Bankruptcy - ISDA Provision
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Analysis
Speed Read
In essence the 2002 ISDA definition amounts to the following:
The Counterparty, any Credit Support Provider or Specified Entity:―
- Dissolved: is dissolved (other than pursuant to a merger);
- Insolvent: becomes insolvent, unable to pay its debts, or admits that in writing;
- Composition with Creditors: makes a composition its creditors;
- Involvency Proceedings: (A) becomes subject to insolvency (or similar) proceedings instituted by a regulator; or (B) becomes subject to insolvency (or similar) proceedings instituted by anyone other than a regulator which result in a winding up order or are not discharged within 15 days
- Voluntary Winding Up: has a resolution passed for its winding-up (other than pursuant to a merger);
- Put in Administration: has an administrator, provisional liquidator, or similar appointed for it or for all or substantially all its assets;
- Security Exercised: has a secured party take possession of all or substantially all its assets which process is not dismissed within 15 days ;
- Analogous events: Causes or is subject to any event which, under the applicable laws of any jurisdiction, has an analogous effect to any of the above; or
- Action in furtherance: takes any action in furtherance of any of the above.
Change betwee 92 and 02 versions
There are two:
- Slightly more specific concept of insolvency: firstly, in limb 4(insolvency proceedings) a new limb (A) has been included to cover action taken by an entity-specific regulator or supervisor (as opposed to a common or garden insolvency proceeding)
- Contracted grace period: The allowable period for dismissal of an insolvency petition (under 5(a)(vii)(4)) or the exercise of security over assets (under 5(a)(vii)(7)) is compressed from 30 days to 15 days. This, in aggregate over the whole global market, keeps many a negotiator in meaningful* employment.
*"meaningful" is in the eye of the beholder, you understand.
Market standard
The ISDA bankruptcy definition is rarely a source of great controversy (except for the grace period, as to which see below, which gets negotiated only through custom amongst ISDA negotiators because, in its wisdom, ISDA thought fit to change it in the 2002 ISDA. So you have a sort of pas-de-deux between negotiators where they argue about it for a while before getting tired, being shouted at by their business people, and moving on to something more important to argue about, like Cross Default*.)
Otherwise the ISDA bankruptcy clause is a much loved and well used market standard and you often see it being imported into other agreements precisely because everyone knows it and no one really argues about it.
*This, by the way, is an ISDA In-joke. In face Cross Default is almost totally pointless.
Grace period
Note the contraction of the grace period from 30 days to 15 days between the 1992 ISDA and the 2002 ISDA. Note also, for students of history, the problematic Automatic Early Termination situation under the 1987 ISDA.
In gory detail
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1987 ISDA
5(a)(vii) Bankruptcy. The party or any applicable Specified Entity:–
- (1) is dissolved;
- (2) becomes insolvent or fails or is unable 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) institutes or 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 the winding-up or liquidation of the party or any such Specified Entity, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition
- (A) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for the winding-up or liquidation of the party or such Specified Entity or
- (B) is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
- (5) has a resolution passed for its winding-up or liquidation;
- (6) seeks or becomes subject to the appointment of an administrator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (regardless of how brief such appointment may be, or whether any obligations are promptly assumed by another entity or whether any other event described in this clause (6) has occurred and is continuing);
- (7) any event occurs with respect to the party or any such Specified Entity which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (1) to (6) (inclusive); or
- (8) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts;
other than in the case of clause (1) or (5) or, to the extent it relates to those clauses, clause (8), for the purpose of a consolidation, amalgamation or merger which would not constitute an event described in (viii) below; or
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