Template:Isda 6(b)(iv) summ: Difference between revisions

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What a beast. If you track it through in {{tag|nutshell}} terms, it isn’t as bad as it looks, but you have the [[ISDA ninja]]’s gift for over-complication, and {{icds}}’s yen for dismal drafting, to thank for this being the trial it is.  
What a beast. If you track it through in {{nutshell}} terms, it isn’t as bad as it looks, but you have the [[ISDA ninja]]’s gift for over-complication, and {{icds}}’s yen for dismal drafting, to thank for this being the trial it is.  


To make it easier, we’ve invented some concepts and taken a few liberties:  
To make it easier, we’ve invented some concepts and taken a few liberties:  
*“{{{{{1}}}|Unaffected Transaction}}” — saves you all that mucking around saying “{{{{{1}}}|Transaction}}s other than  those that are, or are deemed, to be {{{{{1}}}|Affected Transaction}}s” and so on);
*{{{{{1}}}|Termination Event Notice}} as an elegant and self-explanatory alternative to “after an {{{{{1}}}|Affected Party}} gives notice under Section {{{{{1}}}|6(b)(i)}}”
*We take it as logically true that you ''can’t'' give 20 days’ notice of something which you then say will happen in fewer than 20 days. Therefore, there is no need for all this “designate a day not earlier than the day such notice is effective” nonsense.


So with that all out the way, here is how it works. Keep in mind that, unlike {{{{{1}}}|Events of Default}}, {{{{{1}}}|Termination Event}}s can arise through no fault of the {{{{{1}}}|Affected Party}} and, therefore, are not always as apocalyptic in consequence. Depending what they are, they may be cured, worked around, and dented {{{{{1}}}|Transaction}}s that casn’t be panelbeaten back into shape may be surgically trimmed out, allowing the remainder of the {{isdama}}, and all {{{{{1}}}|Unaffected Transaction}}s under it, to carry on as normal. So here goes:
“'''{{{{{1}}}|Unaffected Transaction}}'''”, which saves you all that mucking around saying “{{{{{1}}}|Transaction}}s other than  those that are, or are deemed, to be {{{{{1}}}|Affected Transaction}}s” and so on;


====Divide up the types of {{{{{1}}}|Termination Event}}====
'''{{{{{1}}}|Termination Event Notice}}''': An elegant and self-explanatory alternative to “after an {{{{{1}}}|Affected Party}} gives notice under Section {{{{{1}}}|6(b)(i)}}”.
# '''Tax ones''': If a {{{{{1}}}|Tax Event}} or a {{{{{1}}}|TEUM}}<ref>That’s “Tax Event Upon Merger” to the cool kids.</ref> ''where the party merging is the one that suffers the tax'', the parties have a month to try to rearrange matters between them, their offices and affiliates to avoid the tax issue. Only once that has failed are you in {{{{{1}}}|Termination Event}} territory. ''See Section {{{{{1}}}|6(b)}}(ii) and {{{{{1}}}|6(b)(iii)}}''.
 
# '''{{{{{1}}}|Non-Affected Party}} ones''': If it’s a {{{{{1}}}|CEUM}}<ref>That’s “Credit Event Upon Merger” to the cool kids.</ref>, an {{{{{1}}}|ATE}} or a {{{{{1}}}|TEUM}} ''where the {{{{{1}}}|Non-Affected Party}} suffers the tax''
We take it as logically true that you ''can’t'' give 20 days’ notice of something which you then say will happen in fewer than 20 days. Therefore, there is no need for all this “designate a day not earlier than the day such notice is effective” nonsense.
# '''{{{{{1}}}|Illegality}} and {{isdaprov|Force Majeure}}''': Here, if you are on a {{2002ma}}, there may be a {{{{{1}}}|Waiting Period}} to sit through, to see whether the difficulty clears. For {{isdaprov|Force Majeure Event}} it is eight {{isdaprov|Local Business Day}}s; for {{isdaprov|Illegality}} ''other than one preventing performance of a {{isdaprov}|Credit Support Document}}'': three {{isdaprov|Local Business Day}}s. So, sit through it. Why is there exception for {{isdaprov|Illegality}} on a {{isdaprov|Credit Support Document}}? Because, even though it wasn’t your fault, illegality of a {{isdaprov|Credit Support Document}} profoundly changes your credit assessment (in a way that arguably, even a payment or delivery obligation doesn’t), and that is the most fundamental risk you are managing under the {{isdama}}.
 
So with that all out the way, here is how it works. Keep in mind that, unlike {{{{{1}}}|Events of Default}}, {{{{{1}}}|Termination Event}}s can arise through no fault of the {{{{{1}}}|Affected Party}} and, therefore, are not always as apocalyptic in consequence. Depending what they are, they may be cured or worked-around, and dented {{{{{1}}}|Transaction}}s that can’t be panel-beaten back into shape may be surgically excised, allowing the remainder of the {{isdama}}, and all {{{{{1}}}|Unaffected Transaction}}s under it, to carry on as normal. So here goes:
 
=====Divide up the types of Termination Event=====
'''Tax ones''': If a {{{{{1}}}|Tax Event}} or a {{{{{1}}}|TEUM}}<ref>That’s “Tax Event Upon Merger” to the cool kids.</ref> ''where the party merging is the one that suffers the tax'', the parties have a month to try to rearrange matters between them, their offices and affiliates to avoid the tax issue. Only once that has failed are you in {{{{{1}}}|Termination Event}} territory. ''See Section {{{{{1}}}|6(b)}}(ii) and {{{{{1}}}|6(b)(iii)}}''.
 
'''{{{{{1}}}|Non-Affected Party}} ones''': If it’s a {{{{{1}}}|CEUM}}<ref>That’s “Credit Event Upon Merger” to the cool kids.</ref>, an {{{{{1}}}|ATE}} or a {{{{{1}}}|TEUM}} ''where the {{{{{1}}}|Non-Affected Party}} suffers the tax'', then if the other guy is a {{{{{1}}}|Non-Affected Party}}, then (whether or not you are) you may designate an {{{{{1}}}|Early Termination date}} for the {{{{{1}}}|Affected Transactions}}.
 
'''{{{{{1}}}|Illegality}} and {{isdaprov|Force Majeure}}''': Here, if you are on a {{2002ma}}, there may be a {{isdaprov|Waiting Period}} to sit through, to see whether the difficulty clears. For {{isdaprov|Force Majeure Event}} it is eight {{isdaprov|Local Business Day}}s; for {{isdaprov|Illegality}} ''other than one preventing performance of a {{isdaprov|Credit Support Document}}'': three {{isdaprov|Local Business Day}}s. So, sit through it. Why is there exception for {{isdaprov|Illegality}} on a {{isdaprov|Credit Support Document}}? Because, even though it wasn’t your fault, illegality of a {{isdaprov|Credit Support Document}} profoundly changes your credit assessment (in a way that arguably, even a payment or delivery obligation doesn’t), and that is the most fundamental risk you are managing under the {{isdama}}.

Latest revision as of 16:45, 5 January 2024

What a beast. If you track it through in Nutshell terms, it isn’t as bad as it looks, but you have the ISDA ninja’s gift for over-complication, and ISDA’s crack drafting squad™’s yen for dismal drafting, to thank for this being the trial it is.

To make it easier, we’ve invented some concepts and taken a few liberties:

{{{{{1}}}|Unaffected Transaction}}”, which saves you all that mucking around saying “{{{{{1}}}|Transaction}}s other than those that are, or are deemed, to be {{{{{1}}}|Affected Transaction}}s” and so on;

{{{{{1}}}|Termination Event Notice}}: An elegant and self-explanatory alternative to “after an {{{{{1}}}|Affected Party}} gives notice under Section {{{{{1}}}|6(b)(i)}}”.

We take it as logically true that you can’t give 20 days’ notice of something which you then say will happen in fewer than 20 days. Therefore, there is no need for all this “designate a day not earlier than the day such notice is effective” nonsense.

So with that all out the way, here is how it works. Keep in mind that, unlike {{{{{1}}}|Events of Default}}, {{{{{1}}}|Termination Event}}s can arise through no fault of the {{{{{1}}}|Affected Party}} and, therefore, are not always as apocalyptic in consequence. Depending what they are, they may be cured or worked-around, and dented {{{{{1}}}|Transaction}}s that can’t be panel-beaten back into shape may be surgically excised, allowing the remainder of the ISDA Master Agreement, and all {{{{{1}}}|Unaffected Transaction}}s under it, to carry on as normal. So here goes:

Divide up the types of Termination Event

Tax ones: If a {{{{{1}}}|Tax Event}} or a {{{{{1}}}|TEUM}}[1] where the party merging is the one that suffers the tax, the parties have a month to try to rearrange matters between them, their offices and affiliates to avoid the tax issue. Only once that has failed are you in {{{{{1}}}|Termination Event}} territory. See Section {{{{{1}}}|6(b)}}(ii) and {{{{{1}}}|6(b)(iii)}}.

{{{{{1}}}|Non-Affected Party}} ones: If it’s a {{{{{1}}}|CEUM}}[2], an {{{{{1}}}|ATE}} or a {{{{{1}}}|TEUM}} where the {{{{{1}}}|Non-Affected Party}} suffers the tax, then if the other guy is a {{{{{1}}}|Non-Affected Party}}, then (whether or not you are) you may designate an {{{{{1}}}|Early Termination date}} for the {{{{{1}}}|Affected Transactions}}.

{{{{{1}}}|Illegality}} and Force Majeure: Here, if you are on a 2002 ISDA, there may be a Waiting Period to sit through, to see whether the difficulty clears. For Force Majeure Event it is eight Local Business Days; for Illegality other than one preventing performance of a Credit Support Document: three Local Business Days. So, sit through it. Why is there exception for Illegality on a Credit Support Document? Because, even though it wasn’t your fault, illegality of a Credit Support Document profoundly changes your credit assessment (in a way that arguably, even a payment or delivery obligation doesn’t), and that is the most fundamental risk you are managing under the ISDA Master Agreement.

  1. That’s “Tax Event Upon Merger” to the cool kids.
  2. That’s “Credit Event Upon Merger” to the cool kids.