The Intercreditor Deed is essential in complex financing arrangements where multiple lenders provide different types of debt to a single borrower or group of borrowers under Nigerian law. It becomes particularly relevant in project finance, syndicated lending, and corporate debt restructuring scenarios. The document establishes a clear hierarchy of creditor rights, regulates payment priorities, sets out security sharing arrangements, and provides mechanisms for coordinated enforcement actions. It must comply with Nigerian legislation, including CAMA 2020 and BOFIA 2020, while addressing practical considerations such as local security perfection requirements and enforcement procedures. The deed typically includes provisions for future accession of new creditors, transfer mechanics, and specific requirements of development finance institutions active in the Nigerian market.
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1. Parties: Identification of all creditors (senior and subordinated), security trustee, facility agent, and the borrower/debtor
2. Background: Recitals explaining the context of the existing facilities, security arrangements, and purpose of the intercreditor deed
3. Definitions and Interpretation: Definitions of key terms, interpretation rules, and references to facility documents
4. Ranking and Priority: Establishes the ranking of debts, priority of payments, and subordination arrangements
5. Payment Provisions: Rules governing payments, payment hierarchy, and turnover of payments
6. Security and Guarantees: Provisions regarding shared security, enforcement rights, and priority of security interests
7. Enforcement: Rights and procedures for enforcement of security, including standstill provisions
8. Application of Proceeds: Order of application of enforcement proceeds and other recoveries
9. Role of Security Trustee: Powers, duties, and protections of the security trustee
10. Representations and Warranties: Standard representations from each party regarding capacity and authority
11. Changes to Parties: Transfer and assignment provisions, accession mechanics
12. Administration: Administrative provisions, notices, calculations, and determinations
13. Governing Law and Jurisdiction: Nigerian law as governing law and jurisdiction provisions
1. Subordinated Creditor Restrictions: Additional restrictions on subordinated creditors - include when there are multiple tiers of debt
2. Hedging Liabilities: Provisions dealing with hedging arrangements - include when hedging providers are involved
3. Investor Rights: Special provisions for investor rights - include when there are private equity or mezzanine investors
4. IFC/DFI Requirements: Specific requirements of development finance institutions - include when DFIs are involved
5. Purchase Option: Provisions allowing junior creditors to purchase senior debt - include in complex financing structures
6. Debt Trading Provisions: Detailed provisions for trading debt - include when debt trading is anticipated
7. New Debt Provisions: Provisions for incurring new debt - include when future additional debt is contemplated
1. Form of Accession Deed: Standard form for new parties to accede to the agreement
2. Security Documents: List and details of all security documents covered by the agreement
3. Form of Resignation Letter: Template for resignation of a party from the agreement
4. Existing Facilities: Details of all existing credit facilities and their key terms
5. Notice Details: Contact details and notice requirements for all parties
6. Form of Default Notice: Standard form for notification of defaults
7. Payment Waterfall: Detailed waterfall showing order of payments in enforcement scenarios
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