Subordination Agreement

---
name: subordination-agreement
description: Drafts debt subordination agreements establishing senior/junior creditor priority, payment waterfalls, standstill provisions, turnover obligations, and bankruptcy treatment. Use when drafting subordination agreements, intercreditor arrangements, creditor priority documents, or debt subordination terms during negotiation or closing.
---

# Subordination Agreement

Drafts a subordination agreement establishing creditor claim priority, payment waterfall mechanics, and intercreditor rights for debt transactions.

## Quick Start

Gather before drafting:

1. **Senior Debt instruments** — principal, rate, maturity, collateral, default provisions
2. **Junior Debt instruments** — same details plus any existing subordination or intercreditor arrangements
3. **Party information** — legal names, jurisdictions, authorized signatories for Senior Creditor, Junior Creditor, and Debtor
4. **Security interests** — collateral descriptions, lien positions, guarantees, cross-default provisions
5. **Commercial terms** — complete vs. partial subordination, permitted junior payments (if any), standstill duration

## Core Workflow

Draft the following sections in order.

### 1. Recitals

| Element | Content |
|---------|---------|
| Senior Debt | Material terms — principal, rate, maturity, instrument date |
| Junior Debt | Material terms — same |
| Business purpose | Why subordination is needed |
| Consideration | What supports the agreement |

### 2. Definitions

- **"Senior Debt"** — principal, accrued interest, fees, enforcement costs, post-petition interest
- **"Junior Debt"** — full scope of junior obligations
- **"Payment in Full"** — treatment of contingent obligations, indemnities, post-petition interest
- **"Permitted Junior Payments"** — carve-outs from subordination (if partial)
- **"Default Period"** — trigger for standstill and enforcement restrictions

### 3. Subordination Mechanics

Waterfall: Senior Debt (principal + interest + fees + enforcement costs) → only after Payment in Full → Junior Debt.

- [ ] All Junior Debt payments/distributions/recoveries subordinated to prior Payment in Full of Senior Debt
- [ ] Junior Creditor barred from receiving payments except Permitted Junior Payments (if any)
- [ ] Standstill: no acceleration, enforcement, or remedy by Junior Creditor without Senior Creditor consent during Default Period
- [ ] Turnover: Junior Creditor must immediately remit prohibited payments to Senior Creditor
- [ ] Trust relationship: turnover payments received in trust for Senior Creditor

### 4. Representations & Warranties

**All parties:** valid existence, enforceability of debt instruments, no existing defaults, accuracy of stated amounts, authority to execute, no conflicts.

**Junior Creditor additionally:** no prior subordination to other creditors; no other subordination agreements exist.

### 5. Junior Creditor Covenants

- No amendments to Junior Debt adverse to Senior Creditor without consent
- No additional security interests or liens without consent
- Notice obligations on defaults or amendments
- Cooperation in bankruptcy/insolvency proceedings
- Bankruptcy voting: consistent with Senior Creditor interests or abstain

### 6. Events of Default & Remedies

**Triggers:** breach of subordination provisions, unauthorized Junior Debt amendments, enforcement actions violating standstill, Junior Creditor bankruptcy filing.

**Remedies:** specific performance, injunctive relief, turnover enforcement.

### 7. Bankruptcy & Insolvency

- Subordination effective before, during, and after any bankruptcy case
- Draft to satisfy 11 U.S.C. § 510(a) enforceability requirements
- Junior Creditor waives right to challenge subordination in bankruptcy
- Junior Creditor to file subordination proofs of claim

| Issue | Treatment |
|-------|-----------|
| Adequate protection payments | Typically none until Senior paid in full |
| Cash collateral / DIP financing motions | Standing to object typically waived or limited |
| Plan participation | Subject to subordination waterfall |
| Post-petition interest | Clarify whether included in "Payment in Full" |

### 8. General Provisions

- **Governing law** — match Senior Debt governing law or Debtor's state of organization
- **Jurisdiction/venue** — match Senior Debt forum
- **Amendments** — written consent of all parties; specify whether Debtor consent required
- **Survival** — continues until Senior Debt paid in full regardless of Debtor discharge/release
- **Assignment** — binds successors; Junior Creditor may not assign without Senior Creditor consent
- Severability, integration, jury trial waiver, notice provisions

### 9. Signature Blocks

- Senior Creditor, Junior Creditor, Debtor
- Corporate attestation lines; seals if required by governing law
- Notarization if subordination relates to real property security interests

## Pitfalls & Checks

- **Complete vs. partial** — confirm with user; if partial, define Permitted Junior Payments precisely (e.g., scheduled interest while no default exists)
- **Cross-references** — verify alignment with any existing intercreditor agreement, security agreement, or loan document subordination provisions
- **Defined terms** — audit all cross-references and defined terms for consistency before finalizing
- **Recording** — check jurisdiction-specific requirements if agreement will be recorded or filed publicly
- **UCC** — if collateral involved, confirm subordination of lien priority is addressed separately or within this agreement
- **Multi-tier debt** — if more than two tiers, expand waterfall accordingly
- **No placeholders** — flag missing information as targeted client questions rather than inserting brackets