Common use of Conditions Precedent to Initial Loan and Letter of Credit Clause in Contracts

Conditions Precedent to Initial Loan and Letter of Credit. The Lenders shall have no obligation to make the initial Loan and the Issuing Bank shall have no obligation to issue the initial Letter of Credit unless and until all matters incident to the consummation of the transactions contemplated herein shall be satisfactory to the Administrative Agent, and the Administrative Agent shall have received, reviewed, and approved the following documents and other items, appropriately executed when necessary and, where applicable, acknowledged by one or more authorized officers of the Borrowers and the Guarantors, all in form and substance satisfactory to the Administrative Agent and dated, where applicable, of even date herewith or a date prior thereto and acceptable to the Administrative Agent. (a) multiple counterparts of this Agreement, as requested by the Administrative Agent; (b) the Notes, if requested pursuant to Section 2.8(a); (c) copies of the articles of incorporation or certificate of formation, as applicable, and all amendments thereto and the bylaws or limited liability company agreement, as applicable, and all amendments thereto of each Borrower and each Guarantor, accompanied by a certificate issued by the secretary or an assistant secretary of each Borrower and each Guarantor, to the effect that each such copies are correct and complete; (d) certificates of incumbency and signatures of all officers of each Borrower and each Guarantor who are authorized to execute Loan Documents on behalf of such Borrower or such Guarantor, each such certificate being executed by the secretary or an assistant secretary of such Borrower or such Guarantor; (e) copies of corporate resolutions approving the Loan Documents and authorizing the transactions contemplated herein and therein, duly adopted by the board of directors of each Borrower and each Guarantor, accompanied by certificates of the secretary or an assistant secretary of each Borrower and each Guarantor to the effect that such copies are true and correct copies of resolutions duly adopted at a meeting or by unanimous consent of the board of directors of such Borrower or such Guarantor and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified, or revoked in any respect, and are in full force and effect as of the date of such certificate; (f) multiple counterparts, as requested by the Administrative Agent, of the following Security Instruments creating, evidencing, perfecting, and otherwise establishing Liens in favor of the Administrative Agent for the benefit of the Secured Parties in and to the Collateral which must be furnished on or before the Closing Date. (i) the Security Agreement by each Borrower and each Guarantor, together with appropriate UCC-1 financing statements for filing with the appropriate authorities and any other documents, agreements, or instruments necessary to create and perfect a first priority security interest in the Collateral described in the Security Agreement; and (ii) the Pledge Agreement by each Borrower and each Subsidiary (other than an Excluded Foreign Subsidiary) owning Capital Stock of a Material Subsidiary (other than Swift LLC); and together with appropriate membership interest certificates, if any, and transfer powers executed in blank, UCC-1 financing statements for filing with the appropriate authorities and any other documents, agreements, or instruments necessary to create and perfect a first priority security interest in 100% of the Capital Stock of each Material Subsidiary (other than Swift LLC) which is a Domestic Subsidiary and 65% of the Capital Stock of each Material Subsidiary which is a first tier Foreign Subsidiary; (g) certificates dated as of a recent date from the appropriate Governmental Authority evidencing the existence or qualification and good standing of each Borrower and each Guarantor in such Borrower's or Guarantor's jurisdiction or formation; (h) opinion of Bxxxx and Hxxxxxxxx LLP, counsel to the Borrowers and the Guarantors in Texas, in form and substance satisfactory to the Administrative Agent; (i) certificates of insurance naming the Administrative Agent as loss payee and additional insured and evidencing insurance which meets the requirements of this Agreement and the other Loan Documents; (j) evidence satisfactory to the Administrative Agent that all governmental and third party approvals necessary in connection with the continuing operations of the Borrowers and their Subsidiaries and the transactions contemplated hereby shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby; (k) results of a recent lien search in each jurisdiction requested by the Administrative Agent, and such search shall reveal no Liens on any of the assets of the Borrowers or their Subsidiaries except for Permitted Liens or Liens discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Administrative Agent; and (l) such other agreements, documents, instruments, opinions, certificates, waivers, consents, and evidence as the Administrative Agent or any Lender may reasonably request.

Conditions Precedent to Initial Loan and Letter of Credit. The Lenders shall have no obligation to make the initial Loan and the Issuing Bank shall have no obligation to or issue the initial Letter of Credit unless and until all matters incident to the consummation of the transactions contemplated herein herein, including the review by the Agent or its counsel of the title of the Borrowers to the Material Properties, shall be satisfactory to the Administrative AgentAgent and each Lender, and the Administrative Agent shall have received, reviewed, and approved the following documents and other items, appropriately executed when necessary and, where applicable, acknowledged by one or more authorized officers of the Borrowers and or the GuarantorsGuarantor, as the case may be, all in form and substance satisfactory to the Administrative Agent and dated, where applicable, of even date herewith or a date prior thereto and acceptable to the Administrative Agent.: (a) multiple counterparts of this Agreement, the Guaranty, the Bank One Assignment, the Comerica Assignment, and the Subordination Agreement as requested by the Administrative Agent; (b) the Existing Bank One Notes and the Existing Comerica Notes, if requested pursuant endorsed payable to Section 2.8(a)the Lenders; (c) the Notes; (d) copies of the articles Articles of incorporation Incorporation or certificate Certificate of formation, as applicable, Incorporation and all amendments thereto and the bylaws or limited liability company agreement, as applicable, and all amendments thereto of each Borrower and each the Guarantor, accompanied by a certificate issued by the secretary or an assistant secretary of each Borrower and each or the Guarantor, as the case may be, to the effect that each such copies are copy is correct and complete; (de) certificates of incumbency and signatures of all officers of each Borrower and each the Guarantor who are authorized to execute Loan Documents on behalf of such Borrower or such Guarantorentities, each such certificate being executed by the secretary or an assistant secretary of such each Borrower or such the Guarantor, as the case may be; (ef) copies of corporate resolutions approving the Loan Documents and authorizing the transactions contemplated herein and therein, duly adopted by the board boards of directors of each Borrower and each the Guarantor, accompanied by certificates of the secretary or an assistant secretary of each Borrower and each Guarantor or the Guarantor, as the case may be, to the effect that such copies are true and correct copies of resolutions duly adopted at a meeting or by unanimous consent of the board of directors of such each Borrower or such Guarantor the Guarantor, as the case may be, and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified, or revoked in any respect, and are in full force and effect as of the date of such certificate; (fg) multiple counterparts, as requested by the Administrative Agent, of the following documents ratifying, amending, and restating the Existing Bank One Security Instruments and the Existing Comerica Security Instruments and creating, evidencing, perfecting, and otherwise establishing Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Parties in and to the Collateral which must be furnished on or before the Closing Date.Collateral: (i) the Mortgage, Collateral Real Estate Mortgage, Deed of Trust, Indenture, Security Agreement by each Borrower Agreement, Financing Statement and each GuarantorAssignment of Production from KRI, together with appropriate UCC-1 financing statements for filing with the appropriate authorities KCS Michigan, and any other documents, agreements, or instruments necessary to create KCS Marketing covering all Oil and perfect a first priority security interest Gas Properties of such Borrowers in the Collateral described in the Security Agreement; andStates of Louisiana, Michigan, Mississippi, Montana, North Dakota, Texas and Wyoming and all improvements, personal property, and fixtures related thereto; (ii) the Pledge Agreement by each Borrower and each Subsidiary (other than an Excluded Foreign Subsidiary) owning Capital Stock of a Material Subsidiary (other than Swift LLC); and together with appropriate membership interest certificatesFinancing Statements from KRI, if anyKCS Michigan, and transfer powers executed in blankKCS Marketing as debtors, UCC-1 financing statements for filing with the appropriate authorities and any other documents, agreements, or instruments necessary to create and perfect a first priority security interest in 100% of the Capital Stock of each Material Subsidiary (other than Swift LLC) which is a Domestic Subsidiary and 65% of the Capital Stock of each Material Subsidiary which is a first tier Foreign Subsidiary; (g) certificates dated as of a recent date from the appropriate Governmental Authority evidencing the existence or qualification and good standing of each Borrower and each Guarantor in such Borrower's or Guarantor's jurisdiction or formation; (h) opinion of Bxxxx and Hxxxxxxxx LLP, counsel constituent to the Borrowers and the Guarantors instrument described in Texas, in form and substance satisfactory to the Administrative Agent; clause (i) certificates of insurance naming the Administrative Agent as loss payee and additional insured and evidencing insurance which meets the requirements of this Agreement and the other Loan Documentsabove; (j) evidence satisfactory to the Administrative Agent that all governmental and third party approvals necessary in connection with the continuing operations of the Borrowers and their Subsidiaries and the transactions contemplated hereby shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby; (k) results of a recent lien search in each jurisdiction requested by the Administrative Agent, and such search shall reveal no Liens on any of the assets of the Borrowers or their Subsidiaries except for Permitted Liens or Liens discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Administrative Agent; and (l) such other agreements, documents, instruments, opinions, certificates, waivers, consents, and evidence as the Administrative Agent or any Lender may reasonably request.

Conditions Precedent to Initial Loan and Letter of Credit. The Lenders shall have no obligation to make the initial Loan and the Issuing Bank shall have no obligation to Loans or issue the initial Letter Letters of Credit on or after the Closing Date unless and until all matters incident to the consummation of the transactions contemplated herein herein, including the review by the Agent or its counsel of the title, as set forth in clause (i), of KRI, KCS Marketing, KCS Michigan or any other Person party to a Security Instrument, (any such other Person being referred to as a "Substitute Mortgagor") to the Additional Mortgaged Properties, shall be satisfactory to the Administrative Agent, and the Administrative Agent shall have substantially simultaneously received the Tranche A Amendment Fee and the Tranche B Amendment Fee and (to the extent not previously received to the satisfaction of the Agent in its sole determination) shall have received, reviewed, and approved the following documents and other items, appropriately executed when necessary and, where applicable, acknowledged by one or more authorized officers of the Borrowers and or the GuarantorsGuarantor, as the case may be, all in form and substance satisfactory to the Administrative Agent and dated, where applicable, of even date herewith or a date prior thereto and acceptable to the Administrative Agent.: (a) multiple counterparts of this Agreement, the Guaranty, and the Subordination Agreement as requested by the Administrative Agent; (b) the Notes, if requested pursuant to Section 2.8(a); (c) copies of the articles Articles of incorporation Incorporation or certificate Certificate of formation, as applicable, Incorporation and all amendments thereto and the bylaws or limited liability company agreement, as applicable, and all amendments thereto of each Borrower and each the Guarantor, accompanied by a certificate issued by the secretary or an assistant secretary of each Borrower and each the Guarantor, as the case may be, to the effect that each such copies are copy is correct and completecomplete or in lieu of the foregoing, a certificate of such secretary or assistant secretary to the effect that such Articles or Certificate of Incorporation have not been amended since the date of the Initial Agreement; (d) certificates of incumbency and signatures of all officers of each Borrower and each the Guarantor who are authorized to execute Loan Documents on behalf of such Borrower or such Guarantorentities, each such certificate being executed by the secretary or an assistant secretary of such each Borrower or such the Guarantor, as the case may be; (e) copies of corporate resolutions approving the Loan Documents and authorizing the transactions contemplated herein and therein, duly adopted by the board boards of directors of each Borrower and each Guarantor, the Guarantor accompanied by certificates of the secretary or an assistant secretary of each Borrower and each Guarantor or the Guarantor, as the case may be, to the effect that such copies are true and correct copies of resolutions duly adopted at a meeting or by unanimous consent of the board of directors of such each Borrower or such Guarantor the Guarantor, as the case may be, and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified, or revoked in any respect, and are in full force and effect as of the date of such certificate; (f) multiple counterparts, as requested by the Administrative Agent, of the following Security Instruments documents (together with any and all supplements or amendments thereto required by the Collateral Agent pursuant to this Agreement and the Loan Documents), creating, evidencing, perfecting, and otherwise establishing Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Parties in and to the Collateral which must be furnished on or before the Closing Date.Collateral: (i) the Act of Mortgage and Security Agreement by each Borrower and/or Mortgage, Collateral Real Estate Mortgage, Deed of Trust, Indenture, Security Agreement, Financing Statement and each GuarantorAssignment of Production from KRI, KCS Michigan or any Substitute Mortgagor (or other similar security instrument, agreement or assignment required to perfect a Lien in and to the Additional Mortgaged Properties in the State where such Property is located) covering the Additional Mortgaged Properties and all improvements, personal property, and fixtures related thereto, together with appropriate UCC-1 financing statements for filing with the appropriate authorities ratifications and any other documents, agreements, or instruments necessary amendments in form satisfactory to create and perfect a first priority security interest in the Collateral described in Agent relating to each of the Security AgreementInstruments executed and delivered by a Borrower or Substitute Mortgagor prior to the Closing Date; and (ii) Financing Statements from KRI, KCS Michigan or any Substitute Mortgagor as debtor, constituent to the Pledge Agreement instrument relating to the Additional Mortgage Properties described in clause (i) above; and (iii) to the extent necessary, ratifications and amendments of other Security Instruments (including counterparts of Collateral Assignment of Documents, Liens and Security Interests) previously executed by each Borrower the Borrowers and each Subsidiary (other than an Excluded Foreign Subsidiary) owning Capital Stock of a Material Subsidiary (other than Swift LLC); and together with appropriate membership interest certificates, if any, and transfer powers executed in blank, UCC-1 financing statements for filing with delivered to the appropriate authorities and any other documents, agreements, or instruments necessary to create and perfect a first priority security interest in 100% of the Capital Stock of each Material Subsidiary (other than Swift LLC) which is a Domestic Subsidiary and 65% of the Capital Stock of each Material Subsidiary which is a first tier Foreign SubsidiaryCollateral Agent; (g) certificates dated as of a recent date from the Secretary of State or other appropriate Governmental Authority evidencing the existence or qualification and good standing of each Borrower the Borrowers and each the Guarantor in such Borrower's or Guarantor's their respective jurisdiction or formationof incorporation and in any other jurisdictions where any of them is qualified to do business; (h) results of searches of the UCC Records of all States where any Collateral is located from a source acceptable to the Agent and reflecting no Liens against any of the Collateral as to which perfection of a Lien is accomplished by the filing of a financing statement other than Liens in favor of the Agent or the Collateral Agent and other Permitted Liens; (i) to the extent practicable based on the Borrowers' good faith efforts, confirmation, acceptable to the Agent, of the title of KRI, KCS Michigan or any Substitute Mortgagor to the Additional Mortgaged Properties, free and clear of Liens other than Permitted Liens; (j) results satisfactory to the Agent in its discretion of a review of the environmental reports furnished to the Agent by Borrowers in connection with the Initial Agreement; (k) results satisfactory to the Agent in its discretion of a review of all operating, lease, sublease, royalty, sales, exchange, processing, farmout, bidding, pooling, unitization, communitization, and other agreements relating to the Additional Mortgaged Properties requested by the Agent or any Lender; (l) engineering reports as of June 30, 1998 covering the Mortgaged Properties; (m) the opinion of Bxxxx and Hxxxxxxxx LLP, counsel to the Borrowers and the Guarantors in TexasGuarantor, in the form and substance satisfactory to attached hereto as Exhibit VIII, with such changes thereto as may be approved by the Administrative Agent; (in) certificates the opinion of insurance naming special counsel in each State where any Collateral is located in the Administrative Agent form attached hereto as loss payee and additional insured and evidencing insurance which meets Exhibit IX, relating to the requirements Additional Mortgaged Properties, and, if required by the Agent, supplemental opinions in form satisfactory to the Agent, in connection with any ratifications or amendments to any of this Agreement and the other Loan DocumentsSecurity Instruments, with such changes thereto as may be approved by the Agent; (jo) evidence satisfactory to certificates evidencing the Administrative Agent that all governmental and third party approvals necessary in connection with the continuing operations of the Borrowers and their Subsidiaries and the transactions contemplated hereby shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby; (k) results of a recent lien search in each jurisdiction requested by the Administrative Agent, and such search shall reveal no Liens on any of the assets of the Borrowers or their Subsidiaries except for Permitted Liens or Liens discharged on or prior to the Closing Date insurance coverage required pursuant to documentation satisfactory to the Administrative AgentSection 5.16; and (lp) such other agreements, documents, instruments, opinions, certificates, waivers, consents, and evidence as the Administrative Agent or any Lender may reasonably request.

Conditions Precedent to Initial Loan and Letter of Credit. The Lenders shall have no obligation to make the initial Loan and the Issuing Bank shall have no obligation to Loans or issue the initial Letter of Credit unless and until all matters incident to the consummation of the transactions contemplated herein herein, including the review by the Agent or its counsel of the title of KCS Medallion (or if consented to in writing by the Agent, any other Borrower, any such Borrower being referred to as a "Substitute Mortgagor") to the Material Properties, shall be satisfactory to the Administrative AgentAgent and each Lender, and the Administrative Agent shall have received, reviewed, and approved the following documents and other items, appropriately executed when necessary and, where applicable, acknowledged by one or more authorized officers of the Borrowers and the GuarantorsBorrowers, all in form and substance satisfactory to the Administrative Agent and dated, where applicable, of even date herewith or a date prior thereto and acceptable to the Administrative Agent.: (a) multiple counterparts of this Agreement, Agreement as requested by the Administrative Agent; (b) the Notes, if requested pursuant to Section 2.8(a); (c) The duly executed Stock Pledge Agreement from KCS creating, evidencing, perfecting and otherwise establishing Liens in favor of the Collateral Agent in and to all issued and outstanding shares of Borrowers other than KCS and KCS Energy Services, together with the delivery to the Collateral Agent of all of the pledged securities described therein necessary to effectuate and perfect such stock pledge, accompanied by an executed and undated stock power in blank, or such other instrument, as may be required under applicable law to perfect the pledge; (d) copies of the articles Articles of incorporation Incorporation or certificate Certificate of formation, as applicable, Incorporation and all amendments thereto and the bylaws or limited liability company agreement, as applicable, and all amendments thereto of each Borrower and each GuarantorBorrower, accompanied by a certificate issued by the secretary or an assistant secretary of each Borrower and each GuarantorBorrower, as the case may be, to the effect that each such copies are copy is correct and complete; (de) certificates of incumbency and signatures of all officers of each Borrower and each Guarantor who are authorized to execute Loan Documents on behalf of such Borrower or such Guarantorentities, each such certificate being executed by the secretary or an assistant secretary of such Borrower or such Guarantoreach Borrower; (ef) copies of corporate resolutions approving the Loan Documents and authorizing the transactions contemplated herein and therein, duly adopted by the board boards of directors of each Borrower and each Guarantor, accompanied by certificates of the secretary or an assistant secretary of each Borrower and each Guarantor Borrower, as the case may be, to the effect that such copies are true and correct copies of resolutions duly adopted at a meeting or by unanimous consent of the board of directors of such Borrower or such Guarantor each Borrower, as the case may be, and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified, or revoked in any respect, and are in full force and effect as of the date of such certificate; (fg) multiple counterparts, as requested by the Administrative Agent, of the following Security Instruments documents, creating, evidencing, perfecting, and otherwise establishing Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Parties in and to the Collateral which must be furnished on or before the Closing Date.Collateral: (i) the Open-End Line of Credit Mortgage, Deed of Trust, Indenture, Security Agreement by each Borrower Agreement, Financing Statement and each GuarantorAssignment of Production from KCS Medallion or any Substitute Mortgagor (or other similar security instrument, together with appropriate UCC-1 financing statements for filing with the appropriate authorities and any other documents, agreements, agreement or instruments necessary assignment required to create and perfect a first priority security interest Lien in and to the Material Properties in a given state) covering all Material Properties of KCS Medallion or any Substitute Mortgagor in the Collateral described in the Security AgreementStates of California, Colorado, Louisiana, Mississippi, Montana, New Mexico, Oklahoma, Texas and Wyoming and all improvements, personal property, and fixtures related thereto; and (ii) Financing Statements from KCS Medallion or any Substitute Mortgagor as debtor, constituent to the Pledge Agreement by each Borrower and each Subsidiary instrument described in clause (other than an Excluded Foreign Subsidiaryi) owning Capital Stock of a Material Subsidiary (other than Swift LLC); and together with appropriate membership interest certificates, if any, and transfer powers executed in blank, UCC-1 financing statements for filing with the appropriate authorities and any other documents, agreements, or instruments necessary to create and perfect a first priority security interest in 100% of the Capital Stock of each Material Subsidiary (other than Swift LLC) which is a Domestic Subsidiary and 65% of the Capital Stock of each Material Subsidiary which is a first tier Foreign Subsidiary;above. (gh) certificates dated as of a recent date from the Secretary of State or other appropriate Governmental Authority evidencing the existence or qualification and good standing of each Borrower and each Guarantor in such Borrower's or Guarantor's jurisdiction or formation; (h) opinion of Bxxxx and Hxxxxxxxx LLP, counsel to the Borrowers and the Guarantors in Texas, in form and substance satisfactory to the Administrative Agent; (i) certificates of insurance naming the Administrative Agent as loss payee and additional insured and evidencing insurance which meets the requirements of this Agreement and the other Loan Documents; (j) evidence satisfactory to the Administrative Agent that all governmental and third party approvals necessary in connection with the continuing operations of the Borrowers and their Subsidiaries and the transactions contemplated hereby shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby; (k) results of a recent lien search in each jurisdiction requested by the Administrative Agent, and such search shall reveal no Liens on any of the assets of the Borrowers or their Subsidiaries except for Permitted Liens or Liens discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Administrative Agent; and (l) such other agreements, documents, instruments, opinions, certificates, waivers, consents, and evidence as the Administrative Agent or any Lender may reasonably request.respective jurisdiction