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Intercreditor And Subordination Agreement Template for United States

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Key Requirements PROMPT example:

Intercreditor And Subordination Agreement

"Need an Intercreditor and Subordination Agreement for a real estate development project with three tiers of debt (senior bank loan, mezzanine financing, and private investor notes), where the total financing is $50M and we need to establish clear payment priorities and enforcement rights between all parties by March 2025."

Document background
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.
Suggested Sections

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

Optional Sections

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

Suggested Schedules

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

Authors

Alex Denne

Head of Growth (Open Source Law) @ ¶¶Òõ¶ÌÊÓÆµ | 3 x UCL-Certified in Contract Law & Drafting | 4+ Years Managing 1M+ Legal Documents | Serial Founder & Legal AI Author

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Industries

Uniform Commercial Code (UCC): Particularly Article 9 governing secured transactions, which is crucial for determining priority and perfection of security interests in collateral

Federal Bankruptcy Code: Title 11 of United States Code, which governs bankruptcy proceedings and enforcement of subordination agreements in bankruptcy scenarios

Trust Indenture Act of 1939: Federal law applicable when dealing with registered securities, governing the role of trustees in debt securities offerings

Securities Acts: Securities Act of 1933 and Securities Exchange Act of 1934, relevant when the agreement involves public securities

State UCC Variations: State-specific adoptions and modifications to the Uniform Commercial Code that may affect security interests and priorities

State Contract Laws: State-specific laws governing contract formation, enforcement, and interpretation

Blue Sky Laws: State-specific securities laws that regulate the offering and sale of securities to protect investors from fraudulent activities

State Lien Priority Rules: State-specific rules governing the priority of different types of liens and security interests

Contractual Subordination Principles: Legal doctrines governing the enforcement and interpretation of contractual subordination arrangements

Equitable Subordination Principles: Legal principles allowing courts to subordinate claims based on inequitable conduct

Federal Reserve Regulations: Banking regulations that may apply when the agreement involves regulated banking institutions

OCC Regulations: Office of the Comptroller of the Currency regulations governing national banks and federal savings associations

FDIC Rules: Federal Deposit Insurance Corporation rules affecting insured depository institutions

SEC Regulations: Securities and Exchange Commission regulations applicable to public securities and regulated entities

Bankruptcy Case Law: Relevant court decisions regarding enforcement of subordination agreements in bankruptcy and priority disputes

Teams

Employer, Employee, Start Date, Job Title, Department, Location, Probationary Period, Notice Period, Salary, Overtime, Vacation Pay, Statutory Holidays, Benefits, Bonus, Expenses, Working Hours, Rest Breaks,  Leaves of Absence, Confidentiality, Intellectual Property, Non-Solicitation, Non-Competition, Code of Conduct, Termination,  Severance Pay, Governing Law, Entire Agreemen

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