The Intercreditor Agreement is essential in complex financing transactions where multiple lenders provide different types of debt to a single borrower or group of borrowers. This document becomes particularly important in the Indian context where financing structures often involve multiple banks, financial institutions, and other lenders with varying security interests and priorities. The agreement comprehensively addresses the relationships between creditors, including payment hierarchies, security enforcement, voting rights, and standstill provisions, while ensuring compliance with Indian regulatory requirements, including RBI guidelines and the SARFAESI Act. It is typically used in conjunction with facility agreements and security documents, forming a crucial part of the overall financing documentation package.
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1. Parties: Identification of all creditors, security trustee/agent, and borrower (if party to the agreement)
2. Background: Context of the financing arrangement, existing facilities, and purpose of the intercreditor agreement
3. Definitions and Interpretation: Definitions of key terms, interpretation rules, and references to facility documents
4. Ranking and Priorities: Establishes payment priorities, ranking of debt and security interests among creditors
5. Payment Provisions: Rules governing payments, payment waterfalls, turnover provisions
6. Security and Guarantees: Provisions regarding shared security, enforcement rights, and guarantee arrangements
7. Enforcement: Rights and procedures for enforcement actions, standstill provisions, enforcement triggers
8. Application of Proceeds: Distribution mechanics for enforcement proceeds and other recoveries
9. Decision Making: Voting rights, majority lender provisions, consultation requirements
10. Purchase Options: Terms for purchase of senior debt by junior creditors
11. New Debt and Additional Parties: Provisions for additional debt and accession of new creditors
12. Changes to Parties: Transfer restrictions, assignment provisions, accession mechanics
13. Costs and Expenses: Allocation of costs, expenses, and indemnities
14. Notices: Communication procedures and contact details
15. Miscellaneous: Standard boilerplate provisions including amendments, waivers, severability
16. Governing Law and Jurisdiction: Choice of law and jurisdiction provisions
1. DIP Financing Provisions: Required when the agreement contemplates potential debtor-in-possession financing during insolvency
2. Hedge Counterparty Provisions: Include when hedge providers are parties to the intercreditor arrangement
3. Subordinated Creditor Provisions: Specific provisions for deeply subordinated creditors or shareholder loans
4. Common Security Agent Provisions: Detailed provisions when a common security agent structure is used
5. Release Provisions: Detailed release mechanics for distressed disposals
6. Snooze/Lose Provisions: Provisions dealing with non-responding lenders in voting scenarios
7. Debt Purchase Transactions: Include when borrower debt buy-backs are contemplated
8. Agent Replacement Provisions: Detailed provisions for replacement of facility agents or security agents
1. Form of Accession Deed: Standard form for new creditors to accede to the agreement
2. Form of Resignation Letter: Template for resigning agents or creditors
3. Creditor Details: List of all creditors, commitments, and contact details
4. Security Documents: List of all security documents covered by the agreement
5. Form of Default Notice: Template for notification of defaults
6. Form of Enforcement Notice: Template for notification of enforcement actions
7. Existing Facilities: Details of all existing facilities covered by the agreement
8. Address Details: Contact details for all parties for notice purposes
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