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2002 ISDA Master Agreement
A Jolly Contrarian owner’s manual™
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Section Applicable Close-out Rate in a Nutshell™
Use at your own risk, campers!
“ Applicable Close-out Rate” means:—
- (a) on an Unpaid Amount:—
- (i) if the Defaulting Party’s obligation, the Default Rate;
- (ii) if the Non-defaulting Party’s obligation, the Non-default Rate;
- (iii) if a deferred obligation under Section 5(d), if there is no Defaulting Party during the deferral period, the Applicable Deferral Rate; and
- (iv) in any other case following a Termination Event (except interest which accrues under (iii) above), the Applicable Deferral Rate; and
- (b) on an Early Termination Amount:—
- (i) from the Early Termination Date until the Early Termination Amount is payable:—
- (1) if payable by a Defaulting Party, the Default Rate;
- (2) if payable by a Non-defaulting Party, the Non-default Rate; and
- (3) in all other cases, the Applicable Deferral Rate; and
- (ii) from the date the Early Termination Amount is payable until it is actually paid:—
- (1) if unpaid because of an Illegality or Force Majeure Event the Applicable Deferral Rate;
- (2) if payable by a Defaulting Party (excluding any period where (1) above applies), the Default Rate;
- (3) if payable by a Non-defaulting Party (excluding any period where (1) above applies), the Non-default Rate; and
- (4) in all other cases, the Termination Rate.
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Full text of Section Applicable Close-out Rate
“ Applicable Close-out Rate” means:—
- (a) in respect of the determination of an Unpaid Amount:—
- (i) in respect of obligations payable or deliverable (or which would have been but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
- (ii) in respect of obligations payable or deliverable (or which would have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default Rate;
- (iii) in respect of obligations deferred pursuant to Section 5(d), if there is no Defaulting Party and for so long as the deferral period continues, the Applicable Deferral Rate; and
- (iv) in all other cases following the occurrence of a Termination Event (except where interest accrues pursuant to clause (iii) above), the Applicable Deferral Rate; and
- (b) in respect of an Early Termination Amount:—
- (i) for the period from (and including) the relevant Early Termination Date to (but excluding) the date (determined in accordance with Section 6(d)(ii)) on which that amount is payable:—
- (1) if the Early Termination Amount is payable by a Defaulting Party, the Default Rate;
- (2) if the Early Termination Amount is payable by a Non-defaulting Party, the Non-default Rate; and
- (3) in all other cases, the Applicable Deferral Rate; and
- (ii) for the period from (and including) the date (determined in accordance with Section 6(d)(ii)) on which that amount is payable to (but excluding) the date of actual payment:—
- (1) if a party fails to pay the Early Termination Amount due to the occurrence of an event or circumstance which would, if it occurred with respect to a payment or delivery under a Transaction, constitute or give rise to an Illegality or a Force Majeure Event, and for so long as the Early Termination Amount remains unpaid due to the continuing existence of such event or circumstance, the Applicable Deferral Rate;
- (2) if the Early Termination Amount is payable by a Defaulting Party (but excluding any period in respect of which clause (1) above applies), the Default Rate;
- (3) if the Early Termination Amount is payable by a Non-defaulting Party (but excluding any period in respect of which clause (1) above applies), the Non-default Rate; and
- (4) in all other cases, the Termination Rate.
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Content and comparisons
This clause being new to the 2002 ISDA, there is no equivalent in the 1992 ISDA.
Summary
Truly from the I’m sorry I asked file — almost in the shoot me file. This whole game of pan-dimensional chess, with six different Applicable Close-out Rates to apply in different circumstances, is all just to work out how to accrue interest on Unpaid Amounts and Early Termination Amounts during the close-out process. Considering that the said payer of this Applicable Close-out Rate is, Q.E.D., a dead duck at the time, and is unlikely to be able to pay much of anything, let alone elevated penalty interest, it really should not have been this hard.
You get a strong sense that the pragmatists of ISDA’s crack drafting squad™ — if there are any — had well and truly tuned out and gone to the bar by the ’squad got to this definition. Looking on the bright side, at least it doesn’t mention LIBOR.
Non-Default Rate
To compare with the definition of “Default Rate”:
“Default Rate” means a rate per annum equal to the cost (without proof or evidence of any actual cost) to the relevant payee (as certified by it) if it were to fund or of funding the relevant amount plus 1% per annum. [emphasis added]
Since there is no suggestion of deftly placing one’s thumb on the scale, as there is for the Default Rate, we need not have, here, a saucy discussion about the risks of being seen as a penalty.
See also
References