The Subordinate Deed of Trust is a crucial document in South African secured financing arrangements where multiple creditors have security interests in the same assets. It is primarily used when there is a need to establish a clear hierarchy of security interests and ensure orderly distribution of trust assets. The document combines elements of trust law and security arrangements, complying with South African legislation including the Trust Property Control Act and the Deeds Registries Act. It's particularly relevant in project finance, property development, and corporate lending scenarios where multiple lenders are involved and require certainty about their respective rights and priorities. The deed provides detailed provisions regarding the administration of the trust, the obligations of the trustee, enforcement mechanisms, and the specific circumstances under which the subordination arrangement can be modified or terminated.
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1. Parties: Identification of all parties including the trustee, beneficiaries, primary creditor, and subordinate creditor
2. Background: Context of the trust arrangement, existing security interests, and reason for subordination
3. Definitions: Defined terms used throughout the deed, including specific financial, legal, and property-related terminology
4. Trust Property: Detailed description of the assets subject to the trust arrangement
5. Subordination Terms: Specific terms of subordination, including ranking of security interests and payment priorities
6. Rights and Obligations of the Trustee: Comprehensive outline of trustee powers, duties, and responsibilities
7. Security Arrangements: Details of how the security interests are structured and maintained
8. Priority of Payments: Clear hierarchy of payment obligations and distribution of trust assets
9. Events of Default: Circumstances constituting default and consequential actions
10. Enforcement: Procedures and rights for enforcing the deed's provisions
11. Duration and Termination: Terms regarding the lifespan of the arrangement and conditions for termination
12. General Provisions: Standard legal provisions including notices, amendments, governing law, and jurisdiction
1. Security Agent Provisions: Required when a security agent is appointed to act on behalf of multiple creditors
2. Inter-creditor Provisions: Needed when there are multiple creditors requiring detailed arrangements between them
3. Currency Provisions: Required for cross-border transactions involving multiple currencies
4. Tax Provisions: Detailed tax arrangements when specific tax structures or considerations apply
5. Insurance Requirements: Specific insurance obligations when trust assets require particular insurance coverage
6. Dispute Resolution: Alternative dispute resolution mechanisms when parties prefer specific resolution procedures
7. Step-In Rights: Required when senior creditors need rights to take control in specific circumstances
1. Schedule 1 - Trust Property Details: Comprehensive list and description of all assets subject to the trust
2. Schedule 2 - Security Documents: List of all security documents and their priority ranking
3. Schedule 3 - Form of Accession Deed: Template for new parties to accede to the arrangement
4. Schedule 4 - Notice Details: Contact information and notice requirements for all parties
5. Appendix A - Payment Waterfall: Detailed breakdown of payment priorities and distributions
6. Appendix B - Enforcement Procedures: Step-by-step procedures for enforcement actions
7. Appendix C - Required Insurances: Specific insurance requirements and minimum coverage levels
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