|PERNIX THERAPEUTICS HOLDINGS, INC. filed this Form 8-K on 02/27/2019|
Lender, which such Replacement Lender shall be deemed to be a “Lender” for purposes of this Agreement and such Affected Lender shall cease to be a “Lender” for purposes of this Agreement.
(c) Notwithstanding anything herein to the contrary, the protection of Sections 2.12(d) and 2.13 shall be available to each Lender (as applicable) regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, judicial ruling, judgment, guideline, treaty or other change or condition which shall have occurred or been imposed, so long as it shall be customary for lenders affected thereby to comply therewith. Notwithstanding any other provision herein, no Lender shall demand compensation pursuant to this Section 2.13 if it shall not at the time be the general policy or practice of such Lender (as the case may be) to demand such compensation in similar circumstances under comparable provisions of other credit agreements, if any.
2.14 Priority and Liens Applicable to the Company. The Borrower hereby covenants, represents and warrants that, upon the execution of this Agreement and upon the entry of the Interim DIP Order (and when applicable, the Final DIP Order), subject in each case, to the Carve Out:
(a) the Obligations of the Loan Parties, pursuant to Section 364(c)(1) of the Bankruptcy Code, shall be entitled to Superpriority Claim status in the Cases, subject only to the Carve Out to the extent provided in the applicable DIP Order, and any payments or proceeds on account of such Superpriority Claim shall be distributed in accordance with Section 2.4(b)(iii);
(b) the Obligations of the Loan Parties, pursuant to Section 364(c)(2) of the Bankruptcy Code, shall be secured by a perfected first priority Lien on all Collateral that is not subject to valid, perfected, enforceable and non-avoidable liens as of the Petition Date;
(c) the Obligations of the Loan Parties, pursuant to section 364(d)(1) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable, fully-perfected first priority senior priming security interest in and Lien upon all pre- and post-petition property of the Loan Parties, whether now existing or hereafter acquired, of the same nature, scope and type as the Prepetition Collateral. Such security interests and Liens shall be senior in all respects to the interests in such property of the Prepetition Revolving Secured Parties and Nalpropion (collectively, the “Primed Liens”), in each case arising from their respective current and future Liens; and
(d) the Obligations of the Loan Parties, pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable, fully-perfected Lien on all Collateral that is subject to any Permitted Prior Lien, which Lien securing the Obligations shall be junior only to Permitted Prior Liens on such Collateral.
2.15 Payment of Obligations. Subject to the provisions of Section 9.1, upon the maturity (whether by acceleration or otherwise) of any of the Obligations of the Loan Parties under this Agreement or any of the other Loan Documents, the Agent and the Lenders shall be entitled to immediate payment of such Obligations without further application to or order of the Bankruptcy Court.
2.16 No Discharge; Survival of Claims. Each Loan Party agrees that to the extent that the Obligations hereunder have not been satisfied in full (a) its Obligations arising hereunder shall not be discharged by the entry of any order of the Bankruptcy Court confirming a Reorganization Plan (and the Borrower, pursuant to Section 1141(d)(4) of the Bankruptcy Code, hereby waives any such discharge) and (b) the Superpriority Claim granted to the Agent and the Lenders pursuant to the DIP Orders and described in Section 2.14(a) and the Liens granted to the Agent pursuant to the DIP Orders and described in Section 2.14(b) through (d) shall not be affected in any manner by the entry of any order of the Bankruptcy Court confirming a Reorganization Plan, other than the discharge and release of such Liens and upon full satisfaction as provided for herein.