Common use of Carve-Out Clause in Contracts

Carve-Out. Subject to the terms and conditions contained in this paragraph 9, the DIP Liens, the DIP Superpriority Claim, the Prepetition Liens, the Adequate Protection Liens and the Adequate Protection Superpriority Claim, which have the relative lien and payment priorities as set forth herein, shall, in any event, in all cases be subject and subordinate to a carve-out (the “Carve-Out”), which shall be comprised of the following: (i) all fees required to be paid to the Clerk of the Court and to the Office of the United States Trustee pursuant to 28 U.S.C. § 1930(a), (ii) subject in all cases to the limitations set forth in the DIP Loan Documents and to Court approval, the sum of (A) and (B), where (A) is the aggregate amount of the Debtors’ professional fees and disbursements which have been incurred, accrued, or invoiced (but remain unpaid) prior to the date on which the DIP Agent provides written notice that an Event of Default has occurred and has triggered the Carve-Out (a “Carve Out Trigger Notice”) for any professional retained by an order of the Court under Section 327 or 328 of the Bankruptcy Code, and (B) is the aggregate amount of fees and disbursements of the Debtors’ retained professionals accrued after delivery of the Carve Out Trigger Notice, up to $5,500,000, and (iii) subject in all cases to the limitations set forth in the DIP Loan Documents and to Court approval, the sum of (C) and (D), where (C) is the aggregate amount, of any Committee’s, if one is so appointed, professional fees and disbursements which have been incurred, accrued or invoiced (but remain unpaid) prior to the receipt by the Committee of a Carve Out Trigger Notice for any professional retained by an order of the Court under Section 1102 of the Bankruptcy Code, and (D) is the aggregate amount of fees and disbursements of any Committee’s retained professionals accrued after delivery of the Carve Out Trigger Notice, up to $25,000. For the avoidance of any doubt, no success fee, transaction fee, or bonus incurred by the Debtors’ investment banker(s) or financial advisors, or any financial advisor retained by the Committee, shall be paid from the Carve-Out unless and until all other allowed hourly and monthly professional fees and disbursements have been paid in full in cash on a final basis, in all cases subject to the limitations set forth in the DIP Budget. No portion of the Carve-Out, no proceeds of the DIP Facility or DIP Extensions of Credit, and no proceeds of the Prepetition Collateral, including any Cash Collateral, or any other amounts, may be used for the payment of the fees and expenses of any person incurred (i) in challenging, or in relation to the challenge of, any of the Prepetition Secured Parties’ or the DIP Secured Parties’ liens or claims (or the value of their respective Prepetition Collateral or DIP Collateral), or the initiation or prosecution of any claim or action against any of the Prepetition Secured Parties or DIP Secured Parties, including any claim under Chapter 5 of the Bankruptcy Code, or any state law or foreign law, in respect of the Prepetition Secured Facility or the DIP Facility, or in preventing, hindering or delaying the realization by the Prepetition Secured Parties or the DIP Secured Parties upon any Prepetition Collateral or DIP Collateral, respectively, or the enforcement of their respective rights under the Prepetition Secured Credit Facility, the Prepetition Loan Documents, the DIP Facility, this Interim Order, the Final Order or any other DIP Loan Document, (ii) in requesting authorization, or supporting any request for authorization, to obtain postpetition financing (whether equity or debt) or other financial accommodations pursuant to Section 364(c) or (d) of the Bankruptcy Code, or otherwise, other than from the First Out DIP Lenders or (iii) in connection with any claims or causes of actions against the Releasees, including formal or informal discovery proceedings in anticipation thereof, and/or in challenging any Prepetition Obligations, DIP Obligations, Prepetition Lien, Adequate Protection Lien or DIP Lien. Notwithstanding the foregoing limitations, up to $50,000 in the aggregate of the Carve-Out, any Cash Collateral or any proceeds of the DIP Facility or DIP Collateral may be used by any Committee prior to the Challenge Period Termination Date to investigate the matters covered by the Claims Stipulations.

Carve-Out. Subject to the terms and conditions contained As used in this paragraph 9[Final/Interim] Order, the DIP Liens, “Carve Out” means the DIP Superpriority Claim, the Prepetition Liens, the Adequate Protection Liens and the Adequate Protection Superpriority Claim, which have the relative lien and payment priorities as set forth herein, shall, in any event, in all cases be subject and subordinate to a carve-out (the “Carve-Out”), which shall be comprised sum of the following: (i) all fees required to be paid to the Clerk of the Court and to the Office of the United States Trustee pursuant under section 1930(a) of title 28 of the United States Code plus interest at the statutory rate (without regard to 28 U.S.C. § 1930(athe notice set forth in (iii) below), ; (ii) subject in all cases reasonable fees and expenses up to $[●] incurred by a trustee under section 726(b) of the Bankruptcy Code (without regard to the limitations notice set forth in (iii) below); (iii) to the DIP Loan Documents extent allowed at any time, whether by interim order, procedural order, or otherwise, all unpaid fees and expenses (the “Allowed Professional Fees”) incurred by persons or firms retained by the Debtors pursuant to Court approvalsection 327, 328, or 363 of the Bankruptcy Code (the “Debtor Professionals”) and the Creditors’ Committee (if any) pursuant to section 328 or 1103 of the Bankruptcy Code (the “Committee Professionals” and, together with the Debtor Professionals, the sum “Professional Persons”) at any time before or on the first business day following delivery by the [Secured Notes Trustee] of a Carve Out Trigger Notice (A) and (Bas defined below), where (A) is whether allowed by the aggregate amount of the Debtors’ professional fees and disbursements which have been incurred, accrued, or invoiced (but remain unpaid) Court prior to the date on which the DIP Agent provides written notice that an Event or after delivery of Default has occurred and has triggered the Carve-Out (a “Carve Out Trigger Notice”) for any professional retained by an order of the Court under Section 327 or 328 of the Bankruptcy Code, ; and (Biv) is the Allowed Professional Fees of Professional Persons in an aggregate amount of fees and disbursements of not to exceed $[●] incurred after the Debtors’ retained professionals accrued after first business day following delivery by the [Secured Notes Trustee] of the Carve Out Trigger Notice, up to $5,500,000, and (iii) subject in all cases to the limitations extent allowed at any time, whether by interim order, procedural order, or otherwise (the amounts set forth in this clause (iv) being the DIP Loan Documents and to Court approval, the sum of (C) and (D), where (C) is the aggregate amount, of any Committee’s, if one is so appointed, professional fees and disbursements which have been incurred, accrued or invoiced (but remain unpaid) prior to the receipt by the Committee of a “Post-Carve Out Trigger Notice for any professional retained by an order Cap”). For purposes of the Court under Section 1102 of the Bankruptcy Codeforegoing, and (D) is the aggregate amount of fees and disbursements of any Committee’s retained professionals accrued after delivery of the “Carve Out Trigger Notice” shall mean a written notice delivered by email (or other electronic means) by the [Secured Notes Trustee] to the Debtors, up their lead restructuring counsel, the U.S. Trustee, and counsel to $25,000. For the avoidance Creditors’ Committee, which notice may be delivered following the occurrence and during the continuation of any doubt, no success fee, transaction fee, or bonus incurred by a [Termination Event] and upon termination of the Debtors’ investment banker(s) or financial advisors, or any financial advisor retained right to use Cash Collateral by the Committee, shall be paid from [Secured Notes Trustee (acting at the Carve-Out unless and until all other allowed hourly and monthly professional fees and disbursements have been paid in full in cash on a final basis, in all cases subject to the limitations set forth in the DIP Budget. No portion direction of the Carve-Out, no proceeds of the DIP Facility or DIP Extensions of Credit, and no proceeds of the Prepetition Collateral, including any Cash Collateral, or any other amounts, may be used for the payment of the fees and expenses of any person incurred (i) in challenging, or in relation to the challenge of, any of the requisite [Prepetition Secured Parties’ or Noteholders])], stating that the DIP Secured Parties’ liens or claims (or the value of their respective Prepetition Collateral or DIP Collateral), or the initiation or prosecution of any claim or action against any of the Prepetition Secured Parties or DIP Secured Parties, including any claim under Chapter 5 of the Bankruptcy Code, or any state law or foreign law, in respect of the Prepetition Secured Facility or the DIP Facility, or in preventing, hindering or delaying the realization by the Prepetition Secured Parties or the DIP Secured Parties upon any Prepetition Collateral or DIP Collateral, respectively, or the enforcement of their respective rights under the Prepetition Secured Credit Facility, the Prepetition Loan Documents, the DIP Facility, this Interim Order, the Final Order or any other DIP Loan Document, (ii) in requesting authorization, or supporting any request for authorization, to obtain postpetition financing (whether equity or debt) or other financial accommodations pursuant to Section 364(c) or (d) of the Bankruptcy Code, or otherwise, other than from the First Post-Carve Out DIP Lenders or (iii) in connection with any claims or causes of actions against the Releasees, including formal or informal discovery proceedings in anticipation thereof, and/or in challenging any Prepetition Obligations, DIP Obligations, Prepetition Lien, Adequate Protection Lien or DIP Lien. Notwithstanding the foregoing limitations, up to $50,000 in the aggregate of the Carve-Out, any Cash Collateral or any proceeds of the DIP Facility or DIP Collateral may be used by any Committee prior to the Challenge Period Termination Date to investigate the matters covered by the Claims StipulationsTrigger Notice Cap has been invoked.

Carve-Out. Subject Notwithstanding anything to the terms and conditions contained contrary in this paragraph 9[Final/Interim] Order, any DIP Documents (as defined in the Financing Orders), or any other order of the Court, all of the DIP Liens, the DIP Superpriority Claim, the Prepetition LiensClaims, the Adequate Protection Liens Liens, and the Adequate Protection Superpriority Claim, which have Claims (each as defined in the relative lien and payment priorities as set forth herein, shall, in any event, in all cases Financing Orders) shall be subject and subordinate only to a carvethe payment of the Carve-out (Out as and only to the extent set forth in this [Final/Interim] Order. As used in this [Final/Interim] Order, the “Carve-Carve Out”), which shall be comprised ” means the sum of the following: (i) all fees required to be paid to the Clerk of the Court and to the Office of the United States Trustee pursuant under section 1930(a) of title 28 of the United States Code plus interest at the statutory rate (without regard to 28 U.S.C. § 1930(athe notice set forth in (iii) below), ; (ii) subject in all cases reasonable fees and expenses up to $[50,000] incurred by a trustee under section 726(b) of the Bankruptcy Code (without regard to the limitations notice set forth in (iii) below); (iii) to the DIP Loan Documents extent allowed at any time, whether by interim order, procedural order, or otherwise, all unpaid fees and expenses, other than any restructuring, sale, success, or other transaction fee of any investment bankers or financial advisors of the Debtors or any committee(1) (the “Allowed Professional Fees”) incurred by persons or firms retained by the Debtors pursuant to Court approvalsection 327, 328, or 363 of the Bankruptcy Code (the “Debtor Professionals”) and any official committee appointed in the Chapter 11 Cases (each, a “Committee”) pursuant to section 328 or 1103 of the Bankruptcy Code (the “Committee Professionals” and, together with the Debtor Professionals, the sum “Professional Persons”) at any time before or on the first business day following delivery by the Post-Petition Agent of a Carve Out Trigger Notice (A) and (Bas defined below), where (A) is whether allowed by the aggregate amount of the Debtors’ professional fees and disbursements which have been incurred, accrued, or invoiced (but remain unpaid) Court prior to the date on which the DIP Agent provides written notice that an Event or after delivery of Default has occurred and has triggered the Carve-Out (a “Carve Out Trigger Notice”) for any professional retained by an order of the Court under Section 327 or 328 of the Bankruptcy Code, ; and (Biv) is the Allowed Professional Fees of Professional Persons in an aggregate amount of fees and disbursements of not to exceed $2,750,000 incurred after the Debtors’ retained professionals accrued after first business day following delivery by the Post-Petition Agent of the Carve Out Trigger Notice, up to $5,500,000, and (iii) subject in all cases to the limitations extent allowed at any time, whether by interim order, procedural order, or otherwise (the amounts set forth in this clause (iv) being the DIP Loan Documents and to Court approval, the sum of (C) and (D), where (C) is the aggregate amount, of any Committee’s, if one is so appointed, professional fees and disbursements which have been incurred, accrued or invoiced (but remain unpaid) prior to the receipt by the Committee of a “Post-Carve Out Trigger Notice for any professional retained by an order Cap”). For purposes of the Court under Section 1102 of the Bankruptcy Codeforegoing, and (D) is the aggregate amount of fees and disbursements of any Committee’s retained professionals accrued after delivery of the “Carve Out Trigger Notice, up to $25,000. For the avoidance of any doubt, no success fee, transaction fee, ” shall mean a written notice delivered by email (or bonus incurred other electronic means) by the Post-Petition Agent to the Debtors’ investment banker(s) or financial advisors, or their lead restructuring counsel, the U.S. Trustee, and counsel to any financial advisor retained by the Committee, shall which notice may be paid from delivered following the Carve-Out unless occurrence and until all other allowed hourly during the continuation of an Event of Default and monthly professional fees and disbursements have been paid in full in cash on a final basis, in all cases subject to the limitations set forth in the DIP Budget. No portion of the Carve-Out, no proceeds acceleration of the DIP Facility or DIP Extensions of Credit, and no proceeds of the Prepetition Collateral, including any Cash Collateral, or any other amounts, may be used for the payment of the fees and expenses of any person incurred (i) in challenging, or in relation to the challenge of, any of the Prepetition Secured Parties’ or the DIP Secured Parties’ liens or claims (or the value of their respective Prepetition Collateral or DIP Collateral), or the initiation or prosecution of any claim or action against any of the Prepetition Secured Parties or DIP Secured Parties, including any claim Obligations under Chapter 5 of the Bankruptcy Code, or any state law or foreign law, in respect of the Prepetition Secured Facility or the DIP Facility, or in preventing, hindering or delaying stating that the realization by the Prepetition Secured Parties or the DIP Secured Parties upon any Prepetition Collateral or DIP Collateral, respectively, or the enforcement of their respective rights under the Prepetition Secured Credit Facility, the Prepetition Loan Documents, the DIP Facility, this Interim Order, the Final Order or any other DIP Loan Document, (ii) in requesting authorization, or supporting any request for authorization, to obtain postpetition financing (whether equity or debt) or other financial accommodations pursuant to Section 364(c) or (d) of the Bankruptcy Code, or otherwise, other than from the First Post-Carve Out DIP Lenders or (iii) in connection with any claims or causes of actions against the Releasees, including formal or informal discovery proceedings in anticipation thereof, and/or in challenging any Prepetition Obligations, DIP Obligations, Prepetition Lien, Adequate Protection Lien or DIP Lien. Notwithstanding the foregoing limitations, up to $50,000 in the aggregate of the Carve-Out, any Cash Collateral or any proceeds of the DIP Facility or DIP Collateral may be used by any Committee prior to the Challenge Period Termination Date to investigate the matters covered by the Claims StipulationsTrigger Notice Cap has been invoked.

Carve-Out. Subject to the terms and conditions contained As used in this paragraph 9Interim Order, the DIP Liens, “Carve Out” means the DIP Superpriority Claim, the Prepetition Liens, the Adequate Protection Liens and the Adequate Protection Superpriority Claim, which have the relative lien and payment priorities as set forth herein, shall, in any event, in all cases be subject and subordinate to a carve-out (the “Carve-Out”), which shall be comprised sum of the following: (i) all fees required to be paid to the Clerk of the Court and to the Office of the United States Trustee under section 1930(a) of title 28 of the United States Code plus interest at the statutory rate pursuant to 28 31 U.S.C. § 1930(a3717 (without regard to the notice set forth in (iii) below), ; (ii) subject in all cases reasonable fees and expenses up to $75,000 incurred by a trustee under section 726(b) of the Bankruptcy Code (without regard to the limitations notice set forth in (iii) below); (iii) to the DIP Loan Documents extent allowed at any time, whether by interim order, procedural order, or otherwise, all unpaid fees and expenses (the “Allowed Professional Fees”) incurred by persons or firms retained by the Debtors pursuant to Court approvalsection 327, 328, or 363 of the sum of Bankruptcy Code (Athe “Debtor Professionals”) and the Creditors’ Committee (Bif appointed), where (A) is the aggregate amount of the Debtors’ professional fees and disbursements which have been incurred, accrued, pursuant to section 328 or invoiced (but remain unpaid) prior to the date on which the DIP Agent provides written notice that an Event of Default has occurred and has triggered the Carve-Out (a “Carve Out Trigger Notice”) for any professional retained by an order of the Court under Section 327 or 328 1103 of the Bankruptcy Code, (the “Committee Professionals” and, together with the Debtor Professionals, the “Professional Persons”) at any time before or on the first business day following delivery by the DIP Agent of a Carve Out Trigger Notice (as defined below), whether allowed by the Court prior to or after delivery of a Carve Out Trigger Notice; and (Biv) is the Allowed Professional Fees of Professional Persons in an aggregate amount of fees and disbursements of not to exceed $5,000,000 incurred after the Debtors’ retained professionals accrued after first business day following delivery by the DIP Agent of the Carve Out Trigger Notice, up to $5,500,000, and (iii) subject in all cases to the limitations extent allowed at any time, whether by interim order, procedural order, or otherwise (the amounts set forth in this clause (iv) being the DIP Loan Documents and to Court approval, the sum of (C) and (D), where (C) is the aggregate amount, of any Committee’s, if one is so appointed, professional fees and disbursements which have been incurred, accrued or invoiced (but remain unpaid) prior to the receipt by the Committee of a Carve “Post‑Carve Out Trigger Notice for any professional retained by an order Cap”). For purposes of the Court under Section 1102 of the Bankruptcy Codeforegoing, and (D) is the aggregate amount of fees and disbursements of any Committee’s retained professionals accrued after delivery of the “Carve Out Trigger Notice, up to $25,000. For the avoidance of any doubt, no success fee, transaction fee, ” shall mean a written notice delivered by email (or bonus incurred other electronic means) by the Debtors’ investment banker(s) or financial advisorsDIP Agent, or any financial advisor retained by at the Committeedirection of the Required DIP Lenders, shall be paid from the Carve-Out unless and until all other allowed hourly and monthly professional fees and disbursements have been paid in full in cash on a final basis, in all cases subject to the limitations set forth Debtors, their lead restructuring counsel, the First Lien Advisors, the U.S. Trustee, and counsel to the Creditors’ Committee (if appointed), which notice may be delivered following the occurrence and during the continuation of an Event of Default (as defined in the DIP Budget. No portion of the Carve-Out, no proceeds Credit Agreement) and acceleration of the DIP Facility or DIP Extensions of Credit, and no proceeds of the Prepetition Collateral, including any Cash Collateral, or any other amounts, may be used for the payment of the fees and expenses of any person incurred (i) in challenging, or in relation to the challenge of, any of the Prepetition Secured Parties’ or Obligations under the DIP Secured Parties’ liens or claims (or the value of their respective Prepetition Collateral or DIP Collateral), or the initiation or prosecution of any claim or action against any of the Prepetition Secured Parties or DIP Secured Parties, including any claim under Chapter 5 of the Bankruptcy Code, or any state law or foreign law, in respect of the Prepetition Secured Facility or the DIP Term Loan Facility, or in preventing, hindering or delaying stating that the realization by the Prepetition Secured Parties or the DIP Secured Parties upon any Prepetition Collateral or DIP Collateral, respectively, or the enforcement of their respective rights under the Prepetition Secured Credit Facility, the Prepetition Loan Documents, the DIP Facility, this Interim Order, the Final Order or any other DIP Loan Document, (ii) in requesting authorization, or supporting any request for authorization, to obtain postpetition financing (whether equity or debt) or other financial accommodations pursuant to Section 364(c) or (d) of the Bankruptcy Code, or otherwise, other than from the First Post‑Carve Out DIP Lenders or (iii) in connection with any claims or causes of actions against the Releasees, including formal or informal discovery proceedings in anticipation thereof, and/or in challenging any Prepetition Obligations, DIP Obligations, Prepetition Lien, Adequate Protection Lien or DIP Lien. Notwithstanding the foregoing limitations, up to $50,000 in the aggregate of the Carve-Out, any Cash Collateral or any proceeds of the DIP Facility or DIP Collateral may be used by any Committee prior to the Challenge Period Termination Date to investigate the matters covered by the Claims StipulationsTrigger Notice Cap has been invoked.