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<br />Termination Declaration Date as defined below, the Debtors shall and are authorized to pay (a)
<br />compensation and reimbursement of expenses of the estate professionals, subject to the
<br />Approved Cash Flow Forecast only for purposes of payment but not for earning or accrual, to the
<br />extent allowed under Bankruptcy Code §§ 330 and 331 and payable pursuant to an order of this
<br />Court, as the same may be payable; and (b) the amount of money identified in the Approved
<br />Cash Flow Forecast for estate professionals' fees (excluding Permitted Variances) on a weekly
<br />basis into a segregated account established by the Debtors for purposes of funding the Carve -Out
<br />(the "Funded Reserve Account"). The funds in the Funded Reserve Account and the Post -
<br />Came -Out Amounts (as defined below) shall be used to pay the allowed estate professionals'
<br />fees and expenses in accordance with orders entered by this Court and no cost or expense of
<br />administration under the Bankruptcy Code or otherwise, shall be senior to, or part passu with, the
<br />payments that are authorized and consented to in this Paragraph 10,
<br />(d) On the day on which a Carve -Out Trigger Notice is given by the DIP
<br />Administrative Agent to the Debtors with a copy to counsel to the Creditors' Committee (the
<br />"Termination Declaration Date"), the Carve -Out Trigger Notice shall constitute a demand to
<br />the Debtors to utilize all cash on hand as of such date and any available cash thereafter held by
<br />any Debtor to fund a reserve in an amount equal to the then unpaid amounts of the Allowed
<br />Professional Fees in excess of funds in the Funded Reserve Account; provided that in the event
<br />that a Termination Declamation Date occurs, Professional Persons shall have 2 business days to
<br />deliver additional good -faith estimates of the cumulative total amount of unreimbursed fees and
<br />expenses incurred in a preceding month (each such statement, a "Fee Statement") to the
<br />Debtors, and the Debtors shall fund into the Funded Reserve Account any additional amounts
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<br />NY ]817986]
<br />1a 1.1-a139.2
<br />NY 781n1867
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<br />DIP Lenders, unless the DIP Obligations have been indefeasibly paid in full, in cash, and all DIP
<br />Commitments have been terminated, in which case any such excess shall be paid to the
<br />Prepetition Secured Parties in accordance with their rights and priorities as of the Petition Date.
<br />Notwithstanding anything to the contrary in the DIP Documents or this Final Order, if either of
<br />the Carve -Out Reserves is not funded in full in the amounts set forth in this paragraph 12(d),
<br />then, any excess funds in one of the Carve -Out Reserves following the payment of the Pre -
<br />Carve -Out Amounts and Post -Carve -Out Amounts, respectively, shall be used to fund the other
<br />Carve -Out Reserve, up to the applicable amount set forth in this paragraph 12(d), prior to making
<br />any payments to the DIP Administrative Agent or the Prepetition Secured Parties, as applicable.
<br />Notwithstanding anything to the contrary in the DIP Documents or this Final Order, following
<br />delivery of a Carve -Out Trigger Notice, the DIP Administrative Agent and the Prepetition
<br />Secured Parties shall not sweep or foreclose on cash (including cash received as a result of the
<br />sale or other disposition of any assets) of the Debtors until the Carve -Out Reserves have been
<br />fully funded, but shall have a security interest in any residual interest in the Carve -Out Reserves,
<br />with any excess paid to the DIP Administrative Agent for application in accordance with the DIP
<br />Documents. Further, notwithstanding anything to the contrary in this Final Order, (i)
<br />disbursements by the Debtors from the Carve -Out Reserves shall not constitute Loans (as
<br />defined in the DIP Credit Agreement) or increase or reduce the DIP Obligations, (ii) the failure
<br />of the Carve -Out Reserves to satisfy in full the Allowed Professional Fees shall not affect the
<br />priority of the Carve -Out, and (iii) in no way shall the Approved Cash Flow Forecast, Carve -Out,
<br />Post -Carve -Out Trigger Notice Cap, Carve -Out Reserves, or any of the foregoing be construed
<br />as a cap or limitation on the amount of the Allowed Professional Fees due and payable by the
<br />equal to the difference between, as applicable, the Initial Funded Reserve Amount or the
<br />Monthly Funded Reserve Amount and the amount accrued and claimed in the applicable Fee
<br />Statement (each, a "Top Off Amount"). The Debtors shall hold the Funded Reserve Account in
<br />trust to pay such then unpaid Allowed Professional Fees (the "Pre -Carve -Out Trigger Notice
<br />Reserve") prior to any and all other claims. On the Termination Declaration Date, after funding
<br />the Pre -Carve -Out Trigger Notice Reserve, the Debtors shall utilize all remaining cash on hand
<br />as of such date and any available cash thereafter held by any Debtor to fund a reserve in an
<br />amount equal to the Post -Carve -Out Trigger Notice Cap (the "Post -Carve -Out Trigger Notice
<br />Reserve" and, together with the Pre -Carve -Out Trigger Notice Reserve, the "Came -Out
<br />Reserves") prior to paying any and all other claims. All funds in the Pre -Carve -Om Trigger
<br />Notice Reserve shall be used first to pay the obligations set forth in clauses (i) through (iii) of the
<br />definition of Carve -Out set forth above (the "Pre -Carve -Out Amounts"), but not, for the
<br />avoidance of doubt, the Post -Carve -Out Trigger Notice Cap, until paid in full, and then, to the
<br />extent the Pre -Carve -Om Trigger Notice Reserve has not been reduced to zero, to pay the DIP
<br />Administrative Agent for the benefit of the DIP Lenders, unless the DIP Obligations have been
<br />indefeasibly paid in full, in cash, and all Commitments (as defined and used in the DIP Credit
<br />Agreement) (the "DIP Commitments") have been terminated, in which case any such excess
<br />shall be paid to the Prepetition Secured Parties in accordance with their rights and priorities as of
<br />the Petition Date. All funds in the Post -Carve -Out Trigger Notice Reserve shall be used first to
<br />pay the obligations set forth in clause (iv) of the definition of Carve -Out set forth above (the
<br />"Post -Carve -Out Amounts"), and then, to the extent the Post -Carve -Out Trigger Notice
<br />Reserve has not been reduced to zero, to pay the DIP Administrative Agent for the benefit of the
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<br />NY 7817986]
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<br />Debtors. For the avoidance of doubt and notwithstanding anything to the contrary in this Final
<br />Order, the DIP Facilities or in any Prepetition Credit Documents, the Carve -Out shall be senior
<br />to all liens and claims securing the DIP Facilities, the Adequate Protection Liens, the Adequate
<br />Protection 507(b) Claims, and any and all other forms of Adequate Protection, liens, or claims
<br />securing the DIP Obligations or the Prepetition Debt.
<br />(e) Payment of Allowed Professional Fees Prior to the Termination
<br />Declaration Date. Any payment or reimbursement made prior to the occurrence of the
<br />Termination Declaration Date in respect of any Allowed Professional Fees shall not reduce the
<br />Carve -Out.
<br />(f) No Direct Obligation To Pay Allowed Professional Fees. None of the DIP
<br />Agents, DIP Lenders, or the Prepetition Secured Parties shall be responsible for the payment or
<br />reimbursement of any fees or disbursements of any Professional Person incurred in connection
<br />with the Chapter 11 Cases or any successor cases under any chapter of the Bankruptcy Code.
<br />Nothing in this Final Order or otherwise shall be construed to obligate the DIP Agents, the DIP
<br />Lenders, or the Prepetition Secured Parties, in any way, to pay compensation to, or to reimburse
<br />expenses of, any Professional Person or to guarantee that the Debtors have sufficient fonds to
<br />pay such compensation or reimbursement.
<br />(g) Payment of Carve -Out On or After the Termination Declaration Date. Any
<br />payment or reimbursement made on or after the occurrence of the Termination Declaration Date
<br />in respect of any Allowed Professional Fees shall permanently reduce the Carve -Out on a dollar -
<br />for -dollar basis.
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