2.1.4.70.3 Payment deferral - Optional

Some market participants have the practice of including a payment deferral clause. This type of clause is sometimes used to reduce settlement risk when payments are to be made from different time zones. A suggested form of payment deferral clause is as follows:

"# Add a new Section [15]as follows:

[15] Payment deferral

(a) If it is not possible for simultaneous payments to be made on a payment date, because of the time difference between the places in which payments are to be made, either party ("electing party") may elect to make its payment in escrow.

(b) The electing party must:

(i) notify the other party that the payment will be made in escrow; and

(ii) deposit the due payment ("deposited payment") with an escrow agent selected by the electing party on the payment date by 2.00  pm local time in the place where the payment is due; and

(iii) give an irrevocable payment instruction to the escrow agent:

(A) to release the deposited payment to the other party when the escrow agent receives payment from the other party ("corresponding payment"); or

(B) if the corresponding payment is not made on the payment date, to return the deposited payment to the electing party.

(c) If a party receives a notice under paragraph (b), it must deposit the corresponding payment with the escrow agent on the payment date. The corresponding payment must be accompanied by an irrevocable payment instruction to immediately pay the corresponding payment to the electing party if the escrow agent is still holding the deposited payment.

(d) The electing party must pay the costs of the escrow arrangements.

(e) Subject to paragraph (f), if the deposited payment is not released by 5.00 pm local time (in the place where the deposited payment is due) on the payment date, the intended recipient of the deposited payment is entitled to interest on the deposited payment at the rate offered bythe escrow agent for overnight deposits in the relevant currency in the office where it holds the deposited payment (applicable at 11.00 am local time on that day) for the period of the deposit.

(f) The intended recipient is not entitled to the interest referred to in paragraph (e) if the deposited payment is not released because the intended recipient failed to make the required corresponding payment to the escrow agent on the payment date.


Last Update Date 29 Jun 2011