Identify Issues In Intercreditor Agreement

---
name: identify-issues-intercreditor-agreement-mezzanine
task_id: energy-natural-resources/identify-issues-in-intercreditor-agreement
description: Guides identification of issues in a project finance intercreditor agreement from the mezzanine lender's perspective by focusing on project finance market conventions, the effect of cash sweep mechanics on mezzanine debt service, and the need to explain both the legal issue and practical risk of each item.
activates_for: [planner, solver, checker]
---

# Skill: Identify Issues in Intercreditor Agreement for Mezzanine Lender in Project Finance Transaction

## 1. Subject-matter triage

- Read the intercreditor agreement together with the senior debt documents, mezzanine documents, cash model, and any collateral or hedging terms that define how value moves through the structure.
- First identify whether the ICA operates only on enforcement or also during ordinary-course operations, because that determines whether the mezzanine lender is already subordinated in day-to-day cash flow.
- Separate pure legal restrictions from economics-driven restrictions: payment blockage, cash sweep, lien release, voting limits, turnover, release mechanics, amendment rights, and cure rights are usually the highest-value review points.
- If the source set presents more than one period, tranche, borrower state, cash scenario, or enforcement posture, enumerate those items before analysis and run the review once per item rather than blending them.

## 2. Failure modes the skill is correcting

- The review treats the ICA as a generic subordination form and misses project-finance-specific allocation of cash, control, and collateral across construction, operation, and enforcement phases.
- The review flags an issue but does not explain the legal problem and the practical risk to the mezzanine lender; both are required because credit committee decisions turn on the consequence, not just the clause label.
- The review misses that a waterfall or sweep can operate at all times, not merely after default, which can materially reduce mezzanine cash receipts even in an otherwise performing project.
- The review ignores interactions among the ICA, senior credit agreement, hedging arrangements, collateral documents, and any model outputs, so the issue is described in isolation and loses decision value.
- The review states conclusions about bankruptcy enforceability or vote restrictions without anchoring them to the governing Bankruptcy Code principle and the distinction between pre-petition waiver and post-petition rights.
- The review stops at identification and does not translate each issue into a modification ask, which leaves the memo unusable for negotiations.

## 3. Legal frameworks / domain conventions that apply

- Project finance intercreditor practice is not the same as corporate lending practice; cure periods, collateral release rights, and cash controls are usually tailored to construction risk, operating stability, and lender interdependence.
- Monetary and non-monetary defaults are often treated differently in project finance ICAs; assess cure timing and remedy sequencing against the transaction’s operational context, not a generic loan-agreement template.
- Payment blockages and waterfall provisions must be read for timing: determine whether junior distributions are cut off only after an enforcement trigger or whether senior priority applies continuously.
- Cash sweep mechanics matter because excess cash directed to senior repayment directly reduces cash available for mezzanine debt service; the analysis should connect the clause to the model rather than leaving it abstract.
- Hedge provisions can dilute mezzanine recovery if hedge obligations share collateral and are uncapped or otherwise expandable; assess the possible claim build-up under stressed market movements.
- Automatic collateral release on permitted dispositions can strip the mezzanine lender of asset-level security even when the sale is otherwise permitted under the senior package.
- Bankruptcy-related restrictions on voting or plan support must be assessed under the Bankruptcy Code’s core allocation of creditor voting rights and the distinction between unenforceable waivers and potentially enforceable cooperation covenants.
- Use controlling authority for any legal proposition relied on, including the Bankruptcy Code provisions, the governing contract rule, or generally recognized project finance market practice where the source documents do not supply authority.

## 4. Analytical scaffolds

- For each issue, identify the clause or mechanism, state how it operates against the mezzanine lender, compare it to project finance market convention, and then explain why the deviation matters.
- Close each issue with three moves: scale it against a figure, threshold, term, or other source-document metric; cross-reference the other clause, schedule, or document that interacts with it; and state the downstream consequence for the mezzanine lender.
- Where the issue turns on cash flow, trace the direction of funds through the waterfall, sweep, reserve, or trap mechanism and explain what cash remains for mezzanine service in ordinary and stressed conditions if the source materials permit that comparison.
- Where the issue turns on hedge exposure, estimate the largest plausible claim path using the model or transaction inputs and explain how that claim would compete with mezzanine recovery.
- Where the issue turns on lien release or disposition mechanics, identify what collateral is lost, what proceeds protection remains, and whether the mezzanine can consent, block, or condition the release.
- Where the issue turns on voting or support rights, distinguish between a covenant not to oppose, an affirmative support commitment, and any provision that may conflict with post-petition creditor voting rights.
- For each item, include a specific fix or negotiation position, such as narrowing scope, adding consent rights, extending cure rights, limiting sweep triggers, preserving collateral proceeds, or clarifying that junior rights survive outside enforcement.

## 5. Vertical / structural / temporal relationships

- Map the structure vertically: borrower, senior lenders, mezzanine lender, hedging counterparties, collateral agent, and any proceeds account or reserve account that changes who receives value first.
- Map the timeline horizontally: signing, funding, construction, completion, operations, default, enforcement, and any post-enforcement or bankruptcy phase that changes the ICA’s effect.
- Treat amendments, waivers, and releases as structural events, not drafting details, because they can reallocate collateral value or voting power without a headline economics change.
- If multiple documents use different definitions for default, permitted debt, permitted hedging, or permitted dispositions, reconcile the differences before drawing an issue; the mismatch itself may be the issue.

## 6. Output structure conventions

- Write a prioritized issues memorandum from the mezzanine lender’s perspective using an ordinal severity scale defined once at the top, and apply that severity consistently to every issue.
- For each issue, include: the provision or mechanic, why it is adverse, the market-convention comparison, the practical risk, the cross-document interaction, and a concrete recommended change.
- Use a concise, deal-facing style: one issue per section or bullet cluster, with the most transaction-sensitive items first.
- Include a dedicated cash-flow analysis section if the source documents and model permit it, and state the base-case and stress-case result in plain language tied to mezzanine availability.
- Include a separate treatment for bankruptcy-sensitive provisions when present, naming the governing legal principle or Bankruptcy Code provision at the category level rather than relying on conclusory assertions.
- End with a Recommended Actions block that assigns an action verb, a responsible role, and a timing anchor tied to signing, closing, lender comment turnaround, or another transactional milestone.
- Keep the memorandum self-contained and decision-useful; do not merely list defects without explaining why they matter for the mezzanine position.