The Intercreditor Agreement is essential in complex financing arrangements where multiple creditors provide different layers of debt to a borrower. It is commonly used in Australian financing transactions involving syndicated loans, secured lending, and structured finance arrangements. The document establishes a clear hierarchy of creditor rights, regulates the exercise of enforcement rights, and provides mechanisms for sharing security and managing conflicts between creditor groups. This agreement is particularly crucial in ensuring orderly enforcement processes and establishing clear protocols for payment priorities and security sharing arrangements. Under Australian law, it must comply with key legislation such as the Corporations Act 2001 (Cth) and the Personal Property Securities Act 2009 (Cth), while addressing specific requirements of the Australian lending market.
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1. Parties: Identifies all creditor groups, security trustee, and other relevant parties to the agreement
2. Background: Sets out the context of the financing arrangements and purpose of the intercreditor agreement
3. Definitions and Interpretation: Defines key terms and establishes interpretation principles
4. Ranking and Priority: Establishes the ranking of debt and priority of payments between creditors
5. Payment Provisions: Regulates payments between creditors and payment waterfall arrangements
6. Turnover of Receipts: Provisions for sharing recoveries and redistribution of payments
7. Security and Guarantees: Details regarding shared security and guarantee arrangements
8. Enforcement: Rights and limitations regarding enforcement of security and guarantees
9. Application of Proceeds: Rules for distributing proceeds from enforcement or insolvency
10. New Debt and Security: Provisions regarding additional debt and security arrangements
11. Changes to Parties: Transfer and assignment provisions
12. Protection of Subordination: Provisions maintaining subordination arrangements
13. Costs and Expenses: Allocation of costs and expense arrangements
14. Notices: Communication requirements and contact details
15. Governing Law and Jurisdiction: Specifies Australian law as governing law and jurisdiction for disputes
1. Hedge Counterparty Provisions: Required when hedge counterparties are involved in the creditor structure
2. Mezzanine Debt Provisions: Needed when there is mezzanine debt in the structure
3. Subordinated Creditor Provisions: Special provisions for deeply subordinated creditors
4. Bank Account Security: Specific provisions for secured accounts and cash management
5. Standstill Provisions: Detailed standstill arrangements between creditor groups
6. Purchase Option: Rights of junior creditors to purchase senior debt
7. Debt Purchase Transactions: Provisions regarding debt buy-backs or trading
8. Agent Provisions: Required when there are multiple agents representing different creditor groups
1. Form of Accession Deed: Standard form for new parties joining the agreement
2. Form of Resignation Letter: Template for parties leaving the agreement
3. Security Documents: List and details of all security documents
4. Notice Details: Contact information for all parties
5. Form of Default Notice: Template for notification of defaults
6. Hedging Arrangements: Details of hedge counterparties and obligations
7. Priority Payment Waterfall: Detailed payment priorities and calculations
8. Existing Security: Details of security interests already in place
Relevant legal definitions
Acceleration Event
Accession Deed
Additional Creditor
Appointed Representative
Available Enforcement Proceeds
Banking Day
Borrower Group
Borrower Liabilities
Common Security
Creditor Liabilities
Default
Debt Document
Distress Event
Enforcement Action
Enforcement Date
Event of Default
Facility Agreement
Finance Document
Finance Party
Financial Indebtedness
Guarantee
Guarantor
Hedge Counterparty
Hedging Liabilities
Insolvency Event
Instructing Group
Intercreditor Event
Junior Creditor
Junior Debt
Liabilities
Loan Document
Majority Creditors
Majority Senior Creditors
Material Adverse Effect
Mezzanine Creditor
Mezzanine Debt
New Debt
Original Jurisdiction
Payment
Permitted Payment
Priority Arrangements
Proceeds
Receiver
Recovery
Secured Assets
Secured Obligations
Secured Party
Security
Security Agent
Security Document
Security Interest
Security Property
Security Trust
Senior Creditor
Senior Debt
Standstill Period
Subordinated Creditor
Subordinated Debt
Total Commitments
Transaction Security
Trust Property
Trustee
Turnover Receipt
Accession Deed
Additional Creditor
Appointed Representative
Available Enforcement Proceeds
Banking Day
Borrower Group
Borrower Liabilities
Common Security
Creditor Liabilities
Default
Debt Document
Distress Event
Enforcement Action
Enforcement Date
Event of Default
Facility Agreement
Finance Document
Finance Party
Financial Indebtedness
Guarantee
Guarantor
Hedge Counterparty
Hedging Liabilities
Insolvency Event
Instructing Group
Intercreditor Event
Junior Creditor
Junior Debt
Liabilities
Loan Document
Majority Creditors
Majority Senior Creditors
Material Adverse Effect
Mezzanine Creditor
Mezzanine Debt
New Debt
Original Jurisdiction
Payment
Permitted Payment
Priority Arrangements
Proceeds
Receiver
Recovery
Secured Assets
Secured Obligations
Secured Party
Security
Security Agent
Security Document
Security Interest
Security Property
Security Trust
Senior Creditor
Senior Debt
Standstill Period
Subordinated Creditor
Subordinated Debt
Total Commitments
Transaction Security
Trust Property
Trustee
Turnover Receipt
Clauses
Definitions and Interpretation
Ranking and Priority
Payment Subordination
Security Subordination
Turnover Provisions
Payment Blockage
Enforcement Rights
Standstill Provisions
Security Trust
Application of Proceeds
Sharing of Recoveries
Purchase Rights
Payment Waterfall
New Debt and Security
Information Sharing
Amendments and Waivers
Accession Mechanics
Assignment and Transfer
Protection of Subordination
Guarantee Provisions
Security Provisions
Default and Acceleration
Representations and Warranties
Costs and Expenses
Indemnities
Notices
Calculations and Evidence
Remedies and Waivers
Severability
Counterparts
Governing Law and Jurisdiction
Ranking and Priority
Payment Subordination
Security Subordination
Turnover Provisions
Payment Blockage
Enforcement Rights
Standstill Provisions
Security Trust
Application of Proceeds
Sharing of Recoveries
Purchase Rights
Payment Waterfall
New Debt and Security
Information Sharing
Amendments and Waivers
Accession Mechanics
Assignment and Transfer
Protection of Subordination
Guarantee Provisions
Security Provisions
Default and Acceleration
Representations and Warranties
Costs and Expenses
Indemnities
Notices
Calculations and Evidence
Remedies and Waivers
Severability
Counterparts
Governing Law and Jurisdiction
Relevant Industries
Banking & Financial Services
Real Estate & Construction
Infrastructure
Mining & Resources
Energy & Utilities
Private Equity
Manufacturing
Telecommunications
Healthcare
Retail & Consumer
Transport & Logistics
Agriculture
Technology
Relevant Teams
Legal
Finance
Treasury
Credit Risk
Compliance
Corporate Development
Investment
Debt Capital Markets
Restructuring
Portfolio Management
Relevant Roles
Chief Financial Officer
Treasury Manager
Finance Director
Corporate Lawyer
Banking & Finance Lawyer
Legal Counsel
Debt Finance Manager
Credit Risk Manager
Restructuring Manager
Investment Manager
Portfolio Manager
Relationship Manager
Security Trustee
Facility Agent
Compliance Officer
Financial Controller
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