Common use of DIP Financing Clause in Contracts

DIP Financing. (a) Simultaneously with commencement of the Bankruptcy Case and pursuant to the DIP Loan Agreement, Buyer will, subject to Section 7.11(b) below, provide debtor- in-possession financing to Sellers up to a maximum amount of $500,000, which may not be increased on a priming basis without the consent of Oxford Finance LLC in its sole and absolute discretion (the “DIP Loan”), in order to permit Sellers to continue operating the Business and pay the reasonable and documented out-of-pocket third party fees and expenses actually incurred in connection with the transactions contemplated herein and the Bankruptcy Case. (b) The DIP Loan Agreement will become effective upon (i) approval by the Bankruptcy Court and (ii) satisfaction of the conditions as set forth herein and in the DIP Loan Agreement. If the Closing occurs, all amounts then outstanding under the DIP Loan Agreement shall be credited towards the Purchase Price payable by Buyer. The Bidding Procedures Order shall expressly authorize and approve such credit bidding of amounts outstanding under the DIP Loan Agreement pursuant to Section 363(k) of the Bankruptcy Code. (c) The obligations of Sellers under the DIP Loan Agreement will be secured by a first lien on substantially all of the assets of Sellers, including, without limitation, the Purchased Assets. In addition, the obligations of Sellers under the DIP Loan Agreement will be entitled to super-priority administrative claim status pursuant to Section 364(c)(1) of the Bankruptcy Code. (d) The Bidding Procedures Order shall provide that if the Bankruptcy Court enters an order approving a Competing Transaction, then on the first Business Day following entry of the sale order relating to such Competing Transaction, Sellers shall pay to Buyer, in accordance with wire transfer instructions provided by Buyer, from the overbidder’s deposit of the Successful Bidder, an amount equal to all obligations of Sellers then outstanding under the DIP Loan, which payment shall be irrevocable and free and clear of all Encumbrances. No qualified bid may contain any provision that purports to alter or restrict the foregoing. The Sellers shall not reduce or otherwise alter the overbidder’s deposit required of any qualified bidder under the Bidding Procedures or the Bidding Procedures Order without the prior written consent of Buyer. For the avoidance of doubt, in the event the overbidder’s deposit of the Successful Bidder is insufficient to satisfy in full all obligations owing under the DIP Loan Agreement, Sellers will pay the remainder in full as promptly as possible from the proceeds of any substitute DIP Loan facility provided by the Successful Bidder or from any other source, including the proceeds of the sale to the Successful Bidder.

DIP Financing. (a) Simultaneously with commencement of the Bankruptcy Case and pursuant to the DIP Loan Agreement, Buyer XXX US Holding, will, subject to Section 7.11(b) below, provide debtor- debtor-in-possession financing to Sellers up to a maximum new money amount of $500,000, which may not be increased on a priming basis without 7,400,000 plus the consent repayment and roll-up of Oxford Finance LLC in its sole and absolute discretion the Bridge Loan Amount (the “DIP Loan”), in order to permit Sellers to continue operating the Business and pay the reasonable and documented out-of-pocket third party Third Party fees and expenses actually incurred in connection with the transactions contemplated herein and the Bankruptcy Case. (b) The DIP Loan Agreement will become effective upon (i) approval by the Bankruptcy Court and (ii) satisfaction of the conditions as set forth herein and in the DIP Loan Agreement. If the Closing occurs, all amounts then outstanding under the DIP Loan Agreement shall be credited towards the Purchase Price payable by BuyerBuyers as set forth above. The Bidding Procedures Order shall expressly authorize and approve such credit bidding by the Buyers, as the designee of the DIP Lender and Bridge Lender, respectively, of any amounts outstanding under the DIP Loan Agreement (which amounts shall include the outstanding amounts under the Bridge Loan Agreement pursuant to the Roll-Up Loan (as defined in the DIP Loan Agreement)) pursuant to Section 363(k) of the Bankruptcy Code. Each Seller expressly acknowledges and agrees that Buyers may exercise such right to credit bid amounts owed by any Seller under the DIP Loan Agreement (which amounts shall include the outstanding amounts under the Bridge Loan Agreement pursuant to the Roll-Up Loan (as defined in the DIP Loan Agreement)) in order to effect the payment of the Purchase Price under this Agreement. (c) The obligations of Sellers under the DIP Loan Agreement will be secured by a first lien on substantially all of the assets of Sellers, including, without limitation, the Purchased Assets, under Section 364 of the Bankruptcy Code in accordance with the priorities set forth in the DIP Loan Agreement. In addition, the obligations of Sellers under the DIP Loan Agreement will be entitled to super-priority administrative claim status pursuant to Section 364(c)(1) of the Bankruptcy Code. (d) The Bidding Procedures Order shall provide that if the Bankruptcy Court enters an order approving a Competing Transaction, then on the first Business Day following entry the closing of the sale order relating to such Competing Transaction, Sellers shall pay to BuyerBuyers, in accordance with wire transfer instructions provided by BuyerBuyers, from the overbidder’s deposit of the purchase price received from such other Successful Bidder, an amount equal to all obligations of Sellers then outstanding under the DIP LoanLoan Agreement (which shall include the outstanding obligations under the Bridge Loan Agreement pursuant to the Roll-Up Loan (as defined in the DIP Loan Agreement)), which payment shall be irrevocable and free and clear of all EncumbrancesLiens. No qualified bid may contain any provision that purports to alter or restrict the foregoing. The Sellers shall not reduce or otherwise alter the overbidder’s deposit required of any qualified bidder under the Bidding Procedures or the Bidding Procedures Order without the prior written consent of BuyerBuyers. For the avoidance of doubt, in the event the overbidder’s deposit of the Successful Bidder is insufficient insufficient, as of the closing of the Competing Transaction, to satisfy in full all obligations owing under the DIP Loan Agreement, Sellers will pay the remainder of all obligations owing under the DIP Loan Agreement (which shall include the outstanding obligations under the Bridge Loan Agreement pursuant to the Roll-Up Loan (as defined in the DIP Loan Agreement)) in full as promptly as possible from the proceeds of any substitute DIP Loan facility provided possible, including by directing the Successful Bidder or from any other sourceBidder, including in accordance with the Sale Order, to pay the proceeds of the sale to the Successful BidderBidder directly the DIP Lender and/or Bridge Lender, as applicable, in satisfaction of such obligations.

DIP Financing. (a) Simultaneously with commencement The first place adequate protection rights are likely to arise is in the context of the Bankruptcy Case and pursuant to the DIP Loan Agreement, Buyer will, subject to Section 7.11(b) below, provide debtor- debtor-in-possession financing, or “DIP financing.” Businesses in Chapter 11 cases need to maintain operations during the proceeding. DIP financing to Sellers up is often provided to a maximum amount of $500,000, which may not be increased on a priming basis without Chapter 11 debtor by the consent of Oxford Finance LLC in its sole and absolute discretion (same lenders who provided senior debt financing prior to the “DIP Loan”), in order to permit Sellers to continue operating the Business and pay the reasonable and documented out-of-pocket third party fees and expenses actually incurred in connection with the transactions contemplated herein and the Bankruptcy Case. (b) bankruptcy. The DIP Loan Agreement lender will become effective upon (i) approval by want to ensure that the Bankruptcy Court and (ii) satisfaction borrower can maintain its going-concern value until a reorganization or sale of the conditions as set forth herein and in the DIP Loan Agreement. If the Closing occurs, all amounts then outstanding under the DIP Loan Agreement shall business can be credited towards the Purchase Price payable by Buyerrealized. The Bidding Procedures Order shall expressly authorize and approve such credit bidding of amounts outstanding under the DIP Loan Agreement pursuant to Section 363(k) of the Bankruptcy Code. (c) The obligations of Sellers under the DIP Loan Agreement facility will likely be secured by a senior or “priming” lien on all assets, the bankruptcy law will require that other lien holders be given consent rights, or alternatively “adequate protection,” discussed in more detail below. As a result, the first lien lender’s DIP financing arrangement could be thwarted without the second lien lenders’ cooperation and consent. Accordingly, most intercreditor agreements include consent to any DIP financing provided or consented to by the first lien lender. Bankruptcy rights for secured creditors include the right to be adequately protected if the debtor uses collateral, including cash, during the bankruptcy case. To the extent the collateral diminishes in value during the case, a secured creditor has a right to be protected from any decline in value. Adequate protection usually takes the form of replacement liens and cash payments. If adequate protection cannot be provided, then the secured creditor can get relief from the automatic stay and proceed to foreclose on substantially all the collateral. If this right has not been waived in advance, or curtailed significantly, the first lien lenders’ rights to control the proceeding will be significantly impaired. The same holds true for the sale of collateral during the Chapter 11 case. As in the pre-bankruptcy time period, the first lien lender wants the cooperation of the second lien holder in permitting the sale of assets of Sellers, including, without limitation, the Purchased Assetsto take place. In additioncontrast to the workout phase, cooperation in the obligations form of Sellers under an agreement to release liens is not imperative because the DIP Loan Agreement will bankruptcy judge has the power to order that property be entitled to super-priority administrative claim status pursuant to Section 364(c)(1) of the Bankruptcy Code. (d) The Bidding Procedures Order shall provide that if the Bankruptcy Court enters an order approving a Competing Transaction, then on the first Business Day following entry of the sale order relating to such Competing Transaction, Sellers shall pay to Buyer, in accordance with wire transfer instructions provided by Buyer, from the overbidder’s deposit of the Successful Bidder, an amount equal to all obligations of Sellers then outstanding under the DIP Loan, which payment shall be irrevocable and sold free and clear of all Encumbrances. No qualified bid may contain any provision that purports to alter or restrict liens without the foregoingsecond lien lender’s consent. The Sellers shall focus, however, is getting the second lien lender to agree in advance not reduce or otherwise alter to raise an objection to any sale that has the overbidder’s deposit required of any qualified bidder under the Bidding Procedures or the Bidding Procedures Order without the prior written consent of Buyer. For the avoidance of doubt, in the event the overbidder’s deposit support of the Successful Bidder is insufficient to satisfy in full all obligations owing under the DIP Loan Agreement, Sellers will pay the remainder in full as promptly as possible from the proceeds of any substitute DIP Loan facility provided by the Successful Bidder or from any other source, including the proceeds of the sale to the Successful Bidderfirst lien lender.

DIP Financing. As the COVID-19 pandemic deepened, and realizing that chapter 11 proceedings may be required to address the Debtors’ liquidity needs and capital structure, the Debtors, with the assistance of their advisors, began to evaluate the required size of a postpetition financing facility for the Chapter 11 Cases, identified potential sources of postpetition funding, and began a robust and competitive marketing process for postpetition financing. Prior to the Petition Date, the Debtors and their advisors solicited interest from ten (a10) Simultaneously with commencement financial institutions to determine the extent to which third parties may be willing to provide DIP financing to the Debtors. Of these financial institutions eight (8) executed confidentiality agreements and received private information about the Debtors’ business, operations, and liquidity position. The Debtors received multiple proposals for DIP financing including for the DIP Facility, a $1 billion superpriority senior secured priming multi-draw term loan credit facility proposed by the Xxxxxxx Ad Hoc Group. After weeks of negotiation and analysis, the Debtors and their advisors determined that the DIP Facility was the best option available to the Debtors. During the time between the Petition Date and entry of the Bankruptcy Case Final DIP Order on June 9, the Debtors were able to build complete consensus around the DIP Facility. As of the Petition Date, the DIP Facility was to be provided by the Xxxxxxx Ad Hoc Group, but following robust negotiations and pursuant certain modifications to the terms of the DIP Loan AgreementFacility, Buyer will, subject to Section 7.11(b) below, provide debtor- in-possession financing to Sellers up to a maximum amount the Debtors ultimately reached agreement with both the Xxxxxxx Ad Hoc Group and the Xxxxxxx Crossover Ad Hoc Group on the terms of $500,000the DIP Facility, which may not be increased on a priming basis without was ultimately provided by the consent constituents of Oxford Finance LLC in its sole each group. The Debtors also engaged with and absolute discretion (gained the “support for the DIP Loan”)Facility of the HoldCo Creditor Ad Hoc Group, in order to permit Sellers to continue operating the Business and pay the reasonable and documented out-of-pocket third party fees and expenses actually incurred in connection with the transactions contemplated herein U.S. Trustee, and the Bankruptcy Case. (b) Creditors’ Committee. The DIP Loan Agreement will become effective upon (i) approval by Facility has provided the Bankruptcy Court and (ii) satisfaction capital necessary for the Debtors to pay for the clearing costs, maintain the adequate Cash balance given the capital-intensive nature of their businesses, and, because of the conditions as set forth herein and sizable investment basket contained in the DIP Loan Agreement. If the Closing occurs, all amounts then outstanding under the DIP Loan Agreement shall be credited towards the Purchase Price payable by Buyer. The Bidding Procedures Order shall expressly authorize and approve such credit bidding of amounts outstanding under the DIP Loan Agreement pursuant to Section 363(k) of the Bankruptcy Code. (c) The obligations of Sellers under the DIP Loan Agreement will be secured by a first lien on substantially all of the assets of Sellers, including, without limitation, the Purchased Assets. In addition, the obligations of Sellers under the DIP Loan Agreement will be entitled to super-priority administrative claim status pursuant to Section 364(c)(1) of the Bankruptcy Code. (d) The Bidding Procedures Order shall provide that if the Bankruptcy Court enters an order approving a Competing Transaction, then on the first Business Day following entry of the sale order relating to such Competing Transaction, Sellers shall pay to Buyer, in accordance with wire transfer instructions provided by Buyer, from the overbidder’s deposit of the Successful Bidder, an amount equal to all obligations of Sellers then outstanding under the DIP Loan, which payment shall be irrevocable and free and clear of all Encumbrances. No qualified bid may contain any provision that purports to alter or restrict the foregoing. The Sellers shall not reduce or otherwise alter the overbidder’s deposit required of any qualified bidder under the Bidding Procedures or the Bidding Procedures Order without the prior written consent of Buyer. For the avoidance of doubt, in the event the overbidder’s deposit of the Successful Bidder is insufficient to satisfy in full all obligations owing under the DIP Loan Credit Agreement, Sellers will pay as amended, enabled them to pursue strategic opportunities during these Chapter 11 Cases, such as the remainder in full as promptly as possible from the proceeds of any substitute DIP Loan facility provided by the Successful Bidder or from any other source, including the proceeds of the sale to the Successful BidderGogo Transaction.