Bankruptcy - ISDA Provision
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2002 ISDA Master Agreement
Section 5(a)(vii) in a Nutshell™ Use at your own risk, campers!
Full text of Section 5(a)(vii)
Related agreements and comparisons
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Content and comparisons
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
There are two differences between the 1992 ISDA and 2002 ISDA definitions of Bankruptcy.
First, the 2002 ISDA has a slightly more specific concept of “insolvency”. In limb 4 (insolvency proceedings) a new limb has been included to cover action taken by an entity-specific regulator or supervisor (as opposed to a common or garden insolvency proceeding): If initiated by a regulator, the game’s up as soon as the action is taken. If initiated by a random creditor, the action must have resulted in a winding-up order, or at least not have been discharged in 15 (not 30) days.
About that grace period. Second, and unnervingly for those of little faith in their own accounts payble departments, the grace period in which one must arrange the dismissal of a vexations or undeserving 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.
Summary
The truncating the grace period from 30 days in the 1992 ISDA to 15 days in the 2002 ISDA has, in aggregate over the whole global market, kept many a negotiator in “meaningful” employment. It has also been a large reason why many organisations did not move to the 2002 ISDA and of those who eventually did — organisations whom you’d think would know better — then set about amending these grace periods back to the 1992 ISDA standard of 30 days or better still, insisted on sticking with the 1992 ISDA, but upgrading every part of it to the 2002 ISDA except for the Bankruptcy and Failure to Pay grace periods. A spectacular use of ostensibly limited resources, and an insight into whose benefit organisations really operate for.
Regional bankruptcy variations
The Germanic lands have peculiar ideas when it comes to bankruptcy — particularly as regards banks, so expect to see odd augmentations and tweaks to ISDA’s crack drafting squad™ standard language. Will these make any practical difference? Almost certainly not: it is hard to see any competent authority in Germany, Switzerland or Austria — storeyed nations all, in the long history of banking, after all — not understanding how to resolve a bank without blowing up its netting portfolio. Especially since Basel, where the netting regulations were formulated, is actually in Switzerland.
We have a whole page about Swiss Bankruptcy Language. True story.
The market standard “bankruptcy” definition
The ISDA bankruptcy definition is rarely a source of great controversy (except for the grace period, which gets negotiated only through custom amongst ISDA negotiators because, in its wisdom, ISDA’s crack drafting squad™ thought fit to halve it from 30 days to 15 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).[1]
Otherwise, the ISDA bankruptcy clause is a much loved and well-used market standard and you often see it being co-opted into other trading agreements precisely because everyone knows it and no one really argues about it.
1987 ISDA and Automatic Early Termination
Note, for students of history, Automatic Early Termination is (was, right? Oh, come on, guys —) problematic under the 1987 ISDA.
General discussion
TL;DR
Here are all the stages you must go through between becoming entitled to terminate and settlement for a Failure to Pay or Deliver. Note something very important:
Because you have been exchanging VM, as of the Early Termination Date, the MTM of the collateralised portfolio of Transactions should be more or less zero. A doughnut. Therefore, the final gain or loss that is secured by Posted Credit Support (IM) is a function of the change in portfolio value between the Early Termination Date and when you work out the Early Termination Amount.
That is to say, you will not know who is owed money until you have worked out the Early Termination Amount. For people who want to enforce on Posted Credit Support (IM) the moment there is an Event of Default, please consider this. You do not need to enforce security yet. You might not actually be owed anything.
Okay, so here goes with the timeline:
- T: There must be a Bankruptcy Event of Default on a day, T.
- T: You must send a Section 6(a) notice designating an Early Termination Date for all outstanding Transactions. It must be within 20 days. Let’s say it is the same day, for the hell of it
- T: You are “off risk” and must start calculating your Close-out Amounts for all outstanding Transactions. You must do this as soon as reasonably practicable. Let’s say that takes another 30 days.
- T+30: having calculated all Close-out Amounts and totted them all up into a single Early Termination Amount: You send your Section 6(d) statement advising of that amount, giving bank details and supplying your workings.
- T+31: Your Early Termination Amount is due.
In Full
So, to close out following a Bankruptcy, you will need:
1. There must be a Bankruptcy under Section 5(a)(vii)
There are nine different types of bankruptcy under the ISDA. Most are formal, public events (regulator institutes bankruptcy proceedings, administrator appointed, etc — watch too for local regulator actions and bail ins specified in the ISDA Master Agreement if your counterparty is a bank) that the would be widely known about. Others are less public and might happen more quickly. The ones most likely to happen first are:
- becoming unable to pay debts as they fall due or admitting it in writing
- making a composition with creditors
- a secured party enforcing against substantially all assets (though “substantially all assets” is a high bar, and would not be likely to apply to a significant financial institution)
Unlike a Failure to Pay, you do not need to wait for the close of business, or any grace periods to expire.
2. Send a Section 6(a) notice designating an Early Termination Date
Once there is a live Bankruptcy Event, Section 6(a) allows you, by not more than 20 days’ notice, to designate an Early Termination Date for all outstanding Transactions.
So, at some point in the next twenty days outstanding Transactions will be at an end. Now this is a different thing from knowing what the amounts will be, much less knowing when they will be paid or who will owe them: this is the date by reference to which Termination Amounts will be calculated.
Usually, you will want to go “off risk” as quickly as possible, so the Early Termination Date will likely be the date you send your Section 6(a) notice or soon after. The 20 days’ time limit on the notice period is a red herring.
3. Determine Close-out Amounts
Now, ascertain termination values for the Terminated Transactions as of the Early Termination Date per the methodology set out in Section 6(e)(i). Section 6(c) reminds us for the avoidance of doubt that even if the Event of Default which triggers the Early Termination Date evaporates in the meantime — these things happen, okay? — yon Defaulting Party’s goose is still irretrievably cooked. The trading and risk people need to come up with Close-out Amounts for all outstanding Transactions. Now note, even though you have designated an Early Termination Date not more than 20 days from your Section 6(a) notice, it may well take you a lot longer to close out your portfolio than that, and as long as you are acting in a commercially reasonable way, you can take longer. There is a longer essay about the meaningless of that 20-day time limit here. Once they have done that you are ready for your Section 6(e) notice.
4. Calculate and notify
The Early Termination Date is the date on which the Transactions terminate; it is the date by reference to which you calculate their termination values, not the date by which you have to have valued, much less settled outstanding amounts due as a result of their termination — that would be a logical impossibility for those not imbued with the power of foresight.
Here we move onto Section 6(d), under which, as soon as is practicable after the Early Termination Date, your boffins work out all the termination values for each Transaction, tot them up to arrive at the Section 6(e) amount, and send a statement to the defaulting party, specifying the Early Termination Amount payable, the bank details, and reasonable details of calculations.
5. Pay your Early Termination Amount
Your in-house metaphysicians having calculated your Close-out Amounts, and assembled all the values into an Early Termination Amount the party who owes it must pay the Early Termination Amount. With ISDA’s crack drafting squad™’s yen for infinite particularity, this will depend on whether the Early Termination Date follows an Event of Default or a Termination Event. If the former, the Early Termination Amount is payable at once, as soon as the 6(d) statement is deemed delivered; if a Termination Event, only two Local Business Days — I know, right — after the 6(d) statement is delivered (or, where there are two Affected Parties and both are delivering each other 6(d) statements — I know, right — after both have done so).
See also
- Insolvency and bankruptcy generally.
- Closing out a 2002 ISDA
- Closing out a 1992 ISDA
References
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[2].)
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.
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.
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
See also
References
- ↑ This, by the way, is an ISDA In-joke. In fact, Cross Default is pretty much pointless, a fact that every ISDA ninja and credit officer knows, but none will admit on the record. It is the love that dare not speak its name.
- ↑ This, by the way, is an ISDA In-joke. In fact, Cross Default is pretty much pointless, a fact that every ISDA lawyer knows, but none will admit on the record.