Superpriority Credit Agreement

Litigation is likely to be followed by many of these restructurings, as companies and other debtors seek additional financing, while existing creditors struggle to maintain their priority interests. Stakeholders on these issues should consult competent lawyers, not only on the restructuring, but also on possible disputes between the company and existing secured creditors, who have been excluded from the new structure. BP sued Peoria in federal district court in February 2013, claiming that the city had unduly enriched itself ”by taking advantage of the structures and facilities it retained after the termination of the RTC lease.” The bank claimed that its right to deposit all of RTC`s assets had given it a ”better claim” than Peoria on structures and facilities. The bank and the city filed cross-motions for summary judgment. Second, the case highlights the importance of careful diligence in assessing collateral for a DIP loan. Simply put, if the debtor does not own part of the assets used in its business (either at the beginning of the DIP loan or because of the assignment under the terms of an ongoing contract), the preferential claims or priority lump sum deposits granted under the DIP financing do not bring these assets into the lender`s collateral universe. The use of corporate debt gave a boost to the economic expansion that followed the credit crisis more than a decade ago. A new industry trend is to create ”super-priority” debt structured in such a way as to circumvent protection in the credit agreement, which usually requires the agreement of an adversely affected lender. To do this, the borrower works with a group of lenders, including a majority of existing first-line creditors, to create a new credit facility. The participating collateral holders then enter into a transactional support agreement in which they agree to use their majority position to (i) amend the existing credit agreement in order to allow the borrower to enter into new pledge rights that guarantee the new facility by a pledge right on the same collateral as those that insure the loans under the existing credit agreement; and (ii) amend the existing inter-credit agreement to settle the new liabilities prior to the existing initial debt. . .

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