The Intercreditor and Subordination Agreement is essential in complex financing arrangements where multiple creditors have claims against the same debtor. This agreement, governed by U.S. federal and state laws, establishes a clear hierarchy of debt and defines the rights and obligations of different creditor classes. It becomes particularly crucial during financial distress or bankruptcy scenarios, where it determines the order of payment and enforcement rights. The document typically includes provisions for payment subordination, lien subordination, enforcement standstills, and bankruptcy-related matters.
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1. Parties: Identifies all creditors (senior and subordinated), the debtor, and any other relevant parties
2. Background/Recitals: Sets forth the existing credit arrangements and purpose of the agreement
3. Definitions: Defines key terms including Senior Debt, Subordinated Debt, Payment Default, etc.
4. Subordination Terms: Core provisions establishing the subordination of junior debt to senior debt
5. Payment Restrictions: Terms governing when subordinated creditors can receive payments
6. Lien Priorities: Establishes relative priorities of security interests and liens
7. Enforcement Standstill: Restrictions on subordinated creditors' enforcement actions
8. Bankruptcy Provisions: Terms governing rights and obligations during bankruptcy proceedings
9. Miscellaneous: Standard provisions including governing law, amendments, notices
1. Purchase Option: Right of subordinated creditors to purchase senior debt - include when subordinated creditors want the option to buy out senior debt
2. DIP Financing Provisions: Terms regarding debtor-in-possession financing - include when parties anticipate potential bankruptcy proceedings
3. Waterfall Provisions: Detailed allocation of payments or proceeds - include when multiple levels of priority exist or complex payment arrangements are needed
4. Agent Provisions: Terms governing rights and duties of administrative agents - include when dealing with syndicated facilities
1. Schedule of Senior Debt: Detailed listing of all senior debt obligations
2. Schedule of Subordinated Debt: Detailed listing of all subordinated debt obligations
3. Schedule of Collateral: Description of secured assets and respective priorities
4. Form of Joinder: Template for additional parties to join the agreement
5. Notice Information: Contact details for all parties for notice purposes
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