The Model Intercreditor Agreement is essential in complex financing structures where multiple creditors hold different ranks of claims against the same debtor(s). This document, governed by German law, is typically used in leveraged finance transactions, project financings, and restructurings where there are multiple layers of debt (such as senior loans, mezzanine financing, and shareholder loans). The agreement sets out the relative priorities of different creditor classes, regulates payment flows, establishes enforcement procedures, and manages security interests in compliance with German legal requirements. It includes specific provisions addressing German law concepts such as parallel debt structures (Parallelschuld) where necessary for security arrangements, and ensures alignment with German insolvency laws and security interest regulations. The Model Intercreditor Agreement serves as a crucial tool for preventing disputes between creditors and providing clear guidelines for various scenarios, including enforcement events and insolvency proceedings.
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1. Parties: Identification of all creditor classes, security agent, and other key parties to the agreement
2. Background: Context of the financing arrangement and purpose of the intercreditor agreement
3. Definitions and Interpretation: Comprehensive definitions of terms used and interpretation principles
4. Ranking and Priority: Establishes creditor rankings and priorities between different classes of debt
5. Payment Waterfall: Order of application of proceeds from enforcement or insolvency
6. Turnover Provisions: Obligations to turn over unauthorized payments received in breach of priority
7. Payment Restrictions: Limitations on payments to subordinated creditors
8. Enforcement: Rights and restrictions regarding enforcement of security interests
9. Security Agent Provisions: Powers, duties, and protections of the security agent
10. Application of Proceeds: Rules for distributing proceeds from enforcement or insolvency
11. New Debt and Creditors: Procedures for additional debt and accession of new creditors
12. Amendments and Waivers: Procedures for modifying the agreement and creditor voting rights
13. Notices: Communication requirements and procedures between parties
14. Governing Law and Jurisdiction: Choice of German law and jurisdiction provisions
1. Hedge Counterparty Provisions: Include when hedging arrangements form part of the financing structure
2. Intra-Group Lender Provisions: Include when there are loans between group companies
3. Subordinated Creditor Provisions: Include when there are deeply subordinated creditors or shareholders loans
4. Bank Product Providers: Include when there are providers of bank products like cash management services
5. Purchase Option: Include when junior creditors have rights to purchase senior debt
6. Debt Trading Provisions: Include when there are restrictions on debt trading
7. Common Currency Provisions: Include when dealing with multiple currencies
8. Parallel Debt: Include when needed for creation of security interests under German law
9. Release Provisions: Include detailed release mechanisms when complex security package exists
1. Form of Accession Deed: Standard form for new creditors to accede to the agreement
2. Form of Resignation Letter: Template for retiring parties to resign from their roles
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. Enforcement Procedures: Detailed procedures for security enforcement
7. Creditor Representatives: List of appointed representatives for each creditor class
8. Payment Waterfall Calculations: Detailed methodology for calculating payment distributions
9. Voting Procedures: Detailed procedures for creditor voting and decision-making
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