Common use of Carve-Out Clause in Contracts

Carve-Out. The Lender’s liens on the Collateral, including any super priority administrative expense claims as specified in A.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 date of delivery by the Lender to the Debtor and its counsel of record of a notice of termination of funding pursuant to A.7.2 of this Agreement (the “Pre-Carve Out Notice Amount”); provided, however, such Pre-Carve Out Notice Amount shall not exceed the amounts set forth in the Budget for such items through the date of such notice, plus (B) $50,000 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”), plus (C) fees incurred pursuant to 28 U.S.C. § 1930 and fees payable to the clerk of the Court, to the extent such fees were incurred prior to delivery by the Lender to the Debtor of a notice of an Event of Default. The Debtor shall fund on a monthly basis an account (the “Carve-Out Account”) out of its operating account and, if such account is insufficient, from receivables collected by the Debtor, 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 deposited into the Carve-Out Account from amounts on deposit in the operating account and, if such account is insufficient, from receivables collected by the Debtor. 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 Bankruptcy Court shall be paid to the Lender. No portion of the Loan, the Collateral, or the Carve Out shall be used or be available to pay any fees, disbursements, costs or expenses incurred by any party in connection with the investigation (including discovery proceedings), initiation or prosecution of any other claims, causes of action, adversary proceedings or other litigation against the Lender or any of its affiliates, including without limitation the Virginia Baptist Homes, Inc., Culpeper Baptist Retirement Community, Inc., Lakewood Manor Baptist Retirement Community, Inc. and Newport News Baptist Retirement Community, Inc.; provided, however, that the Committee may use up to $10,000 of Loan proceeds to investigate, but not commence, any claims, causes of action, adversary proceedings or other litigation relating to the Prepetition Lenders’ claims or the avoidance of any security interest or liens of the Prepetition Lenders in the assets of the Debtor.

Carve-Out. (a) The Lender’s Pre-Petition Liens, the Post-Petition Liens and the Superpriority Claims shall be subject to the Carve-Out (as defined in the DIP Loan Agreement). In connection with (i) any sale, transfer or other disposition of all or any portion of the Pre-Petition Collateral or the Post-Petition Collateral or (ii) any plan of reorganization or liquidation to which the Lenders consent, any amount determined to be due and owing in respect of the Carve-Out (which, for purposes of this provision, shall include any Transaction Fee to the extent not paid from the proceeds of such sale, transfer or other disposition) shall be satisfied pursuant to Section 2.13(j) of the DIP Loan Agreement or otherwise. (b) No liens or priority status, other than the Carve-Out, having a lien or administrative priority superior to or pari passu with those granted by this Interim Order to the Lenders, shall be granted without the written consent of the Lenders while any portion of the DIP Obligations remains outstanding. (c) With respect to professional expenses incurred by the Debtors or the Committees, the Carve-Out also shall include any payments authorized to be made pursuant to any Bankruptcy Court-approved procedure for monthly or other payment of compensation or reimbursement of expenses, subject to the Budget; provided, however, that nothing contained herein shall be construed: (i) to exempt those persons hereafter receiving interim compensation payments or reimbursement of expenses pursuant to any such Bankruptcy Court-approved procedure from the applicable provisions of bankruptcy law, including the requirements that such compensation or reimbursement be allowed on a final basis after the filing of appropriate fee applications, and, if applicable, any subsequent order of this Court requiring that such payments be disgorged, and/or (ii) as consent to the allowance of any fees and expenses referred to above, and shall not affect any right of the Lenders to object to the reasonableness of such amounts; (d) The Carve-Out shall not include, and neither Cash Collateral nor proceeds of any of the DIP Loans shall be used to request (i) the use of Cash Collateral or authority to sell or otherwise dispose of the Collateral without the Lenders’ prior written consent, and (ii) authorization to obtain postpetition loans or other financial accommodations pursuant to section 364(c) or (d) of the Bankruptcy Code, or otherwise, other than in accordance with the Budget or as expressly permitted in the DIP Loan Agreement, or use Cash Collateral pursuant to section 363(c) of the Bankruptcy Code without the consent of the Agents and Lenders unless such loans or financial accommodations shall be used to indefeasibly pay in full in cash all DIP Obligations; (e) Except as set forth in the DIP Loan Agreement, the Carve-Out shall not include, and neither Cash Collateral nor proceeds of any of the DIP Loans shall be used for, the payment or reimbursement of any fees or disbursements of the Debtors, any Committees or any trustee appointed in these Chapter 11 Cases incurred in connection with the assertion and prosecution of, or joinder in, any claim, counterclaim, action, proceeding, application, motion, objection, defenses or other contested matter, including, but not limited to, any so-called lender liability claims, the purpose of which is to seek any order, judgment, determination or similar relief: (i) commencing or prosecuting any action asserting claims pursuant to sections 506(b), 542, 544, 545, 547, 548, 549, 550, 551, 552(b), 553(b) or 724(a) of the Bankruptcy Code or other cause of action (whether arising under state law, the Bankruptcy Code or other federal law, under any foreign law) against the Lenders, Agents, Pre-Petition Lenders, and Pre-Petition Agents with respect to the validity and extent of the DIP Obligations or the Pre-Petition Obligations or the validity, extent and priority of liens and security interests securing the DIP Obligations or the Pre-Petition Obligations; (ii) invalidating, setting aside, avoiding or subordinating, in whole or in part, the Lenders’, Agents’, Pre-Petition Lenders’, or Pre-Petition Agents’, liens on and security interests in the Post-Petition Collateral or Pre-Petition Collateral; (iii) preventing, including any super priority administrative expense hindering or delaying (whether, directly or indirectly) the Lenders, Agents, Pre-Petition Lenders, or Pre-Petition Agents in respect of their liens and security interests in the Post-Petition Collateral or Pre-Petition Collateral; and (f) Notwithstanding anything to the contrary contained in subparagraphs 15(c-e) above, the Carve-Out shall include claims as specified in A.2.8 of this Agreementfor services rendered by professionals retained by (i) the Committees, 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 $100,000 in the Budget and incurred by aggregate, in connection with the Debtor and the Committeeinvestigation described in paragraph 16 below, if one is appointed, prior to the date of delivery by the Lender to the Debtor and its counsel of record of a notice of termination of funding pursuant to A.7.2 of this Agreement (the “Pre-Carve Out Notice Amount”); provided, however, such Pre-Carve Out Notice Amount shall not exceed the amounts set forth in the Budget for such items through the date of such notice, plus (B) $50,000 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”), plus (C) fees incurred pursuant to 28 U.S.C. § 1930 and fees payable to the clerk of the Court, but solely to the extent such fees were incurred prior to delivery by and expenses are allowed under sections 330, 331 and 503(b) of the Lender to Bankruptcy Code; (ii) the Debtor of a notice of Monitor, in an Event of Default. The Debtor shall fund on a monthly basis an account (the “Carve-Out Account”) out of its operating account and, if such account is insufficient, from receivables collected by the Debtor, at the times and amount not to exceed CDN$100,000, related to the amounts set forth investigation of any claims against (x) the Agents or any Lender or their claims or security interests in or Liens on, the Budget, to satisfy accrued but unpaid Professional Expenses included within Collateral whether under the DIP Loan Agreement or any other DIP Loan Document and (y) any Pre-Petition Agent or any Pre-Petition Lender under the Pre-Carve Out Notice Amount. Following the occurrence of an Event of Default that is not waived Petition Credit Agreement or otherwise cured, the Post-Carve Out Notice Amount shall be deposited into the Carve-Out Account from amounts on deposit in the operating account and, if such account is insufficient, from receivables collected by the Debtor. Amounts on deposit in the Carve-Out Account shall be used to satisfy Professional Expenses that are allowed their claims 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 Bankruptcy Court shall be paid to the Lender. No portion of the Loan, the Collateral, or the Carve Out shall be used or be available to pay any fees, disbursements, costs or expenses incurred by any party security interests in connection with the investigation (including discovery proceedings), initiation or prosecution of any other claims, causes of action, adversary proceedings or other litigation against the Lender Pre-Petition Credit Agreement or any of its affiliates, including without limitation the Virginia Baptist Homes, Inc., Culpeper Baptist Retirement Community, Inc., Lakewood Manor Baptist Retirement Community, Inc. and Newport News Baptist Retirement Community, Inc.; provided, however, that the Committee may use up to $10,000 of Loan proceeds to investigate, but not commence, any claims, causes of action, adversary proceedings other loan documents or other litigation relating to the Prepetition Lenders’ claims or the avoidance of any security interest or liens of the Prepetition Lenders instruments entered into in the assets of the Debtorconnection therewith.

Carve-Out. The Lender’s liens Carve-Out shall be reflected in (but not limited by) the Budget. (a) On the day on the Collateral, including any super priority administrative expense claims as specified in A.2.8 of this Agreement, are subject to which 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 Carve-Out Trigger Notice is appointed, prior given to the date of delivery by Borrowers, the Lender to the Debtor and its counsel of record of Borrowers shall fund a notice of termination of funding pursuant to A.7.2 of this Agreement (the “Pre-Carve Out Notice Amount”); provided, however, such Pre-Carve Out Notice Amount shall not exceed the amounts set forth in the Budget for such items through the date of such notice, plus (B) $50,000 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 segregated account (the “Post-Carve Out Notice Amount”), plus (C) fees incurred pursuant to 28 U.S.C. § 1930 and fees payable to the clerk of the Court, to the extent such fees were incurred prior to delivery by the Lender to the Debtor of a notice of an Event of Default. The Debtor shall fund on a monthly basis an account (the “Default Carve-Out Account”) out in an aggregate amount equal to $2,250,000 plus the actual amount of its operating account and, if such account is insufficient, from receivables collected incurred and unpaid fees and expenses of Professionals incurred by the Debtor, at the times Debtors and not to exceed the amounts set forth any official committee appointed in the Budget, Cases prior to satisfy accrued but unpaid Professional Expenses included within the Pre-Carve Out Notice Amount. Following date of the occurrence delivery of an Event of Default that is not waived or otherwise cured, the Post-Carve Out Notice Amount shall be deposited into the Carve-Out Account from amounts on deposit Trigger Notice, whether or not in excess of the operating account and, if budgeted amount for such account is insufficient, from receivables collected by fees and expenses of Professionals through such date (the Debtor. “Post-Default Carve-Out”). (b) Amounts on deposit in the Post-Default Carve-Out Account shall be used solely to satisfy Professional Expenses that are allowed or authorized to be paid as provided herein the fees and expenses of Professionals incurred by the Bankruptcy Court. Amounts remaining Debtors and any official committee appointed in the Cases arising under the Post-Default Carve-Out and the balance in the Post-Default Carve-Out Account shall not be available to pay the principal amount of the Loans and the amount of Letter of Credit Reimbursement Obligations representing amounts drawn under Letters of Credit or to pay any pre- petition or other post-petition obligations until such time as the fees and expenses of Professionals incurred by the Debtors and any official committee appointed in the Cases arising under the Carve-Out Account after satisfaction of eligible Professional Expenses approved and allowed the Post-Default Carve-Out shall have been paid in full, notwithstanding any purported or asserted Lien, claim or right to such balance. (c) Nothing herein shall constitute a waiver by the Bankruptcy Court shall be paid Prepetition Agent, the Prepetition Lenders, the Administrative Agent or the Lenders of their rights to object to the Lender. No portion fees and expenses of any Professional retained by the LoanDebtors or an official committee appointed in the Cases, all such rights being specifically reserved. (d) Notwithstanding the foregoing, the CollateralDIP Facility, or all cash, cash collateral and Available Cash, the Carve Carve-Out and the Post-Default Carve-Out (including any proceeds on deposit in the Post-Default Carve-Out Account) shall be used or not be available to pay for any fees, disbursements, costs fees or expenses incurred by any party party, including any Debtor or any official committee appointed in the Cases, or its or their Professionals, in connection with the investigation (including discovery proceedings), initiation or prosecution of any other claims, causes of action, adversary proceedings or other litigation against the Lender or any of its affiliates, including without limitation the Virginia Baptist Homes, Inc., Culpeper Baptist Retirement Community, Inc., Lakewood Manor Baptist Retirement Community, Inc. and Newport News Baptist Retirement Community, Inc.; provided, however, that the Committee may use up to $10,000 of Loan proceeds to investigate, but not commence, any claims, causes of action, adversary proceedings or proceedings, contested matter, objection, other litigation relating to or discovery against any of the Prepetition Agent, the Prepetition Lenders’ , the Administrative Agent, the Lenders, or their advisors, agents or subagents, including, without limitation, challenging the amount, validity, perfection, priority or enforceability of, or asserting any defense, counterclaim or offset to, the Obligations and the Liens and claims or the avoidance of any security interest or liens granted hereunder in favor of the Prepetition Lenders in Agent, the assets of Prepetition Lenders, the DebtorAdministrative Agent and the Lenders.

Carve-Out. The Lender’s liens Carve-Out shall be reflected in (but not limited by) the Budget. (a) On the day on the Collateral, including any super priority administrative expense claims as specified in A.2.8 of this Agreement, are subject to which 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 Carve-Out Trigger Notice is appointed, prior given to the date of delivery by Borrowers, the Lender to the Debtor and its counsel of record of Borrowers shall fund a notice of termination of funding pursuant to A.7.2 of this Agreement (the “Pre-Carve Out Notice Amount”); provided, however, such Pre-Carve Out Notice Amount shall not exceed the amounts set forth in the Budget for such items through the date of such notice, plus (B) $50,000 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 segregated account (the “Post-Carve Out Notice Amount”), plus (C) fees incurred pursuant to 28 U.S.C. § 1930 and fees payable to the clerk of the Court, to the extent such fees were incurred prior to delivery by the Lender to the Debtor of a notice of an Event of Default. The Debtor shall fund on a monthly basis an account (the “Default Carve-Out Account”) out in an aggregate amount equal to $2,250,000 plus the actual amount of its operating account and, if such account is insufficient, from receivables collected incurred and unpaid fees and expenses of Professionals incurred by the Debtor, at the times Debtors and not to exceed the amounts set forth any official committee appointed in the Budget, Cases prior to satisfy accrued but unpaid Professional Expenses included within the Pre-Carve Out Notice Amount. Following date of the occurrence delivery of an Event of Default that is not waived or otherwise cured, the Post-Carve Out Notice Amount shall be deposited into the Carve-Out Account from amounts on deposit Trigger Notice, whether or not in excess of the operating account and, if budgeted amount for such account is insufficient, from receivables collected by fees and expenses of Professionals through such date (the Debtor. “Post-Default Carve-Out”). (b) Amounts on deposit in the Post-Default Carve-Out Account shall be used solely to satisfy Professional Expenses that are allowed or authorized to be paid as provided herein the fees and expenses of Professionals incurred by the Bankruptcy Court. Amounts remaining Debtors and any official committee appointed in the Cases arising under the Post-Default Carve-Out and the balance in the Post-Default Carve-Out Account shall not be available to pay the principal amount of the Loans or to pay any prepetition or other post-petition obligations until such time as the fees and expenses of Professionals incurred by the Debtors and any official committee appointed in the Cases arising under the Carve-Out Account after satisfaction of eligible Professional Expenses approved and allowed the Post-Default Carve-Out shall have been paid in full, notwithstanding any purported or asserted Lien, claim or right to such balance. (c) Nothing herein shall constitute a waiver by the Bankruptcy Court shall be paid Prepetition Agent, the Prepetition Lenders, the Administrative Agent or the Lenders of their rights to object to the Lender. No portion fees and expenses of any Professional retained by the LoanDebtors or an official committee appointed in the Cases, all such rights being specifically reserved. (d) Notwithstanding the foregoing, the CollateralDIP Facility, or all cash, cash collateral and Available Cash, the Carve Carve-Out and the Post-Default Carve-Out (including any proceeds on deposit in the Post-Default Carve-Out Account) shall be used or not be available to pay for any fees, disbursements, costs fees or expenses incurred by any party party, including any Debtor or any official committee appointed in the Cases, or its or their Professionals, in connection with the investigation (including discovery proceedings), initiation or prosecution of any other claims, causes of action, adversary proceedings or other litigation against the Lender or any of its affiliates, including without limitation the Virginia Baptist Homes, Inc., Culpeper Baptist Retirement Community, Inc., Lakewood Manor Baptist Retirement Community, Inc. and Newport News Baptist Retirement Community, Inc.; provided, however, that the Committee may use up to $10,000 of Loan proceeds to investigate, but not commence, any claims, causes of action, adversary proceedings or proceedings, contested matter, objection, other litigation relating to or discovery against any of the Prepetition Agent, the Prepetition Lenders’ , the Administrative Agent, the Lenders, or their advisors, agents or subagents, including, without limitation, challenging the amount, validity, perfection, priority or enforceability of, or asserting any defense, counterclaim or offset to, the Obligations and the Liens and claims or the avoidance of any security interest or liens granted hereunder in favor of the Prepetition Lenders in Agent, the assets of Prepetition Lenders, the DebtorAdministrative Agent and the Lenders.

Carve-Out. The Lender’s liens on 1. Sellers' Carve Out Covenant To the Collateral, including any super priority administrative expense claims as specified in A.2.8 of this Agreement, are subject to a carve out (the “Carve Out”) in an amount extent 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, implemented prior to the date hereof, Sellers shall procure the implementation of delivery the steps described in Part 2 of Schedule 13 to establish the perimeter of the Target Companies and JVCos ("Carve Out Steps" and the transactions contemplated by the Lender Carve Out Steps and the Carve Out Agreements together the "Carve Out") with an aim of implementing the Carve Out Steps prior to the Debtor Financial Closing Date. The legal transfer of the ownership interests in Cliffside Helium, LLC and Cliffside Refiners, L.P. as foreseen under step 9 in Part 2 of Schedule 13 shall only occur if the Consent and Waiver Declarations have previously been obtained. The Carve Out Steps shall be implemented substantially in accordance with the Carve Out Agreements. If, on the Closing Date, certain of the Carve Out Steps have not yet been implemented Sellers shall remain obliged to procure the implementation of the Carve Out Steps. Purchaser shall, and shall procure that Purchaser Group and Sister Company and its counsel of record of a notice of termination of funding respective Subsidiaries shall after Closing, provide such assistance as Sellers may reasonably request in order to comply with their obligations pursuant to A.7.2 the preceding sentence and shall after Closing procure compliance of this Agreement (the “Pre-Target Companies with their obligations under the Transaction Documents and the Carve Out Notice Amount”); provided, however, such Pre-Agreements. The Sellers shall procure that any amendments to the Carve Out Notice Amount Agreements, or waivers of any rights under the Carve Out Agreements shall not exceed only be made upon prior written consent of the amounts set forth in Purchaser. For the Budget for such items through the date avoidance of such noticedoubt, plus (B) $50,000 for the payment of Professional Expenses arising after date of delivery any payments to be made by the Lender Target Companies pursuant to the Debtor and its counsel of record of a notice of cessation of funding (the “Post-Carve Out Notice Amount”), plus (C) fees incurred pursuant to 28 U.S.C. § 1930 and fees payable to the clerk of the Court, to the extent such fees were incurred prior to delivery by the Lender to the Debtor of a notice of an Event of Default. The Debtor shall fund on a monthly basis an account (the “Carve-Out Account”) out of its operating account and, if such account is insufficient, from receivables collected by the Debtor, 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 deposited into the Carve-Out Account from amounts on deposit in the operating account and, if such account is insufficient, from receivables collected by the Debtor. 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 Bankruptcy Court shall be paid to the Lender. No portion of the Loan, the Collateral, Steps or the Carve Out shall Agreements, but still outstanding at Closing, and any payments to be used received by the Target Companies pursuant to the Carve Out Steps or the Carve Out Agreements, but still outstanding at Closing, in particular the 'Exchanged Assets Closing Payment Amount' as defined in the Master Carve Out and Asset Exchange Agreement, will be available reflected in the Closing Statements. 2. Acknowledgment Linde Multiemployer Plan Purchaser hereby acknowledges and accepts, subject to pay any feesthe occurrence of and with effect from the Closing Date, disbursements, costs or expenses incurred by any party the obligations of Linde LLC under section 7.1 of the U.S. Employee Carve-out Matters Agreement entered into in connection with the investigation (including discovery proceedings)Carve Out, initiation or prosecution of any other claims, causes of action, adversary proceedings or other litigation against the Lender or any of its affiliates, including without limitation the Virginia Baptist Homes, Inc., Culpeper Baptist Retirement Community, Inc., Lakewood Manor Baptist Retirement Communitybetween Linde North America, Inc. and Newport News Baptist Retirement CommunityLinde Gas North America, Inc.; providedLLC (the "EMA"), however, that the Committee may use up and shall cause Linde LLC to $10,000 of Loan proceeds to investigate, but not commence, any claims, causes of action, adversary proceedings or other litigation relating to the Prepetition Lenders’ claims or the avoidance of any security interest or liens fully and timely perform such obligations under section 7.1 of the Prepetition Lenders in the assets of the DebtorEMA.