Enumeration of Events of Default. Any of the following events shall be considered an Event of Default as that term is used herein: (a) Default shall be made (i) in the payment when due of any installment of principal hereunder or under any other Loan Document or (ii) in the payment when due of any interest, fees or other sums payable hereunder or under any other Loan Document and such default under this clause (ii) shall continue for in excess of five Business Days; (b) Other than as set forth in Section 7.1(a), default shall be made by the Borrower or any Subsidiary in the due observance or performance of (i) any covenant or agreement set forth in Article 6 or in Sections 5.1, 5.2, 5.3, 5.4, 5.7(a), 5.7(c), 5.7(i), 5.11, 5.12, 5.13, 5.17, 5.18, 5.19, 5.20, 5.26, 5.27, 5.29, 5.30, 5.31, and (ii) any other covenant or agreement set forth in this Agreement and such default under this clause (ii) shall continue for in excess of 15 days after the earlier of notice thereof by the Administrative Agent to the Borrower or knowledge thereof by the Borrower; (c) Any representation or warranty made by the Borrower or any of its Subsidiaries in this Agreement or any other Loan Document proves to have been untrue in any material respect when made or deemed to have been made, or any representation, warranty, statement (including Financial Statements), certificate or data furnished or made by the Borrower or any of its Subsidiaries to any Lender or the Administrative Agent in connection herewith proves to have been untrue in any material respect as of the date the facts therein set forth were stated or certified; (d) Other than (i) as a result of the filing of the Bankruptcy Cases, (ii) any obligation with respect to which the Bankruptcy Code prohibits the Borrower or any Subsidiary from complying with such obligation or permits the Borrower or any Subsidiary not to comply with such obligation, (iii) any default under the Existing First Lien Loan Documents, or (iv) any default under the Existing Senior Notes, any event or condition occurs that causes, or permits (with or without the giving of notice, the lapse of time or both) the holder or holders or any trustee or agent on their behalf of any Prepetition Indebtedness in excess of $2,000,000 that is not stayed by the automatic stay in the Bankruptcy Cases to cause, the acceleration of the maturity of any such Indebtedness or to require the redemption thereof or any offer to redeem to make in respect thereof, prior to its scheduled maturity; (e) [Reserved]; (f) [Reserved]; (g) The Borrower or any of its Subsidiaries shall have (i) concealed, removed, or permitted to be concealed or removed, any part of its Property, with intent to hinder, delay, or defraud its creditors or any of them, or (ii) made or suffered a transfer of any of its Property which may be fraudulent under any bankruptcy, fraudulent conveyance, or similar law and not otherwise permitted under the provisions of this Agreement; (h) The levy against any significant portion of the Property of the Borrower or any of its Subsidiaries or any execution, garnishment, attachment, sequestration, or other writ or similar proceeding which is not permanently dismissed or discharged for a period of 60 consecutive days, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment, and, in each such case, such action shall not be effectively stayed (including as a result of the automatic stay under the Bankruptcy Cases); (i) A final and non-appealable order, judgment, or decree shall be entered against the Borrower or any of its Subsidiaries for money damages and/or Indebtedness due in an amount in excess of $2,000,000 (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage) and such order, judgment, or decree shall not be dismissed or stayed for a period of 60 consecutive days, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment, and, in each such case, such action shall not be effectively stayed (including as a result of the automatic stay under the Bankruptcy Cases); (j) [Reserved]; (k) [Reserved]; (l) Any of the Loan Documents shall cease, for any reason, to be in full force and effect, or the Borrower, any Subsidiary or any Affiliate of the Borrower or Subsidiary shall so assert, or any Lien created by any of the Loan Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby; (m) Other than pursuant to an Approved Plan (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), shall become, or obtain rights (whether by means or warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more than 20% of the outstanding common stock of the Borrower; or (ii) the board of directors of the Borrower shall cease to consist of a majority of Continuing Directors; (n) Subject to the Budget covenant set forth in Section 6.22, and other than as a result of the Bankruptcy Cases (i) any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of the Borrower or any Subsidiary or any Commonly Controlled Entity, (iii) a “reportable event”, as such term is defined in Section 4043 of ERISA shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which reportable event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Majority Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Borrower or any Subsidiary or any Commonly Controlled Entity shall, or in the reasonable opinion of the Majority Lenders is likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multi-employer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, could, in the sole judgment of the Majority Lenders, reasonably be expected to have a Material Adverse Effect; (o) (i) any Liens or DIP Superpriority Claims granted with respect to the DIP Facility shall cease to be valid, perfected and enforceable in all respects with the priority in the applicable DIP Order, or (ii) the disallowance, expungement, extinguishment or impairment of any portion of the DIP Superpriority Claim; (p) any order shall have been entered by the Bankruptcy Court granting any relief from or modifying any stay of proceedings, including, without limitation, the automatic stay, to allow any third party creditor to execute upon or enforce a Lien in any of the Borrower’s or any of its Subsidiaries’ asset or assets securing a claim with a value in excess of $2,000,000 (unless the Majority Lenders shall have granted prior written consent to such relief or such relief consists solely of insurance proceeds payable to such creditor); (q) the Interim Order or the Final Order shall have been stayed, amended or modified, reversed, or vacated without the express prior written consent of the Majority Backstop Lenders (and such consent has not been unreasonably withheld or delayed); (r) any payment of or grant of Adequate Protection with respect to any Prepetition Indebtedness (other than as described herein, in the other Loan Documents or the applicable DIP Order) without the consent of the Majority Backstop Lenders and approval of the Bankruptcy Court; (s) an order shall have been entered by the Bankruptcy Court (i) dismissing the Bankruptcy Cases or (ii) converting the Bankruptcy Cases to a Chapter 7; (t) an order with respect to the Bankruptcy Cases shall be entered by the Bankruptcy Court appointing, or the Borrower or any of its Subsidiaries shall file an application for an order with respect to the Bankruptcy Cases seeking the appointment of (i) a trustee under Section 1104 of the Bankruptcy Code, or (ii) an examiner with enlarged powers relating to the operation of the Business of the Loan Parties (beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code; (u) the entry of an order in the Bankruptcy Cases granting any other superpriority administrative claim or Lien pari passu with or superior to that granted to the Administrative Agent, on behalf of itself and Lenders (other than the Carve Out or to the Existing First Lien Agent or as otherwise contemplated by the applicable DIP Order), or any Loan Party or any of their respective Subsidiaries shall file any pleading requesting such relief, except (i) with the prior written consent of the Majority Backstop Lenders, or (ii) to the extent such superpriority administrative claim or Lien is granted in respect of financing that shall provide for the payment in full of the Obligations; (v) the Borrower or any Subsidiary shall have defaulted or otherwise breached any of its obligations under the RSA; (w) except as otherwise consented to by the Majority Backstop Lenders, the entry of an order in the Bankruptcy Cases confirming (or the filing of any motion or pleading requesting confirmation of) a plan of reorganization that is not an Approved Plan; (x) any Debtor shall fail to comply in any material respect with the Interim Order or Final Order; (y) except as otherwise consented to by the Majority Backstop Lenders, the Borrower or any Subsidiary shall have sold or otherwise disposed or all or a material portion of the Collateral pursuant to Section 364 of the Bankruptcy Code other than as permitted pursuant to the DIP Orders or an Approved Plan (or pursuant to a transaction that is permitted under this Agreement); or (z) any Debtor shall fail to comply with any of the Milestones.
Appears in 1 contract
Samples: Debt Agreement (Swift Energy Co)
Enumeration of Events of Default. Any of the following events shall be considered constitute an Event of Default as that term is used herein:
(a) Default 7.1.1 default shall be made (i) in the payment when due of any installment of principal hereunder or interest under any other Loan Document this Agreement or (ii) the Notes or in the payment when due of any Commitment Fee or Letter of Credit Fee or any other Obligation and, with respect to the payment of interest, fees or other sums payable hereunder or under any other Loan Document and such default under this clause (ii) shall continue for in excess of five one Business DaysDay;
(b) Other than as set forth in Section 7.1(a), 7.1.2 default shall be made by the Borrower or any Subsidiary in the due observance or performance of Sections 6.1, 6.4, 6.5, 6.6, 6.7, 6.10, and 6.
7.1.3 there shall exist a default under or an Event of Default as defined in any Loan Document or default shall be made by any Related Persons in the due observance or performance of any agreement contained in any of the Loan Documents (i) any covenant or agreement set forth in Article 6 or other than as specified in Sections 5.1, 5.2, 5.3, 5.4, 5.7(a), 5.7(c), 5.7(i), 5.11, 5.12, 5.13, 5.17, 5.18, 5.19, 5.20, 5.26, 5.27, 5.29, 5.30, 5.31, 7.1.1 and (ii7.1.2) any other covenant or agreement set forth in this Agreement and such default under this clause (ii) or Event of Default shall continue for in excess of 15 30 days after the earlier of notice thereof by the Administrative Agent to the Borrower Related Persons by Agent or actual knowledge thereof by a Responsible Officer of the Borrower;Related Persons.
(c) Any 7.1.4 any representation or warranty made by the Borrower or any Related Persons in any of its Subsidiaries in this Agreement or the Loan Documents, including, without limitation, any other Loan Document Notice of Borrowing proves to have been untrue in any material respect when made or deemed to have been made, or any representation, warranty, statement (including Financial Statements), certificate or data furnished or made by the Borrower or any of its Subsidiaries to any Lender or the Administrative Agent Bank Party in connection herewith proves to have been untrue in any material respect as of the date the facts therein set forth were stated or certified;
7.1.5 default shall be made by any Related Person (das principal or guarantor or other surety) Other than in the payment or performance of any bond, debenture, note or other evidence of Indebtedness the amount of which exceeds $100,000 or under any credit agreement, loan agreement, indenture, promissory note or similar agreement or instrument executed in connection with any of the foregoing, and such default shall remain unremedied for in excess of the period of grace, if any, with respect thereto, except such as is being contested in good faith and as to which such reserve as is required by GAAP has been made;
7.1.6 any Related Person shall (i) as apply for or consent to the appointment of a result receiver, trustee or liquidator of the filing it or all or a substantial part of the Bankruptcy Casesits assets, (ii) any obligation with respect to which the Bankruptcy Code prohibits the Borrower or any Subsidiary from complying with such obligation or permits the Borrower or any Subsidiary not to comply with such obligationfile a voluntary petition commencing an Insolvency Proceeding, (iii) any default under make a general assignment for the Existing First Lien Loan Documentsbenefit of creditors, (iv) be unable, or admit in writing its inability, to pay its debts generally as they become due, or (ivv) file an answer admitting the material allegations of a petition filed against it in any default under Insolvency Proceeding;
7.1.7 an order, judgment or decree shall be entered against any Related Person by any court of competent jurisdiction or by any other duly authorized authority, on the Existing Senior Notespetition of a creditor or otherwise, granting relief in any event Insolvency Proceeding or condition occurs that causesapproving a petition seeking reorganization or an arrangement of its debts or appointing a receiver, trustee, conservator, custodian or permits (with liquidator of it or without the giving of notice, the lapse of time or both) the holder or holders all or any trustee or agent on their behalf of any Prepetition Indebtedness in excess of $2,000,000 that is not stayed by the automatic stay in the Bankruptcy Cases to cause, the acceleration of the maturity of any such Indebtedness or to require the redemption thereof or any offer to redeem to make in respect thereof, prior to its scheduled maturity;
(e) [Reserved];
(f) [Reserved];
(g) The Borrower or any of its Subsidiaries shall have (i) concealed, removed, or permitted to be concealed or removed, any substantial part of its Propertyassets and such order, with intent to hinder, delay, judgment or defraud its creditors decree shall not be dismissed or any of them, or (ii) made or suffered a transfer of any of its Property which may be fraudulent under any bankruptcy, fraudulent conveyance, or similar law and not otherwise permitted under the provisions of this Agreementstayed within 60 days;
(h) The levy against 7.1.8 any significant portion of the Property of the Borrower or any of its Subsidiaries or any levy, execution, garnishment, attachment, sequestration, sequestration or other writ or similar proceeding which against any material portion of the Property of any Related Person that is not permanently dismissed dismissed, discharged or discharged for a period of stayed within 60 consecutive days, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of days after the Borrower or any Subsidiary to enforce any such judgment, and, in each such case, such action shall not be effectively stayed (including as a result of the automatic stay under the Bankruptcy Cases)levy;
(i) A 7.1.9 a final and non-appealable order, judgment, judgment or decree shall be entered against the Borrower or any of its Subsidiaries Related Person for money damages and/or Indebtedness due in an amount in excess of $2,000,000 (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage) 200,000 and such order, judgment, judgment or decree shall not be satisfied, dismissed or stayed for a period of within 60 consecutive days, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment, and, in each such case, such action shall not be effectively stayed (including as a result of the automatic stay under the Bankruptcy Cases);
(j) [Reserved];
(k) [Reserved];
(l) Any of the Loan Documents shall cease, for any reason, to be in full force and effect, or the Borrower, any Subsidiary or any Affiliate of the Borrower or Subsidiary shall so assert, or any Lien created by any of the Loan Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby;
(m) Other than pursuant to an Approved Plan (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), shall become, or obtain rights (whether by means or warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more than 20% of the outstanding common stock of the Borrower; or (ii) the board of directors of the Borrower shall cease to consist of a majority of Continuing Directors;
(n) Subject to the Budget covenant set forth in Section 6.22, and other than as a result of the Bankruptcy Cases (i) 7.1.10 any Person shall engage in any “"prohibited transaction” " (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) ; any “"accumulated funding deficiency” " (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan for which an excise tax is due or any Lien would be due in favor the absence of the PBGC or a Plan shall arise on the assets of the Borrower or any Subsidiary or any Commonly Controlled Entity, (iii) waiver; a “reportable event”, as such term is defined in Section 4043 of ERISA Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which reportable event Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Majority LendersAgent, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) ; any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Borrower ; any Related Person or any Subsidiary or any Commonly Controlled Entity shallshall incur or, or in the reasonable opinion of the Majority Lenders is Agent, be likely to, to incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multi-employer Plan Multiemployer Plan; or (vi) any other event or condition shall occur or exist with respect to a Plan; Plan and the result of such events or conditions referred to in each case this subsection 7.1.10 could subject any Related Person or Commonly Controlled Entity to any tax (other than an excise tax under Section 4980 of the Code), penalty or other liabilities which taken in clauses the aggregate would exceed $100,000 and any such circumstance shall exist for in excess of 90 days;
7.1.11 any charges are filed or any other action or proceeding is instituted by any Governmental Authority against any Related Person under the Racketeering Influence and
7.1.12 any Related Person shall have (i) through (vi) aboveconcealed, such event removed or conditiondiverted, together with all other such events or conditions, if any, could, in the sole judgment of the Majority Lenders, reasonably be expected to have a Material Adverse Effect;
(o) (i) any Liens or DIP Superpriority Claims granted with respect to the DIP Facility shall cease permitted to be validconcealed, perfected and enforceable in all respects removed or diverted, any part of its Property, with the priority in the applicable DIP Orderintent to hinder, delay or defraud its creditors or any of them; (ii) the disallowance, expungement, extinguishment made or impairment suffered a transfer of any portion of the DIP Superpriority Claim;
(p) any order shall have been entered by the Bankruptcy Court granting any relief from or modifying any stay of proceedings, including, without limitation, the automatic stay, to allow any third party creditor to execute upon or enforce a Lien in any of the Borrower’s or any of its Subsidiaries’ asset Property that is fraudulent under any bankruptcy, fraudulent conveyance or assets securing similar law; (iii) made any transfer of its Property to or for the benefit of a claim with creditor at a value in excess of $2,000,000 time when other creditors similarly situated have not been paid; or (unless the Majority Lenders iv) shall have granted prior written consent suffered or permitted, while insolvent, any creditor to such relief or such relief consists solely of insurance proceeds payable to such creditor);
(q) the Interim Order or the Final Order shall have been stayed, amended or modified, reversed, or vacated without the express prior written consent of the Majority Backstop Lenders (and such consent has not been unreasonably withheld or delayed);
(r) any payment of or grant of Adequate Protection with respect to any Prepetition Indebtedness (other than as described herein, in the other Loan Documents or the applicable DIP Order) without the consent of the Majority Backstop Lenders and approval of the Bankruptcy Court;
(s) an order shall have been entered by the Bankruptcy Court (i) dismissing the Bankruptcy Cases or (ii) converting the Bankruptcy Cases to obtain a Chapter 7;
(t) an order with respect to the Bankruptcy Cases shall be entered by the Bankruptcy Court appointing, or the Borrower or Lien upon any of its Subsidiaries shall file an application for an order with respect to the Bankruptcy Cases seeking the appointment of (i) a trustee under Section 1104 of the Bankruptcy Code, Property through legal proceedings or (ii) an examiner with enlarged powers relating to the operation of the Business of the Loan Parties (beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code;
(u) the entry of an order in the Bankruptcy Cases granting any other superpriority administrative claim or Lien pari passu with or superior to that granted to the Administrative Agent, on behalf of itself and Lenders (other than the Carve Out or to the Existing First Lien Agent or as otherwise contemplated by the applicable DIP Order), or any Loan Party or any of their respective Subsidiaries shall file any pleading requesting such relief, except (i) with the prior written consent of the Majority Backstop Lenders, or (ii) to the extent such superpriority administrative claim or Lien is granted in respect of financing that shall provide for the payment in full of the Obligations;
(v) the Borrower or any Subsidiary shall have defaulted or otherwise breached any of its obligations under the RSA;
(w) except as otherwise consented to by the Majority Backstop Lenders, the entry of an order in the Bankruptcy Cases confirming (or the filing of any motion or pleading requesting confirmation of) a plan of reorganization distraint that is not an Approved Planvacated within 90 days from the date thereof;
(x) any Debtor shall fail to comply in any material respect with the Interim Order or Final Order;
(y) except as otherwise consented to by the Majority Backstop Lenders, the Borrower or any Subsidiary shall have sold or otherwise disposed or all or a material portion of the Collateral pursuant to Section 364 of the Bankruptcy Code other than as permitted pursuant to the DIP Orders or an Approved Plan (or pursuant to a transaction that is permitted under this Agreement); or
(z) any Debtor shall fail to comply with any of the Milestones.
Appears in 1 contract
Enumeration of Events of Default. Any of the following events shall be considered constitute an Event of Default as that term is used hereinDefault:
(a) Default default shall be made (i) in the payment when due of any installment of principal hereunder or interest under any other Loan Document this Agreement or (ii) the Notes or in the payment when due of any interest, fees fee or other sums sum payable hereunder or under any other Loan Document to which the relevant Borrower is a party and such default under this clause (ii) shall continue unremedied for in excess of five Business Days(5) days, except such amounts due on the Maturity Date, for which no such grace period shall apply;
(b) Other than as set forth in Section 7.1(a), default shall be made by the Borrower or any Subsidiary Borrowers in the due observance or performance of any of its obligations under the Loan Documents, and, as to compliance with the obligations of the Borrowers under Article V (i) any covenant or agreement set forth in Article 6 or in Sections 5.1, 5.2, other than Section 5.3, 5.4Section 5.6, 5.7(aSection 5.8, Section 5.14, Section 5.19, Section 5.27, Section 5.29, Section 5.25 and Section 5.31), 5.7(c), 5.7(i), 5.11, 5.12, 5.13, 5.17, 5.18, 5.19, 5.20, 5.26, 5.27, 5.29, 5.30, 5.31, and (ii) any other covenant or agreement set forth in this Agreement and such default under this clause (ii) shall continue for in excess of 15 five (5) days after the earlier of notice thereof to the relevant Borrower or Borrowers by the Administrative Agent to the Borrower or knowledge thereof by the Borrowerrelevant Borrower or any of the other Borrowers;
(c) Any any representation or warranty made by the Borrower or Borrowers in any of its Subsidiaries in this Agreement or any other the Loan Document Documents to which the relevant Borrower is a party proves to have been untrue in any material respect when made or deemed to have been made, or any representation, warranty, statement (including Financial Statements), certificate or data furnished or made by to the Borrower Agent or any of its Subsidiaries to any Lender or the Administrative Agent in connection herewith proves to have been untrue in any material respect as of the date the facts therein set forth were stated or certified;
(d) Other than default shall be made by any Borrower (ias principal or guarantor or other surety) as a result of in the filing of the Bankruptcy Cases, (ii) any obligation with respect to which the Bankruptcy Code prohibits the Borrower payment or any Subsidiary from complying with such obligation or permits the Borrower or any Subsidiary not to comply with such obligation, (iii) any default under the Existing First Lien Loan Documents, or (iv) any default under the Existing Senior Notes, any event or condition occurs that causes, or permits (with or without the giving of notice, the lapse of time or both) the holder or holders or any trustee or agent on their behalf performance of any Prepetition bond, debenture, note or other Indebtedness in excess of $2,000,000 that is not stayed by the automatic stay 100,000 in the Bankruptcy Cases aggregate as to causethe relevant Borrower or under any credit agreement, the acceleration loan agreement, indenture, promissory note or similar agreement or instrument executed in connection with any of the maturity foregoing, and such default shall remain unremedied for five (5) days in excess of any such Indebtedness or to require the redemption thereof or any offer to redeem to make in period of grace, if any, with respect thereof, prior to its scheduled maturitythereto;
(e) [Reserved]the levy against any significant portion of the Property of the Borrowers, or any execution, garnishment, attachment, sequestration or other writ or similar proceeding in an amount in excess of $100,000 as to the relevant Borrower which is not permanently dismissed or discharged within 60 days after the levy;
(f) [Reserved]any Borrower shall (i) apply for or consent to the appointment of a receiver, trustee or liquidator of it or all or a substantial part of its assets, (ii) file a voluntary petition commencing an Insolvency Proceeding, (iii) make a general assignment for the benefit of creditors of all or substantially all of its assets, (iv) be unable, or admit in writing its inability, to pay its debts generally as they become due or (v) file an answer admitting the material allegations of a petition filed against it in any Insolvency Proceeding;
(g) The an order, judgment or decree shall be entered against any Borrower by any court of competent jurisdiction or by any other Governmental Authority, on the petition of a creditor or otherwise, granting relief in any Insolvency Proceeding or approving a petition seeking reorganization or an arrangement of its debts or appointing a receiver, trustee, conservator, custodian or liquidator of it or all or any substantial part of its Subsidiaries assets, and such order, judgment or decree shall not be dismissed or stayed within thirty (30) days;
(h) a final and non-appealable order, judgment or decree shall be entered against any Borrower for money damages and/or Indebtedness due in an amount in excess of $100,000, and such order, judgment or decree shall not be dismissed or stayed within 60 days or is not fully covered by insurance;
(i) any charges are filed or any other action or proceeding is instituted by any Governmental Authority against any Borrower under the Racketeering Influence and Corrupt Organizations Statute (18 U.S.C. §1961 et seq.), the result of which could be the forfeiture or transfer of any material Property of the relevant Borrower subject to a Lien in favor of the Agent without (i) satisfaction or provision for satisfaction of such Lien or (ii) such forfeiture or transfer of such Property being expressly made subject to such Lien;
(j) no Borrower shall have (i) concealed, removedremoved or diverted, or permitted to be concealed concealed, removed or removeddiverted, any part of its Property, with intent to hinder, delay, delay or defraud its creditors or any of them, or (ii) made or suffered a transfer of any of its Property which may be fraudulent under any bankruptcy, fraudulent conveyance, conveyance or similar law with intent to hinder, delay or defraud its creditors, (iii) made any transfer of its Property to or for the benefit of a creditor at a time when other creditors similarly situated have not been paid with intent to hinder, delay or defraud its creditors or (iv) shall have suffered or permitted, while insolvent, any creditor to obtain a Lien upon any of its Property through legal proceedings or distraint which is not vacated within 60 days from the date thereof;
(k) any Security Document shall for any reason not, or cease to, create valid and not otherwise perfected first‑priority Liens against the Property of any Borrower which is a party thereto purportedly covered thereby, except to the extent permitted under the provisions of by this Agreement;
(h) The levy against any significant portion of the Property of the Borrower or any of its Subsidiaries or any execution, garnishment, attachment, sequestration, or other writ or similar proceeding which is not permanently dismissed or discharged for a period of 60 consecutive days, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment, and, in each such case, such action shall not be effectively stayed (including as a result of the automatic stay under the Bankruptcy Cases);
(i) A final and non-appealable order, judgment, or decree shall be entered against the Borrower or any of its Subsidiaries for money damages and/or Indebtedness due in an amount in excess of $2,000,000 (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage) and such order, judgment, or decree shall not be dismissed or stayed for a period of 60 consecutive days, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment, and, in each such case, such action shall not be effectively stayed (including as a result of the automatic stay under the Bankruptcy Cases);
(j) [Reserved];
(k) [Reserved];
(l) Any of the any Loan Documents shall cease, for any reason, Document ceases to be in full force and effecteffect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof or the payment in full in cash of the Obligations in accordance with the terms hereof) or any Borrower contests in any manner the validity or enforceability of any provision of any Loan Document to which it is a party, or the Borrower, denies that it has any Subsidiary or liability under any Affiliate of the Borrower or Subsidiary shall so assert, or any Lien created by any of the Loan Documents shall cease Document to be enforceable and of the same effect and priority purported to be created therebywhich it is a party;
(m) Other than pursuant any Borrower purports to an Approved Plan (i) revoke, terminate or rescind any “person” Loan Document or “group” (as such terms are used in Sections 13(d) and 14(d) any provision of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), shall become, or obtain rights (whether by means or warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more than 20% of the outstanding common stock of the Borrower; or (ii) the board of directors of the Borrower shall cease to consist of a majority of Continuing Directorsany Loan Document;
(n) Subject any Borrower pays, in cash or otherwise, any portion of any Subordinated Indebtedness not expressly permitted pursuant to the Budget covenant set forth terms of a subordination agreement in Section 6.22, and other than as a result favor of the Bankruptcy Cases Agent,
(o) a Change of Control occurs; or
(p) at any time (i) any Person an Insolvency Proceeding shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Planoccurred with respect to Viking, (ii) Viking shall (A) fail to pay when due any “accumulated funding deficiency” principal of or interest on any (as defined x) Indebtedness with a principal amount in Section 302 excess of ERISA), whether $500,000 or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of the Borrower or any Subsidiary or any Commonly Controlled Entity, (iiiy) a “reportable event”, seller note issued by Viking to the Sellers (as such term is defined in Section 4043 the Acquisition Agreement) in satisfaction of ERISA shall occur with respect to, a portion of the purchase price of the Acquisition Agreement or proceedings shall commence to have a trustee appointed, or a trustee (B) shall be appointed, to administer or to terminate, any Single Employer Plan, which reportable event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Majority Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Borrower or any Subsidiary or any Commonly Controlled Entity shall, or in the reasonable opinion of the Majority Lenders is likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multi-employer Plan or (vi) any other event or condition shall occur or exist default with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, could, in the sole judgment of the Majority Lenders, reasonably be expected to have a Material Adverse Effect;
(o) (ix) any Liens or DIP Superpriority Claims granted with respect to the DIP Facility shall cease to be valid, perfected and enforceable in all respects with the priority in the applicable DIP Order, or (ii) the disallowance, expungement, extinguishment or impairment of any portion of the DIP Superpriority Claim;
(p) any order shall have been entered by the Bankruptcy Court granting any relief from or modifying any stay of proceedings, including, without limitation, the automatic stay, to allow any third party creditor to execute upon or enforce a Lien in any of the Borrower’s or any of its Subsidiaries’ asset or assets securing a claim Indebtedness with a value principal amount in excess of $2,000,000 500,000 or (unless y) a seller note issued by Viking to the Majority Lenders shall have granted prior written consent to Sellers (as such relief or such relief consists solely term is defined in the Acquisition Agreement) in satisfaction of insurance proceeds payable to such creditor);
(q) the Interim Order or the Final Order shall have been stayed, amended or modified, reversed, or vacated without the express prior written consent a portion of the Majority Backstop Lenders (and such consent has not been unreasonably withheld or delayed);
(r) any payment purchase price of or grant of Adequate Protection with respect to any Prepetition Indebtedness (other than as described hereinthe Acquisition Agreement, if, in the other Loan Documents case of either clause (x) or clause (y), the effect of such breach or default is to cause, or to permit the holder or holders of that Indebtedness (or a trustee on behalf of such holder or holders), to cause, that Indebtedness to become or be declared due and payable (or subject to a compulsory repurchase or redeemable) or to require the prepayment, redemption, repurchase or defeasance of, or to cause Viking to make any offer to prepay, redeem, repurchase or defease such Indebtedness, prior to its stated maturity or the applicable DIP Order) without the consent stated maturity of the Majority Backstop Lenders and approval of the Bankruptcy Court;
(s) an order shall have been entered by the Bankruptcy Court (i) dismissing the Bankruptcy Cases or (ii) converting the Bankruptcy Cases to a Chapter 7;
(t) an order with respect to the Bankruptcy Cases shall be entered by the Bankruptcy Court appointing, or the Borrower or any of its Subsidiaries shall file an application for an order with respect to the Bankruptcy Cases seeking the appointment of (i) a trustee under Section 1104 of the Bankruptcy Codeunderlying obligation, or (iiiii) an examiner with enlarged powers relating to the operation of the Business of the Loan Parties (beyond those set forth Viking shall engage in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code;
(u) the entry of an order in the Bankruptcy Cases granting any other superpriority administrative claim or Lien pari passu with or superior to that granted to the Administrative Agent, on behalf of itself and Lenders (business other than the Carve Out businesses engaged in by it on the Closing Date as presently conducted or contemplated to the Existing First Lien Agent or as otherwise contemplated by the applicable DIP Order), or any Loan Party or any of their respective Subsidiaries shall file any pleading requesting such relief, except (i) with the prior written consent of the Majority Backstop Lenders, or (ii) to the extent such superpriority administrative claim or Lien is granted in respect of financing that shall provide for the payment in full of the Obligations;
(v) the Borrower or any Subsidiary shall have defaulted or otherwise breached any of its obligations under the RSA;
(w) except as otherwise consented to by the Majority Backstop Lenders, the entry of an order in the Bankruptcy Cases confirming (or the filing of any motion or pleading requesting confirmation of) a plan of reorganization that is not an Approved Plan;
(x) any Debtor shall fail to comply in any material respect with the Interim Order or Final Order;
(y) except as otherwise consented to by the Majority Backstop Lenders, the Borrower or any Subsidiary shall have sold or otherwise disposed or be conducted and all or a material portion of the Collateral pursuant to Section 364 of the Bankruptcy Code other than as permitted pursuant to the DIP Orders or an Approved Plan (or pursuant to a transaction that is permitted under this Agreement); or
(z) any Debtor shall fail to comply with any of the Milestonesactivities and operations incidental thereto.
Appears in 1 contract
Enumeration of Events of Default. Any of the following events shall be considered an Event of Default as that term is used herein:
(a) Default shall be made (i) in the payment when due of any installment of principal hereunder or under any other Loan Document or (ii) in the payment when due of any interest, fees or other sums payable hereunder or under any other Loan Document and such default under this clause (ii) shall continue for in excess of five Business Days;
(b) Other than as set forth in Section 7.1(a), default shall be made by the Borrower or any Subsidiary in the due observance or performance of (i) any covenant or agreement set forth in Article 6 or in Sections 5.1, 5.2, 5.3, 5.4, 5.7(a), 5.7(c), 5.7(i), 5.11, 5.12, 5.13, 5.17, 5.18, 5.19, 5.20, 5.26, 5.27, 5.29, 5.30, 5.31, and (ii) any other covenant or agreement set forth in this Agreement and such default under this clause (ii) shall continue for in excess of 15 days after the earlier of notice thereof by the Administrative Agent to the Borrower or knowledge thereof by the Borrower;
(c) Any representation or warranty made by the Borrower or any of its Subsidiaries in this Agreement or any other Loan Document proves to have been untrue in any material respect when made or deemed to have been made, or any representation, warranty, statement (including Financial Statements), certificate or data furnished or made by the Borrower or any of its Subsidiaries to any Lender or the Administrative Agent in connection herewith proves to have been untrue in any material respect as of the date the facts therein set forth were stated or certified;
(d) Other than (i) as a result of the filing of the Bankruptcy Cases, (ii) any obligation with respect to which the Bankruptcy Code prohibits the Borrower or any Subsidiary from complying with such obligation or permits the Borrower or any Subsidiary not to comply with such obligation, (iii) any default under the Existing First Lien Loan Documents, or (iv) any default under the Existing Senior Notes, any event or condition occurs that causes, or permits (with or without the giving of notice, the lapse of time or both) the holder or holders or any trustee or agent on their behalf of any Prepetition Indebtedness in excess of $2,000,000 that is not stayed by the automatic stay in the Bankruptcy Cases to cause, the acceleration of the maturity of any such Indebtedness or to require the redemption thereof or any offer to redeem to make in respect thereof, prior to its scheduled maturity;
(e) [Reserved];
(f) [Reserved];
(g) The Borrower or any of its Subsidiaries shall have (i) concealed, removed, or permitted to be concealed or removed, any part of its Property, with intent to hinder, delay, or defraud its creditors or any of them, or (ii) made or suffered a transfer of any of its Property which may be fraudulent under any bankruptcy, fraudulent conveyance, or similar law and not otherwise permitted under the provisions of this Agreement;
(h) The levy against any significant portion of the Property of the Borrower or any of its Subsidiaries or any execution, garnishment, attachment, sequestration, or other writ or similar proceeding which is not permanently dismissed or discharged for a period of 60 consecutive days, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment, and, in each such case, such action shall not be effectively stayed (including as a result of the automatic stay under the Bankruptcy Cases);
(i) A final and non-appealable order, judgment, or decree shall be entered against the Borrower or any of its Subsidiaries for money damages and/or Indebtedness due in an amount in excess of $2,000,000 (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage) and such order, judgment, or decree shall not be dismissed or stayed for a period of 60 consecutive days, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment, and, in each such case, such action shall not be effectively stayed (including as a result of the automatic stay under the Bankruptcy Cases);
(j) [Reserved];
(k) [Reserved];
(l) Any of the Loan Documents shall cease, for any reason, to be in full force and effect, or the Borrower, any Subsidiary or any Affiliate of the Borrower or Subsidiary shall so assert, or any Lien created by any of the Loan Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby;
(m) Other than pursuant to an Approved Plan (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), shall become, or obtain rights (whether by means or warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more than 20% of the outstanding common stock of the Borrower; or (ii) the board of directors of the Borrower shall cease to consist of a majority of Continuing Directors;
(n) Subject to the Budget covenant set forth in Section 6.22, and other than as a result of the Bankruptcy Cases (i) any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of the Borrower or any Subsidiary or any Commonly Controlled Entity, (iii) a “reportable event”, as such term is defined in Section 4043 of ERISA shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which reportable event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Majority Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Borrower or any Subsidiary or any Commonly Controlled Entity shall, or in the reasonable opinion of the Majority Lenders is likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multi-employer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, could, in the sole judgment of the Majority Lenders, reasonably be expected to have a Material Adverse Effect;
(o) (i) any Liens or DIP Superpriority Claims granted with respect to the DIP Facility shall cease to be valid, perfected and enforceable in all respects with the priority in the applicable DIP Order, or (ii) the disallowance, expungement, extinguishment or impairment of any portion of the DIP Superpriority Claim;
(p) any order shall have been entered by the Bankruptcy Court granting any relief from or modifying any stay of proceedings, including, without limitation, the automatic stay, to allow any third party creditor to execute upon or enforce a Lien in any of the Borrower’s or any of its Subsidiaries’ asset or assets securing a claim with a value in excess of $2,000,000 (unless the Majority Lenders shall have granted prior written consent to such relief or such relief consists solely of insurance proceeds payable to such creditor);
(q) the Interim Order or the Final Order shall have been stayed, amended or modified, reversed, or vacated without the express prior written consent of the Majority Backstop Lenders (and such consent has not been unreasonably withheld or delayed);
(r) any payment of or grant of Adequate Protection with respect to any Prepetition Indebtedness (other than as described herein, in the other Loan Documents or the applicable DIP Order) without the consent of the Majority Backstop Lenders and approval of the Bankruptcy Court;
(s) an order shall have been entered by the Bankruptcy Court (i) dismissing the Bankruptcy Cases or (ii) converting the Bankruptcy Cases to a Chapter 7;
(t) an order with respect to the Bankruptcy Cases shall be entered by the Bankruptcy Court appointing, or the Borrower or any of its Subsidiaries shall file an application for an order with respect to the Bankruptcy Cases seeking the appointment of (i) a trustee under Section 1104 of the Bankruptcy Code, or (ii) an examiner with enlarged powers relating to the operation of the Business of the Loan Parties (beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code;
(u) the entry of an order in the Bankruptcy Cases granting any other superpriority administrative claim or Lien pari passu with or superior to that granted to the Administrative Agent, on behalf of itself and Lenders (other than the Carve Out or to the Existing First Lien Agent or as otherwise contemplated by the applicable DIP Order), or any Loan Party or any of their respective Subsidiaries shall file any pleading requesting such relief, except (i) with the prior written consent of the Majority Backstop Lenders, or (ii) to the extent such superpriority administrative claim or Lien is granted in respect of financing that shall provide for the payment in full of the Obligations;
(v) the Borrower or any Subsidiary shall have defaulted or otherwise breached any of its obligations under the RSA;
(w) except as otherwise consented to by the Majority Backstop Lenders, the entry of an order in the Bankruptcy Cases confirming (or the filing of any motion or pleading requesting confirmation of) a plan of reorganization that is not an Approved Plan;
(x) any Debtor shall fail to comply in any material respect with the Interim Order or Final Order;
(y) except as otherwise consented to by the Majority Backstop Lenders, the Borrower or any Subsidiary shall have sold or otherwise disposed or all or a material portion of the Collateral pursuant to Section 364 of the Bankruptcy Code other than as permitted pursuant to the DIP Orders or an Approved Plan (or pursuant to a transaction that is permitted under this Agreement); or
(z) any Debtor shall fail to comply with any of the Milestones.
Appears in 1 contract
Samples: Debt Agreement (Swift Energy Co)
