Swiss bankruptcy language

ISDA Anatomy™

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In a Nutshell™ Section 5(a)(vii):

5(a)(vii). Bankruptcy. A party of its Credit Support Provider or Specified Entity:―

(1) Dissolved: is dissolved (other than by merger);

(2) Insolvent: becomes insolvent, unable to pay its debts, or admits it in writing;

(3) Composition with Creditors: makes a composition with its creditors;

(4) Insolvency Proceedings: suffers insolvency proceedings instituted by:

(A) a regulator; or

(B) anyone other than a regulator, and

(I) it results in a winding up order; or

(II) those proceedings are not discharged within 15 days;

(5) Voluntary Winding Up: resolves to wind itself up (other than by merger);

(6) Put in Administration: has an administrator, provisional liquidator, or similar appointed for it or for substantially all its assets;

(7) Security Exercised: has a secured party take possession of, or a legal process is enforced against, substantially all its assets for at 15 days without a court dismissing it;

(8) Analogous events: suffers any event which, under the laws of any jurisdiction, has the same effect as any of the above events; or

(9) Action in furtherance: takes any action towards any of the above events.

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2002 ISDA full text of Section 5(a)(vii):

5(a)(vii) Bankruptcy. The party, any Credit Support Provider of such party or any applicable Specified Entity of such party:―

(1) is dissolved (other than pursuant to a consolidation, amalgamation or merger);

(2) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

(3) makes a general assignment, arrangement or composition with or for the benefit of its creditors;

(4)

(A) institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official, or

(B) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and such proceeding or petition is instituted or presented by a person or entity not described in clause (A) above and either

(I) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation or

(II) is not dismissed, discharged, stayed or restrained in each case within 15 days of the institution or presentation thereof;

(5) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

(6) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets;

(7) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 15 days thereafter;

(8) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (1) to (7) above (inclusive); or

(9) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts; or

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Click here for the text of Section 5(a)(vii) in the 1992 ISDA

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See ISDA Comparison for a comparison between the 1992 ISDA and the 2002 ISDA.

The Varieties of ISDA Experience
Subject	2002 (wikitext)	1992 (wikitext)	1987 (wikitext)
Preamble	Pre	Pre	Pre
Interpretation	1	1	1
Obligns/Payment	2	2	2
Representations	3	3	3
Agreements	4	4	4
EODs & Term Events	5 Events of Default: FTPD • Breach • CSD • Misrep • DUST • Cross Default • Bankruptcy • MWA Termination Events: Illegality • FM • Tax Event • TEUM • CEUM • ATE	5 Events of Default: FTPD • Breach • CSD • Misrep • DUST • Cross Default • Bankruptcy • MWA Termination Events: Illegality • Tax Event • TEUM • CEUM • ATE	5 Events of Default: FTPD • Breach • CSD • Misrep • DUSS • Cross Default • Bankruptcy • MWA Termination Events: Illegality • Tax Event • TEUM • CEUM
Early Termination	6 Early Termination: ET right on EOD • ET right on TE • Effect of Designation • Calculations; Payment Date • Payments on ET • Set-off	6 Early Termination: ET right on EOD • ET right on TE • Effect of Designation • Calculations • Payments on ET • Set-off	6 Early Termination: ET right on EOD • ET right on TE • Effect of Designation • Calculations • Payments on ET
Transfer	7	7	7
Contractual Currency	8	8	8
Miscellaneous	9	9	9
Offices; Multibranch Parties	10	10	10
Expenses	11	11	11
Notices	12	12	12
Governing Law	13	13	13
Definitions	14	14	14
Schedule	Schedule	Schedule	Schedule
Termination Provisions	Part 1	Part 1	Part 1
Tax Representations	Part 2	Part 2	Part 2
Documents for Delivery	Part 3	Part 3	Part 3
Miscellaneous	Part 4	Part 4	Part 4
Other Provisions	Part 5	Part 5	Part 5

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Consider adding to the Bankruptcy definition: (see Article 26 of the Swiss Banking Act):

or (10) in respect of a Swiss bank or a Swiss branch of a bank licensed under the Swiss Federal Act on Banks and Savings Banks (the “Swiss Banking Act”), it has imposed on it or with respect to it, by the Swiss Financial Market Supervisory Authority:

(A) protective measures (Schutzmassnahmen/mesures protectrices) under Article 26(1)(e), (f), (g) or (h) or other protective measures establishing a general payment moratoriumor ordering the termination of its business operations;

(B) restructuring procedures (Sanierungsverfahren/procédure d’assainissement) under Articles 28-32 of the Swiss Banking Act or

(C) an order for liquidation and the withdrawal of its banking license under the Swiss Banking Act.

So, the question is, whether you need also to adjust the Automatic Early Termination language to take into account this new limb (seeing that AET specifically references only Sections 5(a)(vii)(1), (3), (5) or (6) or if analogous, (8), and this would be, if added in the conventional way, Section 5(a)(vii)(10)). And the answer to that question is yes. You can narrow it.

Automatic Early Termination applies to Party [A] upon the occurrence of the following events only:

The “opening of bankruptcy” (Konkurseröffnung) under Swiss law; and
The “opening of composition proceedings” (Nachlassverfahren) under Swiss law.