Who gets paid first, who may enforce, and who must stand still.
Esshaki Legal Media TeamCurrent as of June 2024
Where a borrower has more than one lender, the relationship between them is
governed by agreement rather than by the order of their filings alone.
Lien subordination ranks the security interests: whose claim on the
collateral is satisfied first. Payment subordination goes further, ranking
the debts themselves, so the junior lender may not receive payment until the
senior is satisfied.
The provisions that matter most in a workout:
Standstill. A period during which the junior lender may not exercise remedies
after a default, giving the senior control of timing. Length and triggers are
heavily negotiated.
Purchase option. A right for the junior to buy out the senior at par, which
prevents the senior running a process that destroys junior value.
Amendment limits. Caps on how much the senior may increase the principal,
raise the rate or extend the maturity without junior consent.
Turnover. An obligation on the junior to hand over payments received out of
order — the mechanism that makes payment subordination effective in practice.
Insolvency provisions. Voting on a plan, consent to financing during the
proceeding, and adequate protection. These are the clauses that matter most and
receive the least attention when the deal is done.
For borrowers, the practical point is that an intercreditor agreement constrains
what any restructuring can look like, and it should be read before a workout
begins rather than during one.