The Debtor In Possession Loan Agreement is a critical financing tool in Dutch restructuring scenarios, used when a company in bankruptcy proceedings requires new funding to continue operations or implement a restructuring plan. This document type emerged from the need to provide companies with access to financing during insolvency proceedings while offering adequate protection to lenders. Under Dutch law, such financing requires careful structuring to ensure compatibility with the Faillissementswet and often requires court approval. The agreement typically includes provisions for super-priority status, detailed collateral arrangements, strict monitoring requirements, and specific milestones related to the restructuring process. It's particularly relevant in situations where there's a viable business that needs working capital during the restructuring period, and the agreement must balance the interests of new lenders, existing creditors, and the company's restructuring goals.
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1. Parties: Identification of the lender(s), borrower(s), and any guarantors
2. Background: Context of the DIP financing, including reference to the insolvency proceedings and court approval
3. Definitions and Interpretation: Definitions of terms used in the agreement and rules of interpretation
4. The Facility: Description of the loan facility, including amount, purpose, and availability period
5. Conditions Precedent: Conditions that must be satisfied before drawdown, including court approval and security perfection
6. Drawdown: Procedures and requirements for requesting and making loan disbursements
7. Interest: Interest rate, calculation methods, and payment provisions
8. Repayment and Prepayment: Terms for scheduled repayment and voluntary/mandatory prepayment
9. Super-Priority and Security: Provisions regarding the priority status of the loan and security package
10. Representations and Warranties: Borrower's statements regarding its condition, authority, and circumstances
11. Covenants: Positive and negative obligations of the borrower during the loan term
12. Events of Default: Circumstances constituting default and consequences
13. Changes to Parties: Rules regarding assignment and transfer of rights and obligations
14. Administration: Administrative provisions including notices and calculations
15. Governing Law and Jurisdiction: Choice of Dutch law and jurisdiction provisions
1. Accordion Facility: Optional provision for increasing the facility amount, used when potential additional funding needs are anticipated
2. Roll-Up Provisions: Provisions for rolling up pre-petition debt into the DIP facility, if applicable
3. Carve-Out: Provisions for professional fees and administrative expenses, if not covered in main sections
4. Inter-creditor Provisions: Required when there are multiple classes of creditors or existing security holders
5. Exit Financing: Provisions regarding conversion to exit financing, if contemplated
6. Milestones: Specific restructuring or sale process milestones, if required by lenders
7. Priority Waterfall: Detailed payment priority waterfall, if complex priority arrangements exist
1. Initial Conditions Precedent: Detailed list of required documents and conditions for initial drawdown
2. Ongoing Conditions Precedent: Conditions for subsequent drawdowns
3. Form of Drawdown Request: Template for borrower to request loan disbursements
4. Security Documents: List and copies of all security documents
5. Approved Budget: Detailed DIP budget approved by the court and lenders
6. Repayment Schedule: Schedule of repayment dates and amounts
7. Form of Compliance Certificate: Template for periodic compliance certification
8. Existing Indebtedness: Schedule of borrower's pre-petition debt
9. Collateral Description: Detailed description of all collateral securing the facility
10. Required Insurance: List of required insurance coverage and terms
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