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 (a) Carve-Out. As used in this paragraph 9Interim Order, 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 ” 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 extent allowed at any time, whether by interim order, procedural order, or otherwise, all unpaid fees and expenses (the “Allowed Professional Fees”) incurred or accrued by persons or firms retained by the Debtors pursuant to section 327, 328, or 363 of the Bankruptcy Code (the “Debtor Professionals”) and any Committee pursuant to section 328 or 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 the day on which a Carve-Out Trigger Notice (as defined below) is given by the DIP Loan Documents and Agent to Court approvalthe Debtors with a copy to counsel to the Committee (the day on which a Carve-Out Trigger Notice is so given, the sum of (A) “Trigger Notice Date”); and (B), where (Aiv) is the Allowed Professional Fees of Professional Persons in an aggregate amount not to exceed $2,750,000 incurred after the first business day following the Trigger Notice Date, to the extent allowed at any time, whether by interim order, procedural order, or otherwise (the amount set forth in this clause (iv) being the “Carve-Out Cap”). Such Carve-Out Cap may be incurred on behalf of the Debtors’ professional Debtor Professionals in an amount not to exceed $2,500,000 and on behalf of any Committee Professionals in an amount not to exceed $250,000 (other than any such fees and disbursements which have been incurredincurred in connection with the initiation or prosecution of any claims, accruedcauses of action, adversary proceedings or other litigation against the agents or lenders under the Existing RBL Credit Facility, the Existing Second Lien Credit Facility, or invoiced (but remain unpaid) prior to the date on which DIP Facility). For purposes of the foregoing, “Carve-Out Trigger Notice” shall mean a written notice delivered by the DIP Agent provides written to the Debtors and their counsel, the Existing Second Lien Secured Parties and their counsel, the U.S. Trustee, and lead counsel to any Committee, which notice that may be delivered following the occurrence and during the continuation of an Event of Default has occurred and has triggered (as defined in the DIP Credit Agreement) expressly stating that 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) Cap 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 Budgetinvoked. No portion of the Carve-Out, no any cash collateral or proceeds of the DIP Facility may be used for or in connection with (i) preventing, hindering or delaying the DIP Agent’s or other DIP Secured Parties’ enforcement or realization upon the DIP Collateral once an Event of Default has occurred and is continuing, (ii) using or seeking to use Cash Collateral or selling or otherwise disposing of the DIP Collateral without the consent of the Required DIP Lenders (as defined in the DIP Credit Agreement), (iii) using or seeking to use any insurance proceeds related to the DIP Collateral without the consent of the DIP Agent or (iv) incurring indebtedness other than the DIP Facility or in accordance with the DIP Budget; provided, that, the Debtors shall be permitted to use the proceeds of the DIP Facility or Cash Collateral as necessary to contest an Event of Default alleged by the DIP Extensions of Credit, and no proceeds of the Prepetition Collateral, including any Cash Collateral, Agent or any other amountsDIP Lender; and provided, further that a Committee 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, incur up to $50,000 in the aggregate of in investigating the Carve-OutExisting RBL Credit Facility, any Cash Collateral or any proceeds of the DIP Existing RBL Liens, Existing Second Lien Credit Facility or DIP Collateral may be used by Existing Second Liens to the extent such Committee brings any Committee prior to Challenge before the Challenge Period Termination Date Date. For the avoidance of doubt, nothing contained herein shall be deemed a waiver of the any party’s right to investigate object to any fees of the matters covered by the Claims StipulationsProfessional Persons.

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 The Lender’s Liens on the Collateral, including any super priority administrative expense claims as specified in Section 2.8 of this Agreement, are subject to a carve out (the “Carve Out”) in an amount not to exceed (A) all accrued but unpaid Professional Expenses (whether then or subsequently allowed) provided in the Budget and incurred by the Debtor and the Committee, if one is appointed, prior to the terms date of delivery by the Lender to the Debtor and conditions contained in its counsel of record of a notice of termination of funding pursuant to Section 7.2 of this paragraph 9Agreement (the “Pre-Carve Out Notice Amount”); provided, however, such Pre-Carve Out Notice Amount shall not exceed 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 amounts set forth hereinin the Budget for such items through the date of such notice, shallplus (B) an amount equal to $30,000 for the payment of Professional Expenses arising after date of delivery by the Lender to the Debtor and its counsel of record of a notice of cessation of funding (the “Post-Carve Out Notice Amount”), in any eventplus (C) fees incurred pursuant to 28 U.S.C. § 1930 and fees payable to the clerk of the Bankruptcy Court, in all cases be subject and subordinate to the extent such fees were incurred prior to delivery by the Lender to the Debtor of a carve-out notice of an Event of Default. The Debtor shall fund on a monthly basis an account (the “Carve-OutOut Account”)) out of receivables collected by the Debtor and, which if such amount is insufficient, from its Operating Account and, if such account is insufficient, from its Collateral Account, at the times and not to exceed the amounts set forth in the Budget, to satisfy accrued but unpaid Professional Expenses included within the Pre-Carve Out Notice Amount. Following the occurrence of an Event of Default that is not waived or otherwise cured, the Post-Carve Out Notice Amount shall be comprised deposited into the Carve-Out Account from receivables collected by the Debtor and, if such amount is insufficient, from its Operating Account and, if such account is insufficient, from its Collateral Account. Amounts on deposit in the Carve-Out Account shall be used to satisfy Professional Expenses that are allowed or authorized to be paid as provided herein and by the Bankruptcy Court. Amounts remaining in the Carve-Out Account after satisfaction of eligible Professional Expenses approved and allowed by the following: (i) all fees required to Bankruptcy Court shall 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 BudgetLender. No portion of the Carve-OutLoan, 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 the Carve Out shall be used for or be available to pay any fees, disbursements, costs or expenses incurred by any party in connection with the payment of the fees and expenses of any person incurred investigation (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 Collateralincluding discovery proceedings), or the initiation or prosecution of any claim other claims, causes of action, adversary proceedings or action other litigation against any of the Prepetition Secured Parties or DIP Secured Parties, including any claim under Chapter 5 of the Bankruptcy Code, Sponsor Creditors or any state law of their affiliates; provided, however, that any Committee may use up to $10,000 of Loan proceeds funded to the Debtor to investigate, but not commence, any claims, causes of action, adversary proceedings or foreign law, in respect other litigation relating to the Prepetition Lenders’ claims or the avoidance of any security interest or liens of the Prepetition Secured Facility or Lenders in 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) assets 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 StipulationsDebtor.