Subordination And Intercreditor Agreements
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Intercreditor agreements are a common feature of financing transactions ranging from middle market acquisition financings to leveraged recapitalizations to large cap multi-tranche financings.
Whether you are a bank or hedge fund making a senior loan, a mezzanine fund or insurance company making a subordinated loan, or a seller taking back a note as part of the sale of your business, you will need to understand intercreditor agreements and the issues that arise in all of them.
This webinar will take an in-depth look at intercreditor agreements and will dig into both the high-level issues that all senior and junior creditors must be familiar with and the more subtle issues that can make a big difference at crunch time.
Starting with an overview of intercreditor fundamentals, we will cover the key intercreditor issues from both the senior lender's and junior lender's perspective and offer drafting tips and practical solutions to help understand how to resolve those issues in typical intercreditor contexts.
We will also look at the unique issues that arise under different credit structures that have become more common in the marketplace and how they can impact the negotiations between different creditors. You will come out with a deeper knowledge of intercreditor agreements and how to navigate and negotiate the issues more efficiently.
Basics of Intercreditor Agreements
Fundamental Concepts and Practical Applications
- Who Are the Parties?
- Motivations of Different Parties
- Senior Debt Cap
- Permitted Payments
- Cross-Default vs. Cross-Acceleration
Syndicated and Participated Credits
- Consent to DIP Financing
- No Challenges to Senior Position or Priority
- Failure to Maintain Perfection
- Failure to File Proofs of Claim
Alternative Credit Structures and Their Effects on Intercreditor Agreements
- Voting Rights
- Exercise of Remedies
Drafting Tips and Market SolutionsAbout The Presenter
- Second Lien Loans
- Model First Lien/Second Lien Intercreditor Agreement
- Split-Collateral Loans
- Revolving Lenders vs. Term Lenders
- "Lastout" vs. "Firstout" Lenders
- Unitranche Loans
- Agreement Among Lenders
James C. Schulwolf
- Partner at Shipman & Goodwin LLP
- Represents senior and mezzanine lenders, institutional investors, venture capital investors (including SBICs), private equity funds, hedge funds, emerging growth companies and private companies in financing, investment, leasing, acquisition, corporate, licensing and restructuring transactions
- Regularly advises these clients with respect to structuring, negotiating, and closing complex transactions, also regularly advises clients with respect to distressed investments and the restructuring of existing investments and loans
- Experience includes the representation of senior lenders in complex commercial, asset-based, and acquisition financings; mezzanine lenders and hedge funds; SBIC’s and venture capital funds; emerging growth companies; hedge fund, buyers, sellers and sponsors; and institutional investors in direct investments, fund of funds investments, and investments in private equity funds
- Recognized authority on drafting and negotiating intercreditor and subordination agreements on behalf of senior and subordinate lenders and wrote “Controlling Your Destiny-Key Issues in Subordination and Intercreditor Agreements”, The Secured Lender (1995); he also deals extensively with family-owned businesses and also wrote "Financing the Family-Owned Business," The Secured Lender (2002)
- Lectures frequently on issues relating to commercial and real estate lending, intercreditor issues, venture finance, and venture capital investment
- Achieved the highest rating in the Martindale-Hubbell Law Directory; listed as a Connecticut Super Lawyer®: Business/Corporate (2006 to 2015); Banking, Mergers & Acquisitions (2006 to 2009); listed in The Best Lawyers in America®: Banking and Finance Law, Equipment Finance Law (2005 to 2016); named "Lawyer of the Year": Best Lawyers' 2014 Hartford Region Banking and Finance Law; Chair (2010-2013), Commercial Finance Committee, American Bar Association, Section of Business Law; Fellow (1998 to present) and member of the Board of Regents (2005 to 2009), American College of Commercial Finance Lawyers; Connecticut Bar Foundation James W. Cooper Fellow
- J.D. degree, New York University School of Law; B.A. degree, cum laude, Amherst College
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