Further Assurances; Additional Collateral. (a) The Borrower and the MLP shall cause the MLP and each Subsidiary of the Borrower and the MLP to take such actions and to execute and deliver such documents and instruments as the Administrative Agent shall require to ensure that the Administrative Agent on behalf of the Lenders shall, at all times, have received currently effective duly executed Loan Documents granting Lien and security interest in substantially all of the assets of the MLP and each Subsidiary of the Borrower and the MLP, including all capital stock, partnership, joint venture, membership interests, or other equity interest; provided, however that MarkWest Energy Appalachia, L.L.C. shall not be required to ▇▇▇▇▇ ▇ ▇▇▇▇ on its interests in the Equitable Leases. (b) In connection with the actions required pursuant to the foregoing subsection (a), the Borrower and the MLP shall cause the MLP and each Subsidiary of the Borrower and the MLP to execute and deliver such stock certificates, blank stock powers, evidence of corporate authorization, opinions of counsel, current valuations, evidence of title, title opinions, title insurance and other documents, and shall use commercially reasonable efforts to obtain landlord and mortgagee waivers and third party consents, as shall be requested by the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent. (c) The Liens required by this SECTION 6.16 shall be first priority perfected Liens in favor of the Administrative Agent for the benefit of the Lenders, subject to no other Liens except Permitted Liens of the type described in SECTION 7.01 (other than SECTION 7.01(h)). If the Administrative Agent shall determine that, as of any date, the Borrower or the MLP shall have failed to comply with this SECTION 6.16, the Administrative Agent may (and at the direction of the Required Lenders, shall) notify the Borrower in writing of such failure and, within 30 days from and after receipt of such written notice by the Borrower, the Borrower shall execute and deliver to the Administrative Agent supplemental or additional Loan Documents, in form and substance satisfactory to the Administrative Agent and its counsel, securing payment of the Notes and the other Obligations and covering additional assets and properties not then encumbered by any Loan Documents (together with such other information, as may be requested by the Administrative Agent, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent) such that the Administrative Agent shall have received currently effective duly executed and perfected Collateral Documents encumbering substantially all of the assets of the MLP, Borrower and their respective Subsidiaries as required by SECTION 6.16(a).
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Further Assurances; Additional Collateral. (a) The Borrower Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the MLP shall cause the MLP filing and each Subsidiary recording of the Borrower financing statements and the MLP to take such actions and to execute and deliver such documents and instruments as the Administrative Agent shall require to ensure other documents), that the Administrative Agent on behalf may reasonably request (including, without limitation those required by applicable law), to satisfy the Collateral Requirement and to cause the Collateral Requirement to be and remain satisfied, all at the expense of the Lenders shallLoan Parties and provide to the Administrative Agent, at all timesfrom time to time upon reasonable request, have received currently effective duly executed Loan Documents granting Lien evidence reasonably satisfactory to the Administrative Agent as to the perfection and security interest in substantially all priority of the assets of Liens created or intended to be created by the MLP and Collateral Documents, subject in each Subsidiary of the Borrower and the MLP, including all capital stock, partnership, joint venture, membership interests, or other equity interest; provided, however that MarkWest Energy Appalachia, L.L.C. shall not be required case to ▇▇▇▇▇ ▇ ▇▇▇▇ on its interests in the Equitable Leasesparagraph (g) below.
(b) In connection with If any asset that has an individual fair market value (as determined in good faith by the actions required pursuant to the foregoing subsection (a), Borrower) in an amount greater than $10,000,000 is acquired by the Borrower and or any Subsidiary Loan Party after the MLP shall cause Effective Date or owned by an entity at the MLP and each time it becomes a Subsidiary of the Borrower and the MLP to execute and deliver such stock certificates, blank stock powers, evidence of corporate authorization, opinions of counsel, current valuations, evidence of title, title opinions, title insurance and other documents, and shall use commercially reasonable efforts to obtain landlord and mortgagee waivers and third party consents, as shall be requested by the Administrative Agent, Loan Party (in each case in form and substance satisfactory other than (x) assets constituting Collateral under a Collateral Document that become subject to the Administrative Agent.
Lien of such Collateral Document upon acquisition thereof and (cy) The Liens assets that are not required by this SECTION 6.16 shall be first priority perfected to become subject to Liens in favor of the Administrative Agent pursuant to Section 5.10(g) or the Collateral Documents) will (i) promptly as practicable notify the Administrative Agent thereof and (ii) take or cause the Subsidiary Loan Parties to take such actions as shall be reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (a) of this Section 5.10, all at the expense of the Loan Parties, subject to paragraph (g) below.
(c) [Intentionally Omitted.]
(d) If any additional direct or indirect Subsidiary of the Borrower is formed or acquired after the Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a Subsidiary Loan Party, within fifteen (15) Business Days after the date such Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree), notify the Administrative Agent thereof and, within twenty (20) Business Days after the date such Subsidiary is formed or acquired or such longer period as the Administrative Agent shall agree (or, with respect to clauses (g), (h), (i), (j) and (m) of the definition of “Collateral Requirement”, within 90 days after such formation or acquisition or such longer period as set forth therein or as the Administrative Agent may agree, as applicable), cause the Collateral Requirement to be satisfied with respect to such Domestic Subsidiary and with respect to any Equity Interest in or Indebtedness of such Domestic Subsidiary owned by or on behalf of the Borrower or any Subsidiary Loan Party, subject in each case to paragraph (g) below.
(e) If any additional Foreign Subsidiary of the Borrower is formed or acquired after the Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary directly owned by the Borrower or a Subsidiary Loan Party, within fifteen (15) Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree), notify the Administrative Agent thereof and, within fifty (50) Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent shall agree, cause the Collateral Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary directly owned by the Borrower or any Subsidiary Loan Party, subject in each case to paragraph (g) below.
(i) Furnish to the Administrative Agent promptly (and in any event within 30 days after such change or such longer period as the Administrative Agent may agree) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number, (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party that is not a registered organization; provided that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within any statutory period (or such longer period as the Administrative Agent may agree), under the UCC that are required in order for the Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the LendersSecured Parties with the same priority as prior to such change and (ii) promptly notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(g) The Collateral Requirement and the other provisions of this Section 5.10 and the other provisions of the Loan Documents with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) all fee-owned real property and any leasehold interests in real property, (ii) any vehicle and other assets subject to no certificates of title and letter of credit rights (in each case, other Liens except Permitted Liens than to the extent a Lien on such assets or such rights can be perfected by the filing of customary financing statements) and commercial tort claims with a value reasonably estimated to be less than $10,000,000, (iii) cash, deposit accounts and securities accounts (it being understood and agreed (1) that the Lien of the type described in SECTION 7.01 (Administrative Agent may extend to such assets pursuant to the terms of the Guarantee and Collateral Agreement, but that such Lien need not be perfected to the extent perfection requires any action other than SECTION 7.01(hthe filing of customary financing statements (and all representations, warranties, covenants and other terms of the Loan Documents with respect to Collateral shall be construed accordingly) and (2) that there shall be no lockbox arrangements nor any control agreements relating to any deposit accounts, securities accounts, commodities accounts or any other bank accounts), (iv) any Excluded Securities, (v) pledges and security interests prohibited by applicable law, rule, regulation or contractual obligation not in violation of Section 6.09(c) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the UCC). If , (vi) those assets as to which the Borrower and the Administrative Agent shall determine thatreasonably agree that the costs or other consequence of pledging, obtaining or perfecting such a security interest are excessive in relation to the value of the security to be afforded thereby, (vii) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower, (viii) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any date, other party thereto (other than the Borrower or any other Loan Party) (after giving effect to the MLP shall have failed applicable anti-assignment provisions of Article 9 of the UCC), (ix) any governmental licenses or state or local franchises, charters and authorizations, to comply the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby (after giving effect to the applicable anti-assignment provisions of Article 9 of the UCC), (x) pending United States “intent-to-use” trademark or service mark applications filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act 15 U.S.C. §1051 unless and until a verified statement of use or an amendment to allege use under Sections 1(c) and 1(d) of the ▇▇▇▇▇▇ Act has been filed with and accepted by the United States Patent and Trademark Office, (xi) all assets of Holdings other than Equity Interests in the Borrower and other related assets pledged pursuant to the Guarantee and Collateral Agreement, (xii) other customary exclusions under applicable local law or in applicable local jurisdictions and (xiii) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent; provided that the Borrower may in its sole discretion elect to exclude any property from the definition of Excluded Property. Notwithstanding anything to the contrary in this SECTION 6.16Agreement, the Guarantee and Collateral Agreement, or any other Loan Document, (i) the Administrative Agent may grant extensions of time or waiver of requirement for the creation or perfection of security interests in or the obtaining of insurance (and at including title insurance) or surveys with respect to particular assets (including extensions beyond the direction Effective Date for the perfection of security interests in the assets of the Required LendersLoan Parties on such date) where it reasonably determines, shall) notify the Borrower in writing of such failure and, within 30 days from and after receipt of such written notice by consultation with the Borrower, that perfection or obtaining of such items cannot be accomplished by the Borrower shall execute and deliver to time or times at which it would otherwise be required by this Agreement or the Administrative Agent supplemental or additional other Loan Documents, (ii) no foreign law governed security documents shall be required and (iii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral Requirement and the Collateral Documents shall be subject to exceptions and limitations set forth in form and substance satisfactory the Collateral Documents and, to the extent appropriate in the applicable jurisdiction or in light of applicable law, regulation, prevailing industry practices or availability on commercially reasonable terms, as otherwise agreed between the Administrative Agent and its counsel, securing payment the Borrower.
(h) The Borrower shall or shall cause the applicable Subsidiary Loan Party to take such actions set forth on Schedule 5.10(h) within the timeframes set forth for the taking of the Notes and the other Obligations and covering additional assets and properties not then encumbered by any Loan Documents such actions on Schedule 5.10(h) (together with or within such other information, longer timeframes as may be requested by the Administrative Agent, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent) such that the Administrative Agent shall have received currently effective duly executed permit in its reasonable discretion) (it being understood and perfected Collateral Documents encumbering substantially agreed that all representations, warranties and covenants of the assets Loan Documents with respect to the taking of such actions are qualified by the MLP, Borrower and their respective Subsidiaries non-completion of such actions until such time as they are completed or required by SECTION 6.16(ato be completed in accordance with this Section 5.10(h)).
Appears in 1 contract
Further Assurances; Additional Collateral. (a) The Borrower will, and will cause each of its Subsidiaries to, execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the MLP shall cause the MLP filing and each Subsidiary recording of the Borrower financing statements, fixture filings, mortgages, deeds of trust and the MLP to take such actions and to execute and deliver such documents and instruments as other documents), which may be required under any applicable Law, or which the Administrative Agent shall require or the Required Lenders may reasonably request, to ensure that comply with the Administrative Agent on behalf terms of this Agreement and the Lenders shallother Loan Documents, at all times, have received currently effective duly executed Loan Documents granting Lien and including causing the Collateral to be subject to a first priority security interest in substantially all of the assets of the MLP and each Subsidiary of the Borrower and the MLP, including all capital stock, partnership, joint venture, membership interests, or other equity interest; provided, however that MarkWest Energy Appalachia, L.L.C. shall not be required to ▇▇▇▇▇ ▇ ▇▇▇▇ on its interests in the Equitable Leases.
(b) In connection with the actions required pursuant to the foregoing subsection (a), the Borrower and the MLP shall cause the MLP and each Subsidiary of the Borrower and the MLP to execute and deliver such stock certificates, blank stock powers, evidence of corporate authorization, opinions of counsel, current valuations, evidence of title, title opinions, title insurance and other documents, and shall use commercially reasonable efforts to obtain landlord and mortgagee waivers and third party consents, as shall be requested by the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent.
(c) The Liens required by this SECTION 6.16 shall be first priority perfected Liens in favor of the Administrative Agent for (subject, in the benefit case of non-possessory security interests, to the Liens permitted by Section 7.2.3) securing all the Obligations, all at the sole cost and expense of the Lenders, subject Borrower. The Borrower also agrees to no other Liens except Permitted Liens of the type described in SECTION 7.01 (other than SECTION 7.01(h)). If the Administrative Agent shall determine that, as of any date, the Borrower or the MLP shall have failed to comply with this SECTION 6.16, the Administrative Agent may (and at the direction of the Required Lenders, shall) notify the Borrower in writing of such failure and, within 30 days from and after receipt of such written notice by the Borrower, the Borrower shall execute and deliver provide to the Administrative Agent supplemental or additional Loan DocumentsAgent, in form and substance from time to time upon request, evidence reasonably satisfactory to the Administrative Agent as to the perfection and its counsel, securing payment priority of the Notes Liens created or intended to be created by the Loan Documents.
(b) If any property or asset forming a part of the Collateral is acquired or leased by the Borrower or any of its Subsidiaries after the Effective Date, the Borrower will notify the Administrative Agent thereof (except, in the case of personal property, such notice shall not be required if the Administrative Agent has a valid first-priority perfected security interest in such property or asset by virtue of any actions previously taken by or on behalf of the Administrative Agent), and will cause such property or asset to be subjected to a first priority security interest in favor of the other Obligations Administrative Agent (subject, in the case of non-possessory security interests, to the Liens permitted by Section 7.2.3) and covering additional assets will take, and properties not then encumbered by any Loan Documents (together with cause each of its Subsidiaries to take, such other information, actions as may shall be necessary or reasonably requested by the Administrative AgentAgent to grant and perfect such Liens, each of which shall be including the actions described in form Section 7.1.9 and substance reasonably satisfactory clause (a) and obtaining Collateral Access Agreements with respect to the Administrative Agent) such that the Administrative Agent shall have received currently effective duly executed and perfected Collateral Documents encumbering substantially all of the assets of the MLP, Borrower and their respective Subsidiaries as required by SECTION 6.16(a)located on leased Real Property Assets.
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Sources: Credit Agreement (Lannett Co Inc)
Further Assurances; Additional Collateral. (a) The Borrower Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the MLP shall cause the MLP filing and each Subsidiary recording of the Borrower financing statements, fixture filings, Mortgages and the MLP to take such actions and to execute and deliver such documents and instruments as the Administrative Agent shall require to ensure other documents), that the Administrative Agent on behalf may reasonably request (including, without limitation those required by applicable law), to satisfy the Collateral Requirement and to cause the Collateral Requirement to be and remain satisfied, all at the expense of the Lenders shallLoan Parties and provide to the Administrative Agent, at all timesfrom time to time upon reasonable request, have received currently effective duly executed Loan Documents granting Lien evidence reasonably satisfactory to the Administrative Agent as to the perfection and security interest in substantially all priority of the assets of Liens created or intended to be created by the MLP and Collateral Documents, subject in each Subsidiary of the Borrower and the MLP, including all capital stock, partnership, joint venture, membership interests, or other equity interest; provided, however that MarkWest Energy Appalachia, L.L.C. shall not be required case to ▇▇▇▇▇ ▇ ▇▇▇▇ on its interests in the Equitable Leasesparagraph (g) below.
(b) In connection with If any asset (other than Real Property which is covered by paragraph (c) below) that has an individual fair market value (as determined in good faith by the actions required pursuant to the foregoing subsection (a), Borrower) in an amount greater than $5,000,000 is acquired by the Borrower and or any Subsidiary Loan Party after the MLP shall cause Effective Date or owned by an entity at the MLP and each time it becomes a Subsidiary of the Borrower and the MLP to execute and deliver such stock certificates, blank stock powers, evidence of corporate authorization, opinions of counsel, current valuations, evidence of title, title opinions, title insurance and other documents, and shall use commercially reasonable efforts to obtain landlord and mortgagee waivers and third party consents, as shall be requested by the Administrative Agent, Loan Party (in each case in form and substance satisfactory other than (x) assets constituting Collateral under a Collateral Document that become subject to the Administrative Agent.
Lien of such Collateral Document upon acquisition thereof and (cy) The Liens assets that are not required by this SECTION 6.16 shall be first priority perfected to become subject to Liens in favor of the Administrative Agent for pursuant to Section 5.10(g) or the benefit Collateral Documents) will (i) promptly as practicable notify the Administrative Agent thereof and (ii) take or cause the Subsidiary Loan Parties to take such actions as shall be reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (a) of this Section 5.10, all at the expense of the LendersLoan Parties, subject to no other Liens except Permitted Liens of paragraph (g) below.
(i) To the type described in SECTION 7.01 (other than SECTION 7.01(h)). If the Administrative Agent shall determine that, as of any date, the Borrower or the MLP shall have failed to comply with this SECTION 6.16, the Administrative Agent may (and at the direction of the Required Lenders, shall) notify the Borrower in writing of such failure and, within 30 days from and after receipt of such written notice by the Borrower, the Borrower shall execute and deliver to the Administrative Agent supplemental or additional Loan Documents, in form and substance satisfactory to the Administrative Agent and its counsel, securing payment of the Notes and the other Obligations and covering additional assets and properties not then encumbered by any Loan Documents (together with such other information, as may be extent requested by the Administrative Agent, grant and cause each of which shall be the Subsidiary Loan Parties to grant to the Administrative Agent security interests and mortgages in any Owned Material Real Property of the Borrower or any such Subsidiary Loan Parties, as applicable, as are not covered by the original Mortgages, to the extent acquired after the Effective Date, within 90 days after such acquisition (or such later date as the Administrative Agent may agree) pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent (each, an “Additional Mortgage”) and constituting valid and enforceable Liens subject to no other Liens except Permitted Liens at the time of recordation thereof, (ii) record or file, and cause each such Subsidiary Loan Party to record or file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Administrative Agent required to be granted pursuant to the Additional Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges required to be paid in connection therewith, in each case subject to paragraph (g) below and (iii) deliver to the Administrative Agent an updated Schedule 1.01B reflecting such additional Mortgaged Properties. Unless otherwise waived by the Administrative Agent, with respect to each such Additional Mortgage, the Borrower shall deliver to the Administrative Agent contemporaneously therewith a title insurance policy and a survey and otherwise comply with the Collateral Requirements applicable to Mortgages and Mortgaged Property.
(d) If any additional direct or indirect Subsidiary of the Borrower is formed or acquired after the Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such that Subsidiary is a Subsidiary Loan Party, within fifteen (15) Business Days after the date such Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree), notify the Administrative Agent thereof and, within twenty (20) Business Days after the date such Subsidiary is formed or acquired or such longer period as the Administrative Agent shall agree (or, with respect to clauses (g), (h), (i), (j) and (m) of the definition of “Collateral Requirement”, within 90 days after such formation or acquisition or such longer period as set forth therein or as the Administrative Agent may agree, as applicable), cause the Collateral Requirement to be satisfied with respect to such Domestic Subsidiary and with respect to any Equity Interest in or Indebtedness of such Domestic Subsidiary owned by or on behalf of the Borrower or any Subsidiary Loan Party, subject in each case to paragraph (g) below.
(e) If any additional Foreign Subsidiary of the Borrower is formed or acquired after the Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary directly owned by the Borrower or a Subsidiary Loan Party, within fifteen (15) Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree), notify the Administrative Agent thereof and, within fifty (50) Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent shall agree, cause the Collateral Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary directly owned by the Borrower or any Subsidiary Loan Party, subject in each case to paragraph (g) below.
(i) Furnish to the Administrative Agent promptly (and in any event within 30 days after such change or such longer period as the Administrative Agent may agree) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number, (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party that is not a registered organization; provided, that the Borrower shall not effect or permit any such change unless all filings have received currently effective duly executed been made, or will have been made within any statutory period (or such longer period as the Administrative Agent may agree), under the UCC that are required in order for the Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties with the same priority as prior to such change and (ii) promptly notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(g) The Collateral Requirement and the other provisions of this Section 5.10 and the other provisions of the Loan Documents encumbering substantially with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) any Real Property held by the Borrower or any of its Subsidiaries as a lessee under a lease or any Real Property owned in fee that is not Owned Material Real Property, (ii) any vehicle and other assets subject to certificates of title and letter of credit rights (in each case, other than to the extent a Lien on such assets or such rights can be perfected by the filing of customary financing statements) and commercial tort claims with a value reasonably estimated to be less than $5,000,000, (iii) cash, deposit accounts and securities accounts (it being understood and agreed (1) that the Lien of the Administrative Agent may extend to such assets pursuant to the terms of the Guarantee and Collateral Agreement, but that such Lien need not be perfected to the extent perfection requires any action other than the filing of customary financing statements (and all representations, warranties, covenants and other terms of the Loan Documents with respect to Collateral shall be construed accordingly) and (2) that there shall be no lockbox arrangements nor any control agreements relating to any deposit accounts, securities accounts, commodities accounts or any other bank accounts), (iv) any Excluded Securities, (v) pledges and security interests prohibited by applicable law, rule, regulation or contractual obligation not in violation of Section 6.09(c) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the UCC), (vi) those assets as to which the Borrower and the Administrative Agent shall reasonably agree that the costs or other consequence of pledging, obtaining or perfecting such a security interest are excessive in relation to the value of the security to be afforded thereby, (vii) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower, (viii) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any other Loan Party) (after giving effect to the applicable anti-assignment provisions of Article 9 of the UCC), (ix) any governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby (after giving effect to the applicable anti-assignment provisions of Article 9 of the UCC), (x) pending United States “intent-to-use” trademark or service ▇▇▇▇ applications filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇.▇.▇. §▇▇▇▇ unless and until a verified statement of use or an amendment to allege use under Sections 1(c) and 1(d) of the ▇▇▇▇▇▇ Act has been filed with and accepted by the United States Patent and Trademark Office, (xi) all assets of Holdings other than Equity Interests in the Borrower and other related assets pledged pursuant to the Guarantee and Collateral Agreement, (xii) other customary exclusions under applicable local law or in applicable local jurisdictions and (xiii) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent; provided, that the Borrower may in its sole discretion elect to exclude any property from the definition of Excluded Property. Notwithstanding anything to the contrary in this Agreement, the Guarantee and Collateral Agreement, or any other Loan Document, (i) the Administrative Agent may grant extensions of time or waiver of requirement for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets (including extensions beyond the Effective Date for the perfection of security interests in the assets of the MLPLoan Parties on such date) where it reasonably determines, in consultation with the Borrower, that perfection or obtaining of such items cannot be accomplished by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents, (ii) no foreign law governed security documents shall be required and (iii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral Requirement and the Collateral Documents shall be subject to exceptions and limitations set forth in the Collateral Documents and, to the extent appropriate in the applicable jurisdiction or in light of applicable law, regulation, prevailing industry practices or availability on commercially reasonable terms, as otherwise agreed between the Administrative Agent and the Borrower and their respective Subsidiaries (iv) to the extent any Mortgaged Property is located in a jurisdiction with mortgage recording or similar tax, the amount secured by the Collateral Document with respect to such Mortgaged Property shall be limited to the fair market value of such Mortgaged Property as required determined in good faith by SECTION 6.16(athe Borrower (subject to any applicable laws in the relevant jurisdiction or such lesser amount agreed to by the Administrative Agent).
(h) The Borrower shall or shall cause the applicable Subsidiary Loan Party to take such actions set forth on Schedule 5.10(h) within the timeframes set forth for the taking of such actions on Schedule 5.10(h) (or within such longer timeframes as the Administrative Agent shall permit in its reasonable discretion) (it being understood and agreed that all representations, warranties and covenants of the Loan Documents with respect to the taking of such actions are qualified by the non-completion of such actions until such time as they are completed or required to be completed in accordance with this Section 5.10(h)).
Appears in 1 contract
Further Assurances; Additional Collateral. (a) The Borrower and the MLP shall cause the MLP and each Subsidiary of the Borrower and the MLP to take such actions and to execute and deliver such documents and instruments as the Administrative Agent shall require to ensure that the Administrative Agent on behalf of the Lenders shall, at all times, have received currently effective duly executed Loan Documents granting Lien and security interest in substantially all of the assets of the MLP and each Subsidiary of the Borrower and the MLP, including all capital stock, partnership, joint venture, membership interests, or other equity interest; provided, however that MarkWest Energy Appalachia, L.L.C. shall not be required to ▇▇▇▇▇ ▇ ▇▇▇▇ on its interests in the Equitable Leases.
(b) In connection with the actions required pursuant to the foregoing subsection (asubsection(a), the Borrower and the MLP shall cause the MLP and each Subsidiary of the Borrower and the MLP to execute and deliver such stock certificates, blank stock powers, evidence of corporate authorization, opinions of counsel, current valuations, evidence of title, title opinions, title insurance and other documents, and shall use commercially reasonable efforts to obtain landlord and mortgagee waivers and third party consents, as shall be requested by the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent.
(c) The Liens required by this SECTION 6.16 shall be first priority perfected Liens in favor of the Administrative Agent for the benefit of the Lenders, subject to no other Liens except Permitted Liens of the type described in SECTION 7.01 (other than SECTION 7.01(h)). If the Administrative Agent shall determine that, as of any date, the Borrower or the MLP shall have failed to comply with this SECTION 6.16, the Administrative Agent may (and at the direction of the Required Lenders, shall) notify the Borrower in writing of such failure and, within 30 days from and after receipt of such written notice by the Borrower, the Borrower shall execute and deliver to the Administrative Agent supplemental or additional Loan Documents, in form and substance satisfactory to the Administrative Agent and its counsel, securing payment of the Notes and the other Obligations and covering additional assets and properties not then encumbered by any Loan Documents (together with such other information, as may be requested by the Administrative Agent, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent) such that the Administrative Agent shall have received currently effective duly executed and perfected Collateral Documents encumbering substantially all of the assets of the MLP, Borrower and their respective Subsidiaries as required by SECTION 6.16(a).
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Further Assurances; Additional Collateral. (a) The Borrower Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the MLP shall cause the MLP filing and each Subsidiary recording of the Borrower financing statements and the MLP to take such actions and to execute and deliver such documents and instruments as the Administrative Agent shall require to ensure other documents), that the Administrative Agent on behalf may reasonably request (including, without limitation those required by applicable law), to satisfy the Collateral Requirement and to cause the Collateral Requirement to be and remain satisfied, all at the expense of the Lenders shallLoan Parties and provide to the Administrative Agent, at all timesfrom time to time upon reasonable request, have received currently effective duly executed Loan Documents granting Lien evidence reasonably satisfactory to the Administrative Agent as to the perfection and security interest in substantially all priority of the assets of Liens created or intended to be created by the MLP and Collateral Documents, subject in each Subsidiary of the Borrower and the MLP, including all capital stock, partnership, joint venture, membership interests, or other equity interest; provided, however that MarkWest Energy Appalachia, L.L.C. shall not be required case to ▇▇▇▇▇ ▇ ▇▇▇▇ on its interests in the Equitable Leasesparagraph (g) below.
(b) In connection with If any asset that has an individual fair market value (as determined in good faith by the actions required pursuant to the foregoing subsection (a), Borrower) in an amount greater than $5,000,000 is acquired by the Borrower and or any Subsidiary Loan Party after the MLP shall cause Effective Date or owned by an entity at the MLP and each time it becomes a Subsidiary of the Borrower and the MLP to execute and deliver such stock certificates, blank stock powers, evidence of corporate authorization, opinions of counsel, current valuations, evidence of title, title opinions, title insurance and other documents, and shall use commercially reasonable efforts to obtain landlord and mortgagee waivers and third party consents, as shall be requested by the Administrative Agent, Loan Party (in each case in form and substance satisfactory other than (x) assets constituting Collateral under a Collateral Document that become subject to the Administrative Agent.
Lien of such Collateral Document upon acquisition thereof and (cy) The Liens assets that are not required by this SECTION 6.16 shall be first priority perfected to become subject to Liens in favor of the Administrative Agent pursuant to Section 5.10(g) or the Collateral Documents) will (i) promptly as practicable notify the Administrative Agent thereof and (ii) take or cause the Subsidiary Loan Parties to take such actions as shall be reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (a) of this Section 5.10, all at the expense of the Loan Parties, subject to paragraph (g) below.
(c) [Intentionally Omitted.]
(d) If any additional direct or indirect Subsidiary of the Borrower is formed or acquired after the Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a Subsidiary Loan Party, within fifteen (15) Business Days after the date such Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree), notify the Administrative Agent thereof and, within twenty (20) Business Days after the date such Subsidiary is formed or acquired or such longer period as the Administrative Agent shall agree (or, with respect to clauses (g), (h), (i), (j) and (m) of the definition of “Collateral Requirement”, within 90 days after such formation or acquisition or such longer period as set forth therein or as the Administrative Agent may agree, as applicable), cause the Collateral Requirement to be satisfied with respect to such Domestic Subsidiary and with respect to any Equity Interest in or Indebtedness of such Domestic Subsidiary owned by or on behalf of the Borrower or any Subsidiary Loan Party, subject in each case to paragraph (g) below.
(e) If any additional Foreign Subsidiary of the Borrower is formed or acquired after the Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary directly owned by the Borrower or a Subsidiary Loan Party, within fifteen (15) Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree), notify the Administrative Agent thereof and, within fifty (50) Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent shall agree, cause the Collateral Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary directly owned by the Borrower or any Subsidiary Loan Party, subject in each case to paragraph (g) below.
(i) Furnish to the Administrative Agent promptly (and in any event within 30 days after such change or such longer period as the Administrative Agent may agree) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number, (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party that is not a registered organization; provided, that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within any statutory period (or such longer period as the Administrative Agent may agree), under the UCC that are required in order for the Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the LendersSecured Parties with the same priority as prior to such change and (ii) promptly notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(g) The Collateral Requirement and the other provisions of this Section 5.10 and the other provisions of the Loan Documents with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) all fee-owned real property and any leasehold interests in real property, (ii) any vehicle and other assets subject to no certificates of title and letter of credit rights (in each case, other Liens except Permitted Liens than to the extent a Lien on such assets or such rights can be perfected by the filing of customary financing statements) and commercial tort claims with a value reasonably estimated to be less than $5,000,000, (iii) cash, deposit accounts and securities accounts (it being understood and agreed (1) that the Lien of the type described in SECTION 7.01 (Administrative Agent may extend to such assets pursuant to the terms of the Guarantee and Collateral Agreement, but that such Lien need not be perfected to the extent perfection requires any action other than SECTION 7.01(hthe filing of customary financing statements (and all representations, warranties, covenants and other terms of the Loan Documents with respect to Collateral shall be construed accordingly) and (2) that there shall be no lockbox arrangements nor any control agreements relating to any deposit accounts, securities accounts, commodities accounts or any other bank accounts), (iv) any Excluded Securities, (v) pledges and security interests prohibited by applicable law, rule, regulation or contractual obligation not in violation of Section 6.09(c) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the UCC). If , (vi) those assets as to which the Borrower and the Administrative Agent shall determine thatreasonably agree that the costs or other consequence of pledging, obtaining or perfecting such a security interest are excessive in relation to the value of the security to be afforded thereby, (vii) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower, (viii) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any date, other party thereto (other than the Borrower or any other Loan Party) (after giving effect to the MLP shall have failed applicable anti-assignment provisions of Article 9 of the UCC), (ix) any governmental licenses or state or local franchises, charters and authorizations, to comply the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby (after giving effect to the applicable anti-assignment provisions of Article 9 of the UCC), (x) pending United States “intent-to-use” trademark or service ▇▇▇▇ applications filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇.▇.▇. §▇▇▇▇ unless and until a verified statement of use or an amendment to allege use under Sections 1(c) and 1(d) of the ▇▇▇▇▇▇ Act has been filed with and accepted by the United States Patent and Trademark Office, (xi) all assets of Holdings other than Equity Interests in the Borrower and other related assets pledged pursuant to the Guarantee and Collateral Agreement, (xii) other customary exclusions under applicable local law or in applicable local jurisdictions and (xiii) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent; provided, that the Borrower may in its sole discretion elect to exclude any property from the definition of Excluded Property. Notwithstanding anything to the contrary in this SECTION 6.16Agreement, the Guarantee and Collateral Agreement, or any other Loan Document, (i) the Administrative Agent may grant extensions of time or waiver of requirement for the creation or perfection of security interests in or the obtaining of insurance (and at including title insurance) or surveys with respect to particular assets (including extensions beyond the direction Effective Date for the perfection of security interests in the assets of the Required LendersLoan Parties on such date) where it reasonably determines, shall) notify the Borrower in writing of such failure and, within 30 days from and after receipt of such written notice by consultation with the Borrower, that perfection or obtaining of such items cannot be accomplished by the Borrower shall execute and deliver to time or times at which it would otherwise be required by this Agreement or the Administrative Agent supplemental or additional other Loan Documents, (ii) no foreign law governed security documents shall be required and (iii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral Requirement and the Collateral Documents shall be subject to exceptions and limitations set forth in form and substance satisfactory the Collateral Documents and, to the extent appropriate in the applicable jurisdiction or in light of applicable law, regulation, prevailing industry practices or availability on commercially reasonable terms, as otherwise agreed between the Administrative Agent and its counsel, securing payment the Borrower.
(h) The Borrower shall or shall cause the applicable Subsidiary Loan Party to take such actions set forth on Schedule 5.10(h) within the timeframes set forth for the taking of the Notes and the other Obligations and covering additional assets and properties not then encumbered by any Loan Documents such actions on Schedule 5.10(h) (together with or within such other information, longer timeframes as may be requested by the Administrative Agent, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent) such that the Administrative Agent shall have received currently effective duly executed permit in its reasonable discretion) (it being understood and perfected Collateral Documents encumbering substantially agreed that all representations, warranties and covenants of the assets Loan Documents with respect to the taking of such actions are qualified by the MLP, Borrower and their respective Subsidiaries non-completion of such actions until such time as they are completed or required by SECTION 6.16(ato be completed in accordance with this Section 5.10(h)).
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Further Assurances; Additional Collateral. (a) The Borrower [Reserved]
(b) At any time and from time to time, (i) promptly following the MLP shall cause Administrative Agent’s written request and at the MLP and each Subsidiary expense of the Borrower applicable Person, each Credit Party agrees to duly execute and the MLP deliver, and to cause Credit Party Entities to duly execute and deliver, any and all such further instruments and documents and take such actions and to execute and deliver such documents and instruments further action as the Administrative Agent shall require may reasonably deem desirable in order to ensure that the Administrative Agent on behalf of the Lenders shall, at all times, have received currently effective duly executed Loan Documents granting perfect and protect any Lien and security interest in substantially all of the assets of the MLP and each Subsidiary of the Borrower and the MLP, including all capital stock, partnership, joint venture, membership interests, granted or other equity interest; provided, however that MarkWest Energy Appalachia, L.L.C. shall not purported to be required to ▇▇▇▇▇ ▇ ▇▇▇▇ on its interests in the Equitable Leases.
(b) In connection with the actions required granted pursuant to the foregoing subsection (a), the Borrower and the MLP shall cause the MLP and each Subsidiary of the Borrower and the MLP Loan Documents or to execute and deliver such stock certificates, blank stock powers, evidence of corporate authorization, opinions of counsel, current valuations, evidence of title, title opinions, title insurance and other documents, and shall use commercially reasonable efforts to obtain landlord and mortgagee waivers and third party consents, as shall be requested by enable the Administrative Agent, in each case accordance with the terms of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the request of the Administrative Agent, assign to the Administrative Agent, pursuant to an assignment in form and substance satisfactory to the Administrative Agent, the right to receive proceeds (for application to the Obligations in accordance with this Agreement) of any Interest Rate Contracts or Currency Agreement to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this Section 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which Borrower or such Credit Party Entity is a party (except to the extent such prohibition is rendered ineffective under the Uniform Commercial Code), (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to Borrower.
(c) The Liens required by this SECTION 6.16 shall be first priority perfected Liens in favor Upon the request of the Administrative Agent Agent, each Credit Party shall, and shall cause the other Credit Parties to, execute and deliver to the Administrative Agent, for the benefit of the Lenders, subject to no immediately upon the acquisition or leasing of any Real Property with a fair market value in excess of $2,500,000 (as reasonably determined by the Administrative Agent) by Borrower or any other Liens except Permitted Liens of the type described in SECTION 7.01 Credit Party, a Mortgage, assignment or other appropriate instrument evidencing a Lien upon any such Real Property, lease or interest, together with such title insurance policies (mortgagee’s form), certified surveys, environmental site assessment reports, zoning reports, and local counsel opinions with respect thereto and such other than SECTION 7.01(h)). If agreements, documents and instruments which the Administrative Agent shall determine that, as of any datedeems reasonably necessary or desirable, the Borrower or the MLP shall have failed same to comply with this SECTION 6.16, the Administrative Agent may (and at the direction of the Required Lenders, shall) notify the Borrower in writing of such failure and, within 30 days from and after receipt of such written notice by the Borrower, the Borrower shall execute and deliver to the Administrative Agent supplemental or additional Loan Documents, be in form and substance satisfactory reasonably acceptable to the Administrative Agent and its counselto be subject only to (i) Liens permitted under Section 9.03 and (ii) such other Liens as the Administrative Agent and Required Lenders may reasonably approve, securing payment it being understood that (x) the granting of such additional security for the Obligations is a material inducement to the execution and delivery of this Agreement by each Lender, and (y) with respect to any documents required under this clause (c) with respect to leases, it shall not be a breach of this clause (c) if the consent of the Notes lesser is required for such delivery but is not obtained and the other Obligations Credit Parties have exercised commercially reasonable efforts to obtain such consent.
(d) In addition to and covering additional assets not in lieu of the rights and properties not then encumbered by obligations of the parties under clauses (a), (b) and (c) above, promptly, but in any Loan Documents event within 90 days, following the Administrative Agent’s written request (together with or such other information, later date as may be requested is agreed to in writing by the Administrative Agent), and at the expense of the applicable Credit Party Entity, each of which shall be Credit Party agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, in form and substance reasonably satisfactory to the Administrative Agent) , any and all such that further instruments and documents, including, without limitation, all amendments, modifications, supplements, restatements or reaffirmations of any existing instruments or documents, in each case as are reasonably requested by the Administrative Agent shall have received currently effective duly executed in order to create and/or maintain a valid and perfected Collateral Documents encumbering substantially all security interest of the assets of the MLP, Borrower and their respective Subsidiaries as required by SECTION 6.16(a)Administrative Agent in any Collateral.
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