Default Under Specified Transaction - ISDA Provision: Difference between revisions
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==Commentary== | ==Commentary== | ||
This is like {{isdaprov|Cross Default}}, but for non "borrowing" style transactions - for example [[swap|swap agreements]] agreements and [[repo]]s, '''but only transactions between the two counterparties and their referenced {{isdaprov|Credit Support Provider}}s and {{isdaprov|Specified Entities}}'''. | This is like {{isdaprov|Cross Default}}, but for non "borrowing" style transactions - for example [[swap|swap agreements]] agreements and [[repo]]s, '''but only transactions between the two counterparties and their referenced {{isdaprov|Credit Support Provider}}s and {{isdaprov|Specified Entities}}'''. | ||
The reason for the "three limb" definition is that a default on a final payment under a transaction can't (obviously) give rise to an "Acceleration" of the obligation because at that point, QED, the obligation is already due. | |||
If a [[Counterparty]] (or its {{isdaprov|Credit Support Provider}} or {{isdaprov|Specified Entity}}) experiences an {{isdaprov|Event of Default}} under a [[swap]] agreement (or other transaction falling within the definition of {{isdaprov|Specified Transaction}}, which is typically wide - but check the agreement!) with you, this constitutes an {{isdaprov|Event of Default}} under the ISDA. | If a [[Counterparty]] (or its {{isdaprov|Credit Support Provider}} or {{isdaprov|Specified Entity}}) experiences an {{isdaprov|Event of Default}} under a [[swap]] agreement (or other transaction falling within the definition of {{isdaprov|Specified Transaction}}, which is typically wide - but check the agreement!) with you, this constitutes an {{isdaprov|Event of Default}} under the ISDA. | ||
Revision as of 12:27, 26 April 2013
In gory detail
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Commentary
This is like Cross Default, but for non "borrowing" style transactions - for example swap agreements agreements and repos, but only transactions between the two counterparties and their referenced Credit Support Providers and Specified Entities.
The reason for the "three limb" definition is that a default on a final payment under a transaction can't (obviously) give rise to an "Acceleration" of the obligation because at that point, QED, the obligation is already due.
If a Counterparty (or its Credit Support Provider or Specified Entity) experiences an Event of Default under a swap agreement (or other transaction falling within the definition of Specified Transaction, which is typically wide - but check the agreement!) with you, this constitutes an Event of Default under the ISDA.
- Default, Not Acceleration: note it is triggered by an event of default under the Specified Transaction, not a acceleration following an event of default. So even if you don't close out under the Specified Transaction, you may still close out under this ISDA (and vice versa) - in this way it imports all the Events of Default from all Specified Transactions into the present one.
- What if I do "jump the gun"?: could a wrongfully submitted notice of default be treated as a repudiation/anticipatory breach by the "non-defaulting party" giving the other party at least the right to withhold payments on the basis that this would constitute a Potential Event of Default by the party submitting the notice? There's not much law on point, but the starting point is "no" - it would simply be an ineffective notice. However, a non-payment on the basis of an ineffective notice would be impermissible and may itself amount to a Failure to Pay. But as to the mere dispatch of the notice itself, there is relatively recent case law (albeit in the bond world) stating that an acceleration notice that is submitted wrongfully, i.e. when no actual event of default, is merely ineffective and does not give rise to a claim for breach of contract/ damages from "defaulting party". Clearly this has not been considered in context of ISDA per se (and may be nuances here that would lead to different result) but at it is a start.
Comparison with Cross Default
- No requirement for a Threshold Amount to be hit before trigger: any default will trigger it.
- Only relates to transactions between the two counterparties (or any Specified Entity) - a default by a counterparty under a derivatives transaction *with a third party* would not trigger this clause.