2.1.4.40 Part 3 Agreement to Deliver Documents

Part 3(a)

This requires details to be inserted of tax forms, documents or certificates to be delivered by either party. Section 3(d) contains a representation in respect of certain documents. If the agreement is governed by the laws of one of the Australian Jurisdictions, there is no legal requirement under the laws of the Australian Jurisdictions for any other documentation. It is emphasised that this comment relates only to Australian Jurisdictions. Participants should carefully check on their obligation to deliver documents in other jurisdictions.

Part 3(b)

It is customary to require evidence of authority to sign the ISDA Master Agreement, to enter into transactions or both. A party also may require financial information in respect of the counterparty to be furnished either initially or both initially and on a continuing basis.  Also, participants need to consider carefully whether there is any other documentation which should be considered for inclusion at this point, eg. it is at this point that credit support documents, legal opinions and letters of comfort would be set out.

Suggested wording

Here is suggested wording for part 3. Part 3(a) would be necessary only if specific tax forms, documents or certificates are to be specified (note that Section 4(a)(iii) contains a general obligation in relation to these types of documents).  If no additional tax forms are required, it is preferable to retain paragraph (a) and insert "none" after "to be delivered are:". This is to ensure that there is no doubt that documents specified under part 3(b) of the schedule are required to be supplied under Part 4(a)(ii). Otherwise there could be a doubt as to whether an Event of Default arises because of failure to deliver the documents (note that Section 5(a)(ii)(1) expressly excludes failures to deliver under Section 4(a)(i) and 4(a)(iii).)

"Part 3

Agreement to Deliver Documents

For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party agrees to deliver the following documents, as applicable: -

(a) Tax forms, documents or certificates to be delivered are:

[specify required documents]

Party required to deliver: [specify which party is to deliver the documents]

Date by which to be delivered:  [specify the date for delivery]

(b) Other documents to be delivered are:

a list of authorised signatories for the party and evidence satisfactory in form and substance to the other party of the authority of the authorised signatories of the party to execute this Agreement and any Confirmation on behalf of the party.

Party required to deliver: Party A and Party B

Date by which to be delivered: On execution of this Agreement or any relevant Confirmation and when the list is updated.

Covered by Section 3(d) Representations:  Yes"


Last Update Date 28 Jun 2011