Additional Termination Event - ISDA Provision
Trick for young players
Termination Event is defined as “an Illegality, a Tax Event or a Tax Event Upon Merger or, if specified to be applicable, a Credit Event Upon Merger or an Additional Termination Event”.
Best Practice Note: Therefore adding any new Termination Event must ALWAYS be achieved by labelling it a new Additional Termination Event under Section 5(b)(vi)[1], and not a separate event under a new Section 5(b)(vii)[2] etc. If, you try to make it into a new “5(b)(vii)” it is therefore neither an “Illegality”, “Tax Event”, “Tax Event Upon Merger”, “Credit Event Upon Merger” nor an “Additional Termination Event”. Read literally, is will not be caught by the definition of “Termination Event” and none of the Termination provisions will bite on it.
I mention this because I have seen it happen. Yes, you can take a “fair, large and liberal view” that what the parties intended was to create an ATE, but why suffer that anxiety?