|PERNIX THERAPEUTICS HOLDINGS, INC. filed this Form 8-K on 02/27/2019|
contrary, including with respect to the existence of a Default (as defined in the DIP Credit Agreement) or Event of Default, the failure of the DIP Loan Parties to satisfy any or all of the conditions precedent for Delayed Draw Loans under the DIP Facility, any termination of the Delayed Draw Commitments following an Event of Default, or the occurrence of the Maturity Date (each as defined in the DIP Credit Agreement), each DIP Lender with an outstanding Delayed Draw Commitment (on a pro rata basis based on the then outstanding Delayed Draw Commitments) shall extend Delayed Draw Loans pursuant to a deemed draw and borrowing equal to such DIP Lender’s pro rata share of the total amount required to fund the borrowings set forth in paragraph 21(c). Notwithstanding anything to the contrary herein, in no event shall the DIP Agent or the DIP Lenders be required to (x) extend Delayed Draw Loans to fund the Carve-Out other than pursuant to paragraph 21(c) or (y) extend Delayed Draw Loans pursuant to a deemed draw and borrowing pursuant to this paragraph 21 in an aggregate amount exceeding the total available Delayed Draw Commitments as of the Termination Declaration Date.
(e) Application of Carve-Out Account. All funds in the Carve-Out Account shall be used first to pay the obligations set forth in clauses (i) through (iv) of the definition of Carve-Out set forth above until paid in full, and then, to the extent the Carve-Out Account has not been reduced to zero, to pay the DIP Agent for the benefit of the DIP Lenders, unless the DIP Obligations have been indefeasibly paid in full, in cash and all Commitments (as defined in the DIP Credit Agreement) have been terminated, in which case any such excess shall be paid to the Prepetition Secured Parties in accordance with their rights and priorities as of the Petition Date. All payments and reimbursements made from the Carve-Out Account shall permanently reduce the Carve-Out on a dollar-for-dollar basis. The DIP Agent shall have a security interest in any residual amounts in the Carve-Out Account, which shall secure the DIP Obligations.