Tax Event Upon Merger - ISDA Provision

2002 ISDA Master Agreement

A Jolly Contrarian owner’s manual™

Tax Event Upon Merger in a Nutshell™

The JC’s Nutshell™ summary of this term has moved uptown to the subscription-only ninja tier. For the cost of ½ a weekly 🍺 you can get it here. Sign up at Substack. You can even ask questions! Ask about it here.

Tax Event Upon Merger in all its glory

5(b)(iv) Tax Event Upon Merger. The party (the “Burdened Party”) on the next succeeding Scheduled Settlement Date will either (1) be required to pay an additional amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest under Section 9(h)) or (2) receive a payment from which an amount has been deducted or withheld for or on account of any Tax in respect of which the other party is not required to pay an additional amount (other than by reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a party consolidating or amalgamating with, or merging with or into, or transferring all or substantially all its assets (or any substantial part of the assets comprising the business conducted by it as of the date of this Master Agreement) to, or reorganising, reincorporating or reconstituting into or as, another entity (which will be the Affected Party) where such action does not constitute a Merger Without Assumption; edit

Related agreements and comparisons

Click here* for the text of Section Tax Event Upon Merger in the 1992 ISDA* Template:Isdadiff Tax Event Upon Merger

Resources and Navigation

This provision in the 1992

Index: Click ᐅ to expand: 2002 ISDA 1992 ISDA

Premium version of this page

Overview

edit

Numbering Discrepancy: Note the numbering discrepancy in Section 5(b) between the 1992 ISDA and 2002 ISDA. This is caused by a new 5(b)(ii) (Force Majeure Event) in the 2002 ISDA before Tax Event, which is thus shunted from Section 5(b)(ii) (in the 1992 ISDA) to Section 5(b)(iii) (in the 2002 ISDA).

Redlines

1987 ⇒ 1992: Redline of the ’92 vs. the ’87: comparison (and in reverse)
1992 ⇒ 2002: Redline of the ’02 vs. the ’92: comparison (and in reverse)
1987 ⇒ 2002: Redline of the ’92 vs. the ’87: comparison (and in reverse)

Discussion

Tax Event Upon Merger: Note the missing “indemnifiable” from the fifth line of the 2002 ISDA version and the expanded description of “merger events” towards the end of the clause. And the renumbering as a result of the Force Majeure Event clause in the 2002 ISDA.

Summary

edit

This is you can imagine, a red letter day for ISDA’s crack drafting squad™ who quite outdid itself in the complicated permutations for how to terminate an ISDA Master Agreement should there be a Tax Event or a Tax Event Upon Merger. Things kick off in Section 6(b)(ii) and it really just gets better from there.

So, Tax Event Upon Merger considers the scenario where the coming together of two entites — we assume they hail from different jurisdictions or at least have different practical tax residences — has an unfortunate effect on the tax status of payments due by the merged entity under an existing Transaction.

It introduces a new and unique concept — the “Burdened Party”, being the one who gets slugged with the tax — and who may or may not be the “Affected Party” — in this case the one subject to the merger.

Premium content

Here the free bit runs out. Subscribers click 👉 here. New readers sign up 👉 here and, for ½ a weekly 🍺 go full ninja about all these juicy topics 👇

The JC’s famous Nutshell™ summary of this clause

“Burdened” Party? Is that different from an Affected Party?

edit

References

Tax Event Upon Merger - ISDA Provision

Overview

Redlines

Discussion

Summary

Premium content

See also

References