A commercial banker emailed saying, “We’ve recently had a large asset-based loan default, and the company filed for chapter 11 bankruptcy. Our attorney has advised us that we should agree to pay the borrower’s attorneys by letting them get paid from the proceeds of the sale of our collateral. Can this possibly be right?”
In a word, yes. Your attorney is suggesting that you agree to a “carve-out.”
It is typical for a secured lender in a chapter 11 case to set aside an agreed-upon portion of the proceeds of its collateral for the purpose of paying professional fees incurred during a chapter 11 case. This type of carve-out is designed to compensate counsel to the debtor and the official committee of unsecured creditors (Committee or Creditors’ Committee) appointed in the case — and possibly other professionals. Though the provisions of such professional fee carve-outs vary, they typically provide for how much money is to be set aside, with attendant restrictions on how and when it is to be applied. They also usually provide for the effect of the occurrence or non-occurrence of certain events on the continuing availability of the carve-out. In fact, many courts insist that any proposed order authorizing the use of cash collateral and debtor-in-possession (“DIP”) financing include a reasonable professional fee carve-out.
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This is an updated version of an article originally published on January 27, 2020.]
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The editors and editorial board of DailyDAC include preeminent restructuring and insolvency professionals, journalists, and editors. They are devoted to providing reliable and plain English education and deal intelligence about assignments, corporate bankruptcy, receiverships, out-of-court workouts and similar topics.
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