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DIP Financing Agreements

By Thomas Fawkes and Elizabeth L. Janczak
February 25, 2013

In filing for bankruptcy, one of the most important decisions a debtor makes is with regard to debtor-in-possession (DIP) financing. Typically, a debtor negotiates with its pre-petition lender, which then finances the Chapter 11 case. In return, the lender is granted certain protections from the debtor, ranging from superpriority administrative expenses to adequate protection replacement liens to indemnification of the lender under certain circumstances.

The usual DIP financing indemnification provision applies only to the post-petition financing agreement. However, some lenders have insisted upon indemnification for pre-petition acts as well. This article examines the typical DIP financing indemnification provision and the less frequently seen pre-petition indemnification provision, and discusses the effect of pre-petition indemnifications on the bankruptcy estate.

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