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| ===[[Closing out]] an {{isdama}} following an {{isdaprov|Event of Default}}===
| | JC’s has updated the step-by-step guide to closing out an ISDA and it is now {{premium}}. You can access it '''[[pjc:Close out|here]]'''. |
| Here is the [[JC]]’s handy guide to [[closing out]] an {{isdama}}. We have assumed you are closing out as a result of a {{{{{1}}}|Failure to Pay or Deliver}} under Section {{{{{1}}}|5(a)(i)}}, because — unless you have inadvertently crossed some [[Tannhäuser Gate|portal, wormhole]] into a parallel and stupider universe — you almost certainly will be. that or Bankruptcy. Don’t try telling your [[credit officer]]s this by the way: he won’t believe you.
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| In what follows "Close-out Amount" means "Close-out Amount (if under a {{2002ma}}), {{isda92prov|Loss}} or {{isda92prov|Market Quotation}} amount (if under a {{1992ma}})
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| So, you will need:
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| *'''A failure''': A {{{{{1}}}|Failure to Pay or Deliver}}, on day '''T'''. This is an {{{{{1}}}|Event of Default}} under Section {{{{{1}}}|5(a)(i)}}. You must have:
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| ::(i) a Failure by the Defaulting Party to make a payment or delivery when due
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| ::(ii) a notice by the Non-Defaulting Party to the Defaulting Party that the failure has happened.
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| *'''Notice of failure''': The {{{{{1}}}|Non-defaulting Party}} must give notice of the {{{{{1}}}|Failure to Pay or Deliver}} (which since it is not due until the close of business on a given day, [[Q.E.D.]], can be validly given ''only after'' [[close of business]] on the due date for payment or delivery and, by dint of Section {{{{{1}}}|12(a)}} ({{{{{1}}}|Notices}}), the notice will only be deemed effective on the following Local Business Day: ie '''T+1'''. <ref>'''Spod’s note''': This notice requirement is key from a {{{{{1}}}|Cross Default}} perspective (if you have been indelicate enough to widen the scope of your [[cross default]] to include [[derivatives]], that is): if you don’t have it, ''any'' failure to pay under your {{isdama}}, however innocuous — even an operational oversight — automatically counts as an {{{{{1}}}|Event of Default}}, and gives a different person to the right to close ''their'' {{isdama}} with your {{{{{1}}}|Defaulting Party}} because of it defaulted to ''you'', even though (a) the {{{{{1}}}|Defaulting Party}} hasn’t defaulted to ''them'', and (b) you have decided not to take any action against the {{{{{1}}}|Defaulting Party}} yourself.</ref>
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| *'''[[Grace Period]]''': Once the notice is effective, the {{{{{1}}}|Defaulting Party}} has a window (the grace period) in which it can remedy the failure to pay or deliver.
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| :(i) The standard [[grace period]]s are set out in Section {{{{{1}}}|5(a)(i)}}. Be careful here: under a {{2002ma}} the standard is '''''one''''' {{isdaprov|Local Business Day}}. Under the {{1992ma}} the standard is '''''three''''' {{isda92prov|Local Business Day}}s. ''But check the {{{{{1}}}|Schedule}}'' because in either case this is the sort of thing that counterparties adjust: {{2002ma}}s are often adjusted to conform to the {{1992ma}} standard of three {{{{{1}}}|LBD}}s, for example.
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| :(ii) So: once you have a clear, notified {{isdaprov|Failure to Pay or Deliver}}, you have to wait ''at least'' one and possibly three or more {{isdaprov|Local Business Day}}s before doing anything about it. Therefore you are on tenterhooks until the [[close of business]] '''T+2''' {{isdaprov|LBD}}s (standard {{2002ma}}), or '''T+4''' {{isda92prov|LBD}}s (standard {{1992ma}}).
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| :(iii) At the expiry of this [[grace period]], you finally have a fully operational {{{{{1}}}|Event of Default}}. Now Section {{isdaprov|6(a)}} gives you the right, by not more than 20 days’ notice<ref>See discussion on at Section {{{{{1}}}|6(a)}} about the silliness of that time limit.</ref> to designate an {{{{{1}}}|Early Termination Date}} for all outstanding {{isdaprov|Transaction}}s. So, at some point in the next twenty days.
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| :(iv) For this we go to Section {{{{{1}}}|6(e)}}, noting as we fly over it, that Section {{{{{1}}}|6(c)}} reminds us [[for the avoidance of doubt]] that even if the {{{{{1}}}|Event of Default}} which triggers the {{{{{1}}}|Early Termination Date}} evaporates in the meantime — these things happen, okay? — yon {{{{{1}}}|Defaulting Party}}’s goose is still irretrievably cooked.
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| *'''Determining {{isdaprov|Close-out Amount}}s'''<ref>Or their equivalents under the {{1992ma}}, of course.</ref>: There is a bit of a chicken-and-egg situation here as you must now ascertain termination values for the {{{{{1}}}|Terminated Transaction}}s as of the {{isdaprov|Early Termination Date}}, and you can’t really work out their [[mark-to-market]] values for that date at any time before then, unless you are able to see into the future and everything. Anyway, that’s a conundrum for your [[Trader|trading]] people (and in-house [[Metaphysics|metaphysicians]]) to deal with and it need not trouble we [[Legal Eagles|eagles of the law]]. For our purposes, the trading and risk people need to come up with {{isdaprov|Close-out Amount}}s<ref>See previous footnote.</ref> for all outstanding {{{{{1}}}|Transaction}}s. Once they have done that you are ready for your Section {{{{{1}}}|6(e)}} notice.
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| *'''{{{{{1}}}|Early Termination Amount}}''': Your inhouse metaphysicians having calculated your {{isdaprov|Close-out Amount}}s, you must assemble all the values into an {{{{{1}}}|Early Termination Amount}}.<ref>Or, in the {{1992ma}}’s estimable prose, “the amount, if any, payable in respect of an {{isdaprov|Early Termination Date}} and determined pursuant to this Section”.</ref>
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JC’s has updated the step-by-step guide to closing out an ISDA and it is now premium content. You can access it here.