Common use of Carve-Out Clause in Contracts

Carve-Out. (a) The 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, 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 for services rendered by professionals retained by (i) the Committees, in an amount not to exceed $100,000 in the aggregate, in connection with the investigation described in paragraph 16 below, but solely to the extent such fees and expenses are allowed under sections 330, 331 and 503(b) of the Bankruptcy Code; (ii) the Monitor, in an amount not to exceed CDN$100,000, related to the investigation of any claims against (x) the Agents or any Lender or their claims or security interests in or Liens on, the 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-Petition Credit Agreement or their claims or security interests in connection with the Pre-Petition Credit Agreement or any of the other loan documents or instruments entered into in connection therewith.

Carve-Out. 1. Sellers' Carve Out Covenant To the extent not implemented prior to the date hereof, Sellers shall procure the implementation of the steps described in Part 2 of Schedule 13 to establish the perimeter of the Target Companies and JVCos (a) The Pre-Petition Liens, the Post-Petition Liens "Carve Out Steps" and the Superpriority Claims transactions contemplated by the Carve Out Steps and the Carve Out Agreements together the "Carve Out") with an aim of implementing the Carve Out Steps prior to the 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 subject 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 respective Subsidiaries shall after Closing, provide such assistance as Sellers may reasonably request in order to comply with their obligations pursuant to the Carve-preceding sentence and shall after Closing procure compliance of the Target Companies with their obligations under the Transaction Documents and the Carve Out (Agreements. The Sellers shall procure that any amendments to the Carve Out Agreements, or waivers of any rights under the Carve Out Agreements shall only be made upon prior written consent of the Purchaser. For the avoidance of doubt, any payments to be made by the Target Companies pursuant to the Carve Out Steps or the Carve Out Agreements, but still outstanding at Closing, and any payments to be 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 DIP Loan Master Carve Out and Asset Exchange Agreement). In connection with (i) any sale, transfer or other disposition of all or any portion of will be reflected in 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 otherwiseClosing Statements. (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 expenses2. Acknowledgment Linde Multiemployer Plan Purchaser hereby acknowledges and accepts, 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 occurrence of expenses pursuant to any such Bankruptcy Court-approved procedure and with effect from the applicable provisions Closing Date, the obligations 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 Linde LLC under section 7.1 of the Lenders to object to the reasonableness of such amounts; (d) The U.S. Employee 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 out Matters Agreement entered into in connection with the assertion Carve Out, between Linde North America, Inc. and prosecution ofLinde Gas North America, 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, LLC (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"EMA"), 542, 544, 545, 547, 548, 549, 550, 551, 552(b), 553(b) or 724(a) and shall cause Linde LLC to fully and timely perform such obligations under section 7.1 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, 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 for services rendered by professionals retained by (i) the Committees, in an amount not to exceed $100,000 in the aggregate, in connection with the investigation described in paragraph 16 below, but solely to the extent such fees and expenses are allowed under sections 330, 331 and 503(b) of the Bankruptcy Code; (ii) the Monitor, in an amount not to exceed CDN$100,000, related to the investigation of any claims against (x) the Agents or any Lender or their claims or security interests in or Liens on, the 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-Petition Credit Agreement or their claims or security interests in connection with the Pre-Petition Credit Agreement or any of the other loan documents or instruments entered into in connection therewithEMA.

Carve-Out. The Carve-Out shall be reflected in (but not limited by) the Budget. (a) The Pre-Petition Liens, On the Post-Petition Liens and the Superpriority Claims shall be subject to the day on which a Carve-Out Trigger Notice is given to the Borrowers, the Borrowers shall fund a segregated account (as defined the “Post-Default Carve-Out Account”) in an aggregate amount equal to $2,250,000 plus the actual amount of incurred and unpaid fees and expenses of Professionals incurred by the Debtors and any official committee appointed in the DIP Loan Agreement). In connection with (i) any sale, transfer or other disposition of all or any portion Cases prior to the date 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 delivery of the Carve-Out (whichTrigger Notice, for purposes of this provision, shall include any Transaction Fee to the extent whether or not paid from the proceeds of such sale, transfer or other disposition) shall be satisfied pursuant to Section 2.13(j) in excess of the DIP Loan Agreement or otherwisebudgeted amount for such fees and expenses of Professionals through such date (the “Post-Default Carve-Out”). (b) No liens Amounts on deposit in the Post-Default Carve-Out Account shall be used solely to satisfy the fees and expenses of Professionals incurred by the 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 priority status, to pay any pre- petition or other than 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-OutOut and the Post-Default Carve-Out shall have been paid in full, having a lien notwithstanding any purported or administrative priority superior asserted Lien, claim or right 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 outstandingsuch balance. (c) With respect Nothing herein shall constitute a waiver by the Prepetition Agent, the Prepetition Lenders, the Administrative Agent or the Lenders of their rights to professional object to the fees and expenses incurred of any Professional retained by the Debtors or an official committee appointed in the CommitteesCases, all such rights being specifically reserved. (d) Notwithstanding the foregoing, the DIP Facility, all cash, cash collateral and Available Cash, the Carve-Out also shall include any payments authorized to be made pursuant to any Bankruptcy Courtand the Post-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 Default Carve-Out shall not include, and neither Cash Collateral nor (including any 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 deposit in the Post-Petition Collateral or Pre-Petition Collateral; (iii) preventing, 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 Default Carve-Out Account) shall include claims not be available for services rendered any fees or expenses incurred by professionals retained by (i) the Committeesany party, in an amount not to exceed $100,000 including any Debtor or any official committee appointed in the aggregateCases, or its or their Professionals, in connection with the investigation described in paragraph 16 below, but solely to the extent such fees and expenses are allowed under sections 330, 331 and 503(b) of the Bankruptcy Code; (ii) the Monitor, in an amount not to exceed CDN$100,000, related to the investigation initiation or prosecution of any claims claims, causes of action, adversary proceedings, contested matter, objection, other litigation or discovery against (x) the Agents or any Lender or their claims or security interests in or Liens on, the 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-Petition Credit Agreement or their claims or security interests in connection with the Pre-Petition Credit Agreement or any of the other loan documents Prepetition Agent, the Prepetition Lenders, the Administrative Agent, the Lenders, or instruments entered into 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 granted hereunder in connection therewithfavor of the Prepetition Agent, the Prepetition Lenders, the Administrative Agent and the Lenders.

Carve-Out. The Carve-Out shall be reflected in (but not limited by) the Budget. (a) The Pre-Petition Liens, On the Post-Petition Liens and the Superpriority Claims shall be subject to the day on which a Carve-Out Trigger Notice is given to the Borrowers, the Borrowers shall fund a segregated account (as defined the “Post-Default Carve-Out Account”) in an aggregate amount equal to $2,250,000 plus the actual amount of incurred and unpaid fees and expenses of Professionals incurred by the Debtors and any official committee appointed in the DIP Loan Agreement). In connection with (i) any sale, transfer or other disposition of all or any portion Cases prior to the date 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 delivery of the Carve-Out (whichTrigger Notice, for purposes of this provision, shall include any Transaction Fee to the extent whether or not paid from the proceeds of such sale, transfer or other disposition) shall be satisfied pursuant to Section 2.13(j) in excess of the DIP Loan Agreement or otherwisebudgeted amount for such fees and expenses of Professionals through such date (the “Post-Default Carve-Out”). (b) No liens Amounts on deposit in the Post-Default Carve-Out Account shall be used solely to satisfy the fees and expenses of Professionals incurred by the 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 priority status, to pay any prepetition or other than 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-OutOut and the Post-Default Carve-Out shall have been paid in full, having a lien notwithstanding any purported or administrative priority superior asserted Lien, claim or right 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 outstandingsuch balance. (c) With respect Nothing herein shall constitute a waiver by the Prepetition Agent, the Prepetition Lenders, the Administrative Agent or the Lenders of their rights to professional object to the fees and expenses incurred of any Professional retained by the Debtors or an official committee appointed in the CommitteesCases, all such rights being specifically reserved. (d) Notwithstanding the foregoing, the DIP Facility, all cash, cash collateral and Available Cash, the Carve-Out also shall include any payments authorized to be made pursuant to any Bankruptcy Courtand the Post-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 Default Carve-Out shall not include, and neither Cash Collateral nor (including any 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 deposit in the Post-Petition Collateral or Pre-Petition Collateral; (iii) preventing, 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 Default Carve-Out Account) shall include claims not be available for services rendered any fees or expenses incurred by professionals retained by (i) the Committeesany party, in an amount not to exceed $100,000 including any Debtor or any official committee appointed in the aggregateCases, or its or their Professionals, in connection with the investigation described in paragraph 16 below, but solely to the extent such fees and expenses are allowed under sections 330, 331 and 503(b) of the Bankruptcy Code; (ii) the Monitor, in an amount not to exceed CDN$100,000, related to the investigation initiation or prosecution of any claims claims, causes of action, adversary proceedings, contested matter, objection, other litigation or discovery against (x) the Agents or any Lender or their claims or security interests in or Liens on, the 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-Petition Credit Agreement or their claims or security interests in connection with the Pre-Petition Credit Agreement or any of the other loan documents Prepetition Agent, the Prepetition Lenders, the Administrative Agent, the Lenders, or instruments entered into 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 granted hereunder in connection therewithfavor of the Prepetition Agent, the Prepetition Lenders, the Administrative Agent and the Lenders.

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 (athe “Carve Out”) The 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-Petition LiensCarve 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-Petition Liens and the Superpriority Claims Carve Out Notice Amount shall be subject to deposited into the Carve-Out (as defined Account from amounts on deposit in the DIP Loan Agreement)operating account and, if such account is insufficient, from receivables collected by the Debtor. 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 Amounts on deposit 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) Account shall be satisfied pursuant used to Section 2.13(j) of the DIP Loan Agreement satisfy Professional Expenses that are allowed or otherwise. (b) No liens or priority status, other than the Carve-Out, having a lien or administrative priority superior authorized 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 paid as provided herein and by the Debtors or the Committees, Bankruptcy Court. Amounts remaining in the Carve-Out also Account after satisfaction of eligible Professional Expenses approved and allowed by the Bankruptcy Court shall include 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 payments authorized to be made pursuant to fees, disbursements, costs or expenses incurred by any Bankruptcy Court-approved procedure for monthly party in connection with the investigation (including discovery proceedings), initiation or prosecution of any other claims, causes of action, adversary proceedings or other payment litigation against the Lender or any of compensation or reimbursement of expensesits affiliates, subject to including without limitation the BudgetVirginia Baptist Homes, Inc., Culpeper Baptist Retirement Community, Inc., Lakewood Manor Baptist Retirement Community, Inc. and Newport News Baptist Retirement Community, Inc.; provided, however, that nothing contained herein shall be construed: (i) the Committee may use up to exempt those persons hereafter receiving interim compensation payments or reimbursement $10,000 of expenses pursuant Loan proceeds 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, includinginvestigate, but not limited tocommence, any so-called lender liability claims, causes of action, adversary proceedings or other litigation relating to the purpose Prepetition Lenders’ claims or the avoidance of which is to seek any order, judgment, determination security interest 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) liens of the Bankruptcy Code or other cause of action (whether arising under state law, Prepetition Lenders in 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 assets 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, 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 for services rendered by professionals retained by (i) the Committees, in an amount not to exceed $100,000 in the aggregate, in connection with the investigation described in paragraph 16 below, but solely to the extent such fees and expenses are allowed under sections 330, 331 and 503(b) of the Bankruptcy Code; (ii) the Monitor, in an amount not to exceed CDN$100,000, related to the investigation of any claims against (x) the Agents or any Lender or their claims or security interests in or Liens on, the 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-Petition Credit Agreement or their claims or security interests in connection with the Pre-Petition Credit Agreement or any of the other loan documents or instruments entered into in connection therewithDebtor.