x) Borrower shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby;
(y) Agent shall have received evidence satisfactory to it that Borrower has dissolved each of its Subsidiaries other than Orbital Communications, Orbital Holdings, and Orbital International;
(z) Borrower shall have executed a final settlement agreement with Indostar, the terms of which are substantially similar to the terms previously provided to Agent;
(aa) Agent shall have received evidence satisfactory to it that Borrower has prepared notices of assignment to be delivered to the relevant government contracting officers (or other authorized parties) pursuant to the Assignment of Claims Act and the applicable provisions of the F.A.R. with respect to all Accounts existing as of the date hereof with a remaining billable contract value equal to or greater than $2,000,000 after the Closing Date for which the United States or any department, agency or instrumentality thereof is the Account Debtor;
(bb) Borrower shall have established a cash management system satisfying the requirements of Section 2.7 and Section 7.13; provided, however, that the Cash Management Accounts with Bank of America, N.A. referenced in Section 3.2(g) shall not be required to be in Agent’s name; and
(cc) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent.)
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before March 4, 2002;
(b) Agent shall have received all financing statements required by Agent, duly authorized by Borrower or, as applicable, a Guarantor, and Agent shall have received confirmations reflecting the filing of all such financing statements;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Cash Management Agreements, including, without limitation, with respect to (A) lockbox account No. 0030134412 at Bank of America, N.A., (B) lockbox account N▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇.▇., (▇) Deposit Account No. 4113052459 at Bank of America, N.A., (D) lockbox account No. 0015891942 at Allfirst Bank, and (E) lockbox account Nos. 4950050062, 4950050070, 4950050054 at W▇▇▇▇▇ Fargo;
(ii) to the extent required pursuant to Section 7.13, the Control Agreements;
(iii) the Intellectual Property Security Agreement;
(iv) the Disbursement Letter;
(v) the Due Diligence Letter;
(vi) the Fee Letter;
(vii) the Guaranty;
(viii) the Guarantor Security Agreement;
(ix) the Mortgages;
(x) the Officers’ ' Certificate;
(xi) the Stock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank;
(xii) a Borrowing Base Certificate dated as of the Closing Date; and
(xiii) a Compliance Certificate dated as of the Closing Date;
(d) Agent shall have received a certificate from the secretary or assistant secretary of Borrower (i) attesting to the resolutions of Borrower’s 's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which Borrower is a party and authorizing specific officers of Borrower to execute the same, and (ii) certifying the names and true signatures of the officers of Borrower authorized to sign each Loan Document;
(e) Agent shall have received copies of Borrower’s 's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the secretary or assistant secretary of Borrower;
(f) Agent shall have received a certificate of status with respect to Borrower, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to Borrower, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate from the secretary or assistant secretary of each Guarantor attesting to the resolutions of such Guarantor’s 's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;Directors
(i) Agent shall have received copies of each Guarantor’s 's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the secretary or assistant secretary of such Guarantor;
; (j) Agent shall have received a certificate of status with respect to each of its Subsidiaries extant as of the Closing Date, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Subsidiary, which certificate shall indicate that such Subsidiary is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Subsidiary extant as of the Closing Date, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Subsidiary) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Subsidiary is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Agent;
(m) Agent shall have received an opinion of Borrower’s counsel in form and substance satisfactory to the Lenders, including, without limitation, Borrower’s Virginia counsel;
(n) Agent shall have a certificate of the chief financial officer of Borrower certifying that all tax returns required to be filed by Borrower have been timely filed and all taxes upon Borrower or its properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(o) Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(p) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrower’s books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be satisfactory to the Lenders in their Permitted Discretion, and (ii) a lien search on Borrower and its Subsidiaries, the results of which are satisfactory to Agent;
(q) Agent shall have received the unaudited financial statements for Borrower as of December 31, 2001, which shall be in form and substance satisfactory to the Lenders;
(r) The Lenders shall have completed their review of the final enterprise valuation of Borrower calculated by A▇▇▇▇▇▇▇, the results of which shall be satisfactory to Lenders;
(s) The Lenders shall have received Borrower’s Closing Date Business Plan;
(t) Borrower shall pay, or shall have provided irrevocable directions to pay from the loan proceeds, all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(u) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to the Lenders, and (ii) mortgagee title insurance policies pursuant to ALTA Lender’s Policies of Title Insurance (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent, together with any endorsements thereto, (each a “Mortgage Policy” and, collectively, the “Mortgage Policies”) in amounts satisfactory to Agent assuring Agent that the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent;
(v) Agent shall have received (i) a copy of the Phase-I environmental report and a reliance letter issued to Agent for the benefit of the Lender Group for the unimproved Real Property Collateral located at Steeplechase Industrial Park, Lots 1-4, and (ii) an ALTA/ACSM survey certified to Agent for the benefit of the Lender Group with respect to each parcel composing the Real Property Collateral; the environmental consultants and surveyors retained for such ALTA/ACSM survey, the scope of the reports or surveys, and the results of both the survey and the Phase-I report shall be reasonably acceptable to Agent;
(w) Agent shall have received copies of each of (i) the Indenture, (ii) the pay-off letter executed by JPMorgan, together with Uniform Commercial Code termination statements and other documentation evidencing the termination by JPMorgan of its Liens on and to the properties and assets of Borrower and its Subsidiaries, (iii) the pay-off letter executed by MetLife, together with Uniform Commercial Code termination statements and other documentation evidencing the termination by MetLife of its Liens on and to the properties and assets of Borrower and its Subsidiaries, except as in respect of any operating lease between Borrower and MetLife or one of its Affiliates, and (iv) termination statements for all other financing statements that have not otherwise lapsed, naming Borrower or its Subsidiaries as “debtor”, excluding the Permitted Liens;
(x) Borrower shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby;
(y) Agent shall have received evidence satisfactory to it that Borrower has dissolved each of its Subsidiaries other than Orbital Communications, Orbital Holdings, and Orbital International;
(z) Borrower shall have executed a final settlement agreement with Indostar, the terms of which are substantially similar to the terms previously provided to Agent;
(aa) Agent shall have received evidence satisfactory to it that Borrower has prepared notices of assignment to be delivered to the relevant government contracting officers (or other authorized parties) pursuant to the Assignment of Claims Act and the applicable provisions of the F.A.R. with respect to all Accounts existing as of the date hereof with a remaining billable contract value equal to or greater than $2,000,000 after the Closing Date for which the United States or any department, agency or instrumentality thereof is the Account Debtor;
(bb) Borrower shall have established a cash management system satisfying the requirements of Section 2.7 and Section 7.13; provided, however, that the Cash Management Accounts with Bank of America, N.A. referenced in Section 3.2(g) shall not be required to be in Agent’s name; and
(cc) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent.
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Sources: Loan and Security Agreement (Orbital Sciences Corp /De/)