The Intercreditor and Subordination Agreement is essential in complex financing arrangements where multiple creditors have claims against the same debtor. This document, governed by English and Welsh law, establishes a clear hierarchy of creditors' rights, regulates payment waterfalls, and coordinates enforcement actions. It's particularly crucial in leveraged finance, project finance, and restructuring scenarios where different types of debt (senior, mezzanine, shareholder loans) coexist. The agreement provides crucial clarity on creditors' rights during both normal operations and distressed situations.
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1. Parties: Identification of all creditor parties and the debtor
2. Background: Context of the debt arrangements and purpose of agreement
3. Definitions: Key terms used throughout the agreement including defined terms for different creditor classes
4. Ranking and Subordination: Core provisions establishing creditor hierarchy and subordination arrangements
5. Payment Provisions: Rules governing payments between creditors, including payment waterfall
6. Turnover Provisions: Obligations to pay over received amounts contrary to agreed priority
7. Enforcement: Rights and restrictions on enforcement actions by different creditor classes
8. Security Provisions: Provisions regarding shared security and its administration
9. Representations and Warranties: Standard representations from each party regarding capacity and authority
10. Amendments and Waivers: Procedures for modifying the agreement and effects of waivers
11. Governing Law and Jurisdiction: Specification of English law as governing law and jurisdiction clauses
1. Purchase Option: Provisions allowing junior creditors to purchase senior debt under specified circumstances
2. Cross-Border Provisions: Additional provisions for dealing with international creditors and jurisdictions
3. Standstill Provisions: Temporary suspension of enforcement rights during specified periods
4. ICA Agent Provisions: Provisions regarding the appointment and role of an intercreditor agent
5. Hedging Liabilities: Special provisions for ranking and treatment of hedging obligations
1. Form of Accession Deed: Standard form for new parties to accede to the agreement
2. Creditor Details: Complete list of all creditors and their committed facilities
3. Security Documents: Schedule of all security documents covered by the agreement
4. Notice Provisions: Forms of notices and communications required under the agreement
5. Payment Waterfall: Detailed ordering of payments and distribution of proceeds
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