Superpriority Claims and Collateral Security Clause Samples
The "Superpriority Claims and Collateral Security" clause establishes that certain claims, typically those of lenders or secured parties, are granted a higher repayment priority over other creditors in the event of a debtor's bankruptcy or liquidation. This clause often specifies that these claims are secured by specific collateral, such as company assets or receivables, and may outline the mechanisms by which this security interest is perfected and maintained. Its core function is to protect the interests of key creditors by ensuring they are paid first from the proceeds of collateral, thereby reducing their risk and encouraging lending or investment.
Superpriority Claims and Collateral Security. (a) The Borrowers jointly and severally warrant and covenant that, except as otherwise expressly provided in this paragraph, upon the entry of the applicable Order, the Obligations of any Loan Party under the Loan Documents:
(i) shall at all times constitute a Superpriority Claim in the Chapter 11 Case of the Borrowers having priority, pursuant to Section 364(c)(1) and 507(b) of the Bankruptcy Code (subject only to the Carve Out), over the other administrative claims of any entity, including, without limitation any claims under Sections 105, 326, 328, 330, 331, 365, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726 (to the extent permitted by law), 1113 and 1114 of the Bankruptcy Code, and any other provision of the Bankruptcy Code (including, subject to entry of the Final Order, Section 506(c)), and shall at all times be senior to the rights of the Loan Parties, the Loan Parties’ estates, any successor trustee to the extent permitted by law, or any other creditor in the Chapter 11 Cases;
(ii) pursuant to Sections 361, 362, 364(c)(2), 364(c)(3), and 364(d) of the Bankruptcy Code and the Security Agreements, shall at all times be secured by, and each Loan Party hereby grants to the Collateral Agent, for the benefit of the Secured Parties, a continuing, valid, binding, enforceable, non-avoidable and automatically properly perfected post-petition security interest and first priority (subject to the Carve Out and Liens permitted to be equal or superior in priority pursuant to this Agreement) Lien on all existing and after acquired real and personal property and other assets of the Borrowers, tangible and intangible, whether now owned by or owing to, or hereafter acquired by or arising in favor of the Loan Parties, whether owned or consigned by or to, or leased from or to the Loan Parties and regardless of where located, including without limitation, (A) the Collateral (as defined in the Security Agreements), (B) all avoidance power claims and actions arising under Section 549 of the Bankruptcy Code relating to postpetition transfers of Collateral and any proceeds thereof, (C) subject to entry of the Final Order, all avoidance power claims and actions under Chapter 5 of the Bankruptcy Code and any proceeds thereof, (D) subject to entry of the Final Order, the security interest will not be subject to Section 551 of the Bankruptcy Code nor shall Collateral be surcharged pursuant to Section 506(c) of the Bankruptcy Code, and (E) any unencumbered assets of the Lo...
Superpriority Claims and Collateral Security. (a) Loan Parties hereby represent, warrant and covenant that, upon the entry by the Bankruptcy Court of the DIP Orders, and to the extent set forth therein and subject to the terms therein:
(i) for all Obligations now existing or hereafter arising and for diminution in value of any Collateral used by Loan Parties pursuant to the Interim Order, this Agreement or otherwise, Agent and Lenders are granted an allowed Superpriority Claim;
(ii) to secure the prompt payment and performance of any and all Obligations of Loan Parties to Agent and each Lender of whatever kind, nature or description, absolute or contingent, now existing or hereafter arising, Agent and each Lender shall have and is hereby granted, effective as of the Petition Date, valid and perfected first priority, security interests and liens in and upon all pre- and post- petition property of Loan Parties and in the case of Loan Parties, its estates, whether existing on the Petition Date or thereafter acquired, including without limitation, (i) pursuant to Section 364(c)(2) of the Bankruptcy Code, property of the Loan Parties that, on or as of the Petition Date is not subject to valid, perfected and non-avoidable liens, (ii) pursuant to Section 364(c) and (d) of the Bankruptcy Code, all of the Loan Parties’ Pre-Petition Collateral, and (iii) pursuant to Section 364(c) of the Bankruptcy Code, all of the Loan Parties’ Collateral. Such security interests and liens shall be senior in all respects to interests of other parties arising out of security interests or liens, if any, in such assets and property existing immediately prior to the Petition Date. The Liens securing the Obligations shall not be subject to Section 551 of the Bankruptcy Code;
(iii) Neither the incurrence of the Obligations, the granting of Liens on the Collateral under this Agreement or the transfer of any interest in property was incurred, granted or transferred, as applicable, with any intent to hinder, delay or defraud any of its respective creditors; and
(iv) The applicable DIP Order, has been entered by the Bankruptcy Court and is in full force and effect, and has not been amended or modified except to the extent consented to by Lender, or stayed, or reversed.
(b) Loan Parties hereby represent, warrant and covenant that, upon the entry by the Bankruptcy Court of the DIP Orders (and to the extent set forth therein), all of the Obligations:
(i) shall at all times constitute a Superpriority Claim; and
(ii) pursuant to Section 364(...
Superpriority Claims and Collateral Security. Section 9:9-1 of the Loan and Security Agreement is hereby amended by adding the following text immediately following the last sentence of such Section 9:9-1: "After the occurrence and continuance of an Event of Default, within one Business Day after notice to the Administrative Agent by counsel to the Debtors or counsel to the Creditors' Committee given in accordance with the provisions set forth in paragraph 9 of the Final Borrowing Order, the Administrative Agent shall deposit into the Carve-Out Account (as defined in the Final Borrowing Order) first proceeds received from a Liquidation in an amount not to exceed the Professional Expense Cap in effect at such time plus any fees required to be paid pursuant to 28 U.S.C. section 1930(a) and any fees and expenses payable by the Borrowers to the Clerk of the Bankruptcy Court."
Superpriority Claims and Collateral Security. Each Debtor hereby represents, warrants and covenants that, upon the entry by the Bankruptcy Court of the Interim Order and/or the Final Order, as applicable, the Obligations are entitled to superpriority Liens and claims to the extent provided by Section 7 of the Interim Order and, once entered, the Final Order.
Superpriority Claims and Collateral Security. Each of the Borrowers hereby represents, warrants and covenants that, except as otherwise expressly provided in this paragraph, the Obligations, other than those relating to Specified Existing Letters of Credit, upon the entry of the Interim Order, and all of the Obligations upon the entry of the Final Order:
(a) SHALL AT ALL TIMES CONSTITUTE A SUPERPRIORITY CLAIM HAVING PRIORITY, PURSUANT TO SECTIONS 364(C)(1) OF THE BANKRUPTCY CODE, OVER THE OTHER SUPERPRIORITY CLAIMS GRANTED AS ADEQUATE PROTECTION IN RESPECT OF THE PREPETITION LENDERS AND ANY OTHER CLAIMS OF ANY ENTITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS UNDER SECTIONS 503, 506(C), 507, 1113, AND 1114 OF THE BANKRUPTCY CODE, AND
(b) PURSUANT TO SECTIONS 364(C)(2) AND (3) AND 364(D) OF THE BANKRUPTCY CODE AND THE SECURITY DOCUMENTS, SHALL AT ALL TIMES BE SECURED BY A FIRST PRIORITY PERFECTED LIEN IN ALL OF THE ASSETS, WHETHER NOW OWNED OR HEREAFTER ACQUIRED OF THE BORROWERS AND THEIR ESTATES, PURSUANT TO THE TERMS OF THE SECURITY DOCUMENTS. SUCH SUPERPRIORITY CLAIM SHALL BE SUBJECT TO THE CARVE OUT. SUCH LIEN SHALL BE ON AVOIDANCE ACTIONS (OTHER THAN AVOIDANCE ACTIONS AGAINST THE PREPETITION LENDERS AND THE PREPETITION AGENTS) FROM AND AFTER THE ENTRY OF THE FINAL ORDER, BUT SHALL BE SUBJECT TO THE CARVE OUT. OTHERWISE SUCH LIEN SHALL BE SENIOR IN PRIORITY TO THE ADEQUATE PROTECTION LIENS SECURING THE PREPETITION LENDER DEBT AND ALL OTHER LIENS OTHER THAN PERMITTED PRIOR LIENS. THE LIENS SECURING THE OBLIGATIONS SHALL NOT BE SUBJECT TO SECTION 551 OF THE BANKRUPTCY CODE.
Superpriority Claims and Collateral Security. Each of the Borrowers hereby represents, warrants and covenants upon entry of the Interim Order that all Obligations:
(a) subject to the Carve Out, shall at all times constitute a Superpriority Claim having priority, pursuant to Sections 364(c)(1) of the Bankruptcy Code, senior to any claims of any entity, including without limitation, any claims under Sections 503, 507, 1113 and 1114 of the Bankruptcy Code, and
(b) subject to the Carve Out, pursuant to Sections 364(c)(2), (c)(3) and (d) of the Bankruptcy Code shall at all times be secured by:
(i) a first priority perfected Lien in all presently owned and hereafter acquired assets of the Borrowers, wherever located, whether now owned or leased or hereafter acquired or leased or arising, whether realty, personalty or fixtures, including without limitation,
A. Accounts,
B. Books,
Superpriority Claims and Collateral Security. The Borrower represents, warrants and covenants that, upon the entry by the Bankruptcy Court of the Final Order, all of the Bank Indebtedness:
(a) shall at all times constitute a Superpriority Claim having priority pursuant to Section 364(c)(1) of the Bankruptcy Code, over any claims of any Person, whether now existing or hereafter arising, including any claims under Sections 105(a), 326, 330, 328, 331, 503(a), 503(b), 506(c), 507, 546(c), 546(d), 726, 1 113 and 1 114 of the Bankruptcy Code, subject, as to priority, only to the Carve-Out; and
(b) pursuant to Section 364(c) and Section 364(d) of the Bankruptcy Code shall at all times be secured by a first priority perfected lien in all of the assets, whether now owned or hereafter acquired, of the Borrower and its estate, subject, as to priority, only to the Carve-Out and Statutory Encumbrances securing those valid, perfected, non-avoidable secured claims existing on the Filing Date. The liens securing the Obligations shall not be subject to Section 551 of the Bankruptcy Code. The agreement of Bank to provide post-petition financing to the Borrower will not prohibit Bank from moving in the Bankruptcy Court for any other and further relief which Bank believes in good faith to be reasonably and immediately necessary to protect its rights with respect to the Collateral (including a request for Borrower to abandon any part of the Collateral) or otherwise.
Superpriority Claims and Collateral Security. Each of the Borrowers hereby represents, warrants and covenants that, except as otherwise expressly provided in this paragraph, the Liabilities, upon the entry of the Interim Borrowing Order and the Final Borrowing Order:
Superpriority Claims and Collateral Security. Each Credit Party hereby represents, warrants and covenants that:
(a) The Case was commenced on the Petition Date in accordance with applicable law and proper notice has been or will be given of (i) the motion seeking approval of the Loan Documents, the Interim Order and Final Order, (ii) the hearing for the entry of the Interim Order, and (iii) the hearing for the entry of the Final Order, as applicable, all notices required to be given to all parties specified in the Interim Order or the Final Order, as applicable.
(b) Neither the incurrence of the Obligations, the granting of Liens on the Collateral under this Agreement or the transfer of any interest in property was incurred, granted or transferred, as applicable, with any intent to hinder, delay or defraud any of its respective creditors;
(c) The Interim Order or the Final Order, as applicable, has been entered by the Bankruptcy Court and is in full force and effect, and has not been materially amended or modified except to the extent consented to by the Agent, the Required Revolving Lenders and the Required LC Facility Lenders, or stayed or reversed.
Superpriority Claims and Collateral Security. Section 9:9-1 of the Loan and Security Agreement is hereby amended by adding the following text immediately following the last sentence of such Section 9:9-1: "After the occurrence and continuance of an Event of Default, within one Business Day after notice to the Administrative Agent by counsel to the Debtors or counsel to the Creditors' Committee given in accordance with the provisions set forth in paragraph 9 of the Final Borrowing Order, the Administrative Agent shall deposit into the Carve-Out Account (as defined in the Final Borrowing Order) first proceeds received from a Liquidation in an amount not to exceed the Professional Expense Cap in effect at such time plus any fees required to be paid pursuant to 28 U.S.C. section 1930(a) and any fees and expenses payable by the Borrowers to the Clerk of the Bankruptcy Court."