The Intercreditor and Subordination Agreement is essential in complex financing transactions where multiple creditors have claims against the same debtor(s) under Hong Kong law. It is typically used in syndicated lending, project finance, leveraged buyouts, and restructuring scenarios where there are different classes of debt (such as senior loans, mezzanine financing, and subordinated notes). The agreement provides clarity on payment priorities, enforcement rights, and creditor coordination, particularly crucial given Hong Kong's sophisticated financial market and common law legal system. It includes specific provisions addressing local security registration requirements, enforcement procedures, and insolvency scenarios under Hong Kong legislation. The document ensures orderly management of competing creditor interests while maintaining flexibility for debt trading and additional financing.
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1. Parties: Identifies all parties to the agreement including senior creditors, subordinated creditors, and the debtor(s)
2. Background: Recitals explaining the context of the various debt obligations and the purpose of the intercreditor arrangements
3. Definitions and Interpretation: Defines key terms including types of debt, enforcement actions, and priority arrangements
4. Ranking and Subordination: Core provisions establishing the ranking of debts and subordination arrangements
5. Payments and Distributions: Rules governing payments between creditors and treatment of distributions
6. Turnover Provisions: Obligations to turn over payments received in contravention of the priority arrangements
7. Payment Blockage: Circumstances when payments to subordinated creditors are prohibited
8. Enforcement: Rights and limitations regarding enforcement actions by different creditor classes
9. Application of Proceeds: Rules for distributing proceeds from enforcement or insolvency
10. Purchase Option: Terms under which junior creditors can purchase senior debt
11. Bankruptcy and Insolvency: Provisions governing rights and obligations during insolvency proceedings
12. Representations and Warranties: Standard representations by all parties
13. Amendments and Waivers: Procedures for modifying the agreement and effects of waivers
14. Notices: Communication procedures between parties
15. Assignment and Transfer: Rules for transferring rights and obligations under the agreement
16. Governing Law and Jurisdiction: Choice of law and jurisdiction provisions
1. Shared Collateral Provisions: Required when creditors share security interests in the same collateral
2. Voting Rights: Needed when there are collective decision-making procedures among creditor classes
3. New Debt: Provisions governing the incurrence of additional debt and its ranking
4. Agent Provisions: Required when there is a security agent or intercreditor agent
5. Hedging Obligations: Needed when hedging counterparties are involved in the priority structure
6. Debt Trading Provisions: Required when there are restrictions or procedures for trading the debt
7. Third-Party Rights: Required when rights are granted to non-parties under Hong Kong law
8. Subordinated Creditor Standstill: Additional detailed standstill provisions when required by senior creditors
1. Creditor Details: List of all creditors and their commitment amounts
2. Form of Accession Deed: Standard form for new parties to accede to the agreement
3. Debt Documents: List of all relevant debt documents covered by the agreement
4. Security Documents: List of all security documents and collateral (if applicable)
5. Notice Details: Contact information for all parties
6. Form of Resignation Letter: Standard form for parties to resign from the agreement
7. Priority Payment Waterfall: Detailed breakdown of payment priorities in different scenarios
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