User talk:Amwelladmin

Section Preamble

Section Preamble in a nutshell

2002 ISDA Master Agreement

between

[SPECIFY] and [SPECIFY]

will be entering into “Transactions” governed by this 2002 Master Agreement and its “Schedule”, and a “Confirmation” evidencing those Transactions. The 2002 Master Agreement with its Schedule are the “Master Agreement”.
So:―

Comparison between versions

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

The Preamble to the 1987 ISDA had an extra feature: the single agreement provision. By 1992, this had been moved to its own little subclause in Section 1(c), and there it has stayed ever since.

As for the modern ISDAs, there is little material difference between the 1992 ISDA and the 2002 ISDA here. By 2002, ISDA’s crack drafting squad™ was a more world-weary, battle-hardened unit than it was in 1992, and was more alive to the idea that one might document Transactions other than via a full-blown Confirmation. Particularly in the equity derivatives world, because the asset class tends to be fairly vanilla, the market was starting to generate Master Confirmation Agreements for certain markets and regions, meaning that commoditised swap transactions could be fully automated and electronically completed through online trade matching systems without any faxed bits of paper saying “Dear Ladies and Gentlemen” and similarly genteel things that are so archaic as to seem, in these snow-flecked days, mildly offensive.

Discussion

Chekhov’s gun
Russian: Чеховское ружьё (n.)

A narrative principle that states that every element in a story must be necessary, and irrelevant elements should be removed.

“If there is a rifle hanging on the wall in the first act, it must go off in the third.”

A preamble is he legal eagle’s opportunity to set a scene, a juridical version of “once upon a time”: an integrated passage that may or may not start with “whereas”, “background” or something like that and is meant to prime you for the meat of contract.

The ISDA Master Agreement needs just such a scene-setter: everyone, once, stares at that gnomic title and thinks, “okay, what on earth is this all about?” That is the Preamble. There is not much to see but, casually, it calls the reader’s attention to things that will later become important — the proverbial rifle hanging above the fireplace that goes off in the third act. That is where the similarities with Chekhov end, though: before long, it will go full Dostoyevsky on us.

The ISDA Master Agreement is the basic framework that applies to anyone who touches down on planet ISDA. The preamble tells us about its tri-partite form: the Pre-printed Master, a Schedule of elections and amendments, and Confirmations setting out the terms of Transactions.

ISDAs, Ancient and Modern

There are two versions of the ISDA still widely in use — the 2002 ISDA Master Agreement and the ISDA Master Agreement (Multicurrency — Cross Border) which is known to all who love her as the 1992 ISDA Master Agreement. These we call the “Modern ISDAs”.

There are two more or less fully retired versions: the ISDA Interest Rate and Currency Exchange Agreement of 1987 (the 1987 ISDA) and the ISDA Code of Standard Wording, Assumptions and Provisions for Swaps of 1985 (let’s call this the 1985 Code, though few people have ever even seen one). These we call the “Ancient ISDAs”.

There is one, the 2008 ISDA Decentralised Automomous Organisation-as-an-Agreement that died tragically during conception and never made it to the market but yet exists as an apocryphal testament to the enduring, wishful optimism of derivatives lawyers the world over. We call this the “Atlantis Variation”.

2002 ISDA

The still, after all these years, state-of-the-art 2002 ISDA. This is the most popular version — it took industry participants an awfully long time to get comfortable with it, despite its innovations being largely sensible but, twenty-two years into its life, most of the European and Asian markets trade on the 2002 ISDA, and we sense even those camelesque Americans are coming to begrudging terms with it. If you are ever not sure, on this wiki, the JC will generally have the 2002 ISDA in mind, though there is a fully scoped user manual and comparative discussions relating to the 1992 ISDA as well. Speaking of which —

1992 ISDA

The 1992 ISDA was the first global, pan-transactional, earth-shaking version of the ISDA Master Agreement. It was the first one to be actually called a “Master Agreement”. It is still popular with traditionalists, those who can’t abide a one-day grace period for Failure to Pay or Deliver, and Americans.

Until quite recently much of the American market was still on the 1992 ISDA, although most users heavily modified it to take in most of the innovations of the 2002 ISDA. But the anecdotal sense we have is that even in New York, these days, the 2002 ISDA is the master agreement of choice for the discerning ninja.

The fact that there was so much institutional reluctance to update to a new and better agreement should tell us a good deal, both good and bad, about how people in established businesses behave — in brief, they like what they know — and how quickly things really change: not very.

Perhaps had the 2002 ISDA been more radical it might have stood a greater chance quick of adoption. On the other hand, the further the fruit falls from the tree, the greater the chance of outright failure. Just ask “Flight 19”, the poor, doomed Linklaters team who drafted the 2011 Equity Derivatives Definitions.

1987 ISDA

The 1987 ISDA Interest Rate and Currency Exchange Agreement — it wasn’t, by name, a comprehensive “master agreement” — is all but a dead letter now. But, we sense, not quite.

Just as there are still soldiers in the Burmese jungle fighting the Second World War, through inattention or truculence there may be pockets, embedded deep in the impassable hinterlands of structured finance who still cling to the 1987 ISDA, notwithstanding its well-recognised shortcomings. If you come across one of these, proceed with caution: 1987 ISDAs don’t have a lot of safety features a modern derivatives counterparty relies on, so are only for real die-hard vinyl junkies and weirdos.

1985 ISDA Code

These days interesting only for its place in the fossil record — and a witty acrostic that points to a playfulness among the First Men that has long since vanished, the 1985 ISDA Code was out of use well before the millennium. The JC only found out about it when visiting a retired ninja in a care home in 2015, and at first assumed it was some sort of urban myth or in-joke. But apparently not.

2008 ISDA — “Atlantis”

The 2008 ISDA Decentralised Autonomous Organisation-as-an-Agreement — a “this-fixes-everything, on-chain, smart, artificially intelligent” was introduced during, and tragically destroyed by, the Global Financial Crisis.

Oh, all right there isn’t a 2008 ISDA. Never was. This one is a running JC in-joke. Talking to yourself might not be the first sign of madness, but having in-jokes with yourself might be. From the blurb to Hunter Barkley’s 2026 novel The Atlantis Variation:

… the 2008 ISDA would be a definitive, final, flawless self-aware edition of the ISDA Master Agreement. Short, plainly worded, future-proofed and agile, it would allow counterparties to agree robust trading terms with little fuss and only the cursory clerical management delivered through unskilled personnel in low-cost jurisdictions and, eventually, chatbots.

It promised to be the long-lost missing use-case for distributed ledger technology, natively negotiated “on-chain” between arrays of dematerialised large language models housed, for the sense of theatre, in a single giant data centre in the outskirts of Bucharest.

Had it been implemented, the Atlantis would have addressed the financial, infrastructural and regulatory challenges which would dog the financial derivatives market in the early 21st century, eventually bringing to the brink of an abyss the rolling countryside of Aïessdiyé, a verdant wetlands in whose folded hills, nooks and crannies peaceable, hobbity little swapsfolk had for generations made their comfortable burrows.

While they romped wealthily about their sun-drenched meadows, the ’08 would silently, effectively consolidate all documentation across a wide range of products and asset classes (including, but not limited to, repo, stock lending, prime brokerage, exchange traded derivatives, commodities and emissions), finally moving the financial world into a stable utopian state in which all risks are known, all eventualities experienced and contingencies accounted for. Risk would finally be banished for ever.

That was the theory: the reality was infinitely darker.

Schedule

All usable versions of the ISDA Master Agreement have a Schedule with a semi-rigid structure:

Part 1: Termination Provisions
Part 2: Tax Representations
Part 3: Documents for Delivery
Part 4: Miscellaneous (Schedule)
Part 5: Other Provisions

The first four parts of the Schedule fine-tune various Events of Default and Termination Events, letting the parties make certain elections and representations, setting out their tax and financial disclosures and specifying names, addresses, contact details, agents, friends and relations and so on.

Part 5 is a free-form “any other business” where your credit team can indulge its fantasies, gild the lily and you can set out agreed amendments to the pre-printed form.

A quick word on etiquette: one would never inline amend an ISDA Master Agreement — mostly they pass around the market in .pdf form, so you couldn’t anyway, but even if you could it would be unspeakably bad form to try — if you do want to make amendments to the legal or economic terms you put them in the Schedule. There are prudent legal design reasons for this, though over the years the amount of freestyle “Part 5” amendment has grown to the point where the Schedule is often longer than the Master Agreement proper.

Much of this is quite unnecessary and, for lovers of clarity and documentary elegance, a cause for great regret.

Transactions

Because the range of things you could conceivably write a swap about is unlimited, and having only ten fingers and toes, JC will have less to say about “Transactions” generally — except for Equity Derivatives, because they tend to be generic, delta-one and they are popular in the equity prime brokerage world, which is JC’s old stamping ground.

The I.S.D.A.

ISDA, which publishes the ISDA, was the “International Swap Dealers Associations, Inc.” — interesting plural, that — but in any case, outwardly a sell-side industry association.

JC’s extensive research has not yielded an explanation for why ISDA ever considered itself a plural, and the chatbots he consulted all came up with absurd reasons like — and I kid you not — inclusivity, collectivity, and global representation:

“using Associations”, speculated NiGEL, “might have aimed to convey a broader representation of various swap dealers across the globe, even though it wasn’t a merger of multiple entities”. Perhaps, it continues, “founders anticipated incorporating other regions or types of swap dealers in the future, which never materialised”.

Perhaps. Or maybe it was a typo. Who knows?

In any weather, in 1993, ISDA rebranded itself as the “International Swaps and Derivatives Association, Inc.”: singular, at the same time more unitary and sounding more inclusive of buy-siders, but still in spirit the same old ISDA, stake-held predominantly by the largest swap dealers on the face of the Earth.

It may aspire to conquer the world — it encroaches on the commodities, carbon, securities financing and crypto domains — but for now, ISDA remains a “dealer-community” association, largely devoted to the swap.

Buy-side representation

These days the “buy-side lobby” is bigger, more organised and better represented than it used to be, with the following associations representing its interests:

AIMA (the Alternative Investment Management Association)
EFAMA (the European Fund and Asset Management Association)
The MFA (the Managed Funds Association) and
The AI (the Investment Association).

ISDA architecture

The legal documentation for an ISDA swap transaction comes in three main parts, but — of course — there are complications for the legal eagles to get their iatrogenic talons into. But for now, let’s start at the beginning.

The ISDA Master Agreement

The ISDA Master Agreement is the basic framework which applies to anyone who touches down on planet ISDA. There are three existing versions:

• the state-of-the-art 2002 ISDA;
• the still-popular-with-traditionalists-and-Americans 1992 ISDA, and
• the all-but-retired-but-don’t-forget-there-are-still-soldiers-in-the-Burmese-jungle 1987 ISDA
• the interesting-only-for-its-place-in-the-fossil-record-and-witty-acrostic 1985 ISDA Code; and
• there isn’t a 2008 ISDA. That’s a little running JC in-joke.

All three versions have a tri-partite form: Pre-printed Master, Schedule and — well, this is controversial: for is it, or is it not, part of the ISDA Master Agreement? — Credit Support Annex. Template:M detail 2002 ISDA Preamble

Section 1

Section 1 in a nutshell

1 Interpretation
1(a) Definitions. Most of the definitions are in Section 14 but some are scattered throughout the Master Agreement.
1(b) Inconsistency. Where they conflict, each Confirmation overrides the Schedule, and the Schedule overrides the Master Agreement.
1(c) Single Agreement. When they enter each Transaction the parties are relying on the Master Agreement and all outstanding Confirmations being a single agreement. They would not otherwise enter into any Transaction.

Comparison between versions

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

The 2002 ISDA does the reader the service of acknowledging there might be terms defined in the schedule and not just Section 14 — as indeed there must — party-specific things like Party A, Party B, Credit Support Provider, Credit Support Document, and no doubt you can think of others — but beyond this, the text of Section 1 in the 2002 ISDA is the same as Section 1 in the 1992 ISDA.

The 1987 ISDA was broadly the same, though there was no “single agreement” subclause (c) — that is built instead into the Preamble. By 1992 ISDA’s crack drafting squad™ deemed this important enough to deserve its own place in Section 1(c), and there it stayed for the 2002 ISDA.

Discussion

Section 1 is a gentle introduction indeed to the dappled world of the ISDA Master Agreement.

In a nutshell, unless you are doing repackagings — and even then, don’t get carried away — make sure you understand what Section 1 is there for and what it does, but don’t fiddle with it.

Section 1(a)

The large slew of definitions are set out in Section 14. JC considers each in its own write in Section 14, so not much more to say here.

Section 1(b)

It wouldn’t be ISDA if there weren’t a hierarchy clause; like all hierarchy clauses, this one states what ought to be obvious: the pre-printed ISDA Master Agreement itself sits at the bottom of the hierarchy, is modified by the Schedule; once that is negotiated and stuck into the netting database, the Schedule sits there, ungainly, unloved and unregarded until the Great King of Terror comes down from the sky and may be (but generally isn’t) modified as needs be for each Transaction by the Confirmation.

In point of fact the Confirmations don’t tend to modify anything in the Master or Schedule, but rather builds on them, but if there is inconsistency — and with a document as pedantic and overwrought as the ISDA Master Agreement you never know — then the most specific, recently edited document will be the one that prevails.

All of this follows from general principles of contractual interpretation and common sense communication, of course.

A message to internal audit and quality control teams

One quick point that only needs saying when busy-bodies from internal audit come on their biannual trip hunting for worms and earwigs under rocks in your neighbourhood: you — and by that we mean one — never, never, never “inline” amends the form of ISDA Master Agreement. It is sacred. Never to be edited. If, er, one wants to amend its terms — of course one does, one is a legal eagle and one’s client is special — you do that remotely by setting out the amendment in Part 5 of the Schedule.

Why labour this obvious point? Because JC has had to explain to a disbelieving external audit consultancy, retained to ensure quality control over a portfolio of tens of thousands of master trading agreements, that there was no need for a control measuring the number of agreements that had been inline amended; no need for a core-sample test, a gap analysis or a nine-month all-points operational risk deep dive to be sure that this was the case — and it was an argument that ran for three weeks and which JC almost lost.

No-one, ever, inline amends the ISDA.

The ISDA Master Agreement is shot through with unimaginative design, unnecessary verbiage and conceptual convolution, but this is one design principle the ’squad got perfectly right: “offboarding” amendments to the Schedule does several smart things: it creates a neutral standard for all participants offering no scope for interrogation by sancimonious quality controllers, it makes very clear at a glance what has changed from the standard and most importantly it disincentivises formalistic fiddling: it is a rare — though by no means unknown — kind of pedant who insists on insertions like, “Section 2(a)(i) is amended by adding, “, as the case may be” before the full stop on the third line.”

Section 1(c)

Section 1(c) starts getting a bit tastier in that it comprises the Single Agreement. This is deep ISDA lore, from which all the close-out netting that gives the ISDA Master Agreement its capital efficiency flows.

The “single agreement” concept

Here several pieces of magic come together to create the capital foundation of the modern master trading agreement. The challenge, originally solved by the First Men, was to create an architecture that allowed discrete, unitary, complete Transactions, such that creating a new one or terminating an old one didn’t upset the economic or legal integrity of other Transactions that were currently on foot — no untoward tax consequences, that is to say — while at the same time creating an umbrella framework so that, should something regrettable happen to either party, all Transactions can be quickly rounded up, evaluated, stopped and then collapsed down — “netted” — to a single payment, payable by one party to the other.

This involved some canny financial engineering. The general rules of set-off require not just a mutuality of parties to the off-setting debts, but also amounts falling due on the same day and in the same currency — neither of which was necessarily true of the independent Transactions executed under a multi-currency, cross-border ISDA Master Agreement.

Their solution was this concept of the “Single Agreement”: the over-arching agreement that, however independent and self-contained Transactions are for any other purpose, when it comes to their early termination, they transmogrify into the single host agreement, in the process reduced to mere calculation inputs to the final amount which one party must pay the other. Thereby the process is not one of “set-off” at all, but of calculating a single net amount, the payment of which would sort out all matters outstanding under the relationship.

The JC once had the idea of doing a “boring talk” about the history of the ISDA Master, and actually pitched it to the BBC for their podcast series. It was rejected, on account of being too boring. True story.

Section 1(c): the Single Agreement

Most of Section 1 may be theatrical throat-clearing, but section 1(c) is important — by some lights, the main reason one even has an ISDA Master Agreement: it vouchsafes your close-out netting analysis, purporting to inextricably bind together all Transactions under the ISDA Master Agreement as part of a single, concerted, nettable whole. Should (God forbid) your counterparty have imploded, an unthinking administrator might feel the three-year jet fuel swap you traded in July 2012 had nothing really to do with your six-month interest rate swap from February last year and when it comes to considering who owes who what, the two should be treated as separate, unitary transactions. It might think this quite enthusiastically if one of those transactions happens out-of-the-money to you, and the other one in-the-money. This, at any rate, has been the dominant fear of the Basel Committee on Bank Supervision since it hit upon the idea of capital relief for master netting agreements in 1986.

“Why, that’s dashed bad luck, old man! You have to pay me that out-of-the-money exposure and while this dead parrot owes you on the other trade, the end of the creditors’ queue is that one you can see over there in the far distance, should you have a telescope on you.”

You might be inclined to say, “but wait: we should be able to set these off surely! This is all the same stuff, right! Swaps! They all go together! They’re not unitary transactions at all!”

Well, Section 1(c) — the one that says “it is all a single agreement, and we would never have done any of this if we had thought for a moment it might not be, and to prove it we are saying this out loud at the very inception of our derivatives relationship” is your friend in making that argument. There are similar provisions in other agreements, but none is so classic or elegant as the ISDA Master Agreement’s.

Section 2

Section 2 in a nutshell

2. Obligations
2(a) General Conditions

2(a)(i) Each party must perform its obligations under each Transaction Confirmation.

2(a)(ii) Parties must make:

(a) Payments for value the specified due date, in freely transferable funds and in the regular fashion for making payments in the currency in question.

(b) Deliveries for receipt on the due date and in the regular fashion for making deliveries of the asset in question.

2(a)(iii) Each party’s obligations under each Transaction are conditional upon:

(1) there being no uncured Event of Default or Potential Event of Default against the other party.

(2) no Early Termination Date having been designated for the Transaction.

(3) each other condition precedent in this Agreement being met.

2(b) Change of Account. Either party may change its standard settlement instructions by five Local Business Days’ notice before any Scheduled Settlement Date but the other party may make reasonable objections to such a change.
2(c) Netting of Payments . If on any date amounts would otherwise be payable by each party to the other

(i) in the same currency; and

(ii) under the same Transaction,

then those obligations will be satisfied and replaced by an obligation on the party owing the larger amount to pay the difference. The parties may net payments across multiple specified Transactions by applying “Multiple Transaction Payment Netting” (and clause 2(c)(ii) will therefore not apply). Multiple Transaction Payment Netting arrangements may apply to different groups of Transactions, will apply separately to each pairing of specified Offices and will take effect as agreed between the parties.
2(d) Deduction or Withholding for Tax

2(d)(i) Gross-Up. The parties must pay without withholding unless required by law. Where a payer has to withhold, it must:—

(1) promptly tell the recipient;

(2) promptly pay the withheld amount to the relevant authorities (including the withholding on any required gross-up);

(3) give the recipient a receipt for the tax payment; and

(4) gross up any Indemnifiable Tax, so that the recipient receives the amount it would otherwise have received (free of Indemnifiable Taxes). However, the payer need not gross up any withholding that arose only because:—

(A) the recipient did not provide Section 4(a) tax information, or breached its Payee Tax Representations; or

(B) the recipient's Payee Tax Representations were not true (other than because of regulatory action taken after execution of the Transaction or a Change in Tax Law.

2(d)(ii) Liability. If the payer :—

(1) is required by law to withhold a non-Indemnifiable Tax;

(2) nonetheless does not do so; and

(3) suffers by direct assessment a liability for that Tax,

then, unless the recipient has satisfied the Tax liability directly, it must reimburse the payer for that liability (plus interest, but not penalties unless it failed to provide tax information required under Section 4(a), or breached any Payee Tax Representations.

Comparison between versions

Readers looking for significant differences between the 1992 ISDA and 2002 ISDA will find their socks resolutely still on by the time they get to the end of section 2. Other than some new Multiple Transaction Payment Netting wording designed to untangle a cat’s cradle of language that, in this commentator opinion, didn’t need to be there in the first place, the only significant change in Section 2 is that the Default Interest provision has been removed and now appears, in a gruesomely reorganised format, in Section 9(h) of the 2002 ISDA.

Section 2(a)

The 1987 ISDA, being concerned only with interest rates and currency exchange, does not contemplate delivery, as such. Delivery implies non-cash assets. Therefore portions of 2(a)(i) and 2(a)(ii) were augmented in the 1992 ISDA to cater for this contingency. The 1992 ISDA also added a condition precedent to the flawed asset clause (Section 2(a)(iii)) that no Early Termination Date had been designated.

Thereafter Section 2(a) is identical in the 1992 ISDA and the 2002 ISDA. However the subsidiary definition of Scheduled Settlement Date — a date in which any Section 2(a)(i) obligations fall due — is a new and frankly uncalled-for innovation in the 2002 ISDA.

We have a special page dedicated to Section 2(a)(iii), by the way. That is a brute, and one of the most litigationey parts of the Agreement.

Section 2(b)

But for the new definition of Scheduled Settlement Date in the 2002 ISDA, the 1992 ISDA text is formally the same.

Section 2(c)

The 2002 ISDA introduces the concept of Multiple Transaction Payment Netting, thereby correcting a curiously backward way of applying settlement netting.

Section 2(d)

Other than an “on or after the date on which” embellishment towards the end of the clause, exactly the same text in the 1992 ISDA and the 2002 ISDA.

Section 2(e)

Section 2(e), dealing with default interest, was removed in the 2002 ISDA, and replaced with a spikier, more fulsome Section 9(h) (Interest and Compensation).

A new and different Section 2(e) for the 2002 ISDA was almost revived after the global financial crisis as a tool for imposing a “use it or lose it” trigger on Section 2(a)(iii), but the moment passed. See Condition End Date for more information.

Discussion

Section 2(a) contains the fundamental payment and delivery obligations under the ISDA Master Agreement; the remainder of the section is a random collection of harmless and uncontroversial, or even unnecessary, bits of housekeeping such as how one changes settlement instructions (Section 2(b)), under what circumstances the parties can net down offsetting payments in the ordinary course (Section 2(c) — though, spoiler, it is whenever they both feel like it), and arrangements for where and when one grosses up for withholding tax is (Section 2(d)).

Section 2(a)

Section 2 contains the basic nuts and bolts of your obligations under the Transactions you execute. Pay or deliver what you’ve promised to pay or deliver, when you’ve promised to pay it or deliver it, and all will be well.

“Scheduled Settlement Date”

Though it doesn’t say so, at least in the 2002 ISDA the date on which you are obliged to pay or deliver an amount is the “Scheduled Settlement Date”. The ’02 definition only shows up only in Section 2(b) (relating to the time by which you must have notified any change of account details) and then, later, in the tax-related Termination Events (Tax Event and Tax Event Upon Merger). That said, “Scheduled Settlement Date” isn’t defined at all in the 1992 ISDA.

Section 2(a)(iii): the flawed asset provision

And then there’s the mighty flawed asset provision of Section 2(a)(iii). This won’t trouble ISDA negotiators on the way into a swap trading relationship — few enough people understand it sufficiently well to argue about it — but if, as it surely will, the great day of judgment should visit upon the financial markets again some time in the future, expect plenty of tasty argument, between highly-paid King’s Counsel who have spent exactly none of their careers considering derivative contracts, about what it means.

We have some thoughts on that topic, should you be interested, at Section 2(a)(iii).

Section 2(b)

ISDA’s crack drafting squad™ phoning it in, we are obliged to say, and not minded to make any better a job of it when given the opportunity to in 2002. On the other hand, in this time of constant change, it is reassuring to know some things just stay the same.

Section 2(c)

Section 2(c) is about “settlement” or “payment” netting — that is, the operational settlement of offsetting payments due on any day under the normal operation of the Agreement — and not the more drastic close-out netting, which is the Early Termination of all Transactions under Section 6.

If you want to know more about close-out netting, see Single Agreement and Early Termination Amount.

We wonder what the point of this section is, since settlement netting is a factual operational process for performing existing legal obligations, rather than any kind of variation of the parties’ rights and obligations. If you owe me ten pounds and I owe you ten pounds, and we agree to both keep our tenners, what cause of action arises? What loss is there? We have settled our existing obligations differently.

To be sure, if I pay you your tenner and you don’t pay me mine, that’s a different story — but then there is no settlement netting at all. The only time one would wish to enforce settlement netting it must, ipso facto, have happened, so what do you think you’re going to court to enforce?

Section 2(d)

Section 2(d) does the following:

• Net obligation: if a counterparty suffers withholding it generally doesn’t have to gross up – it just remits tax to the revenue and pays net.
• Refund obligation where tax subsequently levied: if a counterparty pays gross and subsequently is levied the tax, the recipient must refund an equivalent amount to the tax.
• Indemnifiable Tax: the one exception is “Indemnifiable Tax” - this is tax arises as a result of the payer’s own status vis-à-vis the withholding jurisdiction. In that case the payer has to gross up, courtesy of a magnificent quintuple negative.

Stamp Tax reimbursement obligations are covered at 4(e), not here.

News from the pedantry front

Happy news, readers: we have a report from the front lines in the battle between substance and form. The JC asked no lesser a tax ninja than Dan Neidle — quietly, the JC is a bit of a fan — the following question:

In the statement, “X may make a deduction or withholding from any payment for or on account of any tax” is there any difference between “deducting” and “withholding”?

They seem to be exact synonyms.

Likewise, “for” vs. “on account of”?

We are pleased to report Mr N opined replied:

I don’t think there’s a difference. Arguably it’s done for clarity, because people normally say “withholding tax” but technically there’s no such thing — it’s a deduction of income tax.

Which is good enough for me. So all of that “shall be entitled to make a deduction or withholding from any payment which it makes pursuant to this agreement for or on account of any Tax” can be scattered to the four winds. Henceforth the JC is going with:

X may deduct Tax from any payment it makes under this Agreement.

Subsection 2(a)

Comparison between versions

The 1987 ISDA, being concerned only with interest rates and currency exchange, does not contemplate delivery, as such. Delivery implies non-cash assets. Therefore portions of 2(a)(i) and 2(a)(ii) were augmented in the 1992 ISDA to cater for this contingency. The 1992 ISDA also added a condition precedent to the flawed asset clause (Section 2(a)(iii)) that no Early Termination Date had been designated.

Thereafter Section 2(a) is identical in the 1992 ISDA and the 2002 ISDA. However the subsidiary definition of Scheduled Settlement Date — a date in which any Section 2(a)(i) obligations fall due — is a new and frankly uncalled-for innovation in the 2002 ISDA.

We have a special page dedicated to Section 2(a)(iii), by the way. That is a brute, and one of the most litigationey parts of the Agreement.

Discussion

Section 2 contains the basic nuts and bolts of your obligations under the Transactions you execute. Pay or deliver what you’ve promised to pay or deliver, when you’ve promised to pay it or deliver it, and all will be well.

“Scheduled Settlement Date”

Though it doesn’t say so, at least in the 2002 ISDA the date on which you are obliged to pay or deliver an amount is the “Scheduled Settlement Date”. The ’02 definition only shows up only in Section 2(b) (relating to the time by which you must have notified any change of account details) and then, later, in the tax-related Termination Events (Tax Event and Tax Event Upon Merger). That said, “Scheduled Settlement Date” isn’t defined at all in the 1992 ISDA.

Section 2(a)(iii): the flawed asset provision

And then there’s the mighty flawed asset provision of Section 2(a)(iii). This won’t trouble ISDA negotiators on the way into a swap trading relationship — few enough people understand it sufficiently well to argue about it — but if, as it surely will, the great day of judgment should visit upon the financial markets again some time in the future, expect plenty of tasty argument, between highly-paid King’s Counsel who have spent exactly none of their careers considering derivative contracts, about what it means.

We have some thoughts on that topic, should you be interested, at Section 2(a)(iii).

Flawed assets

Section 2(a)(iii): Of these provisions, the one that generates the most controversy (chiefly among academics and scholars, it must be said) is Section 2(a)(iii). It generates a lot less debate between negotiators, precisely because its legal effect is nuanced, so its terms are more or less inviolate. Thus, should your counterparty take a pen to Section 2(a)(iii), a clinching argument against that inclination is “just don’t go there, girlfriend”.

Payments and deliveries

In a rare case of leaving things to practitioners’ common sense, ISDA’s crack drafting squad™ deigned not to say what it meant by “payment” or “delivery”.

Payments

Payments are straightforward enough, we suppose — especially since they are stipulated to be made in “freely transferable funds and in the manner customary for payments in the required currency”: beyond that, money being money, you either pay or you don’t: there are not too many shades of meaning left for legal eagles to snuggle into.

Deliveries

Deliveries, though, open up more scope for confecting doubts one can then set about avoiding. what does it mean to deliver? What of assets in which another actor might have some claim, title or colour of interest? In financing documents you might expect at least a representation that “the delivering party beneficially owns and has absolute rights to deliver any required assets free from any competing interests other than customary liens and those arising under security documents”.

What better cue could there be for opposing combatants leap into their trenches, and thrash out this kind of language?

Less patient types — like yours truly — might wish to read all of that into the still, small voice of calm of the word “deliver” in the first place.

What else could it realistically mean, but to deliver outright, and free of competing claims? It is bound up with implications about what you are delivering, and whose the thing is that you are delivering. It would be absurd to suppose one could discharge a physical delivery obligation under a swap by “delivering” an item to which one had no title at all: it is surely implicit in the commercial rationale that one is transferring, outright, the value implicit in an asset and not just the formal husk of the asset itself, on terms that it may be whisked away at any moment at the whim of a bystander.

Swaps are exchanges in value, not pantomimes: one surrenders the value of the asset for whatever value one’s counterparty has agreed to provide in return. Delivery is not just some kind of performative exercise in virtue signalling. You have to give up what you got. As the bailiffs take leave of your counterparty with the asset you gave it strapped to their wagon, it would hardly do to say, “oh, well, I did deliver you that asset: it never said anywhere it had to be my asset, or that I was meant to be transferring any legal interest in it to you. It is all about my act of delivery, I handed something to you, and that is that.”

We think one could read that into the question of whether a delivery has been made at all. Should a third party assert title to or some claim over an asset delivered to you, your best tactic is not a vain appeal to representations your counterparty as to the terms of delivery, but to deny that it has “delivered” anything at all. “I was meant to have the asset. This chap has repossessed it; therefore I do not have it. If I don’t have it, it follows that you have failed to deliver it.”

Modern security as practical control

In any weather, nowadays much of this is made moot by the realities of how financial assets are transferred: that is, electronically, fungibly, in book-entry systems, and therefore, by definition, freely: a creditor takes security over accounts to which assets for the time being are credited, or by way of physical pledge where the surety resides in the pledgee holding and therefore controlling the securities for itself. It is presumed that, to come about, any transfer of assets naturally comes electronically and without strings attached. It would be difficult for such a security holder to mount a claim for an asset transferred electronically to a bona fide third party recipient for value and without notice: the practicalities of its security interest lie in its control over the asset in the first place: holding it, or at the least being entitled to stop a third party security trustee or escrow custodian delivering away the asset without the security holder’s prior consent. Template:M detail 2002 ISDA 2(a)

Subsection 2(a)(iii)

Comparison between versions

Section 2(a)(iii) is the world-famous, notorious, much-feared “flawed asset” provision in the ISDA Master Agreement. The text was mostly unchanged between the 1992 ISDA and the 2002 ISDA, bar a single clarification in Section 2(a)(iii)(3). There was a change from the 1987 ISDA which did not have the middle condition precedent that “no Early Termination Date in respect of the relevant Transaction has occurred or been effectively designated”. As to what all this means, or achieved, we speculate below.

Discussion

Herculio: I have a thought. This meagre tract: not ninety words
Wrapp’d about with preliminal nicety and
Stamp’d as for affixation to a servic’d boiler —
Conceals a clever trick.
Ser Jaramey: What kind of onion’d witchery is this?

—Otto Büchstein, Ser Jaramey Slizzard

Assets, and flawed assets

What is the big deal about this, then? Well, it turns your ISDA into a “flawed asset”.

Flawed asset
/flɔːd ˈæsɛt/ (n.)

A financial asset that looks good, but thanks to a carefully buried conditions precedent, is not there when you, and more importantly, your insolvency administrator, most wants it.

In the language of financial obligations, the right to future payments under a contract is an asset. The creditor owns that right and, all other things being equal, can deal with it — that is, sell or raise money against it — the same way it can sell or mortgage a house, car, a portfolio of equities, or some decentralised cryptographic tokens representing abstract capital.

Assets have certain “ontological” properties, such as continuity in time and space. They might rust, depreciate, go out of fashion or stop working properly but they are nevertheless, existentially, still there. While you own them they therefore have some value to you, however parlous the state of your affairs might otherwise be.

Should your stars line up so that some official comes to be drawing up a closing account of your earthly financial existence — should you become bankrupt, heaven forfend — your assets can reliably be popped onto the “plus” side of the ledger. The difficulty subsists in working out what they are worth, but at least they are there.

This continuity is important to the administration of failing enterprises wherever they are based. It is a rude shock to find the assets you thought were there have without good explanation, gone. Many countries have rules preventing company managers from selling or giving away assets at an undervalue or otherwise granting unfair preferences as impending disaster looms. And nor can they enter contracts, even in times of fair weather, which would have the effect of granting unfair preferences, or depriving other creditors, should the clouds roll in.

An asset that doesn’t have that quality of continuity: that suddenly isn’t there, or that has the unnerving quality of winking in and out of sight at inopportune moments — is thus somehow imperfect: “flawed”.

Section 2(a)(iii) seems to have that effect on a Defaulting Party’s claims under an ISDA — its asset. Just when the Defaulting Party goes insolvent or fails to perform, the Non-defaulting Party is entitled to suspend the performance of its obligations without terminating the Transaction. Not entitled, even — as we will see, it just happens.

Should the Defaulting Party then cure the default, the Transaction resumes and the Non-defaulting Party must resume all its obligations, including the suspended ones. But for so long as the default is not cured, the Non-defaulting Party does not have to do anything. The Defaulting Party is left hanging there, with this “flawed asset”.

Insolvency regimes: not keen.

The United States Bankruptcy Code renders unenforceable terms terminating or modifying a contract that are triggered by the simple fact of insolvency proceedings. These are known as “ipso facto” clauses, because the simple fact of bankruptcy “in itself” triggers the clause.

If Section 2(a)(iii) were an ipso facto clause, it would not be enforceable. Whether it is an ipso facto clause is a subject of vigorous but tiresome debate. For our purposes, that people don’t easily agree about it is all you need to know.

The UK has no statutory equivalent of America’s ipso facto rule, but hundreds of years ago resourceful common law judges “discovered” an “anti‑deprivation” rule to the effect that, in the honeyed words of Sir William Page Wood V.C., in Whitmore v Mason (1861) 2J&H 204:

“no person possessed of property can reserve that property to himself until he shall become bankrupt, and then provide that, in the event of his becoming bankrupt, it shall pass to another and not his creditors”.

This required some wilfulness on the bankrupt’s part and not just inadvertence or lucky hap, but still: if you set out to defeat the standing bankruptcy laws do not expect easily to get away with it.

It seems, at any rate, that Section 2(a)(iii), might resemble some kind of intended deprivation; merely crystallising one’s existing position and stopping it from going further down the Swanee, as one might do by closing out altogether, seems less likely to.

Anyway: be aware: Section 2(a)(iii) attracts insolvency lawyers.

Rationale: avoiding a cleft stick

We can have a fine time rabbiting away about the ontology of assets, but isn’t there a more basic question: why would a Non-defaulting Party, presented with a counterparty in default, ever not want to just close out?

It all comes down to moneyness.

The “bilaterality” of a swap transaction means that either party may, net, be “out of the money” — that is, it would have to pay a net sum of money were the Transaction terminated — at any time. Unless something dramatic happens, this “moneyness” is only a “notional” debt: it only becomes “due” if an Early Termination Date is designated under the Master Agreement.

So an out-of-the-money, Non-defaulting Party has a good reason not to close out the ISDA. Doing so would oblige it to crystallise and pay out a mark-to-market loss. Why should it have to do that just because a Defaulting Party has failed to perform its end of the bargain?

On the other hand, the Defaulting Party is, er, ipso facto, not holding up its end of the bargain. Just as our innocent Non-defaulting Party does not wish to realise a loss by terminating, nor does it want to have to stoically pay good money away to a Defaulting Party who isn’t paying anything back.

A cleft stick, therefore.

Section 2(a)(iii) allows our Non-defaulting Party the best of both worlds. The conditions precedent to payment not being satisfied, it can just stop performing and sit on its hands — thereby neither crystallising its ugly mark-to-market position nor pouring perfectly good money away (which is a form of drip-feeding away that mark-to-market position, if you think about it).

So much so good for the Non-defaulting Party.

But the Defaulting Party’s “asset” — its contingent claim for its in-the-money position against the Non-defaulting Party — is compromised. This, for an insolvency administrator and all the Defaulting Party’s other creditors, is a bummer. It deprives them of the “asset” represented by the Transaction.

Which events?

Exactly which default events can trigger the suspension? Under the ISDA, Events of Default and even Potential Events of Default do, but Termination Events and Additional Termination Event do not. This is because most Termination Events are softer, “Hey look, it’s no one’s fault, it’s just one of those things” kind of events. This is not usually true of Additional Termination Events, though: they tend to be credit-driven, and girded with more “culpability” and “event-of-defaulty-ness”. So this is a bit dissonant, but there are far greater dissonances, so we park this one and carry on.

JC has seen valiant efforts to insert Additional Termination Events to section 2(a)(iii), and Potential Additional Termination Event, a class of things that does not exist outside the laboratory, and must therefore be defined. All this for the joy of invoking a clause that is highly unlikely to ever come into play, and which makes little sense in the first place.

Why the ISDA?

Herculio: All well-meant, good Triago. Be not sour —
These are not grapes.
Triago: Indeed not sir: rather, scrapes.
And scars and knocks — the job-lot doggedly sustained.
Herculio: (Aside) Some more than others. The odd one feigned.
But come, Sir Tig: what unrests you here?
Triago (waving paper): A tract from a brother clerk in America.
Herculio: Cripes abroad. Grim tidings?
Triago: Forsooth: it wears the colours of a fight.
A word-scape stain’d with tightly kernèd face
And girded round with fontish weaponry.
Herculio (inspecting the document): Verily, convenantry this dark
Speaks of litiginous untrust.
—Otto Büchstein, Die Schweizer Heulsuse

Why, then, is this flawed assets business special to ISDA? Is it special to ISDA?

Normal financing contracts are, by nature, one-sided. Loans, for example. One party — the dealer, broker, bank: we lump these various financial service providers together as The Man — provides services, lends money and “manufactures” risk outcomes; the other — the customer — consumes them.

So, generally, the customer presents risks to The Man, and not vice versa. If the customer fails, it can’t repay its loan. All the “fontish weaponry” is therefore pointed at the customer.

Though the ISDA is also a “risk creation contract” with these same characteristics, it is not designed like one. Either party can be out of the money, and either party can blow up. The fontish weaponry points both ways.

This presented dealers with an unusual scenario: what happens if you blow up when I owe you money? That could not happen in a loan. It is less likely to happen under a swap these days, too, thanks to the arrival of mandatory variation margin — that is one of JC’s main objections — but the ISDA Master Agreement was forged well before this modern era.

There is an argument the flawed asset clause wasn’t a good idea even then, but a better one that it is a bad idea now, but like so many parts of this sacred, blessed form it is there and, for hundreds and thousands of ISDA trading arrangements, we are stuck with it.

Developments between editions

“...a condition precedent for the purpose of this Section 2(a)(iii) ...”

The 2002 ISDA trims back the third limb of Section 2(a)(iii) from “all other conditions precedent” to just those that specifically say they mean to be caught by Section 2(a)(iii). This a sensible restriction in scope as far as it goes (but JC would go further and remove Section 2(a)(iii) altogether).

We have heard the argument advanced — apparently on the authority of that FT book about derivatives — that this restricted third limb somehow conditions the other conditions precedent in the clause (i.e., that there is no ongoing PEOD or EOD and that the Transaction has not already been terminated):

Section 2(a)(iii)(3) makes clear that if people want to stipulate any condition precedent other than the standard ones in Section 2(a)(iii)(1) and (2) they must clearly add the wording that the relevant condition will be “a condition precedent for the purposes of Section 2(a)(iii)”. ... Effectively this narrows the scope of the corresponding provision of the 1992 Agreement where no such statement was necessary.

It plainly does not, and nor do we see how you could read the FT book as making that argument. The extreme looseness of 2(a)(iii) imported by any notified breach of the agreement, however technical, being a Potential Event of Default, remains.

“No Early Termination Date ... has occurred”...

New in the 1992 ISDA was the second condition precedent, that “...no Early Termination Date in respect of the relevant Transaction has occurred or been effectively designated”.

This is tidy-up material to bring triggered Termination Events into scope. There is a period between notice of termination and when the Early Termination Date is actually designated to happen — and in a busy ISDA it could be a pretty long period — during which time the Transaction is still on foot and going, albeit headed inexorably at a brick wall. Template:Isda 2(a)(iii) gen Template:Isda 2(a)(iii) detail

Subsection 2(b)

Comparison between versions

But for the new definition of Scheduled Settlement Date in the 2002 ISDA, the 1992 ISDA text is formally the same.

Discussion

ISDA’s crack drafting squad™ phoning it in, we are obliged to say, and not minded to make any better a job of it when given the opportunity to in 2002. On the other hand, in this time of constant change, it is reassuring to know some things just stay the same. Template:M gen 2002 ISDA 2(b) Template:M detail 2002 ISDA 2(b)

Subsection 2(c)

Comparison between versions

The 2002 ISDA introduces the concept of Multiple Transaction Payment Netting, thereby correcting a curiously backward way of applying settlement netting.

Discussion

Section 2(c) is about “settlement” or “payment” netting — that is, the operational settlement of offsetting payments due on any day under the normal operation of the Agreement — and not the more drastic close-out netting, which is the Early Termination of all Transactions under Section 6.

If you want to know more about close-out netting, see Single Agreement and Early Termination Amount.

We wonder what the point of this section is, since settlement netting is a factual operational process for performing existing legal obligations, rather than any kind of variation of the parties’ rights and obligations. If you owe me ten pounds and I owe you ten pounds, and we agree to both keep our tenners, what cause of action arises? What loss is there? We have settled our existing obligations differently.

To be sure, if I pay you your tenner and you don’t pay me mine, that’s a different story — but then there is no settlement netting at all. The only time one would wish to enforce settlement netting it must, ipso facto, have happened, so what do you think you’re going to court to enforce?

Transaction flows and collateral flows

In a fully margined ISDA Master Agreement, all other things being equal, the termination of a Transaction will lead to two equal and opposite effects:

• A final payment or exchange under the Transaction having a value more or less equal to the present value of that Transaction;
• A offsetting change in the Exposure under the CSA in exactly the same value.

The strict sequence of these payments ought to be that the Transaction termination payment goes first, and the collateral return follows, since it can only really be calculated and called once the termination payment has been made.

I know what you’re thinking. Hang on! that means the termination payer pays knowing this will increase its Exposure for the couple of days it will take for that collateral return to find its way back. That’s stupid!

What with the regulators’ obsession minimise systemic counterparty credit risk, wouldn’t it be better to apply some kind of settlement netting in anticipation, to keep the credit exposure down?

Now, dear reader, have you learned nothing? It might be better, but “better” is not how ISDA documentation rolls. The theory of the ISDA and CSA settlement flows puts the Transaction payment egg before the variation margin chicken so, at the moment, Transaction flows and collateral flows tend to be handled by different operations teams, and their systems don’t talk. Currently, the payer of a terminating transaction has its heart in its mouth for a day or so.

Industry efforts to date have been targeting at shortening the period between the Exposure calculation and the final payment of the collateral transfer.
Template:M detail 2002 ISDA 2(c)

Subsection 2(d)

Comparison between versions

Other than an “on or after the date on which” embellishment towards the end of the clause, exactly the same text in the 1992 ISDA and the 2002 ISDA.

Discussion

Section 2(d) does the following:

• Net obligation: if a counterparty suffers withholding it generally doesn’t have to gross up – it just remits tax to the revenue and pays net.
• Refund obligation where tax subsequently levied: if a counterparty pays gross and subsequently is levied the tax, the recipient must refund an equivalent amount to the tax.
• Indemnifiable Tax: the one exception is “Indemnifiable Tax” - this is tax arises as a result of the payer’s own status vis-à-vis the withholding jurisdiction. In that case the payer has to gross up, courtesy of a magnificent quintuple negative.

Stamp Tax reimbursement obligations are covered at 4(e), not here.

News from the pedantry front

Happy news, readers: we have a report from the front lines in the battle between substance and form. The JC asked no lesser a tax ninja than Dan Neidle — quietly, the JC is a bit of a fan — the following question:

In the statement, “X may make a deduction or withholding from any payment for or on account of any tax” is there any difference between “deducting” and “withholding”?

They seem to be exact synonyms.

Likewise, “for” vs. “on account of”?

We are pleased to report Mr N opined replied:

I don’t think there’s a difference. Arguably it’s done for clarity, because people normally say “withholding tax” but technically there’s no such thing — it’s a deduction of income tax.

Which is good enough for me. So all of that “shall be entitled to make a deduction or withholding from any payment which it makes pursuant to this agreement for or on account of any Tax” can be scattered to the four winds. Henceforth the JC is going with:

X may deduct Tax from any payment it makes under this Agreement.

Section 3

Section 3 in a nutshell

3. Representations
Each party makes the representations below (with Section 3(g) representations only if specified in the Schedule) and repeats them on the date it enters into each Transaction and, for Section 3(f) representations, at all times until they terminate this Agreement). Any “Additional Representations” will be made and repeated as specified.
3(a) Basic Representations

3(a)(i) Status. It is duly organised and validly existing under the laws of its jurisdiction and is, where relevant, in good standing;

3(a)(ii) Powers. It has the power to execute, deliver and perform this Agreement and any Credit Support Document to which it is a party and has done everything needed to do so;

3(a)(iii) No Violation or Conflict. Its entry into and performance of this Agreement is not contrary to law, its constitutional documents, or any court or government order or contractual restriction affecting it or its assets;

3(a)(iv) Consents. It has all regulatory approvals needed to enter and perform this Agreement and any Credit Support Document to which it is a party and they remain unconditional and in full force; and

3(a)(v) Obligations Binding. Its obligations under this Agreement and any Credit Support Document to which it is a party are its legal, valid and binding obligations, enforceable in accordance with their terms (subject to general laws affecting creditors’ rights and equitable principles).

3(b) Absence of Certain Events. No Event of Default or Potential Event of Default or, to its knowledge, Termination Event is in existence for that party or would happen if it entered or performed this Agreement or any Credit Support Document.
3(c) Absence of Litigation. There is no pending or threatened litigation against it, any Credit Support Providers or any Specified Entities before any court or government agency that could affect the legality, enforceability or its ability to perform this Agreement or any Credit Support Document.
3(d) Accuracy of Specified Information. The Specified Information designated as being subject to this Section 3(d) representation is, as at its stated date, materially accurate and complete.
3(e) Payer Tax Representation. Each of its Payer Tax Representations specified in the Schedule is true.
3(f) Payee Tax Representation. Each Payee Tax Representation it has made to which this Section 3(f) applies (as specified in the Schedule) is true.
3(g) No Agency. It is a principal and not an agent under this Agreement.

Comparison between versions

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

As the comparisons above illustrate the Representations have remained largely intact since the 1987 ISDA.

There is no “No Agency” representation in the 1992 ISDA or the 1987 ISDA. A fun part of the ritual of negotiating a 1992 ISDA always was — in America, we imagine, still is — to put one in, so when those kill-joys on ISDA’s crack drafting squad™ shunted one into the 2002 ISDA it will have ruined a few people’s days — so much so that, in some quarters, they still use the 1992 ISDA as a standard. Americans, for example.

A JC digression, if I may. The 2002 ISDA was published now over two decades ago. Since 1992, a great deal has happened which the derivatives industry has learned from: the Internet; email; Enron, LTCM, the Russian Crisis, the GFC, the LIBOR scandal, COVID, the rise and fall of asset classes, cryptocurrencies and artificial intelligence (... yes and they are sure to rise again, and crush us all. Keep holding your breath). Nevertheless, we are stuck in our ways. Not only has the 2002 ISDA not been updated, or even had an update proposed, large parts of the derivatives market — and the most sophisticated, heavy-hitting parts of that market, what is more: the American parts — still trade on the 1992 Master Agreement.

We mention this not to make fun of Americans, or the derivatives industry more generally, however they richly deserve it — we do plenty enough of that in these pages as it is — but to temper the expectations of those who think anything is going to change any time soon. There are far too many vested, rent-seeking interests in things chuntering along just how they are for anyone to be seriously confronted with the idea of having to adopt anything new. Allen Farrington might claim that Bitcoin fixes a lot of things: it does not fix this.

Discussion

If you want any special extra Representations over and above the boring ones in Section 3, stick them in Part 5 of the Schedule, or maybe a master confirmation, be sure to label them “Additional Representations” and, if the fancy catches you, have the representor deem them repeated on the commencement of any new Transaction, the anniversary of the ISDA Master Agreement or whenever, in a moment of weakness, insecurity or indolence, your operations team feels like reaching out to the counterparty and asking it to say them again. They’ll love you for it.

Yes, Misrepresentation is an Event of Default

A breach of any of these Representations when made (or deemed repeated) (except a Payer or Payee Tax Representation, but including any Additional Representation is an Event of Default. Eventually.

Additional Representations as Additional Termination Events

In the case of Additional Representations this can be somewhat drastic, especially if your Additional Representation is Transaction-specific (for example India, China and Taiwan investor status reps for equity derivatives), and it would seem churlish to close out a whole ISDA Master Agreement on their account.

Then again, show me a swap dealer who would detonate an entire swap trading relationship with a solvent counterparty and I’ll show you a moron — but, as we know, opposing legal eagles operate on the presumption that everyone else is a moron and thus tend to be immune to such grand rhetorical flourishes, and regard such appeals to basic common sense as precisely such flourishes, so don’t expect that argument to carry the day, however practically true it may be.

Instead, expect to encounter leagues of agonising drafting, but there are easier roads to travel. Try:

These representations will be Additional Representations, except that where they prove to be materially incorrect or misleading when made or repeated it will not be an Event of Default but an Additional Termination Event, where the Transactions in question are the Affected Transactions and the misrepresenting party is the sole Affected Party.

Subsection 3(a)

Comparison between versions

The Section 3(a) Basic Representations survived intact, to the last punctuation mark, between the 1992 ISDA and the 2002 ISDA. They were that excellent.

Discussion

An observant negotiator (is there any other kind?) handling a 1992 ISDA might wish to add a new agency rep as Section 3(a)(vi). In 2002, ISDA’s crack drafting squad™ obviously thought this was such a good idea that they added a brand-new “no-agency” rep to the 2002 ISDA, only they can’t have felt it was basic enough to go in the Basic Representations, so they put it in a new clause all by itself at Section 3(g).

But you don’t need a bespoke “no-agency” rep if you’re on a 2002 ISDA, if that’s what you’re wondering.

3(a)(v) Obligations Binding

“any Credit Support Document to which it is a party”: Business at the front; party at the back.

Now given that a Credit Support Document will generally be a deed of guarantee, letter of credit or some other third party form of credit assurance from a, you know, third party to which a Party in whose favour it is provided will not be a “party” — and no, an 1995 CSA is not a Credit Support Document, however much it might sound like one, one might wonder what the point would be of mentioning, in this sub-section, Credit Support Documents to which a Party is party.

Well — and this might come as a surprise if you’re an ISDA ingénue; old lags won’t bat an eyelid — there isn’t much point.

But does anyone, other than the most insufferable pedant, really care? I mean why would you write a snippy wiki article about some fluffy but fundamentally harmless language unless you were a stone-cold bore?

Hang on: Why are you looking at me like that?

Subsection 3(b)

Comparison between versions

No change from 1992 ISDA to 2002 ISDA.

Discussion

Can you understand the rationale for this representation? Sure.

Does it do any practical good? No.

It is a warranty, not a representation

A standard, but useless, contractual warranty. It can’t be a pre-contractual representation, of course, because the very idea of an “event of default” depends for its intellectual existence on the conclusion of the contract in which it is embedded. So, it won’t really do to argue there should be no contract, on grounds of the false representation that a contract that does not exist has not been breached.

It is paradoxes all the way down

A No EOD rep is a classic loo paper rep: soft, durable, comfy, absorbent — super cute when a wee Labrador pub grabs one end of the streamer and charges round your Italian sunken garden with it — but as a credit mitigant or a genuine contractual protection, only good for wiping your behind on.

Bear in mind you are asking someone — on pain of them being found in fundamental breach of contract — to swear to you they are not already in fundamental breach of contract. Now, how much comfort can you genuinely draw from such promise? Wouldn’t it be better if your credit team did some cursory due diligence to establish, independently of the say-so of the prisoner in question, whether there are grounds to suppose it might be in fundamental breach of contract?

Presuming there are not — folks tend not to publicise their own defaults on private contracts, after all — the real question here is, “do I trust my counterparty?” And to that question, any answer provided by the person whose trustworthiness is in question, carries exactly no informational value. All cretins are liars.

So, let’s say it turns out your counterparty is lying; there is a pending private event of default it knew about and you didn’t. Now what are you going to do? Righteously detonate your contract on account of something of which by definition you are ignorant?

Have fun, counsellor.

“...or potential event of default”

Adding potential events of default is onerous, especially if it is a continuous representation, as it deprives the representor of grace periods it has carefully negotiated into its other payment obligations. Yes, it is in the ISDA Master Agreement.

“... or would occur as a result of entering into this agreement”

A curious confection, you might think: what sort of event of default could a fellow trigger merely by entering into an ISDA Master Agreement with me? Well, remember the ISDA’s lineage. It was crafted, before the alliance of men and elves, by the Children of the Woods. They were a species of pre-derivative, banking people. It is possible they had in mind the sort of restrictive covenants a banker might demand of a borrower with a look of softness about its credit standing: perhaps a promise not to create material indebtedness to another lender, though in these enlightened times that would be a great constriction indeed on a fledgling enterprise chasing the world of opportunity that lies beyond its door.

So, does a swap mark-to-market exposure count as indebtedness? Many will recognise this tedious question as one addressed at great length when contemplating a Cross Default: Suffice, here, to say that an ISDA isn’t “borrowed money” as such, but a material swap exposure would have the same credit characteristics as indebtedness. But in these days of compulsory variation margin you wouldn’t expect one’s mark-to-market exposure to be material, unless something truly cataclysmic was going on intra-day in the markets.

Much more likely is a negative pledge, and while an unsecured, title-transfer, close-out netted ISDA might not offend one of those, a Pledge GMSLA might, and a prime brokerage agreement may well do.

But still, nonetheless, see above: if it does, and your counterparty has fibbed about it, all you can do is get out your tiny violin. Template:M detail 2002 ISDA 3(b)

Subsection 3(c)

Comparison between versions

Section 3(c) was one of the bits of the 1992 ISDA that ISDA’s crack drafting squad™ “got mostly right” at the first time of asking. But still, some bright sparks on the ’Squad took it upon themselves, in the 2002 ISDA, to switch out reference to “Affiliates” which — I don’t know, might take in some distant half-bred cousin you don’t enormously care about and who doesn’t cast any real shadow on your creditworthiness — with “Credit Support Providers” and “Specified Entities” who no doubt more keenly do, but this leads to just more fiddliness in the Schedule over-stuffed with fiddliness, since one must then go to the trouble of specifying, and then arguing with your counterparties about, who should count as a Specified Entity for this remote and rather vacuous purpose.

Keeps the home fires burning in the hobbity shires where ISDA negotiators make their homes, we suppose.

Discussion

Reference to Affiliates can be controversial, particularly for hedge fund managers.

More generally, absence of litigation is a roundly pointless representation, but seeing as (other than unaffiliated hedge fund managers) no-one complains about it, it is best to just leave well alone.

Absence of litigation generally

An absence of litigation representation seeks to address litigation carrying two particular risks:

• Enforceability: Litigation that could somehow undermine or prejudice the very enforceability of life was we know it (a.k.a the agreement you are presently negotiating);
• Credit deterioration: Litigation that is so monstrous in scope that it threatens to wipe your counterparty from the face of the earth altogether, while it still owes you under the agreement you’re negotiating.

Enforceability-threatening litigation

Firstly, Earth to Planet ISDA: what kind of litigation or regulatory action — we presume about something unrelated to this agreement since, by your theory, it doesn’t damn well exist yet — could adversely impact in the enforceability of this future private legal contract between one of the litigants and an unrelated, and ignorant, third party?

Search me. But still, I rest assured there will an ISDA boxwallah out there somewhere who could think of something.

Existentially apocalyptic litigation

Look, if your counterparty is banged up in court proceedings so awful to behold that an adverse finding might bankrupt it altogether, and your credit sanctioning team hasn’t got wind of it independently then, friend, you have way, way bigger problems than whether you have this feeble covenant in your docs. And, if you are only catching it at all thanks to a carelessly given absence of litigation rep, by the time said litigation makes itself known to you. won’t it be a bit late?

Deemed repetition

Ah, you might say, but what about the deemed repetition of this representation? Doesn’t that change everything?

Deemed repetition

What of this idea that one not only represents and warrants as of the moment one inks the paper, but also is deemed to repeat itself an the execution of each trade, on any day, or whenever a butterfly flaps its wings on Fitzcarraldo’s steamer? Do we think it works? Do we? Given how practically useless even explicit representations are, does it really matter?

And, having given it, how are you supposed to stop a continuing representation once it has marched off into the unknowable future, like one of those conjured brooms from the Sorcerer’s Apprentice? If you don’t stop it, what then? This may seem fanciful to you, but what are buyside lawyers if not creatures of unlimited, gruesome imagination? Are their dreams not full with flights of just this sort of fancy? Rest assured that, as you do, they will be chewing their nails to the quick in insomniac fever about this precise contingency.

For which reason — it being a faintly pointless representation in the first place and everything — it might be best just to concede this point when it arises, as inevitably it will.

Pick your battles

All that said, and probably for all of the above reasons, parties tend not to care less about this representation, so your practical course is most likely to leave it where you find it. Template:M detail 2002 ISDA 3(c)

Subsection 3(d)

Comparison between versions

ISDA’s crack drafting squad™ must have got this spot-on in their first attempt in 1992, because their successors in 2002 could not find so much as an inverted comma to change.

Discussion

The fabulous Section 3(d) representation, giving one’s counterparty the right to close out should any so-designated representations turn out not to be true. This is sure to occupy an inordinate amount of your negotiation time — in that it occupies any time at all — because you are as likely to be hit in the face by a live starfish in the Gobi Desert as you are to close out an ISDA Master Agreement because your counterparty is late in preparing its annual accounts. But that’s a personal view and you may not rely on it.

The 3(d) representation, in the documents for delivery table in the Schedule, therefore covers only the accuracy and completeness of Specified Information and not (for example) whether Specified Information is delivered at all. For that, see Section 4(a) - Furnish Specified Information.

“Covered by the Section 3(d) Representation”

If one is required to “furnish” Specified Information under Section 4, two things can go wrong:

No show: One can fail to provide it, at all, in which case there is a Breach of Agreement, but be warned: the period before one can enforce such a failure, judged by the yardstick of modern financial contracts, is long enough for a whole kingdom of dinosaurs to evolve and be wiped out; or

It’s cobblers: One can provide the Specified Information, on time, but it can be a total pile of horse ordure. Now, here is a trick for young players: if your Specified Information is, or turns out to be, false, you have no remedy unless you have designated that it is “subject to the Section 3(d) representation”. That is the one that promises it is accurate and not misleading.

Might Section 3(d) not cover a representation?

Now you might ask what good an item of Specified Information can possibly be, if Section 3(d) didn’t apply and it could be just made up on the spot without fear of retribution — as a youngster, the JC certainly asked that question, and has repeated it over many years, and is yet to hear a good answer — but all we can presume is that in its tireless quest to cater for the unguessable predilections of the negotiating community, ISDA’s crack drafting squad™ left this preposterous option open just in case. It wouldn’t be the first time.

Legal opinions, and Credit Support Documents

A trawl through the SEC’s “Edgar” archive reveals that the sorts of things to which “Covered by Section 3(d) Representation” results in a “No” outcome are rare — but not non-existent. It is things like “Legal opinion from counsel concerning due authorization, enforceability and related matters, addressed to the other party and reasonably acceptable to such other party”, or “Credit Support Documents”.
See further discussion in the sections below.

Annual reports

The other little fiddle — and it is a little fidgety fiddle — is to remark of annual reports that, yes, they are covered by that Section 3(d) representation, but with a proviso:

“Yes; provided that the phrase “is, as of the date of the information, true, accurate and complete in every material respect” in Section 3(d) shall be deleted and the phrase “fairly presents, in all material respects, the financial condition and results of operations as of their respective dates and for the respective periods covered thereby” shall be inserted in lieu thereof.”

More on “covered by the Section 3(d) Representation”

We went digging a little deeper. These are the only examples we could find before we got bored looking. In each case we are not persuaded these caveats accommodate anyone other than our value-adding learned friends:

Legal opinions

Should a legal opinion issued by a third party who is not party to the agreement, or even affiliated with it, have to be true in the Section 3(d) sense?

The predictable response is for the counterparty to say, “look: I’m not a lawyer, okay, so it can hardly be on me if the legal advice I get in good faith happens to be wrong?” We suppose this is excluded because the Party to the ISDA is not the author of the legal opinion, nor professionally competent to pass on its contents (hence the need for the legal opinion in the first place), so should hardly be expected to be held to account for it.

This may be expressed to you, dissonantly, in the honeyed prose of a private practice lawyer — a vernacular foreign to most ISDA negotiators. You may wonder whether it has not been disingenuously spoon-fed to your counterpart by just such a fellow. We will not speculate. But we will observe that, while it may seem compelling at first, it is bad logic. It presumes that what matters is the probity with which a counterparty conducts itself; that it acts in good faith and with a benign disposition; that its “good chapness” —the basic honesty it shows when dealing with its market counterparties — is beyond reproach.

But this, we submit, is to misunderstand in a profound way the point of a commercial contract. There are no ethicists in a foxhole. Unlike criminal or even tort law, the law of contract is not an instrument of moral judgment. It cares only about economics: that one does, or does not, do what one has promised or — as in this case — that what one has represented to you is, or is not, true. The law of contract is broadly incurious about why.

What matters is the economic consequence of a falsity — the actus reus, not one’s mens rea. The object of a legal opinion is to confirm the accuracy of a legal representation. Instead of simply representing that, for example, you have the regulatory permission to act as a swap dealer, you have a legal opinion to confirms that fact, from one who should know.

Now, if I have engaged in a trading arrangement with you on the presumption that you are appropriately permissioned, licenced, and constitutionally able to enter into valid and binding swap contracts, and you satisfy my qualms by proffering the legal opinion of some respectable attorney-about-town you have found who will say it is so, and that attorney turns out to be wrong, my commercial position is no less parlous just because you weren’t to know your legal advisor was a clot. Regardless of whose fault it was, or how egregious was her negligence in being at fault, if the required regulatory permission does not exist, the comfort I seek is misplaced. I now have a portfolio of swaps which may not be enforceable. My claims may be suspended at any minute.

I want out before that can happen. I might wish you well, and bitterly regret it were not otherwise, but it is not otherwise. I need out. If that causes you some embarrassment, inconvenience or financial loss, then the person to whom you should look for redress is your lawyer.

Not for the first time, the “market standard,” for no reason other than it is a legal question and there is no-one else around qualified to gainsay it, is crafted to suit the personal interests of the opining legal community. Have no truck with this, fellows.

Credit Support Documents

We imagine here the perceived fear is that a Credit Support Document, being an executed legal contract, does not have a truth or falsity independent of itself the bargain it represents and evidences, so cannot really be a misrepresentation. But in a funny sense a legal contract constitutes the agreement it evidences: sure; the legal accord is an immaterial, intellectual thing, a consensus ad idem that inhabits the incarcerated space that separates us, and it cannot be fully delimited by mortal, combustible paper. But all the same, its written form can hardly contradict it. If the written agreement incontrovertibly says “I must go up” our legal compact can hardly require me to go down; the paper format surely constrains what one can take from, or give to, a contract.

That being the case, there is not really a meaningful sense in which a contract can “misrepresent” the actual accord it represents. or be “false”. There is something faintly, but elusively, paradoxical about this.

What might happen is that a counterparty submits a form that has been superseded, or terminated and thus is but a husk of an ex-contract; one that once existed but now does not. Alternatively, a truly mendacious counterparty might offer up a form that is not really a contract, or even evidence of one, at all: a forgery, or a fraud.

But in those cases, the operating cause of the falsehood is the party submitting the document, not the document offered by way of representation itself, and in each an innocent party is better protected if Section 3(d) Representation does apply.

Audited financial statements

Your adversary may try to crowbar in something like this, to satisfy her yen to make a difference and please her clients with her acumen and commercial fortitude:

“or, in the case of financial information, a fair representation of the financial condition of the relevant party, provided that the other party may rely on any such information when determining whether an Additional Termination Event has occurred.”

This is predicated on the following reasoning: “In publishing the audit, the auditor itself is not making any greater representation than that the statements are a fair representation of the financial conditions. I’m no accountant. I didn’t even write the stupid audit. How am I supposed to know? Why should I give any representation about the content of the audit at all, let alone a stronger representation than the expert? I am not underwriting the work of some bean-counter at Deloitte.”

Fair questions, but they misapprehend what is being asked. The riposte is this: The Part 3 information you must supply is “Party B’s annual audited financial statements.” So the representation we are after is that you have handed over a fair, accurate and complete copy of those audited statements, not that the statements themselves, as prepared by the auditor, are necessarily fair, accurate and complete. To get that comfort, we have the auditor’s own representation of the company’s financial condition, and we don’t need yours.

Not providing documents for delivery is an Event of Default ... eventually

The importance of promptly sending required documents for delivery goes as follows:

• By dint of Section 4(a) you agree to furnish each other Specified Information set out in Part 3 of the Schedule.
• By dint of Section 5(a)(ii) if you don’t then that can be a Breach of Agreement Event of Default (Section 5(a)(ii)). Be warned: you must pursue a tortured chain of nested double negatives and carefully parse the interplay between Sections 4(a) and 5(a)(ii) to grasp this, but it is true.
• But, Section 5(a)(ii) imposes a thirty freaking day grace period following notice before a Breach of Agreement counts as an Event of Default allowing termination. (A Failure to Pay or Deliver is excluded from that definition, by the way, because it has its own EOD with a much tighter grace period).
• So if you need a document “furnished” urgently and can’t wait a month for it (you might not, if you are a credit officer and it is a monthly NAV statement, for example) then you must upgrade a simple 5(a)(ii) Breach of Agreement to a full-blown Additional Termination Event.
  

Subsection 3(e)

Comparison between versions

No change between Section 3(e) of the 1992 ISDA and Section 3(e) of the 2002 ISDA. To be fair, what’s there to change?

Discussion

You’ll find the usual form of the Payer Tax Representations in Part 2(a) of the Schedule. They aren’t usually amended.

Withholding under the ISDA

TL;DR: The basic rationale is this:

• if the tax relates to the underlying instrument, rather than the Payer’s residence or tax status, the Payer does not have to gross up.
• if the tax relates to the Payer’s residence or tax status, then the Payer does have to gross up unless the Payee should have provided information to the Payer which would have entitled the Payer to avoid the tax.
• if you’ve agreed the FATCA Amendment, the Payer doesn’t have to gross up any FATCA Withholding Taxes.

The combination of the Payer Tax Representations and the Gross-Up clause of the ISDA Master Agreement has the following effect:

• Section 3(e): I promise you that I do not have to withhold on my payments to you (as long as all your Payee Tax Representations are correct and you have, under Section 4(a), given me everything I need to pay free of withholding);
• Section 2(d): I will not withhold on any payments to you. Unless I am required to by law. Which I kind of told you I wasn’t... If I have to withhold, I'll pay the tax the authorities and give you the receipt. If I only had to withhold because of my connection to the taxing jurisdiction (that is, if the withholding is an Indemnifiable Tax), I’ll gross you up. (You should look at the drafting of Indemnifiable Tax, by the way. It's quite a marvel). ...
• Gross-Up: Unless the tax could have been avoided if the Payee had taken made all its 3(f) representations, delivered all its 4(a) material, or had its 3(f) representations been, like, true).
• Stamp Tax is a whole other thing.
• As is FATCA, which (as long as you’ve made your FATCA Amendment or signed up to a FATCA Protocol, provides that FATCA Withholding Taxes are excluded from the Section 3(e) Payer Tax Representations, and also from the definition of Indemnifiable Tax. Meaning one doesn't have to rep, or gross up, FATCA payments.

Subsection 3(f)

Comparison between versions

No change between the 1992 ISDA and the 2002 ISDA.

Discussion

US Payee Tax Representations

The required Payee Tax Representations depend on the nature of the Counterparty.

• US Person: Counterparty is a “U.S. person” for the purposes of the Internal Revenue Code of 1986 as amended.
• US Corporation: It is classified as a US Corporation for United States federal income tax purposes.
• Foreign Person: It is a “foreign person” for United States federal income tax purposes.
• Non-US Branch of Foreign Person: Each branch is a non-US branch of a foreign person for US federal income tax purposes
• Non-Withholding Partnership:It is classified as a “non-withholding foreign partnership” for United States federal income tax purposes.
• Connected Payments: Each payment received or to be received by it under this Agreement will be effectively connected with its conduct of a trade or business within the United States.
• Non-Connected Payments: Each such payment received or to be received by it in connection with this Agreement will not be effectively connected with its conduct of a trade or business in the United States
• Tax Treaty Benefits: It is fully eligible for the benefits of the “Business Profits” or “Industrial and Commercial Profits” provision, the “Interest” provision or any “Other Income” provision of the Income Tax Convention between the United States and Counterparty’s Jurisdiction* with respect to any payment described in such provisions and received or to be received by it in connection with this Agreement and no such payment is attributable to a trade or business carried on by it through a permanent establishment in the United States.
• Public International Organisation: It is a public international organization that enjoys the privileges, exemptions and immunities as an international organization under the International Organizations Immunities Act (22 U.S.C. 288-288f).
• Withholding and Reporting: It will assume withholding and reporting for any payments (or portions of any payments) determined to be non-Effectively Connected income for United States federal income tax purposes.
• Monetary Policy: Its primary purpose for entering into this Agreement is to implement or effectuate its governmental, financial or monetary policy.

Subsection 3(g)

Comparison between versions

Section 3(g) is the spiritual successor to Section 3(a)(vi), the added representation that parties habitually tack on to the end of Section 3(a). ISDA’s crack drafting squad™ kind of made an honest clause out of it in the 2002 ISDA.

Discussion

If you like a bit of agency chat, you might like our articles about principals and agents, undisclosed agents, undisclosed principals and all that good stuff.

Investment managers as agents

In practice, many ISDA Master Agreements are entered by agents — investment managers and asset managers (so-called “real money” managers) — on behalf of underlying principals — investment funds, and institutional clients who have appointed them as discretionary investment advisers.

These managers often enter transactions in aggregate and only allocate them to their underlying principals later in the day. This means that the broker will have a nervous few hours before it knows whom it is expected to sue if the principal doesn’t pony up on time. General principles of agency — in particular liability for an undisclosed principal —mean agents are not quite so footloose and fancy-free as many of them seem to believe.

Look, it is not the end of the world if your counterpart refuses to renounce all agency, as long as you set up the accounts correctly with the underlying principals, and the firm has a robust approach to trade allocation. Ultimately — and notwithstanding the nervous few hours pending allocation — the person against whom you are, long term, booking the trade is the principal.

Internal agency model

It is not beyond the paranoid fantasies of a US tax attorney — a rich, baroque tapestry indeed — to want to “deem” a swap counterparty to be an agent for one of its affiliates for certain — you know, tax — purposes, even though the affiliate is not mentioned in the contract and the other side has not the first clue that this affiliate even exists.

How does this bear on your Section no agency representation? As far as your counterparty is concerned, not at all: a fellow acting under an agency he has not disclosed to his counterpart is called a “principal”. This is all the no agency representation is meant to confirm: for the avoidance of doubt — of which there wasn’t much anyway — you are not acting on behalf of someone else. Therefore, should you not perform our contract, I can bring my claim against you; you cannot slip out of the tackle by pointing to some under-capitalised espievie in a banana republic I didn’t know about whom you suddenly claim to be representing. I can therefore safely instruct my credit officer that the only commercial bona fides she needs to have in mind, as she slips on her rubber gloves, are yours.

It doesn’t matter whether the agency arrangement exists or not: either way, you are liable, as a principal, to me, it is your problem to recover any money you may be owed by your man in Havana.

Now whether such a representation undermines the fantastical aspirations of your tax attorney, on the other hand, is a question only he can answer. Template:M detail 2002 ISDA 3(g)

Section 4

Section 4 in a nutshell

4. Agreements
While either party has any obligation under this Agreement or any Credit Support Document:—
4(a) Furnish Specified Information. It will deliver to the other party (or to such government or taxing authority as it reasonably directs):—

(i) any tax documents specified in the Schedule or any Confirmation;

(ii) any other documents specified in the Schedule or any Confirmation; and

(iii) any other document the other party reasonably requests to minimise withholding tax on any payment (and which would not materially prejudice the provider’s position), if need be accurately completed and executed and delivered as specified in the Schedule or such Confirmation or, otherwise as soon as reasonably practicable.

4(b) Maintain Authorisations. It will use all reasonable efforts to maintain all regulatory consents and licences it needs to perform this Agreement or any Credit Support Document and will use all reasonable efforts to obtain any it may need in the future.
4(c) Comply With Laws. It will comply with all applicable laws if not doing so would materially impair its performance of this Agreement or any Credit Support Document.
4(d) Tax Agreement. It will tell the other party promptly after learning that any of its Section 3(f) representations have ceased to be accurate.
4(e) Payment of Stamp Tax. Unless incurred closing out a Transaction against a Defaulting Party (as to that, see Section 11), it will pay any Stamp Tax it incurs performing this Agreement by reason of it being in a Stamp Tax Jurisdiction, and will indemnify the other party against any such Stamp Tax that that party suffers, unless the jurisdiction in question also happens to be a Stamp Tax Jurisdiction for that other party.

Comparison between versions

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

The 1992 ISDA introduced a new 4(a)(iii) to cover such tax representations as are needed to allow Credit Support Providers to pay without withholding. Beyond that there were minimal changes between the versions, down to punctuation changes, though in Section 4(e) a clearer reference to offices and branches. So that is nice.

Discussion

A hodge-podge of “state the bleeding obvious” rules, breach of some of which justifies (eventual) close-out as a “breach of agreement” — agreeing to provide the credit information you have patiently listed in your schedule, flagrantly breaking the law, carelessly losing one’s regulatory authorisations — and random tax provisions and indemnities (providing the necessary tax forms to minimise tax, and pay tax if you don’t).

These are the dull agreements — which by and large don’t justify close-out.

Subsection 4(a)

Comparison between versions

Section 4(a) of the 1992 ISDA is materially identical.

Subsection 4(b)

Comparison between versions

They’re the same. Exactly the same. They couldn’t even improve the punctuation, yo. Not even for the sake of it.

Subsection 4(c)

Comparison between versions

Section 4(c) represents another impeachable outing for the 1992 all-star line-up of ISDA’s crack drafting squad™. Their successors, a decade down the line, couldn’t see any way to improve on their work. The two versions are thus the same.

Discussion

1. REDIRECT Template:Isda 4(c) gen

Subsection 4(d)

Comparison between versions

Another immaculate outing from the ISDA’s crack drafting squad™ ’92 vintage. Exactly the same in both versions.

Discussion

1. REDIRECT Template:Isda 4(d) gen

Subsection 4(e)

Comparison between versions

Other than a modicum of clerical tidy-up, the 1992 ISDA version of Section 4(e) is exactly the same as Section 4(e) in the 2002 ISDA version.

Section 5

Section 5 in a nutshell

5. Events of Default and Termination Events
5(a) Events of Default
Any of the following events occurring to a party or its Credit Support Provider or Specified Entity will (subject to Sections 5(c) and 6(e)(iv)) be an “Event of Default”) for that such party:—

5(a)(i). Failure to Pay or Deliver. Failure by a party to make any payment or delivery when due under this Agreement which is not remedied by the first Local Business Day or Local Delivery Day after the party receives notice of the failure;

5(a)(ii) “Breach of Agreement” means:

(1) a party breaches any of its obligations under the Agreement and doesn’t remedy the breach within 30 days of the other party’s notice other than the following:

(a) a Failure to Pay or Deliver;

(b) owning up to a Termination Event;

(c) not providing any necessary tax documents;

(d) any of its tax representations not being true; or

(2) a party repudiates this ISDA Master Agreement or any Transaction.

5(a)(iii) Credit Support Default.

(1) The party or its Credit Support Provider defaults under any Credit Support Document after any grace period has expired;

(2) Any Credit Support Document (or any security interest granted under one) terminates or becomes ineffective (except according to its terms) while any covered Transaction without the other party’s written consent; or

(3) the party or its Credit Support Provider repudiates any obligations under Credit Support Document;

5(a)(iv) Misrepresentation. A representation (other than a Payee or Payer Tax Representation) made under this Agreement or a Credit Support Document was materially incorrect or misleading when it was made;

5(a)(v) Default Under Specified Transaction. The party or one of its Credit Support Providers or Specified Entities:―

(1) defaults on any payment due under a Specified Transaction (or any related credit support arrangement) and as a result that Specified Transaction is validly accelerated;

(2) defaults on any final payment due under a Specified Transaction after one Local Business Day;

(3) defaults on any delivery due under a Specified Transaction (or any related credit support arrangement) and, all Transactions under the relevant Master Agreement are validly accelerated; or

(4) repudiates any Specified Transaction (or any related credit support arrangement);

5(a)(vi) Cross-Default. If “Cross-Default” applies to a party, it will be an Event of Default if:

(1) any agreements it (or its Credit Support Providers or Specified Entities) has for Specified Indebtedness become capable of acceleration; or

(2) it (or its Credit Support Providers or Specified Entities) defaults on any payment of Specified Indebtedness (and any grace period expires);

And the total of the principal amounts in (1) and (2) exceeds the Threshold Amount.

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.

5(a)(viii) Merger Without Assumption. The party (or a Credit Support Provider) merges with or transfers or all or substantially all its assets to another entity and:―

(1) the resulting entity does not assume all the original party’s obligations under this Agreement (or Credit Support Document); or

(2) the Credit Support Document does cover the resulting party’s obligations under this Agreement.

5(b) Termination Events
The events below occur to a party or its Credit Support Provider or Specified Entity (subject to Section 5(c)) it will be an Illegality (5(b)(i)); a Force Majeure Event (5(b)(ii)), a Tax Event (5(b)(iii)), a Tax Event Upon Merger (5(b)(iv)) and Credit Event Upon Merger (5(b)(v)):

5(b)(i) Illegality. Taking account of any fallbacks and remedies in the Transaction, for reasons beyond the Affected Party’s control, (not counting a lack of authorisation required under Section 4(b)), it would be illegal in any relevant jurisdiction to comply with any material term of a Transaction or Credit Support Document.

5(b)(ii) Force Majeure Event. A force majeure occurring after any Transaction is executed means:―

(1) the Affected Party’s relevant Office cannot practicably perform any obligation under the Transaction; or

(2) the Affected Party or its Credit Support Provider cannot practicably perform any obligation under the Transaction;

if the force majeure is outside the Affected Party’s control and it could not, using all reasonable efforts (without incurring more than incidental expenses by way of loss), overcome the necessary prevention;

5(b)(iii) Tax Event It will be a Termination Event when, following a change in tax law or practice after any trade date, an Affected Party is likely to have to either:

(1) Gross up an Indemnifiable Tax deduction (other than for interest under Section 9(h)); or

(2) receive a payment net of Tax which the Non-Affected Party is not required to gross up (other than where it is caused by the Non-Affected Party’s own omission or breach).

5(b)(iv) Tax Event Upon Merger. A party (the “Burdened Party”) on the next Scheduled Settlement Date will have to:

(1) Gross up an Indemnifiable Tax deduction (other than for interest under Section 9(h)); or

(2) receive payments net of Tax which are not required to be grossed up (other than where that is caused by the Non-Affected Party’s own omission or breach);

because a party has merged with, transferred substantially all of its assets into, or reorganised itself as, another entity (the Affected Party) where that does not amount to a Merger Without Assumption;

5(b)(v) Credit Event Upon Merger. If “Credit Event Upon Merger” applies and it or any of its Credit Support Providers or Specified Entities suffers a Designated Event (which is not a Merger Without Assumption) and the relevant entity’s (which will be the Affected Party) creditworthiness is materially weaker as a result.

A “Designated Event” means that the relevant entity:―

(1) merges with, or transfers substantially all of its assets into, or reorganises itself as another entity;

(2) comes under the effective voting control of another entity; or

(3) makes a substantial change in its capital structure by issuing or guaranteeing debt, equities or analogous interests, or securities convertible into them;

5(b)(vi) Additional Termination Event. If any “Additional Termination Event” is specified, the occurrence of that event (where the Affected Party will be as specified in the Confirmation or Schedule).

5(c) Hierarchy of Events

5(c)(i) As long as an event counts as an Illegality or a Force Majeure Event, it will not count as an Failure to Pay or Deliver, a non-repudiatory Breach of Agreement or the first limb of Credit Support Default.

5(c)(ii) In any other circumstances, an Illegality or a Force Majeure Event which also counts as an Event of Default or a Termination Event, will count as the relevant Event of Default or Termination Event, and not the Illegality or Force Majeure Event.

5(c)(iii) If a Force Majeure Event also counts as an Illegality, it will be treated as an Illegality and not a Force Majeure Event (unless covered by clause 5(c)(ii) above).

5(d) Deferral of Payments and Deliveries During Waiting Period. If an Illegality or a Force Majeure Event exists for a Transaction, payment and delivery obligations under that Transaction will be deferred until:―

5(d)(i) the first Local Business Day (or, for deliveries, the first Local Delivery Day) following the end of the Waiting Period for event in question; or, if earlier:

5(d)(ii) the first Local Business Day or Local Delivery Day on which the Illegality or Force Majeure Event does not exist.

Comparison between versions

These are the events that entitle you to close out some or all of your Transactions; to find out what hideous rigmarole you must go through when you have decided to do that, proceed directly to Section 6.

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

This is a landing page for all the ISDA’s many and varied Events of Default. Since there are eight of them, and all of them have their own little idiosyncrasies, we have not tried to discuss individual items in great detail on this page, but have given them their own pages. These are here:

{{ISDA {{{2}}} Section 5(a) TOC}}

Here we will discuss them in the round as it were. As a collective.

Discussion

The process of closing out an ISDA following a Termination Event and not an Event of Default. There is a lengthy discussion of this here for our premium readers.

Among financing documents, The ISDA is — unique? Pioneering? Overcomplicated? — in having two types of event that can induce parties to call the whole thing off. Or parts of it.

That’s a part of the explanation: some things bring down only some transactions and not others.

Termination Events

Specific taxation and regulatory changes that affect only certain transactions or transaction types, that justify terminating those transactions, but not the whole kitten-caboodle.

And there are things that do justify bringing down the whole kitten-caboodle, but are no-one’s fault as such, just one of these regrettable things that life throws at us every now and then. Changes in tax or regulation that affect a counterparty, or both counterparties, meaning the ongoing trading relationship is not allowed, or is no longer economically efficient.

These events are “Termination Events”: they are complicated two ways: what is affected, and who is affected, which in turn determines who is entitled to call termination and, importantly calculate what is due, according to whose marks. In many cases it will be both parties, and there will be a splitting of the difference.

Events of Default

Then there are events that are someone’s “fault” — in a “banky” way: in that they generally indicate credit failure of some kind, and which necessarily bring down the whole shooting match, but only if the innocent party actually wants that. The close out calculations here are different, and a bunch of other funky ISDA tricks hang off these events too: notably the Section 2(a)(iii) flawed asset provision that allows the Non-Defaulting Party to shoulder arms and just sit there. This doesn’t apply to Termination Events, only Events of Default.

Additional Termination Events

Which leaves Additional Termination Events: bespoke events which parties negotiate into their Schedules, which behave like Termination Events despite in most cases being a lot more like Events of Default in their basic nature: they almost always address credit-impairment of some kind or other (NAV triggers, key person triggers and so on).

Section 5(a)

Events of Default can generally be contrasted with Termination Events. They tend to be more focused on the outright creditworthiness of the Defaulting Party: whether it could, even if it wanted to, perform its obligations. Termination Events on the other hand tend to be extraneous factors preventing a party from continuing the contract (Or making the contract uneconomic) even though it has the financial resources to do so.

The broad thrust of the Events of Default is:

1. Direct failures under the Master Agreement itself: Direct contraventions of the ISDA Master Agreement itself and its Transactions by one of the principals to the contract. Within here we have:
   1. Failure to Pay, which became Failure to Pay or Deliver when the cash-only 1987 ISDA gave way to the broader range of non-cash underlying assets under the 1992 ISDA;
   2. Breach of Agreement: Breach of any obligation other than a payment or delivery obligation
   3. Misrepresentation: Breach of any cross-my-heart-and-hope-to-die sort of precontractual representation made undere the contract
   4. Credit Support Default: Failure to provide collateral under a Credit Support Document. While in ordinary banking world a credit support obligation would generally be provided by someone other than a party to the contract. This is not so on Planet ISDA: (some) CSAs and CSDs are “Credit Support Documents”. So this counts as these are mainly principal obligations of the parties themselves (though of course end users will often be guaranteed).

2. Direct failures under other Agreements: Direct contraventions by parties to the ISDA Master Agreement of other contractual obligations that are sufficiently serious to make the Non-Defaulting Party freak under the ISDA Master Agreement. Within this bucket we have:

   1. Default under Specified Transaction: The Defaulting Party fails directly to the Non-Defaulting Party to perform under a swap-like transaction, only one that is not documented under the ISDA Master Agreement itself, but under a different master trading agreement;
   2. Cross Default: The Defaulting Party fails directly to the Non-Defaulting Party to perform to someone else altogether under a loan-like Transaction, over a certain Threshold Amount;

3. Unacceptable credit deterioration: The Defaulting Party or its third-party Credit Support Providers suffers a dramatic non-transactional reversal of fortunes such that the Non-Defaulting Party has credible doubts it will ever see its net in-the-money positions realised, whether or not they are currently in-the-money. Into this bucket goes:

   1. Bankruptcy: The Defaulting Party suffers one of the many different ways a merchant can go titten hoch. There are a lot of them, and they are fraught;
   2. Merger Without Assumption: The Defaulting Party is somehow taken over, reincorporated, reconstituted through a corporate event or otherwise magicked into a spiritual realm in which its earthly debts and obligations are not taken up by whomever the resulting entity is.

Events of Default by nature, speak to fundamental and time-honoured verities of the financial system, so it should not be a great surprise that they have not really changed throughout the three major versions of the ISDA Master Agreement. Honourable mention should also go to the Additional Termination Events that credit department will insist on shoehorning into the schedule in a bid to stay relevant: while these are not Events of Default as such, they tend to have a same credit-related quality to them

Practical differences between “Affected Party” and “Defaulting Party”

What is the practical, economic difference between being closed out on the same Transaction for an Event of Default and a Termination Event?

This is something that all ISDA ninjas know, or sort of intuit, in a sort of semi-conscious, buried-somewhere-deep-in-the-brain-stem kind of way, but they may mutter darkly and try to change the subject if you ask them to articulate it in simple English.

To be fair the topic might be chiefly of academic interest were it not for the unfortunate habit of the same “real world” event potentially comprising more than one variety of termination right. This leads to some laboured prioritisation in the ISDA, and sometimes some in the Schedule too. What if my Tax Event upon Merger is also a Credit Event Upon Merger and, for that matter, also a Force Majeure Event? That kind of question.

A trap for Cinderella

When adding any new Termination Event you must ALWAYS label it a new “Additional Termination Event” under Section 5(b)(vi), and not a separate event under a new Section 5(b)(vii) etc.

If, instead of being expressed as an “Additional Termination Event”, which is how the ISDA Mechanism is intended to operate, it is set out as a new “5(b)(vii)” it is not designated therefore as any of an “Illegality”, “Tax Event”, “Tax Event Upon Merger”, “Credit Event Upon Merger” or “Additional Termination Event”, so therefore, read literally, is not caught by the definition of “Termination Event” and none of the Termination provisions bite on it.

I mention this because we have seen it happen. You can take a “fair, large and liberal view" that what the parties intended was to create an ATE, but why suffer that anxiety?

A Trap for Cinderella was a baffling 2013 remake of the old French thriller Piège pour Cendrillon, by the way.

Triggering formalities in Section 6(b)

The Termination Events themselves are crafted as absolute events, without the need for notices or actions on the part of the Transaction Counterparties to activate them.

But they do not go live automatically: they must be activated by the Non-affected Party.

The formal triggering process is set out in Section 6(b) and there is an amount of pre-trigger faffery (since not all of them will be apparent to a Non-affected Party, the Affected Party must give notice and then efforts must be made to fix or avoid them before there is any question of termination) before one gets onto the actual process, which is set out in Section 6(b)(iv).

Clause-by-clause

Section 5(b)(i) Illegality

An Illegality is a Section 5(b) Termination Event — being one of those irritating vicissitudes of life that are no-one’s fault but which mean things cannot go on, and not a Section 5(a) Event of Default, being those perfidious actions of one or other Party which bring matters to an end which, but for that behaviour, ought really to have been avoided.

Note also the impact of Illegality and Force Majeure on a party’s obligations to perform through another branch under Section 5(e), which in turn folds into the spectacular optional representation a party may make under 10(a) to state the blindingly obvious, namely that the law as to corporate legal personality is as is commonly understood by first-year law students. Who knows — maybe it is different in emerging markets and former Communist states?

For the silent great majority of swap entities for whom it is not, the curious proposition arises: what is the legal, and contractual, consequence of electing not to state the blindingly obvious? Does that mean it is deemed not to be true?

If the rules change, that is beyond your control, so it can’t be helped and hence Illegality is a Termination Event not an Event of Default. The 2002 ISDA develops the language of the 1992 ISDA to cater to insomniacs and paranoiacs but does not really add a great deal of substance.

An Illegality may only be triggered after exhausting the fallbacks and remedies specified in the ISDA Master Agreement.

Waiting Period

The point of Waiting Period is, for potential scenarios that might wind up justifying termination later, but you don’t yet know that, to build in a period to wait and see. For Illegality events (Section 5(b)(i)) is three Local Business Days — it is not so likely that an Illegality will sort itself out; for a Force Majeure Event (5(b)(ii) — where insh’Allah, things will come right and everyone can eventually go back to what they were doing, it is eight Local Business Days.

Waiting Periods — as defined in the ISDA Master Agreement also sometimes show up sometimes in other booklets — for example, ISDA’s Emissions Annex.

Through the good offices of Section 5(d), payments and deliveries which otherwise would be due during a Waiting Period are suspended.

Section 5(b)(ii) Force Majeure (2002 only)

For the last word on force majeure, the JC’s ultimate force majeure clause is where it’s at. Breaking what must be a habit of a lifetime, somehow ISDA’s crack drafting squad™ managed to refrain from going crazy-ape bonkers with a definition of force majeure and instead, didn’t define it at all. In the 1992 ISDA they didn’t even include the concept.

Interlude: if you are in a hurry you can avoid this next bit.

I don’t know this, but I am going to hazard the confident hypothesis that what happened here was this:

ISDA’s crack drafting squad™, having convened its full counsel of war, fought so bloodily over the issue, over so long a period, that the great marble concourse on Mount Olympus was awash with the blood of slain legal eagles, littered with severed limbs, wings, discarded weapons, arcane references to regional variations of tidal waves, horse droppings from Valkyries etc., that there was barely a soul standing, and the only thing that prevented total final wipe-out was someone going, “ALL RIGHT, GOD DAMN IT. WE WON’T DEFINE WHAT WE MEAN BY FORCE MAJEURE AT ALL.”

There was then this quiet, eerie calm, when remaining combatants suddenly stopped; even those mortally wounded on the floor looked up, beatifically; a golden light bathed the whole atrium, choirs of angels sang and the chairperson said, “right, well that seems like a sensible, practical solution. What next then?”

“We thought we should rewrite the 2002 ISDA Equity Derivatives Definitions in machine code, your worship.”

“Excellent idea! Let’s stop faffing around with this force majeure nonsense and do that then!”

Ok back to normal.

Force Majeure in the 1992 ISDA

We may have said this before but, just because there isn’t a Force Majeure proper in the preprinted 1992 doesn’t mean people don’t borrow the concept from the 2002 — which has been around for, you know, 21 years now — and put it in anyway. One thing we can’t fathom is what possessed ISDA’s crack drafting squad™ to put it in at Section 5(b)(ii), rather than Section 5(b)(iv) just before the Additional Termination Event section, because for absolute shizzle anyone familiar with one version of the ISDA Master Agreement is going to get confused as hell if they start misunderstanding clause references in the other.

Act of state

Note the reference to “act of state”. Now a state, rather like a corporation, is a juridical being — a fiction of the law — with no res extensa as such. It exists on the rarefied non-material plane of jurisprudence. There are, thus, only a certain number of things that, without the agency of one if its employees, a state can do, and these involve enacting and repealing laws, promulgating and withdrawing regulations, signing treaties, entering contracts and, where is has waived its sovereign immunity, litigating their meaning.

Thus, a force majeure taking the shape of an act of state is, we humbly submit, a change in law which makes it impossible for one side or the other to perform its obligations. Compare, therefore, with Illegality.

Waiting Period (2002)

The point of Waiting Period is, for potential scenarios that might wind up justifying termination later, but you don’t yet know that, to build in a period to wait and see. For Illegality events (Section 5(b)(i)) is three Local Business Days — it is not so likely that an Illegality will sort itself out; for a Force Majeure Event (5(b)(ii) — where insh’Allah, things will come right and everyone can eventually go back to what they were doing, it is eight Local Business Days.

Waiting Periods — as defined in the ISDA Master Agreement also sometimes show up sometimes in other booklets — for example, ISDA’s Emissions Annex.

Through the good offices of Section 5(d), payments and deliveries which otherwise would be due during a Waiting Period are suspended.

Section 5(b)(ii)/(iii) Tax Event

Basically, the gist is this: if the rules change after the Trade Date such that you have to gross up an Indemnifiable Tax would weren’t expecting to when you priced the trade, you have a right to get out of the trade, rather than having to ship the gross up for the remainder of the Transaction.

That said, this paragraph is a bastard to understand. Have a gander at the JC’s nutshell version (premium only, sorry) and you’ll see it is not such a bastard after all, then.

In the context of cleared swaps, you typically add a third limb, which is along the lines of:

(3) required to make a deduction from a payment under an Associated LCH Transaction where no corresponding gross up amount is required under the corresponding Transaction Payment under this Agreement.

Section 5(b)(iii)/(iv) Tax Event Upon Merger

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.

Section 5(b)(iv)/(v) Credit Event Upon Merger

Known among the cognoscenti as “CEUM”, the same way Tax Event Upon Merger is a “TEUM”. No idea how you pronounce it, but since ISDA ninjas communicate only in long, appended, multicoloured emails and never actually speak to each other, it doesn’t matter.

Pay attention to the interplay between this section and Section 7(a) (Transfer). You should not need to amend Section 7(a) (for example to require equivalence of credit quality of any transferee entity etc., because that is managed by CEUM.

Note also the interrelationship between CEUM and a Ratings Downgrade Additional Termination Event, should there be one. One can be forgiven for feeling a little ambivalent about CEUM because it is either caught by Ratings Downgrade or, if there is no requirement for a general Ratings Downgrade, insisting on CEUM seems a bit arbitrary (i.e. why do you care about a downgrade as a result of a merger, but not any other ratings downgrade?)

Section 5(b)(v)/(vi) Additional Termination Events

Additional Termination Events are the other termination events your Credit department has dreamt up for this specific counterparty, that didn’t occur to the framers of the ISDA Master Agreement — or, at any rate, weren’t sufficiently universal to warrant being included in the ISDA Master Agreement for all. While the standard Termination Events tend to be “non-fault” events which justify termination of the relationship on economic grounds, but not on terms necessarily punitive to the Affected Party, Additional Termination Events are more “credit-y”, more susceptible of moral outrage, and as such more closely resemble Events of Default than Termination Events.

Common ones include:

• NAV triggers (for hedge funds)
• Key man provisions (for hedge funds)
• Investment manager insolvency or loss of licence
• Parent divestment (where counterparty is a financing subsidiary)

There is a — well, contrarian — school of thought that Additional Termination Events better serve the interests of the Ancient Guild of Contract Negotiators and the Worshipful Company of Credit Officers than they do the shareholders of the institutions for whom these artisans practise their craft, for in these days of zero-threshold CSAs, the real credit protections in the ISDA Master Agreement are the standard Events of Default (especially Failure to Pay or Deliver and Bankruptcy).

It’s a fair bet no-one in the organisation will have kept a record of how often you pulled NAV trigger. It may well be never.

“Ahh”, your credit officer will say, “but it gets the counterparty to the negotiating table”.

Hmmm.

Section 5(c)

Compared with its Byzantine equivalent in the 2002 ISDA the 1992 ISDA is a Spartan cause indeed: it is as if ISDA’s crack drafting squad™ assumed all ISDA users would be cold, rational economists who instinctively appreciate the difference between causation and correlation — or hadn’t considered the virtual certainty that they would not be — and therefore did not spell out that where your Event of Default is itself, and of itself, the Illegality, this hierarchy clause will intervene but it will not where your it simply is coincidental with one. I.e., if you were merrily defaulting under the ISDA Master Agreement anyway, and along came an Illegality impacting your ability to perform some other aspect of the Agreement, you can’t dodge the bullet.

In the 2002 ISDA the JC thinks he might have found a bona fide use for the awful legalism “and/or”. What to do if the same thing counts as an Illegality and/or a Force Majeure Event and an Event of Default and/or a Termination Event. Template:M gen 2002 ISDA 5 Template:M detail 2002 ISDA 5

Subsection 5(a)

Comparison between versions

5(a) Events of Default

5(a)(i) Failure to Pay or Deliver

5(a)(ii) Breach of Agreement

5(a)(iii) Credit Support Default

5(a)(iv) Misrepresentation

5(a)(v) Default Under Specified Transaction

5(a)(vi) Cross Default

5(a)(vii) Bankruptcy

5(a)(viii) Merger without Assumption

Discussion

Types of Events of Default

Independently verifiable

Some Events of Default you can independently verify without counterparty's confirmation, for example:

• Direct breaches: direct breaches of the Agreement (eg Failure to Pay; Breach of Agreement);
• Public events: Events which are necessarily public (most of the Bankruptcy limbs; Merger Without Assumption

Not independently verifiable

Some require the counterparty to tell you as they depend on facts which you could not know are not public knowledge, are not breaches of a direct obligation to the counterparty and would not otherwise come to the firm's attention: Particularly:

• Cross Default
• other limbs of Bankruptcy (eg "has a secured party take possession of all or substantially all its assets".

“Hard” Events of Default

Hard events where some positive action has actually been taken representing a default - such as a Failure to Pay

“Soft” or “Passive” Events of Default

Where a state of affairs has arisen permitting a hard Event of Default to be called, but it has not been designated it happened, such as Cross Default, where person owning the actual "hard" default right against your counterparty may not have triggered (or have any intention of triggering) it.

That said, and for the same reason, such “not independently verifiable” termination/default events are effectively soft anyway, even where we have such an obligation from counterparty to notify us of their occurrence, because we have no means of policing whether or not the Counterparty has in fact notified us, and therefore no practical remedy anyway if it does not. It is a self certification, after all, and all we can rely on is its moral force and the party's competence to monitor its own position and be sufficiently organised to tell us.

Additionally, the obligation on a counterparty to monitor "passive" Events of Default like Cross Default (as opposed to cross acceleration where QED a defaulting party will be notified about the occurrence) is a pretty onerous one particularly for a large entity, and even more so where (as they often are for funds) derivatives are included in definition of Specified Indebtedness.

Given that cross defaults may have artificially low Threshold Amounts (as do some of ours) and are set at levels where actual counterparties owning those rights directly are most unlikely to exercise them, it should not be a surprise to find parties resistant to notifying us about these.

This becomes a credit call but a practical recommendation would be:

1. Impose notification requirement only on "active" termination/default events which are non-public and CP has no excuse for not having monitored them and counterparty has actually exercised; and
2. If that doesn't work, agree to drop the provision altogether, as in my view its practical utility is limited to "moral" at best (as there is no effective sanction for counterparty breach anyway)

Illegality

Illegality trumps Event of Default. Be careful where, for example, a Failure to Pay is occasioned by a mandatory change in law by a government having jurisdiction over one or other counterparty — see Illegality. Good example: Greek capital controls of June 2015. Template:M gen 2002 ISDA 5(a) Template:M detail 2002 ISDA 5(a)

Subsection 5(a)(i)

Comparison between versions

The significant change between 1992 ISDA and 2002 ISDA is the restriction of that grace period from three Local Business Days to one. And a bit of convolutional frippery in introducing Local Delivery Days as well.

Compare also Failure to Pay under the 2014 ISDA Credit Derivatives Definitions, which is subtly different given the different purpose that it plays under a CDS.

Discussion

Failure to Pay or Deliver under Section 5(a)(i) of the ISDA Master Agreement: where a party fails to pay or deliver on time and does not remedy before the grace period expires. The grace period for a 2002 ISDA is one Local Business Day; shorter than the three Local Business Days in the 1992 ISDA. This fact alone has kept a number of market counterparties on the 1992 form, nearly thirty years after it was upgraded.

There’s a technical funny due to the American habit of insisting on a pledge-only 1994 NY CSA and then designating it as a Credit Support Document (against the hopes and dreams of ISDA’s crack drafting squad™ when it drafted the Users’ Guide, but still), and that is a failure to pay under an English law CSA is a Section 5(a)(i) Failure to Pay or Deliver, whereas a failure to pay under a New York Law CSA is a Section 5(a)(iii) Credit Support Default. Doth any difference it maketh? None, so far as we can see.

Funny old world we live in. There is an inverse relationship between the amount of time you will spend negotiating a point in an ISDA Master Agreement and the practical difference it will make once your ISDA Master Agreement has been inked and stuffed in a filing cabinet in a cleaning cupboard behind the lavatories electronically stored, data-enriched, in a comprehensive online legal data repository. Template:M detail 2002 ISDA 5(a)(i)

Subsection 5(a)(ii)

Comparison between versions

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

Note the addition of Repudiation of Agreement to the 2002 ISDA. Common law purists like the JC will grumble that you don’t really need to set out repudiation as a breach justifying termination of a contract, because that’s what it is by definition but stating the bleeding obvious has never stopped ISDA’s crack drafting squad™ before. Also, an interesting question: if you do feel the need to provide for what is in essence an evolving common law remedy, then, to the extent your draw that remedy inside the cope of the common law remedy — or the common law evolves some new different and remedy that no-one had thought of before — then what? Section 9(d) has you covered. Woo-hoo.

Discussion

A failure to perform any agreement, if not cured within 30 days, is an Event of Default, except for those failures which already have their own special Event of Default (i.e., Failure to Pay or Deliver, under Section 5(a)(i)), those that relate to a pre-existing default (for example, default interest on unpaid amounts) and those that only bear on the “defaulting” party’s tax position, meaning that non-performance is punishment enough in itself (and does not affect the “non-defaulting” party) — that is, the non-compliant party will just get clipped for tax it could have avoided had it performed.

These are the boring breaches of agreement: those of a not immediately existential consequence to a derivative relationship (like Failure to Pay or Deliver, or a party’s outright Bankruptcy), which are not therefore hugely time critical, but which, if not promptly sorted out, justify shutting things down with extreme prejudice. Note that, while the 2002 truncates a bunch of other grace periods in the agreement (notably for a Failure to Pay or Deliver, and for discharging a Bankruptcy petition) it does not truncate the grace period for “boring” defaults, which stays at the glacially long 30 days.

All rendered in ISDA’s crack drafting squad™’s lovingly tortured prose, of course: note a double negative extragvaganza in 5(a)(ii)(1): not complying with an obligation that is not (inter alia) a payment obligation if not remedied within a month. High five, team ISDA.

Repudiation

New in the 2002 ISDA: repudiation of contract. Not actually breaching it, per se, but high-handedly saying that you are going to. In writing. Could you argue that by codifying that a repudiation must be in writing to count, in a counter-intuitive way this new clause dilutes the common law rules, rather than reinforcing them? A common law repudiation can, if clear enough, be oral, by conduct, body language, morse code, semaphore and so on,

So rather than empowering a Non-defaulting Party, the addition of a narrow definition of what counts as repudiation makes their avenue of redress that teeny bit narrower. Doubtful it has ever made a difference, but — well, they said that about LIBOR didn’t they?

Note that unlike Breach of Agreement, there is no grace period to cure a Repudiation of Agreement: If you say the magic words in writing and cast the spell The death eaters will come and take your ISDA away at once, as surely as if you had failed to pay — sooner indeed: even there there is a short grace period.

Hierarchy of Events

Note that a normal Section 5(a)(ii)(1) Breach of Agreement that also amounts to a Section 5(b)(i) Illegality or a Section 5(b)(ii) Force Majeure Termination Event will, thanks to section 5(c), be treated as the latter, but a repudiatory Breach of Agreement under section 5(a)(ii)(2) willl not enjoy the same leniency. If you have repudiated your contract, the fact that there happens to be a concurrent Illegality — it is hard to see how a repudiatory breach could be an Illegality in itself — will not save you from the full enormity of section 5(a)(ii) Event of Default style close out.

Failure to Pay or Deliver carve-out

Why is Section 5(a)(i) specifically carved out? No good reason, other than ISDA’s crack drafting squad™’s general neurosis/delight in over-communicating. Yes, it has its own separate Event of Default, with a much tighter timeline, so in practice one would never realistically trigger a failure to pay as a 5(a)(ii) event, but it is still a bit fussy carving it out.

ISDA’s crack drafting squad™. Never knowingly outfussed.™

It is an Event of Default not to supply documents for delivery

A failure to Furnish Specified Information — ie those documents for delivery specified in Part 3 of the ISDA Master Agreement, adverted to in Section 4(a)(ii) will therefore be an Event of Default, although you have to navigate a needlessly tortured string of clause cross references and double negatives to settle upon this conclusion. Template:M detail 2002 ISDA 5(a)(ii)

Subsection 5(a)(iii)

Comparison between versions

A bit of pedantic flannel found its way into the 2002 ISDA — it captures not just the failure of the Credit Support Document itself, but any security interest granted under it, catering to the legal eagle’s most paranoid fears that a contractual right can have some sort of distinct ontological existence independently from the agreement which gives it breath and enforceable currency in the first place. But otherwise the same.

Discussion

Before you even put your hand up: no, a Credit Support Annex between the two counterparties is not a “Credit Support Document”, at least under the English law construct: there it is a “Transaction” under the ISDA Master Agreement that offsets the net mark-to-market value of all the other Transactions, so can’t be a Credit Support Document per se. It is different with a 1994 NY CSA — being a pledge document it is a Credit Support Document, but even there the Users’ Guide cautions against treating a direct swap counterparty as a “Credit Support Provider” — the Credit Support Provider is meant to be a third party: hence references to the party itself defaulting directly under a Credit Support Document.

Therefore, tediously — and we think it was avoiding precisely this tediosity that the Users’ Guide had in mind, but, best-laid plans and all that — there is an ontological difference between the mechanics of close out when it comes to a failure under a New York-law CSA when compared to non-payment under an English-law CSA.

A failure to meet a margin call under an English-law CSA or any of its modern English-law successors is therefore a Failure to Pay or Deliver under Section 5(a)(i) of the actual ISDA Master Agreement; a failure to post under a New York-law CSA is a Section 5(a)(iii) Credit Support Default.

Does this make any difference at all? It may do, if you have negotiated different grace periods under your CSA than those under your ISDA Master Agreement proper.

Now, before you ask why anyone would ever do that, firstly let us say that far stupider things than that happen every freaking day in the negotiation of global markets documentation, and secondly that, for example, grace periods for regulatory initial margin may well be standardised — and dealers may not have the capacity or appetite to negotiate them tightly, given the paper war they will be in in any case — so you can quite easily see 2002 ISDAs with very brief grace periods, and Initial Margin CSDs with longer ones. So won’t this be fun when it comes to closeout. For paranoia junkies and conspiracy theorists amongst you, note the long reach this event of default gives to a Cross Default provision. Now, granted, in the ordinary course Cross Default keys off borrowed money or indebtedness, and by common convention that does not count out-of-the-money exposures under derivative contracts, so the ISDA Master Agreement’s own events of default should not exacerbate your cross-default risk under other contracts. Unless you widen Specified Indebtedness to include derivative exposures, as some counterparties do.

Okay; buckle in, for this is a bit of a Zodiac Mindwarp. But if you widen your conception of Specified Indebtedness ...

Now we see that courtesy of Section 5(a)(iii), a default by my Credit Support Provider (which, remember, need not be my parent: it may be an unaffiliated third-party like a bank writing a letter of credit or financial guarantee) is also default under my ISDA Master Agreement, even where I personally am fully solvent, in good standing, of sound credit and up-to-date with my rent, outgoings, credit card payments and so on.

Fair enough, you might say, for that Credit Support Document was a fundamental part of your calculus when you agreed to trade swaps with me in the first place, and so it was — but, since (through 5(a)(iii) that guarantor’s default counts as my default under our ISDA Master Agreement, through a carelessly widened cross-default in another facility that same guarantor default could be used by my other counterparties to accelerate those other facilities, even though those other facilities are not guaranteed by the same guarantor. So there is this ugly — rather theoretical, I grant you, but nonetheless ugly — snowball risk.

Just something to think about when your own credit department tries to loosen the waistband of what kinds of obligations trigger Cross Default, anyway. Template:M detail 2002 ISDA 5(a)(iii)

Subsection 5(a)(iv)

Comparison between versions

No change between 1992 ISDA and 2002 ISDA.

Discussion

A seldom-invoked grounds for terminating an ISDA Master Agreement but note a couple of things:

Firstly, unlike Breach of Agreement, there is no grace period allowing for rectification or correction of a misrepresentation. If you make a material false statement, you are thereafter immediately, and irrevocably, at your counterparty’s mercy.

Owning up to it, and trying to make things right, does not get you out of the schtuck. Nor is there any ticking clock by reference to which your Counterparty must use or lose its close-out right (though Americans may wonder about the “course of dealing”). This is, in equal parts, a boon and bane: it does not oblige a Non-Defaulting Party to take precipitate action, so it need not act rashly; on the other hand, it gives the Non-Defaulting Party a free option and the licence to pull something out of the bag long after the misrepresentation has ceased to have any practical effect. Would anyone actually behave like such a cad? You’d like to think no, but have you met any hedge fund managers?

In any case, there is a predictable cottage industry of credit officers tasking unwilling negotiations with the thankless task of sending out notices waiving misrepresentations about facts that the credit officer should not have asked for representations about in the first place.

Secondly, a misrepresentation is faster than a Breach of Agreement. The moment a misrepresentation is made, you can get out. No waiting for 30 days to see if anything comes right.

Given this, it is curious that Misrepresentation is not more frequently cited than it is — that may be to do with the liminal vagueness of the “materiality” requirement.

Misrepresentation? Or breach of warranty?

The purist’s objection is that, since a representation is a pre-contractual statement which induced the wronged party to enter the contract and (ergo) was not, and could not be, itself, a contractual term at all — its bolt was shot, so to speak, before “minds met” — and, as such, one’s remedy for misrepresentation ought to be to set aside the contract altogether (ab initio, as Latin lovers — well, my one, at any rate — would say) voiding it on grounds of no consensus, and not suing for damages for breach of something which, by your own argument, never made it into the cold hard light of legal reality. The JC is nothing if not a purist. We feel that, as written, this provision is a bit misconceived.

Giving our friends at ISDA the benefit of the doubt we think ISDA’s crack drafting squad™ means “breach of warranty”, and were really just being loose with terminology. There again, unlike other, more fundamental obligations, misrepresentation as an Event of Default has neither a materiality threshold nor the accommodation to the wrongdoer of a grace period or even a warning notice, so perhaps not. Anyway.

This is where that mystifying Section 3(d) representation comes in.
Template:Materiality of misrepresentation

Representations by agents on agent’s own behalf

Where your client’s obligations under the ISDA Master Agreement are stewarded by an agent — quite common for an investment manager trading on behalf of a fund — a broker might think about having the agent represent, on its own behalf, about its role as agent. It might ask the agent to do this in the ISDA. The sound of an asset manager confirming its ongoing authority to bind its principal gladdens a broker’s heart. A full-throated assertion of its own regulatory authorisation; its continued good standing with the companies office; the continued involvement of its key persons in making investment decisions — each is sure to put a jaunt in a broker’s stride. Imaginative in-house counsel for the broker will doubtless dream up others.

But tarry a while. Firstly, your investment manager will sign as agent, for the client, not on its own behalf. For many this will be an article of profound faith: they will be at some pains, which they will willingly inflict on you, to avoid the barest hint they are speaking for themselves. “When an agent, as agent opens its mouth,” they will tell you, “it becomes its principal for all purposes that interest the law.”

And so it does. As far as the Courts of Chancery are concerned, to be an agent is to be wholly transubstantiated into the person of one’s principal. Transmogrified. It is, for all forensic intents to disappear; one’s ghostly outline may still be there, but it is a chimera: one exists only to be the earthly representation of another.

Which cast a pall over the representations you are being asked to make.

Take the one that “the principal has duly authorised the agent to act on its behalf”. For the principal to say that, through the person of the very one whose agency is in question, is some kind of Möbius loop. The very comfort you might draw from what is being said is taken away by the person who is saying it.

Even if the fact of the agency is in no doubt, the statements as to the agent’s character may be problematic. The agent is speaking for the principal, remember.

The exchange might go something like this:

Agent (as agent): Why would I be authorised by the FCA? I am not advising anyone. In fact, my investment manager is advising me. Why don’t you ask her?

Broker (rubbing its eyes and peering at the agent): But I am asking her. I mean you.

Agent (as agent): Who?

Broker: You! The investment manager for this blessed fund!

Agent (as agent): Ah, but I am not me, for now, you see. I am the earthly representative of the fund. In my own personal capacity, I don’t exist.

Broker: But you are here, aren’t you? Can’t I just quickly ask you? Can’t you just, you know, be yourself for a moment? It won’t take a mo —

Agent (as itself): What? Here? In this ISDA? You must be joking. I told you under no circumstances will I act as principal.

Broker (A light-bulb comes on): Aha! I've got it! All right then: can you make representations on behalf of your principal?

Agent (as agent) (Thinks for a moment.): Why yes! Yes, I can! That’s what I’m here, as agent, to do! What would you like me to represent?

Broker: Could you represent that your investment manager is duly authorised by the FCA?

Agent (as agent): WELL HOW THE HELL AM I SUPPOSED TO KNOW THAT??

Broker: What?

Agent (as agent): Look: why don’t you ask the agent?

But seriously

Assuming you can persuade your agent to represent, on its own behalf, about itself, as to these matters (whether in the master agreement itself or in a side letter):

• Due appointment, authority etc: This goes to the agent’s ostensible authority to bind its principal. If an investment manager breaches this kind or representation, then worst case the broker risks having no claim at all against the fund – if it can’t make out that there was ostensible authority.

• Now if (notwithstanding breach of this rep) the broker does still have a claim against the fund, then no harm no foul: we shouldn’t need to close out vs the fund unless/until there’s an independent failure to pay, in which case rely on that. But now we have actual knowledge of the agent’s lack of authority we may find we have a second problem: that there is no no-one with ostensible authority to bind the fund, and it is drifting rudderless towards a wall. If so, see below.
• If we don’t then our action is necessarily against the agent in its personal capacity and against its own assets, not the fund’s. It’s a claim in tort for negligent misstatement. Put yourself in the fund’s position here. Being itself a victim of the agent’s mendacity it will feel it is more sinn’d against than sinning and will not see why this should be a 3(d) representation under the ISDA Master Agreement. The fund will say “well hang on: I didn’t do anything wrong here: this asset manager is taking my name in vain without my consent – so how is it that you’re purporting to close out against me?

• Loss of manager’s regulatory status, no manager, no good standing etc: The other typical representations goes to a duly authorised manager’s continued ability to to act on the fund’s behalf: to manage positions, monitor risk tolerances and keep the ship steady. If the agent goes AWOL a [[[broker]] has some call to reduce risk against the fund. If the fund is a sports car, the broker’s ATEs are the measures it can take to prevent the car hitting a wall. As long as here is a competent agent driving the car, the broker can have some confidence the car will avoid walls by itself. If the driver is prevented from steering, the car will, eventually, hit the wall. So it is fair enough for the broker to say “okay: you are out of control: unless you name a new driver, within a given period ~ and here you may treat yourself to a fun exchange with your counterpart about how long that period should be ~ we can call this an ATE”.

Subsection 5(a)(v)

Comparison between versions

DUST has been expanded in five significant ways by the 2002 ISDA. See the summary and general sections for details.

Discussion

The connoisseur’s negotiation oubliette.

Default Under Specified Transaction — colloquially, “DUST” — is often confused with Cross Default. In fact, they’re meant to be mutually exclusive. That won’t stop folks conflating them, though. Look, we all do it.

DUST is like Cross Default, but where Cross Default references indebtedness owed to third parties, DUST is all about non-“borrowing” style transactions — e.g., swap agreements, stock loans and repos, but only transactions between the two counterparties.

If a Counterparty experiences an Event of Default under a swap agreement (or other “Specified Transaction” with you, this will be an Event of Default under the ISDA Master Agreement.

Changes from the 1992 Master Agreement

DUST overwent quite a makeover in the 2002 ISDA. For example:

Mini-closeout carveout: Defaults require the acceleration of just the Specified Transaction in question (for general defaults) but off all outstanding transactions under the relevant master agreement (for delivery defaults). This change was made with mini-close-out under repos and stock loans in mind — a concept which the stock loan market invented after the 1992 ISDA was published, so you can’t blame ISDA’s crack drafting squad™ for overlooking it at first — where delivery failures under are common and do not of themselves indicate weakness in the Defaulting Party’s creditworthiness.

Credit support failures covered: DUST under the 2002 ISDA can be triggered by default under a credit support arrangement relating to a Specified Transaction. These weren’t included for the 1992 ISDA DUST.

Shortened cure period: In tune with the general tightening up of cure periods — you know, we’re in a new millennium, computers work properly nowadays, and all that — the cure period for a failure to make a final or early termination payment on a Specified Transaction has been reduced from three days to one. This caused many a credit officer to sadly shake her head and refuse to move to the new agreement.

Repudiation evidence: Repudiation was modified to add the phrase “...or challenges the validity of ... after “... disaffirms, disclaims, repudiates or rejects ...” to reduce ambiguity as to whether a party’s action constitutes a repudiation. Also, we imagine, by way of stiffening the criteria for what counts as a repudiation, the 2002 requires written evidence that the repudiating party has an extended middle finger. This rules out being able to close out cornered hedge-fund managers, having been “brought to the negotiating table” by their fund’svproximity to a NAV trigger and who are not enjoying having their “feet held to the fire”, shouting “Well, bugger you, I shan’t pay, and let’s see how you like that” in the heat of the moment, when they really didn’t mean it, only to discover they had inadvertently repudiated a contract they were otherwise in perfect compliance with. Of course, no risk officer would dream of closing out an ISDA Master Agreement based on an intemperate oral communication, or the proverbial extended middle finger, for which she could not subsequently prove with fairly compelling evidence. But still.

Widened definition of Specified Transaction: The “Specified Transaction” concept has been broadened to include additional transaction types such as repos, and to include a catchall clause designed to include any future derivative products that have not been thought of yet.

Voltaire and DUST

In which ISDA’s crack drafting squad™ got bogged down in the weeds once in 1987, doubled down in their in-weed bogged-downness in 2002, and we’ve been dealing with resulting confusion ever since. A case of perfection being the enemy of good enough, as Voltaire would say, in the JC’s humble opinion, especially in these modern times where, thanks to compulsory daily zero-threshold variation margining, DUST is even more of a dead letter than it even was in the good old days. To our knowledge, no ISDA Master Agreement in history has been closed out using, exclusively, Section 5(a)(v).

That said, the 1992 ISDA version is a bit skew-wiff as regards mini-closeout, and you may find assiduous counterparties hungrily licking their lips at the prospect of a hearty negotiation about this bald man’s comb.

We are talking about other derivative-like transactions, between you and the same counterparty, where the counterparty presents a clear and present danger of blowing up, but where that behaviour has not yet manifested under the present ISDA Master Agreement, meaning you have no grounds to blow them up directly. So, you know, fairly implausible scenario, but still. You want to use the event arising under this other Specified Transaction to detonate the present ISDA. The squad breaks your ability to do so down in to four scenarios:

• Counterparty fails to pay amounts falling due before maturity on a Specified Transaction, and you accelerate that transaction, but not necessarily others under the same master agreement. Here the principle is that any obligation to pay a sum of money on time is fundamental, of the essence and speaks indelibly to a merchant’s credit, whether or not one accelerates other related Specified Transactions (though, actually, walk me through the scenarios in which you wouldn’t, or even weren’t obliged to?)
• Counterparty fails to pay amounts falling due at maturity on a Specified Transaction, so you can’t “accelerate” as such on that Specified Transaction, as it has matured, but you are still out of pocket and of a mind to press a big red button — though, again, curiously, only on this Specified Transaction and not the other outstanding transactions under the same master agreement, even though you could;
• Counterparty fails to deliver assets due under a Specified Transaction, and as a result you accelerate the Specified Transaction (1992 ISDA) or all Specified Transactions under the affected master agreement (2002 ISDA — the 2002 version being designed to carve out things like mini close-out under a 2010 GMSLA as these are not credit-related;
• Counterparty presents you an extended middle finger generally with regard to any obligation under any Specified Transaction, whether you accelerate it or not. Here if your counterparty is playing craziest dude in the room, it has committed a repudiatory breach thereby losing what moral high-ground it might otherwise stand on to expect you to follow form and protocol before closing it out.

Acceleration, not Default

DUST is triggered by an acceleration following an event of default under the Specified Transaction, not upon the default itself. Since the Specified Transaction is between you and the other party to the ISDA Master Agreement, there is no great loss — it is within your gift to accelerate the other contract — and to achieve set-off you would have to do so anyway.

This is less drastic than the corresponding Cross Default provision, which imports all the Events of Default from all Specified Indebtedness into the present one, even if the counterparty to the defaulted contract has itself waived its rights to exercise.

Default under any Specified Transaction, and the question of overreach

DUST attaches to a “default” (not defined) under any Specified Transaction, and (other than under Section 5(a)(v)(3) for delivery failures) not all Specified Transactions. But if you have a credit concern with a counterparty under a derivative-like master agreement — even on a failure to pay — you are hardly likely to be closing out some, but not other transactions. Especially not now in these days of compulsory regulatory variation margin. You’ll be closing out the lot. Yet, with different rules depending on whether its a failure to pay (before or at maturity), failure to deliver or repudiation, we think ISDA’s crack drafting squad™ has made it all a bit fiddly. They may be strictly correct, but come on.

So we have a lot of sympathy with the point, pedantic though it may be, that the DUST formulation could be simplified for transactions under any master agreement — even for repudiation — by requiring the Non-Defaulting Party to have closed out the whole arrangement, not just the Specified Transaction itself. An amendment to the following effect, rendered in ISDA’s leaden prose, wouldn’t be out of the question:

“For the purposes of Section 5(a)(v) where any Specified Transaction is governed by a master agreement, an event will only be a Default Under Specified Transaction where it results in an early termination of all transactions outstanding under the same master agreement.”

Final payments

The reason for the second limb of the definition is to catch final payments, which can’t be accelerated as such, since they’re already due.

Differences between cross default and DUST

Ideally, cross default and DUST should be mutually exclusive. They are meant to dovetail with each other, not cross over. This will not stop mission creep from over-zealous credit departments, who will try to expand the scope of each, leading to all kinds of cognitive dissonances and righteous indignation from the counterparty’s negotiator. As ammunition for your fruitless attempts to persuade the credit department to live in the real world for once, try these:

• Cross default generally references indebtedness where the exercising counterparty has significant loan-type exposure to the defaulter; DUST references bilateral derivative and trading transactions which tend not to be in the nature of indebtedness (it is true to say that the line between these can be gray, especially in the case of uncollateralised derivative relationships;
• Cross default is only triggered once a certain threshold amount of indebtedness is defaulted upon; DUST is triggered upon any breach;
• Cross default references your Counterparty owes to a third party outside your control; DUST references other obligations your counterparty owes you or an affiliate you can reasonably be expected to be in league with. (ie you can't generally trigger if your counterparty defaults on Specified Transactions it has on with third parties)
• DUST only comes about if the Specified Transaction in question has been actually accelerated, whereas cross default is available whether the primary creditor has accelerated or not. (A cross default which requires acceleration is called “cross acceleration”.)

Payment acceleration versus delivery acceleration — mini close-out

Upon a payment default under 5(a)(v)(1), only that particular transaction must be accelerated (it doesn’t require full close out of the relevant Master Agreement. But a delivery default under 5(a)(v)(3), is only triggered if the whole Master Agreement is closed out.

Why would that be? Oh! Yes, Stock loan ninja at the back, with your hand up!

Stock loan ninja (for it is he): Sir! Sir! Please sir, is this to stop the mini-closeout of a single Loan under a 2010 GMSLA?

The JC (beaming inscrutably): Yeeeees — Go on — ?

SLN: Sir, please sir, settlement failures under a stock loan are often a function of market illiquidity (the asset to be delivered isn’t available) and aren’t necessarily indicative of credit deterioration, sir, so should not necessarily trigger a DUST under the ISDA. But this situation would never apply to a simple cash payment. On the other hand, if the whole 2010 GMSLA is closed out as a result of a delivery fail, you clearly are in a credit-stress situation.

JC: Excellent!

What if I “jump the gun”?

Could a wrongfully submitted notice of default be treated as a repudiation/anticipatory breach by the “non-defaulting party” giving the other party at least the right to withhold payments on the basis that this would constitute a Potential Event of Default by the party submitting the notice? There’s not much law on point, but the starting point is “no” - it would simply be an ineffective notice. However, a non-payment on the basis of an ineffective notice would be impermissible and may itself amount to a Failure to Pay. But as to the mere dispatch of the notice itself, there is relatively recent case law (albeit in the bond world) stating that an acceleration notice that is submitted wrongfully, i.e. when no actual event of default, is merely ineffective and does not give rise to a claim for breach of contract or damages from “defaulting party”. Clearly this has not been considered in context of ISDA per se (and may be nuances here that would lead to different result) but at it is a start.

Subsection 5(a)(vi)

Comparison between versions

The 2002 ISDA updates the 1992 ISDA’s Cross Default so that if the combined amount outstanding under the two limbs of Cross Default exceed the Threshold Amount, then it will be an Event of Default. Normally, under the 1992 ISDA, Cross Default requires one or the other limbs to be satisfied — you can’t add them together. This was a bit of a snafu.

The two limbs are:

1. a default under a financial agreement that would allow a creditor to accelerate any indebtedness that party owes it;
2. a failure to pay on the due date under such agreements after the expiry of a grace period.

Cross default in securities financing arrangements

Neither the 2010 GMSLA nor the Global Master Repurchase Agreement have, as standard, either a cross default or a default under specified transaction provision. Unless some bright spark thinks it is a good idea to negotiate one in.

Comaprison with cross acceleration

Cross acceleration is essentially cross default only tweaked such that it is only triggered on actual acceleration of 3rd party indebtedness rather than the mere potential for acceleration. This is enough of a difference to make it worth its own page so if you're interested in that please see Cross Acceleration.

Discussion

Cross Default covers the unique risks that come from lending money to people who have also borrowed heavily from others, likely on better terms than you. The basic vibe is:

If any of your other loans become payable, I want mine to be payable too.

In the ISDA Master Agreement that means I get an Event of Default. Sounds simple? Well: ride with me a while.

Origins in the loan market

Cross default grew out of the traditional loan market, and was transplanted into derivatives at the dawn of the Age of Swaps. Consider a traditional unsecured loan. Its characteristics are as follows:

Firstly, there is an identifiable lender — usually a bank — and borrower — usually a business — in a formalised relationship of dominance and subservience. Their roles in this power structure cannot change. The lender is, always, the lender: it gives away its money against the borrower’s bare promise to later give it back. The borrower does not have risk to the lender.

Secondly, a loan is an outright allocation of capital from lender to borrower. There, intrinsically, credit risk. The lender’s main concern is that the borrower can give the money back. It will want the right to force it to if the borrower’s creditworthiness takes a turn for the worse. The bank therefore wants its “weapons” pointed at the borrower. The borrower, in contrast, has no need to point any weapons at the bank.

Thirdly, the borrower has few payment obligations: usually, only periodic interest and final repayment. Most of the borrower’s obligations come at the end of the contract.

Fourthly, unless the borrower defaults, the bank cannot get its money back before expiry of the term. All it is entitled to is periodic interest on the amount loaned.

Because the borrower has infrequent payment obligations, and they are large, the bank will want to be able to call a default as soon as it thinks the customer will not be able to repay. It will not want to wait and see.

But what default events can it look to? “Failure to pay” or “breach of agreement” won’t do, because there might not be any payment obligations due under the loan. If the borrower has loans with other banks, it may owe interest on them before it owes anything under this loan.

This will make all bank lenders nervous: if the borrower becomes distressed, everyone will want to use their weapons as soon as possible: there is an advantage to being the first lender to pull the trigger. If one lender shoots — if it even becomes entitled to shoot — then the other banks will want to be able to shoot, too.

Hence, the concept of “cross default”: should a borrower be in material default under a third-party loan, cross default permits the bank to call in its loan, too, even though the borrower has not missed any payments directly. Even if none were even due.

This puts the borrower’s lenders into a standoff: all will have “twitchy trigger fingers”. All will want to accelerate their loans as soon as anybody else is entitled to.

There is a curious “systemantic” effect here: though Cross Default is designed as a credit mitigant, its very existence makes a credit default more likely.

The loan market therefore developed some “thresholds” around the cross-default concept: firstly, you could only invoke Cross Default if the borrower’s default exceeded a certain monetary value. Cross Default should only apply to events material enough to threaten the borrower’s solvency.

Recap: Cross Default is meant to protect against the risk of material uncollateralised indebtedness, on terms containing infrequent payment obligations, where the borrower also has significant indebtedness to other lenders in the market. It is a one-way right. A borrower has no cross-default right against a lender.

The ISDA evolved from the loan market

We have seen that the ISDA Master Agreement developed out of the loan market. Early swaps were offsetting loans. They were documented by lawyers who were banking specialists: they were used to thinking about the world in terms of lending.

It was only natural that early versions of the ISDA Master Agreement included the usual set of banker’s “weapons” to manage the risk of default. That included Cross Default.

Swaps are different

But swaps are not very much like outright loans. They are financing, not lending arrangements: The swap dealer does not allocate capital outright to the customer, as a lender does. Financing and lending are fundamentally different activities. They present different risks.

Swaps, also, are by their nature fully bi-directional. There is no fixed lender and borrower. (In theory, there’s no lender or borrower at all). Under a swap, either party can “owe money”. Who is “in-the-money” can change suddenly, without warning and it has nothing to do with the parties’ relative creditworthiness.

This means the Events of Default under the ISDA Master Agreement must be symmetrical and bi-directional: if there is to be a Cross Default right, it must point in both directions. Therefore, unlike in a traditional loan the Cross Default in the ISDA Master Agreement applies equally to the bank as it does to the customer.

This presents some rather curly conceptual challenges, as we will see.

Cross default is not needed in a swap

In any case, the risks of loans that Cross Default address, broadly, do not hold for swaps:

Firstly, swaps are not primarily instruments of uncollateralised indebtedness.

Secondly, there tend to be multiple small Transactions rather than a single big one: therefore payments under the ISDA architecture are frequent and flow in both directions, especially under an ISDA Master Agreement with multiple Transactions. You don’t have the “no coupon due for six months” problem.

Thirdly, ISDA Master Agreements are typically margined, so even though it is conceptually possible for uncollateralised exposure to arise under an ISDA, in practice, it there won’t be much and it will be quickly reset.

Lastly, the majority of swap end users will not have significant unmargined third-party debt: investment funds tend to invest on margin. They do not borrow under uncollateralised loans. So there are few instances of specified indebtedness that they are likely to trigger. It is far more likely that a bank counterparty or swap dealer will have material specified indebtedness. This is a bit of a self-own.

You would not expect Cross Default to often arise as a sole means of closing out an ISDA Master Agreement. Usually, there would long since have been a Failure to Pay or Deliver or Bankruptcy, and both of those events are a much more deterministic, identifiable and therefore safe means of bringing an ISDA arrangement to an end.

How does Cross Default work?

Imagine swap counterparty N who, alongside its ISDA Master Agreement with you, has significant Specified Indebtedness to lenders A, B and C.

Should N default under any of that indebtedness — that is, should any of those lenders become entitled to call in their loans, whether or not they actually do — in a total sum greater than your agreed “Threshold Amount”, you would be entitled to close out your ISDA, even though N had not defaulted in any way directly to you.

“Specified Indebtedness”

What counts as “Specified Indebtedness”? The ISDA itself defines it as “borrowed money” without further elaborating on what that means. Generally speaking, it means loans.

Financing arrangements

“Borrowed money” excludes margined financing arrangements. “Financing arrangements” include a wide selection of capital markets transactions including margin loans, synthetic prime brokerage, swaps, stock loans and repos.

These are “asset transformations” rather than borrowings and do not involve uncollateralised “indebtedness” as such: at inception, the party raising money gives title to an asset of greater value to the financer, and is subsequently margined to that asset value. Therefore net, the financing beneficiary is not a debtor at all, but a creditor.

This does not stop excitable credit officers expanding “Specified Indebtedness” to bring financing arrangements into scope. A favourite tweak is to include derivatives and securities financing arrangements without stopping to clarify how the “borrowed money” under them (hint, under a margined ISDA, there will not be any) is to be measured. Notional? Mark-to-market exposure? Outstanding payment obligations? Present value of all future payments?

Bank deposits

Bank deposits plainly are “borrowed money”, and they mightily add up: as we will see, aggregation is important when calculating the Threshold Amount.

Bank deposits illustrate the problem of having cross-default in a financing contract like an ISDA. In the traditional loan market, bank deposits tend not to trigger cross default obligations, because the sort of parties having cross default obligations do not have deposits. Only banks accept deposits. Since they are usually the lender in a commercial loan they, and their deposits, are not subject to cross default.

But ISDAs are bilateral, so a bank dealer’s deposits will be in scope and could trigger a Cross Default against a bank. It is not out of the question that a bank could be prevented from honouring deposits through operational error, IT outage or geopolitical incident. This would put it in technical default on a large number of its deposits at once.

Therefore, banks exclude retail deposits from the ambit of Specified Indebtedness. They will not lightly resile from this position, so buy-side legal eagles looking for a ditch to die in are advised to avoid this one.

Public indebtedness

With the honourable exception of public bond issuances, most Specified Indebtedness arises under private arrangements about which the market will have no reliable real-time information. No one will know how much a given borrower owes, much less whether it has defaulted and when.

This makes practical policing and enforcement of Cross Default fraught, where it is even possible.

“Default”

“Default” is described widely and (at least in the 2002 ISDA) is not restricted to payment defaults. A technical breach of representations as long as it entitles the lender to accelerate would count towards an actionable Cross Default.

Vitally, the lender need not actually accelerate the loan. The cross-default right arises as soon as it is entitled to accelerate. This makes the Cross Default event a powerful and sensitive tool. Too powerful. Too sensitive.

There is now an entirely different page dedicated to cross acceleration — a weakened version of Cross Default that requires the loan to be actually called in.

“Threshold Amount”

The Threshold Amount is the level over which accumulated defaults in Specified Indebtedness trigger Cross Default. It is usually expressed as a cash amount or a percentage of shareholder funds, or both, in which case — schoolboy error hazard alert — be careful to say whether it is the greater or lesser of the two.

Because of the extreme risk Cross Default presents, the Threshold Amount should represent an existential threat to the counterparty’s solvency. For a bank counterparty, that is typically two or three per cent of its shareholders’ equity or the cash equivalent.

A cash equivalent runs the risk of “decoupling” from the value of shareholders’ equity — especially in times of great market stress — so while it is easier to measure and monitor, it presents a greater systemic risk, and you may find it more prudent to stick with an equity-linked threshold.

Snowball risk

This “accumulation” feature means relatively trivial amounts of indebtedness can be problematic. This is particularly so where there are a lot of them — see bank deposits and swap transactions — or where the default is technical, systemic or operational. Should a system outage prevent a counterparty from honouring a class of contracts it might instantly trigger a catastrophic cross-default right across all ISDA Master Agreements.

For buy-side parties (especially for thinly capitalised investment vehicles) the Threshold Amount may be a lot lower than that — like, ten million dollars or so — and, of course, for fund entities will key off NAV, not shareholder funds.

Problematic derivatives

Bear in mind, too, that if even one of your ISDA contracts has a lower Threshold Amount, that can create a chain reaction: because the exposure under that ISDA, once it has been triggered by a Cross Default, then contributes to the total amount of defaulted Specified Indebtedness and may itself lead to Threshold Amounts being triggered in other ISDAs. And each of those then contributes … you get the idea.

The obvious solution is to exclude derivatives and similar financing arrangements from the definition of Specified Indebtedness. That is, to revert to the ISDA standard.

Cherry-picking

One last problem with including swaps: how do you measure the “indebtedness” under a Transaction?

You could, in theory, cherry-pick all out-of-the-money Transactions, total them up and cross a Threshold Amount fairly easily.

Nothing requires you to apply a Single Agreement concept or cross-transactional netting to those exposures. (Why would it? ISDA contracts are meant to be out of scope for Cross Default).

Even if you calculate Specified Indebtedness by reference to a net close-out amount, this only really highlights the imbalance between dealers and their customers. Sure, big fund managers may have ten, twenty or even fifty ISDA Master Agreements, but they will be split across dozens of different funds, each a different entity with its own Threshold Amount. Swap dealers, on the other hand, will have literally hundreds of thousands of master agreements, all facing the same legal entity. Dealers are the wrong side of this risk.

Now, you could manage this by careful negotiation — but there is a better way: excluding financing transactions altogether, for the perfectly sensible reason that they are not “borrowed money”.

Cross default as a “most favoured nation” clause

While the ISDA Events of Default are standardised, bilaterally-negotiated default events under private loans will be highly customised.

Especially since Section 5(a)(vi) is pretty loose about what counts as a qualifying default:

“a default, event of default or other similar condition or event (however described) in respect of such party”.

This could include potential events of default (those which will become an event of default on expiry of a grace period). In any case, it would haul into the ISDA’s ambit any weird or sensitive default triggers in that loan documentation that deal with peculiarities of the lending arrangement and have no real bearing on the general credit position of the borrower as a derivatives counterparty.

In other words Cross Default functions as a gated “most favoured nation” clause. This is a wide, swingeing term and is likely to be much more severe against bank and dealer counterparties than end-users, since banks will have a lot more indebtedness. Template:M gen 2002 ISDA 5(a)(vi)

Differences between cross default and DUST

Ideally, cross default and DUST should be mutually exclusive. They are meant to dovetail with each other, not cross over. This will not stop mission creep from over-zealous credit departments, who will try to expand the scope of each, leading to all kinds of cognitive dissonances and righteous indignation from the counterparty’s negotiator. As ammunition for your fruitless attempts to persuade the credit department to live in the real world for once, try these:

• Cross default generally references indebtedness where the exercising counterparty has significant loan-type exposure to the defaulter; DUST references bilateral derivative and trading transactions which tend not to be in the nature of indebtedness (it is true to say that the line between these can be gray, especially in the case of uncollateralised derivative relationships;
• Cross default is only triggered once a certain threshold amount of indebtedness is defaulted upon; DUST is triggered upon any breach;
• Cross default references your Counterparty owes to a third party outside your control; DUST references other obligations your counterparty owes you or an affiliate you can reasonably be expected to be in league with. (ie you can't generally trigger if your counterparty defaults on Specified Transactions it has on with third parties)
• DUST only comes about if the Specified Transaction in question has been actually accelerated, whereas cross default is available whether the primary creditor has accelerated or not. (A cross default which requires acceleration is called “cross acceleration”.)

Subsection 5(a)(vii)

Comparison between versions

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.

Discussion

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).

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.

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). Template:M detail 2002 ISDA 5(a)(vii)

Subsection 5(a)(viii)

Comparison between versions

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

ISDA’s crack drafting squad™ giveth and ISDA’s crack drafting squad™ taketh away.

In 1992, ISDA’s crack drafting squad™ added references to a party’s Credit Support Providers and Credit Support Documents — the 1987 ISDA did not have a concept of a Credit Support Provider at all (though it does contemplate Credit Support Documents).

In 2002 some further enhancements: ISDA’s crack drafting squad™ had contrived some different ways of describing how a company might reorganise itself (specifically, “reorganisation, reincorporation or reconstitution”). It also, uncharacteristically, deletes the text “by operation of law or pursuant to an agreement reasonably satisfactory to the other party to this Agreement”. This removes an unnecessary restriction on the foregoing event (the surviving entity failing to assume all the obligations under the ISDA) so makes sense: the squad here is just correcting its own verbal profligacy.

Discussion

When a firm merges into, or is taken over by, another, some magical — or unexpected — things can happen. Not for nothing does the ISDA Master Agreement labour over the very description: that this might be a “consolidation, amalgamation, merger, transfer, reorganisation, reincorporation or reconstitution” — prolix even by the lofty standards of ISDA’s crack drafting squad™ — should tell you something. Generations of corporate lawyers have forged whole careers — some never leaving the confines of their law practices for forty or more years — out of the manifold ways one can put companies together and take them apart again.

Your correspondent is not one of those people and has little more to say about mergers, except that what happens to live contracts at the time of such chicanery will depend a lot on just how the companies and their assets are being joined together or torn assunder.

If the ISDA Master Agreement and its extant Transactions carry across — which, in a plain merger, they ought to — all well and good - though watch out for traps: what if both merging companies have ISDAs with the same counterparty, but on markedly different terms? Which prevails? Do they both? Which one do you use for new Transactions? This you will have to hammer out across the negotiating table.

But in some cases, Transactions might not carry across. Perhaps the resulting entity has no power to transact swaps. Perhaps it is in a jurisdiction in which they — or ISDA’s sainted close-out netting provisions, about which so many tears and so much blood is annually spilled — cannot be enforced. Perhaps the new entity just refuses to honour them.

Merger Without Assumption addresses all of these contingencies.

This is the clause that would have been covered by Section 5(a)(ii)(2) repudiation, had the resulting entity accepted the contract at all in the first place. It can be triggered if the resulting party repudiates any outstanding Transactions under the ISDA Master Agreement (or otherwise they are not binding on it); or any Credit Support Document stops working as a result of the merger.

And “all or substantially all” means what exactly?

There’s not a lot of case law on it. Some say 90%. Some say 75%. Some people — your correspondent included — say “shoot me”.

But, interestingly, Merger Without Assumption doesn’t seem to bite where one entity transferred all of its assets, half-half, into two distinct entities. I dunno — could it happen? Search me. You’ll have to go and find one of those corporate lawyers I was talking about before to find that out. They love that kind of stuff. Template:M detail 2002 ISDA 5(a)(viii)

Subsection 5(b)

Comparison between versions

A Termination Event is an event justifying one party unilaterally terminating a Transaction — or sometimes all Transactions — but that is generally of a nature that does not cast aspersions of impropriety on the other, or “Affected”, party. This makes a difference when it comes to how one calculates the Close-out Amount for the Transaction in question.

Renumbering due to new Force Majeure Event

Since the 2002 ISDA includes a Force Majeure Event, using language that was already agreed and widely inserted into the 1992 ISDA Schedule before its publication. Because this was entered as Section 5(b)(ii) — I mean, honestly, could they have not made it Section 5(b)(vi), so all the other clause references could stay the same? You have no idea what conceptual problems this has created for the poor JC trying to efficiently organise this website.

Clause-by-clause

5(b)(i): Template:Isda 5(b)(i) comp
5(b)(ii): Force Majeure Event: There is no Force Majeure in the 1992 ISDA, though parties would habitually negotiate one in, and by the time the 2002 ISDA was published it was in fairly standardised. For those who didn’t negotiate it in there was also the ISDA Illegality/Force Majeure Protocol (see here) which they could sign — upon payment of the suitable fee is ISDA — to adopt/incorporate the relevant parts.
5(b)(iii): Tax Event: Other than the renumbering, no real change in the definition of Tax Event from the 1992 ISDA. Note, unhelpfully, the sub-paragraph reference in the 1992 ISDA is (1) and (2) and in the 2002 ISDA is (A) and (B). Otherwise, pretty much the same.
5(b)(iv): 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.
5(b)(v): First established in the 1987 ISDA, CEUM was gently upgraded for the 1992 ISDA to include Credit Support Providers and Specified Entities, and to clarify who, upon such a merger, is the Affected Party, as per this comparison.

It then had quite the overhaul of Credit Event Upon Merger between 1992 ISDA and 2002 ISDA as this comparison illustrates.

Designated Event is part of the definition of Credit Event Upon Merger in the 2002 ISDA, and doesn’t have an equivalent in the 1992 ISDA nor, obviously enough,the 1987 ISDA.

The 2002 ISDA introduced the “Designated Event” in an attempt to define more forensically the sorts of corporate events that should be covered by CEUM. They are notoriously difficult to pin down. Even before the 2002 ISDA was published, it was common to upgrade the 1992 ISDA formulation to something resembling the glorious concoction that became Section 5(b)(v) of the 2002 ISDA. The 1992 wording is a bit lame. On the other hand, you could count the number of times an ISDA Master Agreement is closed out purely on account of Credit Event Upon Merger on the fingers of one hand, even if you had lost all the fingers on that hand to an industrial accident.

So — yeah.
5(b)(vi): Additional Termination Events: Other than the numbering discrepancy and a daring change of a “shall” to a “will”, Section 5(b)(vi) of the 2002 ISDA is the same as Section 5(b)(v) of the 1992 ISDA. That said, ATEs are likely to be the most haggled-over part of your ISDA Master Agreement.

Discussion

Practical differences between “Affected Party” and “Defaulting Party”

What is the practical, economic difference between being closed out on the same Transaction for an Event of Default and a Termination Event?

This is something that all ISDA ninjas know, or sort of intuit, in a sort of semi-conscious, buried-somewhere-deep-in-the-brain-stem kind of way, but they may mutter darkly and try to change the subject if you ask them to articulate it in simple English.

To be fair the topic might be chiefly of academic interest were it not for the unfortunate habit of the same “real world” event potentially comprising more than one variety of termination right. This leads to some laboured prioritisation in the ISDA, and sometimes some in the Schedule too. What if my Tax Event upon Merger is also a Credit Event Upon Merger and, for that matter, also a Force Majeure Event? That kind of question.

A trap for Cinderella

When adding any new Termination Event you must ALWAYS label it a new “Additional Termination Event” under Section 5(b)(vi), and not a separate event under a new Section 5(b)(vii) etc.

If, instead of being expressed as an “Additional Termination Event”, which is how the ISDA Mechanism is intended to operate, it is set out as a new “5(b)(vii)” it is not designated therefore as any of an “Illegality”, “Tax Event”, “Tax Event Upon Merger”, “Credit Event Upon Merger” or “Additional Termination Event”, so therefore, read literally, is not caught by the definition of “Termination Event” and none of the Termination provisions bite on it.

I mention this because we have seen it happen. You can take a “fair, large and liberal view" that what the parties intended was to create an ATE, but why suffer that anxiety?

A Trap for Cinderella was a baffling 2013 remake of the old French thriller Piège pour Cendrillon, by the way.

Triggering formalities in Section 6(b)

The Termination Events themselves are crafted as absolute events, without the need for notices or actions on the part of the Transaction Counterparties to activate them.

But they do not go live automatically: they must be activated by the Non-affected Party.

The formal triggering process is set out in Section 6(b) and there is an amount of pre-trigger faffery (since not all of them will be apparent to a Non-affected Party, the Affected Party must give notice and then efforts must be made to fix or avoid them before there is any question of termination) before one gets onto the actual process, which is set out in Section 6(b)(iv).

Clause-by-clause

Section 5(b)(i) Illegality

An Illegality is a Section 5(b) Termination Event — being one of those irritating vicissitudes of life that are no-one’s fault but which mean things cannot go on, and not a Section 5(a) Event of Default, being those perfidious actions of one or other Party which bring matters to an end which, but for that behaviour, ought really to have been avoided.

Note also the impact of Illegality and Force Majeure on a party’s obligations to perform through another branch under Section 5(e), which in turn folds into the spectacular optional representation a party may make under 10(a) to state the blindingly obvious, namely that the law as to corporate legal personality is as is commonly understood by first-year law students. Who knows — maybe it is different in emerging markets and former Communist states?

For the silent great majority of swap entities for whom it is not, the curious proposition arises: what is the legal, and contractual, consequence of electing not to state the blindingly obvious? Does that mean it is deemed not to be true?

If the rules change, that is beyond your control, so it can’t be helped and hence Illegality is a Termination Event not an Event of Default. The 2002 ISDA develops the language of the 1992 ISDA to cater to insomniacs and paranoiacs but does not really add a great deal of substance.

An Illegality may only be triggered after exhausting the fallbacks and remedies specified in the ISDA Master Agreement.

Waiting Period

The point of Waiting Period is, for potential scenarios that might wind up justifying termination later, but you don’t yet know that, to build in a period to wait and see. For Illegality events (Section 5(b)(i)) is three Local Business Days — it is not so likely that an Illegality will sort itself out; for a Force Majeure Event (5(b)(ii) — where insh’Allah, things will come right and everyone can eventually go back to what they were doing, it is eight Local Business Days.

Waiting Periods — as defined in the ISDA Master Agreement also sometimes show up sometimes in other booklets — for example, ISDA’s Emissions Annex.

Through the good offices of Section 5(d), payments and deliveries which otherwise would be due during a Waiting Period are suspended.

Section 5(b)(ii) Force Majeure (2002 only)

For the last word on force majeure, the JC’s ultimate force majeure clause is where it’s at. Breaking what must be a habit of a lifetime, somehow ISDA’s crack drafting squad™ managed to refrain from going crazy-ape bonkers with a definition of force majeure and instead, didn’t define it at all. In the 1992 ISDA they didn’t even include the concept.

Interlude: if you are in a hurry you can avoid this next bit.

I don’t know this, but I am going to hazard the confident hypothesis that what happened here was this:

ISDA’s crack drafting squad™, having convened its full counsel of war, fought so bloodily over the issue, over so long a period, that the great marble concourse on Mount Olympus was awash with the blood of slain legal eagles, littered with severed limbs, wings, discarded weapons, arcane references to regional variations of tidal waves, horse droppings from Valkyries etc., that there was barely a soul standing, and the only thing that prevented total final wipe-out was someone going, “ALL RIGHT, GOD DAMN IT. WE WON’T DEFINE WHAT WE MEAN BY FORCE MAJEURE AT ALL.”

There was then this quiet, eerie calm, when remaining combatants suddenly stopped; even those mortally wounded on the floor looked up, beatifically; a golden light bathed the whole atrium, choirs of angels sang and the chairperson said, “right, well that seems like a sensible, practical solution. What next then?”

“We thought we should rewrite the 2002 ISDA Equity Derivatives Definitions in machine code, your worship.”

“Excellent idea! Let’s stop faffing around with this force majeure nonsense and do that then!”

Ok back to normal.

Force Majeure in the 1992 ISDA

We may have said this before but, just because there isn’t a Force Majeure proper in the preprinted 1992 doesn’t mean people don’t borrow the concept from the 2002 — which has been around for, you know, 21 years now — and put it in anyway. One thing we can’t fathom is what possessed ISDA’s crack drafting squad™ to put it in at Section 5(b)(ii), rather than Section 5(b)(iv) just before the Additional Termination Event section, because for absolute shizzle anyone familiar with one version of the ISDA Master Agreement is going to get confused as hell if they start misunderstanding clause references in the other.

Act of state

Note the reference to “act of state”. Now a state, rather like a corporation, is a juridical being — a fiction of the law — with no res extensa as such. It exists on the rarefied non-material plane of jurisprudence. There are, thus, only a certain number of things that, without the agency of one if its employees, a state can do, and these involve enacting and repealing laws, promulgating and withdrawing regulations, signing treaties, entering contracts and, where is has waived its sovereign immunity, litigating their meaning.

Thus, a force majeure taking the shape of an act of state is, we humbly submit, a change in law which makes it impossible for one side or the other to perform its obligations. Compare, therefore, with Illegality.

Waiting Period (2002)

The point of Waiting Period is, for potential scenarios that might wind up justifying termination later, but you don’t yet know that, to build in a period to wait and see. For Illegality events (Section 5(b)(i)) is three Local Business Days — it is not so likely that an Illegality will sort itself out; for a Force Majeure Event (5(b)(ii) — where insh’Allah, things will come right and everyone can eventually go back to what they were doing, it is eight Local Business Days.

Waiting Periods — as defined in the ISDA Master Agreement also sometimes show up sometimes in other booklets — for example, ISDA’s Emissions Annex.

Through the good offices of Section 5(d), payments and deliveries which otherwise would be due during a Waiting Period are suspended.

Section 5(b)(ii)/(iii) Tax Event

Basically, the gist is this: if the rules change after the Trade Date such that you have to gross up an Indemnifiable Tax would weren’t expecting to when you priced the trade, you have a right to get out of the trade, rather than having to ship the gross up for the remainder of the Transaction.

That said, this paragraph is a bastard to understand. Have a gander at the JC’s nutshell version (premium only, sorry) and you’ll see it is not such a bastard after all, then.

In the context of cleared swaps, you typically add a third limb, which is along the lines of:

(3) required to make a deduction from a payment under an Associated LCH Transaction where no corresponding gross up amount is required under the corresponding Transaction Payment under this Agreement.

Section 5(b)(iii)/(iv) Tax Event Upon Merger

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.

Section 5(b)(iv)/(v) Credit Event Upon Merger

Known among the cognoscenti as “CEUM”, the same way Tax Event Upon Merger is a “TEUM”. No idea how you pronounce it, but since ISDA ninjas communicate only in long, appended, multicoloured emails and never actually speak to each other, it doesn’t matter.

Pay attention to the interplay between this section and Section 7(a) (Transfer). You should not need to amend Section 7(a) (for example to require equivalence of credit quality of any transferee entity etc., because that is managed by CEUM.

Note also the interrelationship between CEUM and a Ratings Downgrade Additional Termination Event, should there be one. One can be forgiven for feeling a little ambivalent about CEUM because it is either caught by Ratings Downgrade or, if there is no requirement for a general Ratings Downgrade, insisting on CEUM seems a bit arbitrary (i.e. why do you care about a downgrade as a result of a merger, but not any other ratings downgrade?)

Section 5(b)(v)/(vi) Additional Termination Events

Additional Termination Events are the other termination events your Credit department has dreamt up for this specific counterparty, that didn’t occur to the framers of the ISDA Master Agreement — or, at any rate, weren’t sufficiently universal to warrant being included in the ISDA Master Agreement for all. While the standard Termination Events tend to be “non-fault” events which justify termination of the relationship on economic grounds, but not on terms necessarily punitive to the Affected Party, Additional Termination Events are more “credit-y”, more susceptible of moral outrage, and as such more closely resemble Events of Default than Termination Events.

Common ones include:

• NAV triggers (for hedge funds)
• Key man provisions (for hedge funds)
• Investment manager insolvency or loss of licence
• Parent divestment (where counterparty is a financing subsidiary)

There is a — well, contrarian — school of thought that Additional Termination Events better serve the interests of the Ancient Guild of Contract Negotiators and the Worshipful Company of Credit Officers than they do the shareholders of the institutions for whom these artisans practise their craft, for in these days of zero-threshold CSAs, the real credit protections in the ISDA Master Agreement are the standard Events of Default (especially Failure to Pay or Deliver and Bankruptcy).

It’s a fair bet no-one in the organisation will have kept a record of how often you pulled NAV trigger. It may well be never.

“Ahh”, your credit officer will say, “but it gets the counterparty to the negotiating table”.

Hmmm. Template:M gen 2002 ISDA 5(b) Template:M detail 2002 ISDA 5(b)

Subsection 5(b)(ii)

Comparison between versions

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).

Depending on your edition of the ISDA Master Agreement, “5(b)(ii)” could be a reference to:

• Tax Event (1992 ISDA)
• Force Majeure Event (2002 ISDA)

Force Majeure Event: There is no Force Majeure in the 1992 ISDA, though parties would habitually negotiate one in, and by the time the 2002 ISDA was published it was in fairly standardised. For those who didn’t negotiate it in there was also the ISDA Illegality/Force Majeure Protocol (see here) which they could sign — upon payment of the suitable fee is ISDA — to adopt/incorporate the relevant parts.

Discussion

For the last word on force majeure, the JC’s ultimate force majeure clause is where it’s at. Breaking what must be a habit of a lifetime, somehow ISDA’s crack drafting squad™ managed to refrain from going crazy-ape bonkers with a definition of force majeure and instead, didn’t define it at all. In the 1992 ISDA they didn’t even include the concept.

Interlude: if you are in a hurry you can avoid this next bit.

I don’t know this, but I am going to hazard the confident hypothesis that what happened here was this:

ISDA’s crack drafting squad™, having convened its full counsel of war, fought so bloodily over the issue, over so long a period, that the great marble concourse on Mount Olympus was awash with the blood of slain legal eagles, littered with severed limbs, wings, discarded weapons, arcane references to regional variations of tidal waves, horse droppings from Valkyries etc., that there was barely a soul standing, and the only thing that prevented total final wipe-out was someone going, “ALL RIGHT, GOD DAMN IT. WE WON’T DEFINE WHAT WE MEAN BY FORCE MAJEURE AT ALL.”

There was then this quiet, eerie calm, when remaining combatants suddenly stopped; even those mortally wounded on the floor looked up, beatifically; a golden light bathed the whole atrium, choirs of angels sang and the chairperson said, “right, well that seems like a sensible, practical solution. What next then?”

“We thought we should rewrite the 2002 ISDA Equity Derivatives Definitions in machine code, your worship.”

“Excellent idea! Let’s stop faffing around with this force majeure nonsense and do that then!”

Ok back to normal.

Force Majeure in the 1992 ISDA

We may have said this before but, just because there isn’t a Force Majeure proper in the preprinted 1992 doesn’t mean people don’t borrow the concept from the 2002 — which has been around for, you know, 21 years now — and put it in anyway. One thing we can’t fathom is what possessed ISDA’s crack drafting squad™ to put it in at Section 5(b)(ii), rather than Section 5(b)(iv) just before the Additional Termination Event section, because for absolute shizzle anyone familiar with one version of the ISDA Master Agreement is going to get confused as hell if they start misunderstanding clause references in the other.

Act of state

Note the reference to “act of state”. Now a state, rather like a corporation, is a juridical being — a fiction of the law — with no res extensa as such. It exists on the rarefied non-material plane of jurisprudence. There are, thus, only a certain number of things that, without the agency of one if its employees, a state can do, and these involve enacting and repealing laws, promulgating and withdrawing regulations, signing treaties, entering contracts and, where is has waived its sovereign immunity, litigating their meaning.

Thus, a force majeure taking the shape of an act of state is, we humbly submit, a change in law which makes it impossible for one side or the other to perform its obligations. Compare, therefore, with Illegality.

Waiting Period (2002)

The point of Waiting Period is, for potential scenarios that might wind up justifying termination later, but you don’t yet know that, to build in a period to wait and see. For Illegality events (Section 5(b)(i)) is three Local Business Days — it is not so likely that an Illegality will sort itself out; for a Force Majeure Event (5(b)(ii) — where insh’Allah, things will come right and everyone can eventually go back to what they were doing, it is eight Local Business Days.

Waiting Periods — as defined in the ISDA Master Agreement also sometimes show up sometimes in other booklets — for example, ISDA’s Emissions Annex.

Through the good offices of Section 5(d), payments and deliveries which otherwise would be due during a Waiting Period are suspended. Template:M gen 2002 ISDA 5(b)(ii) Template:M detail 2002 ISDA 5(b)(ii)

Subsection 5(b)(iii)

Comparison between versions

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).

The 1992 ISDA represented a significant change from the 1987 ISDA which was a bit half-hearted about gross-ups.

Other than the renumbering, no real changes in the definition of Tax Event from the 1992 ISDA to the 2002 ISDA though, unhelpfully, the sub-paragraph references in the 1992 ISDA are (1) and (2) and in the 2002 ISDA are (A) and (B). Otherwise, pretty much the same.

Discussion

Basically, the gist is this: if the rules change after the Trade Date such that you have to gross up an Indemnifiable Tax would weren’t expecting to when you priced the trade, you have a right to get out of the trade, rather than having to ship the gross up for the remainder of the Transaction.

That said, this paragraph is a bastard to understand. Have a gander at the JC’s nutshell version (premium only, sorry) and you’ll see it is not such a bastard after all, then.

In the context of cleared swaps, you typically add a third limb, which is along the lines of:

(3) required to make a deduction from a payment under an Associated LCH Transaction where no corresponding gross up amount is required under the corresponding Transaction Payment under this Agreement.

Subsection 5(b)(iv)

Comparison between versions

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.

Discussion

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. Template:M gen 2002 ISDA 5(b)(iv) Template:M detail 2002 ISDA 5(b)(iv)

Subsection 5(b)(v)

Comparison between versions

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).

First established in the 1987 ISDA, CEUM was gently upgraded for the 1992 ISDA to include Credit Support Providers and Specified Entities, and to clarify who, upon such a merger, is the Affected Party, as per this comparison.

It then had quite the overhaul of Credit Event Upon Merger between 1992 ISDA and 2002 ISDA as this comparison illustrates.

Designated Event is part of the definition of Credit Event Upon Merger in the 2002 ISDA, and doesn’t have an equivalent in the 1992 ISDA nor, obviously enough,the 1987 ISDA.

The 2002 ISDA introduced the “Designated Event” in an attempt to define more forensically the sorts of corporate events that should be covered by CEUM. They are notoriously difficult to pin down. Even before the 2002 ISDA was published, it was common to upgrade the 1992 ISDA formulation to something resembling the glorious concoction that became Section 5(b)(v) of the 2002 ISDA. The 1992 wording is a bit lame. On the other hand, you could count the number of times an ISDA Master Agreement is closed out purely on account of Credit Event Upon Merger on the fingers of one hand, even if you had lost all the fingers on that hand to an industrial accident.

So — yeah.

Discussion

Known among the cognoscenti as “CEUM”, the same way Tax Event Upon Merger is a “TEUM”. No idea how you pronounce it, but since ISDA ninjas communicate only in long, appended, multicoloured emails and never actually speak to each other, it doesn’t matter.

Pay attention to the interplay between this section and Section 7(a) (Transfer). You should not need to amend Section 7(a) (for example to require equivalence of credit quality of any transferee entity etc., because that is managed by CEUM.

Note also the interrelationship between CEUM and a Ratings Downgrade Additional Termination Event, should there be one. One can be forgiven for feeling a little ambivalent about CEUM because it is either caught by Ratings Downgrade or, if there is no requirement for a general Ratings Downgrade, insisting on CEUM seems a bit arbitrary (i.e. why do you care about a downgrade as a result of a merger, but not any other ratings downgrade?) Template:M gen 2002 ISDA 5(b)(v) Template:M detail 2002 ISDA 5(b)(v)

Subsection 5(b)(vi)

Comparison between versions

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).

Additional Termination Events: Other than the numbering discrepancy and a daring change of a “shall” to a “will”, Section 5(b)(vi) of the 2002 ISDA is the same as Section 5(b)(v) of the 1992 ISDA. That said, ATEs are likely to be the most haggled-over part of your ISDA Master Agreement.

Discussion

Additional Termination Events are the other termination events your Credit department has dreamt up for this specific counterparty, that didn’t occur to the framers of the ISDA Master Agreement — or, at any rate, weren’t sufficiently universal to warrant being included in the ISDA Master Agreement for all. While the standard Termination Events tend to be “non-fault” events which justify termination of the relationship on economic grounds, but not on terms necessarily punitive to the Affected Party, Additional Termination Events are more “credit-y”, more susceptible of moral outrage, and as such more closely resemble Events of Default than Termination Events.

Common ones include:

• NAV triggers (for hedge funds)
• Key man provisions (for hedge funds)
• Investment manager insolvency or loss of licence
• Parent divestment (where counterparty is a financing subsidiary)

There is a — well, contrarian — school of thought that Additional Termination Events better serve the interests of the Ancient Guild of Contract Negotiators and the Worshipful Company of Credit Officers than they do the shareholders of the institutions for whom these artisans practise their craft, for in these days of zero-threshold CSAs, the real credit protections in the ISDA Master Agreement are the standard Events of Default (especially Failure to Pay or Deliver and Bankruptcy).

It’s a fair bet no-one in the organisation will have kept a record of how often you pulled NAV trigger. It may well be never.

“Ahh”, your credit officer will say, “but it gets the counterparty to the negotiating table”.

Hmmm.

Trick for young players

There is no Section 5(b)(vii) of the 2002 ISDA, nor a Section 5(b)(vi) under the 1992 ISDA and nor should you make one.

A “Termination Event” is defined as “an Illegality, a Tax Event or a Tax Event Upon Merger or, if specified to be applicable, a Credit Event Upon Merger or an Additional Termination Event”. Therefore, adding any new Termination Event must ALWAYS be achieved by labelling it a new “Additional Termination Event” under Section 5(b)(vi) (under the 2002 ISDA) or 5(b)(v) (under the 1992 ISDA), and not a separate new Termination Event under a new Section 5(b)(vii), or anything like that.

If you try to make it into a new “5(b)(vii)” it is therefore neither an “Illegality”, “Tax Event”, “Tax Event Upon Merger”, “Credit Event Upon Merger” nor an “Additional Termination Event”. Read literally, is will not be caught by the definition of “Termination Event” and none of the Section 6(b) Right to Terminate following Termination Event provisions will bite on it.

I mention this because I have seen it happen. Yes, you can take a “fair, large and liberal view” that what the parties intended was to create an ATE, but, in our age of anxiety, why suffer that one?

NAV trigger ATE

A NAV trigger is the right to terminate a master agreement as a result of the decline in net asset value of a hedge fund counterparty (other counterparty types generally won’t have a “net asset value” to trigger).

Like most events of default, NAV triggers are a second-order derivative for the only really important type of default: a failure to pay. A significant decline in NAV makes a payment default more likely. NAV declines in three main ways:

• The value of assets (be they physical or derivative) declines;
• The cost of financing those assets - the leverage - increases;
• Investors withdraw money from the fund.

Prime brokers hold initial margin to protect against the first, control the second in any weather, and one would expect the third to result in overall proportionate de-risking anyway. In any case, the benefit to a second order derivative close-out right is that it might allow you to get ahead of the game. If I know the default is coming (because NAV trigger, right?) why wait until a payment is due to see if I get hosed?

Because, in this age of high-frequency trading, multiple payments are due every day, and even if one isn’t, in many cases you can force one by raising initial margin. All told, an actual failure to pay is deterministic. There is no argument. A NAV trigger breach — not so much.

Especially since an official NAV is only “cut” once for every “liquidity period” — monthly or quarterly in most cases — and it is hard to see how a credit officer, however enthusiastic, could determine what the net asset value of the fund was at any other time, not having knowledge of those positions held with other counterparties. On the other hand, credit officers don’t usually monitor NAV triggers anyway, so what do they care?

Key person ATE

In a gaucher times called a key man, the key person — or people — are those in a small financial services organisation who provide the lion’s share of the brains and nowse. In a hedge fund, this means the two genius ex-Goldman trading whizz founding partners.

As long as these two chaps — they tend to be chaps, though the revolution is coming — still show up for work for their colossal paycheques, the future of the organisation is relatively assured. Should one of them or, God forbid both, gallivant off to their newly-acquired Caribbean islands to play with their respective collections of racing cars, they will leave behind a bunch of mediocre financial services hacks and bullshit artists with whom neither the fund’s erstwhile clients nor its trading counterparties will any longer wish to do business.

Hence the “key person clause”, entitling one to terminate a trading arrangement should the nominated key persons bugger off. If there is more than one nominated key person expect complications are around how many of them must leave before the clause can be triggered. Should it be all of them? Any of them? A simple majority?

Negotiating a key person clause can be a fascinating exercise. Here psychology conflicts with normal imperatives of risk management because, while key person clauses undoubtedly represent an Achilles heel for a hedge fund, they play so egregiously to the principals’ egos that most will be upset the not to be asked for one. There is no better validation of one’s self-worth, after all, than to be told that without your continued personal involvement a training relationship is worthless. Template:M detail 2002 ISDA 5(b)(vi)

Subsection 5(c)

Comparison between versions

A simple piddling match between Events of Default and Illegality in the 1992 ISDA makes way for a full-blown hierarchy of competing circumstances justifying closeout of the ISDA Master Agreement in the 2002 ISDA.

Discussion

Compared with its Byzantine equivalent in the 2002 ISDA the 1992 ISDA is a Spartan cause indeed: it is as if ISDA’s crack drafting squad™ assumed all ISDA users would be cold, rational economists who instinctively appreciate the difference between causation and correlation — or hadn’t considered the virtual certainty that they would not be — and therefore did not spell out that where your Event of Default is itself, and of itself, the Illegality, this hierarchy clause will intervene but it will not where your it simply is coincidental with one. I.e., if you were merrily defaulting under the ISDA Master Agreement anyway, and along came an Illegality impacting your ability to perform some other aspect of the Agreement, you can’t dodge the bullet.

In the 2002 ISDA the JC thinks he might have found a bona fide use for the awful legalism “and/or”. What to do if the same thing counts as an Illegality and/or a Force Majeure Event and an Event of Default and/or a Termination Event. Template:M gen 2002 ISDA 5(c) Template:M detail 2002 ISDA 5(c)

Subsection 5(e)

Comparison between versions

There is no Section 5(e) in the 1992 ISDA. It came about through a confluence of the 2002 ISDA’s new Force Majeure Termination Event, an evolution of the existing Illegality Termination Event, and what we can only put down to down-home crazy-apes paranoia from ISDA’s crack drafting squad™, about which we hypothesise in some detail in the premium section. Our imagined explanation involves Pink Floyd axe-man David Gilmour and some disrupted Moroccan Dirham remittances, if that is any incentive.

Discussion

In a nutshell squared: If an Affected Party’s head office is subject to a Force Majeure or Illegality, It can’t be whacked for not performing a branch’s obligations under the Section 10(a) rep.

From the “shoot me” department, this multi-line bunker-buster introduced into the 2002 ISDA which, to give it some kind of credit, doesn’t generate a great deal of comment in the course of your average negotiation. That is as likely to be because it is so stupefyingly dull that no one has summoned the fortitude to read it as it is because it is a sensible, prudent allocation of risk.

But here you are, especially for you, the Jolly Contrarian’s Nutshell™ service renders it for you in emperor’s couturier style. Template:M gen 2002 ISDA 5(e) Template:M detail 2002 ISDA 5(e)

Section 6

Section 6 in a nutshell

6. Early Termination
6(a) Right to Terminate following Event of Default. If one party (“Defaulting Party”) suffers an Event of Default, the other (the “Non-defaulting Party”) may, by not more than 20 days’ notice, designate an Early Termination Date for all outstanding Transactions. If Automatic Early Termination applies to the Defaulting Party and the Event of Default it is qualifying Bankruptcy event, the Early Termination Date will occur:

(i) upon the Bankruptcy event, if under 5(a)(vii)(1), (3), (5) or (6) or if analogous, (8); and

(ii) immediately before institution of the relevant proceeding, if under 5(a)(vii)(4) or if analogous, (8).

6(b) Right to Terminate Following Termination Event.

6(b)(i) Notice. Upon becoming aware of a Termination Event the Affected Party will promptly give the other party with reasonable details of it and each Affected Transaction (or, if it is a Force Majeure Event, make reasonable efforts to do so).

6(b)(ii) Transfer to Avoid Termination Event

If there is a Tax Event with only one Affected Party or a Tax Event Upon Merger where the Burdened Party is the Affected Party, before designating an Early Termination Date the Affected Party must use all reasonable efforts to transfer, within 20 days of giving notice of the Termination Event, all its rights and obligations under the Affected Transactions to one of its Offices or Affiliates so that the Termination Event ceases to exist.

If it cannot make such a transfer, it will advise the other party within the 20 day period, and the other party may effect such a transfer within 30 days after the original notice of Termination Event.

Any such transfer by a party under this Section will require the of the other party’s prior written consent (which may not be withheld if the other party’s prevailing policies would permit it to enter into transactions on the terms proposed).

6(b)(iii) Two Affected Parties. If there is a Tax Event with two Affected Parties, each must use all reasonable efforts agree within 30 days after the Termination Event Notice to avoid it.

6(b)(iv) Right to Terminate

(1) Termination Events other than Illegality and Force Majeure Events: If the Termination Event still exists but:―

(A) Tax Termination Events: a neither party has managed to avoid a Tax Event or Tax Event Upon Merger as contemplated in Section 6(b)(ii) or 6(b)(iii) within 30 days of a Termination Event Notice; or

(B) Other Termination Events: there is a Credit Event Upon Merger, an Additional Termination Event or a Tax Event Upon Merger where the Burdened Party is not the Affected Party:

either party (if both are Affected Parties) or the Non-Affected Party (in any other case) may, on not more than 20 days’ notice, designate an Early Termination Date for all Affected Transactions.

(2) Illegality and Force Majeure Events: If an Illegality or Force Majeure Event still exists when its Waiting Period has expired:―

(A) Subject to clause (B) below, either party may, on not more than 20 days’ notice, designate an Early Termination Date:

(I) for all Affected Transactions, or

(II) for fewer than all Affected Transactions by specifying which Affected Transactions it wishes to terminate, effective no earlier than two Local Business Days following the effective day of its notice, as an Early Termination Date for those designated Affected Transactions only. In this case the other party may, by notice, terminate any of the outstanding Affected Transactions as of the same Early Termination Date.

(B) Where the Illegality or Force Majeure Event relates to performance under a Credit Support Document, an Affected Party may only designate an Early Termination Date following designation by the other party of an Early Termination Date, for fewer than all Affected Transactions under this Section.

6(c) Effect of Designation: If an Early Termination Date is designated:

(i) it will take place when designated, even if the event which triggered no longer exists.

(ii) no more payments or deliveries will be required under any Terminated Transactions.

Any Close-out Amount will be determined under Section 6(e).
6(d) Calculations; Payment Date.

(i) Statement. As soon as practicable following an Early Termination Date, each party will calculate its Section 6(e) amount and give the other party a statement:

(1) showing reasonable detail of its calculations;

(2) specifying any Early Termination Amount payable; and

(3) giving its bank details for payment of the Early Termination Amount.

Its records of any quotation or market data it uses will be conclusive of their accuracy.

(ii) Payment Date. An Early Termination Amount due in respect of any Early Termination Date will, together with any applicable interest, be payable

(1) on the day its Section 6(d) statement is effective (if the Early Termination Date follows an Event of Default) and

(2) two Local Business Days after the day its Section 6(d) statement is effective (or, where there were two Affected Parties, after the second statement is effective) (where the Early Termination Date follows a Termination Event.

6(e) Payments on Early Termination. If an Early Termination Date occurs, the “Early Termination Amount” will be determined as follows (subject to Section 6(f)).

6(e)(i) Events of Default. On an Early Termination Date following an Event of Default, the Non-defaulting Party will determine Early Termination Amount in the Termination Currency as the sum of:

(a) the Close-out Amounts for each Terminated Transaction plus

(b) Unpaid Amounts due to the Non-defaulting Party; minus

(c) Unpaid Amounts due to the Defaulting Party.

If the Early Termination Amount is positive, the Defaulting Party will pay it to the Non-defaulting Party. If negative, the Non-defaulting Party will pay its absolute value to the Defaulting Party.

6(e)(ii) Termination Events. If the Early Termination Date results from a Termination Event:―

(1) One Affected Party. If there is one Affected Party, the Early Termination Amount will be determined as if they were Events of Default under Section 6(e)(i) (but subject to the Mid-Market Events rider below).

(2) Two Affected Parties. If there are two Affected Parties, each party will determine the Termination Currency Equivalent of the Close-out Amounts for all Terminated Transaction and the Early Termination Amount will be:

(A) the sum of

(I) half of the difference between the higher amount (determined by party “X”) and the lower amount (determined by party “Y”) and

(II) the Termination Currency Equivalent of the Unpaid Amounts owing to X minus

(B) the Termination Currency Equivalent of the Unpaid Amounts owing to Y.

If the Early Termination Amount is a positive number, Y will pay it to X; if negative , X will pay its absolute value to Y.

(3) Mid-Market Events. In either case where the Termination Event is an Illegality or a Force Majeure Event, when determining a Close-out Amount the Determining Party will use mid-market valuations that do not take the Determining Party’s own creditworthiness into account.

6(e)(iii) Adjustment for Bankruptcy. If an “Automatic Early Termination” happens, one can adjust the Early Termination Amount to reflect payments or deliveries actually made between the automatic Early Termination Date and the payment date determined under Section 6(d)(ii).

6(e)(iv) Adjustment for Illegality or Force Majeure Event. The failure by a party or its Credit Support Provider to pay an Early Termination Amount when due will not be a Failure to Pay or Deliver or a Credit Support Default if caused by an Illegality or a Force Majeure Event. The unpaid amount will:

(1) be treated as an Unpaid Amount for a subsequent Early Termination Date resulting from an Event of Default, a Credit Event Upon Merger or an Additional Termination Event affecting all outstanding Transactions; and

(2) otherwise accrue interest in accordance with Section 9(h)(ii)(2).

6(e)(v) Pre-Estimate. The parties acknowledge that:

(a) Each Early Termination Amount is a reasonable pre-estimate of loss and not a penalty; and

(b) neither party may recover any additional damages as a consequence of terminating Terminated Transactions.

6(f) An Innocent Party may, by notice, set-off any part of an Early Termination Amount payable by one party against any Other Amounts payable by the other under any other agreement, converting currencies if necessary and estimating unascertained obligations in good faith, but it must account for any difference between its estimate and the amount when it is finally ascertained.

Comparison between versions

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

See section 12 for what this all means in a time of global pandemic lockdown. See also the separate article all about Automatic Early Termination, which features in the 1992 ISDA and the 2002 ISDA and deserves a page all of its own.

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

No change in the Early Termination Date definition from 1992 ISDA to 2002 ISDA (no real surprise there) but the close-out methodology between the two versions, by which one works out what must be paid and by whom on an Early Termination Date, and which you are encouraged to follow in all its gory detail starting at Section 6(a), is really quite different, and notwithstanding the fact that the 2002 ISDA version was meant to address the many and varied complaints levelled by market practitioners at the 1992 ISDA we still find the 1992 version in use in the occasional market centred in unsophisticated rural backwaters like, oooh, I don’t know, New York.

Those with a keen eye will notice that, but for the title, Section 6(a) of the 2002 ISDA is the same as Section 6(a) of the 1992 ISDA and, really, not a million miles away from the svelte form of Section 6(a) in the 1987 ISDA — look on that as the Broadcaster to the 1992’s Telecaster. There is one key difference, though: the evolution of the Automatic Early Termination provision. And the 1987 ISDA saw no call to have a “Non-Defaulting Party”.

It has its own entire page — Automatic Early Termination — so we have refrained from discussing it here.

Section 6(b)

Between the 1987 ISDA and the 1992 ISDA the changes were very superficial, as this comparison demonstrates.

Between the 1992 ISDA and the 2002 ISDA, there was a but more re-engineering, largely to account for the new Force Majeure Event and some tidying up, but beyond that Section 6(b) works in the same general way under the 1992 ISDA and 2002 ISDA. Here is a comparison of that.

Section 6(b)(i)

Updated in 2002 with special pleadings relating to the newly-introduced Force Majeure Termination Event.

Section 6(b)(ii)

Note in the 2002 ISDA there is no reference to Illegality (or for that matter Force Majeure, which did not exist under the 1992 ISDA but tends to treated rather like a special case of Illegality and therefore, we think, would have been included in this provision of the 1992 ISDA if it had existed ... if you see what I mean).

When the 2002 ISDA gets on to the topic of Illegality and Force Majeure it allows the Unaffected Party to cherry-pick which Affected Transactions it will terminate, but then seems almost immediately to regret it (see especially in Section 6(b)(iv)). Under the 1992 ISDA if you wanted to pull the trigger on any Termination Event, you had to pull all Affected Transactions. Under the 2002 ISDA it is only binary for the credit- and tax-related Termination Events.

Otherwise, but for one consequential change — 1992’s “excluding” became 2002’s “other than” — I mean, you can just imagine the barney they must have had in the drafting committee for that one, can’t you — the provisions are identical.

Section 6(b)(iii)

Be careful here: Under the 1992 ISDA, if your Failure to Pay is also an Illegality it is treated as an Illegality: if there are two Affected Parties you will face a significant delay when closing out. A bit of a trick for young players.

Note also that reference to Illegality has been excised from the 2002 ISDA version. They changed this because, in practice, it turned out to too be hard to implement a transfer or amendment after an Illegality. Folks realised that if an Illegality happens you don’t want to have to wait 30 days to terminate, especially if you can’t rely on 2(a)(iii) to withhold payments in the meantime.

Section 6(b)(iv)

Oh, this section 6(b)(iv) stuff
Is sure stirring up some ghosts for me.
She said, “There’s one thing you gotta learn
Is not to be afraid of it.”
I said, “No, I like it, I like it, it’s good.”
She said, “You like it now —
But you’ll learn to love it later”

— Robbie Robertson

One’s right to terminate early following an Illegality or the newly introduced Force Majeure Termination Event get a proper makeover in the 2002 ISDA, but otherwise, the provisions are the same, but for some formal fiddling in the drafting.

Section 6(c)

The framers of the 2002 ISDA daringly changed a “shall” to a “will” in the final line. We approve, to be clear, but this is kind of out of character for ISDA’s crack drafting squad™. Otherwise, identical.

Section 6(d)

Broadly similar between the versions. Main differences are basic architectural ones (no definition of “Early Termination Amount” or “Close-out Amount” in the 1992 ISDA, for example), and the 2002 is a little more finicky, dealing with what to do if there are two Affected Parties, and also blithering on for a few lines about interest.

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

The 1987 ISDA was half-cocked and shambolic, and laboured under the wishful illusion that if the other guy blew up, even if he was in the money, it was kind of okay to just flip him the bird and walk off with a windfall (in the form of not owing him the money you like, actually owed him). Not cool these days. Once folks realised this wouldn’t fly from a netting perspective they tried to fix it in the 1992 ISDA, whose close-out methodology is truly hideous.

ISDA’s crack drafting squad™ overhauled whole close-out process, soup to nuts, in the 2002 ISDA, and is now much more straightforward — as far as you could ever say that about ISDA’s crack drafting squad™’s output. But a large part of the fanbase — that part west of Cabo da Roca — sticks with the 1992 ISDA. Odd.

Differences, in very brief:

The 1992 ISDA has the infamous Market Quotation and Loss measures of value, and the perennially-ignored First Method and the more sensible Second Method means of evaluating the termination value of terminated Transactions. The 2002 ISDA has just the Close-out Amount to cover everything. So while the 1992 ISDA is far more elaborate and over-engineered, this is not to deny that the 2002 ISDA is elaborate or over-engineeered.

The 2002 ISDA has a new Section 6(e)(iv) dealing with Adjustment for Illegality or Force Majeure Event. This wasn’t needed in the 1992 ISDA, which didn’t have Force Majeure Event at all, and a less sophisticated Illegality.

Discussion

Dive in ⇒

This is one of the monster clauses of the ISDA Master Agreement. JC has given each of its subclauses its own page. You can access them by clicking on the links in the wikitext, or, okay, by clicking here:

• Section 6(a) (Right to Terminate Following Event of Default)
• Section 6(b) (Right to Terminate Following Termination Event)
• Section 6(c) (Effect of Designation)
• Section 6(d) (Calculations)
• Section 6(e) ( Payments on Early Termination)

But, generally:

No general “no-fault” termination right under the ISDA

Unlike the 2010 GMSLA and many other — ahh, less sophisticated master agreements — the ISDA Master Agreement doesn’t have a general termination right of this sort at all. It is like one of those fancy fixie pushbikes that cost seven grand and don’t even have brakes. You can only terminate Transactions, not the master agreement construct which sits around them. The empty vessel of a closed-out ISDA thus remains for all eternity as an immortal, ineffectual husk. This is to do with paranoid fears about the efficacy of the ISDA’s sainted close-out netting terms if you do terminate the agreement — meh; maybe — but I like to think it is because, before he was cast out from heaven, the Dark Lord made plans to unleash his retributive fury upon the world through a sleeping army of wight-walker zombie ISDAs, doomed to roam the earth until the day of judgment, apropos nothing but there, not alive, but un-dead, ready to reanimate and rally to the Dark Lord’s banner and rain apocalyptic hell on we errant descendants of the Good Man, who did not heed His warnings of financial weapons of mass destruction.

How the close-out mechanism works

It’s optional ...: An Event of Default gives the “Non-defaulting Party” a right (but not an obligation) to designate an Early Termination Date with respect to all outstanding Transactions on not more than 20 days’ notice.

... Unless AET applies: Where Automatic Early Termination applies to a party (being jurisdiction-dependent, it often will only apply to one party) the Non-defaulting Party loses its optionality should the Event of Default be Bankruptcy: all Transactions automatically terminate whehter you want them to or not, and whether you realise it or not. This is plainly sub-optimal from a Non-defaulting Party's perspective. You should therefore only switch on AET if you are sure you need it (e.g. for counterparties in jurisdictions where close-out netting may fail in an insolvency, but not before). Being sure generally means “having a netting opinion telling you netting does not work without it.” In other words, AET is one provision you should not insist on just because the other party insists upon it against you).

Not triggering an Event of Default can be controversial: For what this optionality not to terminate means, and how controversial it can be, see the commentary to Section 2(a)(iii).

Once all Transactions are terminated, you move to Section 6(e) which directs how to value the Transactions (it depends on who is the Defaulting Party, and whether you have elected Loss or Market Quotation, and First Method or Second Method. Under the 2002 ISDA it is much easier.

Automatic Early Termination

There is an entire, long-winded page about AET, so we have refrained from blathering on about it here.

Everyone’s hair will be on fire

This is likely to be a time where the market is dislocated, your credit officer is running around with her hair on fire, your normally affable counterparty is suddenly diffident, evasive, or strangely just not picking up the phone, and your online master agreement database has crashed because everyone in the firm is interrogating it at once. The sense of dreary quietude in which your Master Agreement was negotiated will certainly not prevail. Bear this in mind when negotiating. For example, the elaborate steps your counterparty insists on for your sending close-out notices, to fifteen different addresses, in five different formats and with magic words in the heading, will really trip your gears, especially if some of those methods are no longer possible. There is an argument that some buy-side counterparties complicate the formal process of closing out specifically to buy time and deter their dealers from pulling the trigger. It is a pretty neat trick, if so: you can expect the dealer’s credit department to puke all over a margin lockup, but a bit of fiddling around the edges of a Notices section? Sure, whatever.

Bear in mind, too: this is one time the commercial imperative will count for nothing. This is it: literally, the end game. If you close out there is no business: you are terminating your trading relationship altogether with extreme prejudice. The normal iterated game of prisoner’s dilemma has turned into a single round game. Game theorists will realise at once that the calculus is very different, and much, much less appealing.

So: good luck keeping your head while all around you are losing theirs.

Close-out sequence

Once you have designated an Early Termination Date for your ISDA Master Agreement, proceed to 6(c) to understand the Effect of Designation. Or learn about it in one place with the NC.’s handy cribsheet, “closing out an ISDA”.

The Notices provisions in Section 12 are relevant to how you may serve this notice. In a nutshell, in writing, by hand. Don’t email it, fax it, telex it, or send it by any kind of pony express or carrier pigeon unless your pigeon/pony is willing to provide an affidavit of service.

Defaulting Party

The key thing to notice here is that — in an uncharacteristically rather neat, understated bit of drafting — Defaulting Party encapsulates a party who has itself defaulted, or whose Credit Support Provider or Specified Entity has committed an act which amounts to an Event of Default for that counterparty to this ISDA Master Agreement. I know, I know, this doesn’t seem that big of a deal: this sort of thing that should be plain, obvious and go without saying — but it saves you a job when, in your peregrinations round the party’s Confirmation, you come to talk of pending Events of Default and Termination Events against that party.

Instead of saying, laboriously, “if there is an Event of Default or Termination Event with respect to a party or its Credit Support Providers or Specified Entities, as the case may be” you can speak of a Defaulting Party or an Affected Party.

Of course, it would be nice if there was a catch-all for a party who has committed an Event of Default or suffered a Termination Event, so you didn’t need to go “Defaulting Party or Affected Party, as the case may be” — cheekily we suggest “Innocent Party” and “Implicated Party” (“Guilty Party”, though fun, isn’t quite right, seeing as Termination Events aren’t meant to impute any kind of culpability).

Non-defaulting Party

To be compared with - well, Defaulting Party. Of all things. And Non-affected Party, as well. The difference between a Non-defaulting Party and a Non-affected Party, and the linguistic torture that distinction as inflicted on the race of ISDA lawyers ever since, says everything you need to know about the absurdity of modern commercial law.

• Do say: “the Non-defaulting Party or the non-Affected Party, as the case may be” over and over again.
• Don’t say: “Is there really no other way you could get across this concept, for crying out loud?”

Section 6(b)

There is a difference between Termination Events that are non-catastrophic, and usually Transaction-specific, and those that are catastrophic, which are usually counterparty specific.

Non-catastrophic ones affecting just a subset of Transactions might be caused by, say, a Tax Event or a local Illegality, but in any weather do not concern the solvency, creditworthiness or basic mendacity of your counterparty. They generally won’t have much, directly, to do with your counterparty at all beyond the jurisdictions it inhabits and the laws it is subject to. These are generally the Termination Events, but not Additional Termination Events.

The catastrophic ones are by their nature affect — that is, “Affect” — all Transactions. These generally are the bespoke Additional Termination Events your credit department insisted on — or theirs did; they will have something to do with the naughtiness of lack of fibre of your counterparty (or you!), and these function for most respects a lot more like Events of Default.

Thus, in the drafting of ISDA Schedules, CSAs and so on, you will often find laboured reference to Events of Default and/or Termination Events which lead to Early Termination Dates with respect to all outstanding Transactions as some kind of special, hyper-exciting, class of Termination Event.

Lucky premium content subscribers get a lot more discussion about the practical implications of all the above and a table comparing the events.

Section 6(b)(i)

Note the difficulty of practical compliance with this provision, given a sizeable ISDA portfolio, and the requirement for actively monitoring not only standard Termination Events, but also Additional Termination Events, which may be counterparty or even Transaction-specific.

Be aware of the notices provision of the ISDA Master Agreement, especially if you’re using a 1992 ISDA and you were thinking of serving by email — NatWest Bank could tell you a thing or two about that, as this lengthy article explains — or if the world happens to be in the grip of madness, hysteria, pandemic or something equally improbable like an alien invasion.

Section 6(b)(ii)

Once the Waiting Period expires, it will be a Termination Event entitling either party to terminate some or all Affected Transactions. Partial termination is permitted because the impact on an event on each Transaction may differ from case to case (eg transactions forming part of a structured finance deal like a repack or a CDO) might not be easily replaced, so the disadvantages of terminating may outweigh the advantages.

As far as branches are concerned this is relatively uncontroversial, especially if yours is a multi-branch ISDA Master Agreement. But there is an interesting philosophical question here, for, without an express pre-existing contractual right to do so, a party may not unilaterally transfer its obligations under a contract to someone else. That, being a novation, requires the other party’s consent. This is deep contractual lore, predating the First Men and even the Children of the Woods. So if the Affected Party identifies an affiliate to whom it can transfer its rights and obligations, the Non-affected Party still may withhold consent. True, it is obliged to provide consent if its policies permit but — well — y’know. Polices? Given the credit department’s proclivities for the fantastical, it’s a fairly safe bet they’ll be able to find something if they don’t feel up to it.

That is to say, this commitment falls some wat short of the JC’s favourite confection: “in good faith and a commercially reasonable manner”.

Note also that if an Non-Affected Party does elect partial termination, the Affected Party has the right to terminate some or all of the remaining Transactions: this prevents Non-Affected Parties being opportunistic. Heaven forfend.

Section 6(b)(iii)

Handwaving appeals to one another’s good natures with this talk of reasonableness and, of course, both parties will probably be incentivised to keep the trade on foot if some unfortunate tax eventuality comes about — seeing as they were incentivised enough to start it —but ultimately, this is an agreement to agree, however you dress it up, and is as contractually enforceable as one. That is, not very.

Section 6(b)(iv)

What a beast. If you track it through in Nutshell™ terms, it isn’t as bad as it looks, but you have the ISDA ninja’s gift for over-complication, and ISDA’s crack drafting squad™’s yen for dismal drafting, to thank for this being the trial it is.

To make it easier, we’ve invented some concepts and taken a few liberties:

“Unaffected Transaction”, which saves you all that mucking around saying “Transactions other than those that are, or are deemed, to be Affected Transactions” and so on;

Termination Event Notice: An elegant and self-explanatory alternative to “after an Affected Party gives notice under Section 6(b)(i)”.

We take it as logically true that you can’t give 20 days’ notice of something which you then say will happen in fewer than 20 days. Therefore, there is no need for all this “designate a day not earlier than the day such notice is effective” nonsense.

So with that all out the way, here is how it works. Keep in mind that, unlike Events of Default, Termination Events can arise through no fault of the Affected Party and, therefore, are not always as apocalyptic in consequence. Depending what they are, they may be cured or worked-around, and dented Transactions that can’t be panel-beaten back into shape may be surgically excised, allowing the remainder of the ISDA Master Agreement, and all Unaffected Transactions under it, to carry on as normal. So here goes:

Divide up the types of Termination Event

Tax ones: If a Tax Event or a TEUM where the party merging is the one that suffers the tax, the parties have a month to try to rearrange matters between them, their offices and affiliates to avoid the tax issue. Only once that has failed are you in Termination Event territory. See Section 6(b)(ii) and 6(b)(iii).

Non-Affected Party ones: If it’s a CEUM, an ATE or a TEUM where the Non-Affected Party suffers the tax, then if the other guy is a Non-Affected Party, then (whether or not you are) you may designate an Early Termination date for the Affected Transactions.

Illegality and Force Majeure: Here, if you are on a 2002 ISDA, there may be a Waiting Period to sit through, to see whether the difficulty clears. For Force Majeure Event it is eight Local Business Days; for Illegality other than one preventing performance of a Credit Support Document: three Local Business Days. So, sit through it. Why is there exception for Illegality on a Credit Support Document? Because, even though it wasn’t your fault, illegality of a Credit Support Document profoundly changes your credit assessment (in a way that arguably, even a payment or delivery obligation doesn’t), and that is the most fundamental risk you are managing under the ISDA Master Agreement.

Section 6(c)

Once you have designated your Early Termination Date under Section 6(a), proceed directly to Section 6(e) to determine the Close-out Amount (if you are under a 2002 ISDA, or “tiresomely unlabelled amount payable upon early termination of the ISDA Master Agreement” if you a labouring under a 1992 ISDA).

The key thing to observe here is that, suddenly, all Transactions vanish, and all payments and deliveries due under them are suspended, to be replaced by the single Close-out Amount per Transaction, which is then subsumed into the Early Termination Amount for the whole agreement. Note the Close-out Amount does not have an independent existence as a payable amount owed by any party at any point: it is simply a calculation one makes, by reference to a now extinguished Transaction, on the way to determining the whole-agreement Early Termination Amount. This is why a Transaction-specific guarantee is a flawed type of Credit Support Document — at the very point you call upon it, the Transaction will vanish.

Section 6(d)

Section 6(d) is to do with working out the termination value of Transactions for which you’ve just designated an Early Termination Date (or, in the 1992 ISDA, the thing you wished they’d defined as an Early Termination Date).

Under the ’92 one uses Loss and Market Quotation, and all that Second Method malarkey, and in the 2002 ISDA the much neater and tidier Close-out Amount concept.

Generally, this is good fat-tail paranoia material, so once upon a time parties used to negotiate it heavily. General SME-drain from the negotiation talent pool over the years due to vigorous down-skilling means people are less fussed about it now.

A popular parlour game among those pedants who still insist on using the 1992 ISDA — or, in fairness, are forced to by some other pedant further up their chain, or a general institutional disposition towards pedantry — is to laboriously upgrade every inconsistent provision in the 1992 ISDA to the 2002 ISDA standard except the one provision of the 1992 ISDA they always liked — if the pedant is in question is from the Treasury department, that will be the longer grace period in the Failure to Pay; if she is from Credit, it absolutely won’t be.

You might well ask why anyone would be so bloody-minded, but then you might well ask why anybody watches films from the Fast and Furious franchise. Because they can.

Or, possibly, to preserve the slightly more generous grace periods for Failure to Pay (three days in the 1992 ISDA versus one in the 2002 ISDA) and Bankruptcy (thirty days in the 1992 ISDA versus 15 in the 2002 ISDA) in which case, you’d retrofit longer grace periods into the new version, wouldn’t you? But no).

Section 6(e)

For our step-by-step guide to closing out an ISDA Master Agreement see Section 6(a).

On the difference between an “Early Termination Amount” and a “Close-out Amount”

Regrettably, the 1992 ISDA features neither an Early Termination Amount nor a Close-out Amount. The 2002 ISDA has both, which looks like rather an indulgence until you realise that they do different things.

A Close-out Amount is the termination value for a single Transaction, or a related group of Transactions that a Non-Defaulting Party or Non-Affected Party calculates while closing out an 2002 ISDA, but it is not the final, overall sum due under the ISDA Master Agreement itself. Each of the determined Transaction Close-out Amounts summed with the various Unpaid Amounts to arrive at the Early Termination Amount, which is the total net sum due under the ISDA Master Agreement after the close-out process. (See Section 6(e)(i) for more on that).

Section 6(f)

One does not exercise a set-off right willy nilly. Unless one is, mutually, settlement netting (where on a given day I owe you a sum, you owe me a sum, and we agree to settle by one of us paying the other the difference) set-off is a drastic remedy which will be seen as enemy action. You would not do it, without agreement, to any client you expected to keep. So, generally, use set-off as a remedy it only arises following an event of default.

A bit of a bish in the 2002 ISDA

Set-off in the 2002 ISDA borrows from the text used to build it into the 1992 ISDA but still contains a rather elementary fluff-up: it imagines a world like our own, but where the Early Termination Amount is payable one way, while all Other Amounts are only payable the other. Life, as any fule kno, is not always quite that convenient.

For example:

Payer owes Payee an Early Termination Amount of 10 Payee owes Payer Other Amounts of 50 Net: Payee owes Payer 40.

But what if there are Other Amounts payable the same way as the Early Termination Amount?

Payer owes Payee an Early Termination Amount of 10 Payer owes Payee Other Amounts of 40 Payee owes Payer Other Amounts of 50 Net: Payee owes Payer 40. Whoops: Payee is still owed 40 by Payer so is an unsecured creditor '

Not ideal. But fixable if you’re prepared to add some dramatically anal language:

6(f) Set-Off. Any Early Termination Amount (or any other amounts, whether or not arising under this Agreement, matured, contingent and irrespective of the currency, place of payment of booking of the obligation)” payable to one party (the “Payee”) by the other party (the “Payer”), ...

Subsection 6(a)

Comparison between versions

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

No change in the Early Termination Date definition from 1992 ISDA to 2002 ISDA (no real surprise there) but the close-out methodology between the two versions, by which one works out what must be paid and by whom on an Early Termination Date, and which you are encouraged to follow in all its gory detail starting at Section 6(a), is really quite different, and notwithstanding the fact that the 2002 ISDA version was meant to address the many and varied complaints levelled by market practitioners at the 1992 ISDA we still find the 1992 version in use in the occasional market centred in unsophisticated rural backwaters like, oooh, I don’t know, New York.

Those with a keen eye will notice that, but for the title, Section 6(a) of the 2002 ISDA is the same as Section 6(a) of the 1992 ISDA and, really, not a million miles away from the svelte form of Section 6(a) in the 1987 ISDA — look on that as the Broadcaster to the 1992’s Telecaster. There is one key difference, though: the evolution of the Automatic Early Termination provision. And the 1987 ISDA saw no call to have a “Non-Defaulting Party”.

It has its own entire page — Automatic Early Termination — so we have refrained from discussing it here.

Discussion

Automatic Early Termination

There is an entire, long-winded page about AET, so we have refrained from blathering on about it here.

Everyone’s hair will be on fire

This is likely to be a time where the market is dislocated, your credit officer is running around with her hair on fire, your normally affable counterparty is suddenly diffident, evasive, or strangely just not picking up the phone, and your online master agreement database has crashed because everyone in the firm is interrogating it at once. The sense of dreary quietude in which your Master Agreement was negotiated will certainly not prevail. Bear this in mind when negotiating. For example, the elaborate steps your counterparty insists on for your sending close-out notices, to fifteen different addresses, in five different formats and with magic words in the heading, will really trip your gears, especially if some of those methods are no longer possible. There is an argument that some buy-side counterparties complicate the formal process of closing out specifically to buy time and deter their dealers from pulling the trigger. It is a pretty neat trick, if so: you can expect the dealer’s credit department to puke all over a margin lockup, but a bit of fiddling around the edges of a Notices section? Sure, whatever.

Bear in mind, too: this is one time the commercial imperative will count for nothing. This is it: literally, the end game. If you close out there is no business: you are terminating your trading relationship altogether with extreme prejudice. The normal iterated game of prisoner’s dilemma has turned into a single round game. Game theorists will realise at once that the calculus is very different, and much, much less appealing.

So: good luck keeping your head while all around you are losing theirs.

Close-out sequence

Once you have designated an Early Termination Date for your ISDA Master Agreement, proceed to 6(c) to understand the Effect of Designation. Or learn about it in one place with the NC.’s handy cribsheet, “closing out an ISDA”.

The Notices provisions in Section 12 are relevant to how you may serve this notice. In a nutshell, in writing, by hand. Don’t email it, fax it, telex it, or send it by any kind of pony express or carrier pigeon unless your pigeon/pony is willing to provide an affidavit of service.

Defaulting Party

The key thing to notice here is that — in an uncharacteristically rather neat, understated bit of drafting — Defaulting Party encapsulates a party who has itself defaulted, or whose Credit Support Provider or Specified Entity has committed an act which amounts to an Event of Default for that counterparty to this ISDA Master Agreement. I know, I know, this doesn’t seem that big of a deal: this sort of thing that should be plain, obvious and go without saying — but it saves you a job when, in your peregrinations round the party’s Confirmation, you come to talk of pending Events of Default and Termination Events against that party.

Instead of saying, laboriously, “if there is an Event of Default or Termination Event with respect to a party or its Credit Support Providers or Specified Entities, as the case may be” you can speak of a Defaulting Party or an Affected Party.

Of course, it would be nice if there was a catch-all for a party who has committed an Event of Default or suffered a Termination Event, so you didn’t need to go “Defaulting Party or Affected Party, as the case may be” — cheekily we suggest “Innocent Party” and “Implicated Party” (“Guilty Party”, though fun, isn’t quite right, seeing as Termination Events aren’t meant to impute any kind of culpability).

Non-defaulting Party

To be compared with - well, Defaulting Party. Of all things. And Non-affected Party, as well. The difference between a Non-defaulting Party and a Non-affected Party, and the linguistic torture that distinction as inflicted on the race of ISDA lawyers ever since, says everything you need to know about the absurdity of modern commercial law.

• Do say: “the Non-defaulting Party or the non-Affected Party, as the case may be” over and over again.
• Don’t say: “Is there really no other way you could get across this concept, for crying out loud?”

“by not more than 20 days’ notice”

What is the significance of the maximum notice period of 20 days that one may use to close out the ISDA Master Agreement? Poor defaulted Counterparty is in pieces, on its knees, bleeding out, but really, as long as it gets some notice, does it really care how much? Surely, the longer the period, the more hope you have? While the agreement remains in termination but un-terminated, en route to that crater in the ground but not there yet — the chance remains, however remote, that things will come right; that you, its counterparty, will see sense, or unexpectedly discover the one compassionate bone in your body that, until now, has gone wholly unnoticed and, in a cloying bout of clemency, will change your mind and withdraw your notice of termination? Well, a little hedge fund can dream, can’t it? So why deprive it, and yourself, of that option?

I teach you the Children of the Woods

Now, this is deep ISDA lore. It is of the First Men — yea, even the Children of the Woods. As such — since they didn’t have a written tradition back in 1986 and legends were passed down orally from father to son and much has been lost to vicissitude and contingency — it is not a subject on which there is much commentary: That dreadful FT book about derivatives sagely notes that, usually, much less notice is given than 20 days (I mean, you don’t say) but doesn’t give a reason for this curious outer bound, in the same way it doesn’t give a reason for much else in the ISDA Master Agreement despite costing a monkey and that being its express purpose. Nor, for that matter, does the official ISDA User’s Guide to the 2002 ISDA Master Agreement.

One is just expected to know. Yet, in point of fact, no-one seems to. And no-one wants to risk looking stupid by asking, right? Well, companions, just not knowing is not how we contrarians roll. We like looking stupid. Compared with plain old ignorance, it speaks to having at least put in some effort, even if wasted: noble but futile toil is flattering in some lights. So, in the absence of a credentialised, plausible reason, let us speculate.

“Not more than 20-days notice” does not impose a cliff edge

The first thing to say, is the Early Termination Date is not the date on which you must pay an Early Termination Amount nor, for that matter, even have calculated it: it is the date by reference to which you must calculate an Early Termination Amount. Thanks to the good graces of Sectrion 6(d), provided you so as soon as reasonably practicable, you have time to calculate your values diligently and properly.

And even that “by reference to” is heavily qualified: Close-out Amounts are intended to be determined “as of” the Early Termination Date, being the date designated in your Section 6(a) notice which had to be within 20 days of that notice. Now that makes it seem like you are facing a rather untimely cliff-edge if you can’t practicably close out your whole hedge book in 20 days, but note:

Each Close-out Amount will be determined as of the Early Termination Date or, if that would not be commercially reasonable, as of the date or dates following the Early Termination Date as would be commercially reasonable.

This is very important. This means you don’t have to liquidate a portfolio in its entirety within 20 days, or even take the values as of that Early Termination Date. If you can, you should — but it may well not be commercially reasonable — or even possible — to. The Lehman insolvency took months to unwind. Note also that commercial reasonableness is viewed from the Non-Affected Party’s perspective. It is not a licence to do whatever the hell you want — but the court won’t second guess prudent application of your own models.

Therefore no-one has any reason to wait any days, let alone 20

So this leaves the mystery of why a party designating an Early Termination Date, for any reason, wouldn’t just designate it now — and for those peculiar types who don’t want to do that, why there should be this arbitrary long-stop of 20 days.

Remember the ISDA Master Agreement was invented by banking folk: people who who view the Cosmos chiefly through the prism of indebtedness. A lender whose borrower has defaulted will not dilly dally: she will bang in a default notice and seize whatever assets she can get her hand in poste haste. I lend, you owe. I don’t muck about. Breakage costs on a loan are easy to calculate and they are not especially volatile. There is nothing to be gained by waiting around: interest continues to accrue, at a penalty rate: the longer I take to terminate my exposure, the larger it is likely to be.

But, but, but. ISDAs are different. They are not, principally, a contract of indebtedness, and while a large uncollateralised mark-to-market exposure is economically the same as indebtedness, the contract is bilateral, these days almost always fully collateralised, and who is indebted at any time is dependent on the net exposure: it can and does swing around.

Also, the mark-to-market exposure on swap transaction is a wildly volatile thing: With a loan, less so: you know you have (a) principal, (b) accrued interest and (c) break costs — the last of which might be significant for a long term fixed rate loan, but generally will pale in comparison to the principal sum owed.

So a swap counterparty who terminates might be out of the money, and disinclined to terminate just now, hoping that a more benign market environment might be just around the corner to dig it out of its hole so that when it does pull its trigger, the Close-Out Amount will be favourable. This is still taking quite the market punt on a bust counterparty — by means of a European option — of course, and not the sort of thing a prudent risk manager would do, but I don’t suppose banking folk can be expected to have understood this in 1986.

Actually, even that makes little sense, since such a counterparty wouldn’t be obliged to close out at all, but could just suspend its obligations under Section 2(a)(iii) — something which it can (or could, at any rate, when the notice period was devised, in 1987) do indefinitely. To be sure, a 2(a)(iii) suspension is just that — a suspension; should one come eventually to terminate the Transaction, those as-yet unperformed obligations will come back to haunt you as Unpaid Amounts, but at least here you retain control of the process and timing of close-out: it is an American option, not a European one. If you see the market moving against you, you can cash in your chips. So, ask yourself which is a bigger punt: that, the mark-to-market value you determine in 20 days — in a market that is likely to be a flaming wreck, by the way — better suits your book than the one you can actually trade on today, or on any day between now and that distant Early Termination Date?

So we get back to an alternative, disappointing explanation: It is just flannel.

Subsection 6(b)

Comparison between versions

Between the 1987 ISDA and the 1992 ISDA the changes were very superficial, as this comparison demonstrates.

Between the 1992 ISDA and the 2002 ISDA, there was a but more re-engineering, largely to account for the new Force Majeure Event and some tidying up, but beyond that Section 6(b) works in the same general way under the 1992 ISDA and 2002 ISDA. Here is a comparison of that.

Section 6(b)(i)

Updated in 2002 with special pleadings relating to the newly-introduced Force Majeure Termination Event.

Section 6(b)(ii)

Note in the 2002 ISDA there is no reference to Illegality (or for that matter Force Majeure, which did not exist under the 1992 ISDA but tends to treated rather like a special case of Illegality and therefore, we think, would have been included in this provision of the 1992 ISDA if it had existed ... if you see what I mean).

When the 2002 ISDA gets on to the topic of Illegality and Force Majeure it allows the Unaffected Party to cherry-pick which Affected Transactions it will terminate, but then seems almost immediately to regret it (see especially in Section 6(b)(iv)). Under the 1992 ISDA if you wanted to pull the trigger on any Termination Event, you had to pull all Affected Transactions. Under the 2002 ISDA it is only binary for the credit- and tax-related Termination Events.

Otherwise, but for one consequential change — 1992’s “excluding” became 2002’s “other than” — I mean, you can just imagine the barney they must have had in the drafting committee for that one, can’t you — the provisions are identical.

Section 6(b)(iii)

Be careful here: Under the 1992 ISDA, if your Failure to Pay is also an Illegality it is treated as an Illegality: if there are two Affected Parties you will face a significant delay when closing out. A bit of a trick for young players.

Note also that reference to Illegality has been excised from the 2002 ISDA version. They changed this because, in practice, it turned out to too be hard to implement a transfer or amendment after an Illegality. Folks realised that if an Illegality happens you don’t want to have to wait 30 days to terminate, especially if you can’t rely on 2(a)(iii) to withhold payments in the meantime.

Section 6(b)(iv)

Oh, this section 6(b)(iv) stuff
Is sure stirring up some ghosts for me.
She said, “There’s one thing you gotta learn
Is not to be afraid of it.”
I said, “No, I like it, I like it, it’s good.”
She said, “You like it now —
But you’ll learn to love it later”

— Robbie Robertson

One’s right to terminate early following an Illegality or the newly introduced Force Majeure Termination Event get a proper makeover in the 2002 ISDA, but otherwise, the provisions are the same, but for some formal fiddling in the drafting.

Discussion

There is a difference between Termination Events that are non-catastrophic, and usually Transaction-specific, and those that are catastrophic, which are usually counterparty specific.

Non-catastrophic ones affecting just a subset of Transactions might be caused by, say, a Tax Event or a local Illegality, but in any weather do not concern the solvency, creditworthiness or basic mendacity of your counterparty. They generally won’t have much, directly, to do with your counterparty at all beyond the jurisdictions it inhabits and the laws it is subject to. These are generally the Termination Events, but not Additional Termination Events.

The catastrophic ones are by their nature affect — that is, “Affect” — all Transactions. These generally are the bespoke Additional Termination Events your credit department insisted on — or theirs did; they will have something to do with the naughtiness of lack of fibre of your counterparty (or you!), and these function for most respects a lot more like Events of Default.

Thus, in the drafting of ISDA Schedules, CSAs and so on, you will often find laboured reference to Events of Default and/or Termination Events which lead to Early Termination Dates with respect to all outstanding Transactions as some kind of special, hyper-exciting, class of Termination Event.

Lucky premium content subscribers get a lot more discussion about the practical implications of all the above and a table comparing the events.

Section 6(b)(i)

Note the difficulty of practical compliance with this provision, given a sizeable ISDA portfolio, and the requirement for actively monitoring not only standard Termination Events, but also Additional Termination Events, which may be counterparty or even Transaction-specific.

Be aware of the notices provision of the ISDA Master Agreement, especially if you’re using a 1992 ISDA and you were thinking of serving by email — NatWest Bank could tell you a thing or two about that, as this lengthy article explains — or if the world happens to be in the grip of madness, hysteria, pandemic or something equally improbable like an alien invasion.

Section 6(b)(ii)

Once the Waiting Period expires, it will be a Termination Event entitling either party to terminate some or all Affected Transactions. Partial termination is permitted because the impact on an event on each Transaction may differ from case to case (eg transactions forming part of a structured finance deal like a repack or a CDO) might not be easily replaced, so the disadvantages of terminating may outweigh the advantages.

As far as branches are concerned this is relatively uncontroversial, especially if yours is a multi-branch ISDA Master Agreement. But there is an interesting philosophical question here, for, without an express pre-existing contractual right to do so, a party may not unilaterally transfer its obligations under a contract to someone else. That, being a novation, requires the other party’s consent. This is deep contractual lore, predating the First Men and even the Children of the Woods. So if the Affected Party identifies an affiliate to whom it can transfer its rights and obligations, the Non-affected Party still may withhold consent. True, it is obliged to provide consent if its policies permit but — well — y’know. Polices? Given the credit department’s proclivities for the fantastical, it’s a fairly safe bet they’ll be able to find something if they don’t feel up to it.

That is to say, this commitment falls some wat short of the JC’s favourite confection: “in good faith and a commercially reasonable manner”.

Note also that if an Non-Affected Party does elect partial termination, the Affected Party has the right to terminate some or all of the remaining Transactions: this prevents Non-Affected Parties being opportunistic. Heaven forfend.

Section 6(b)(iii)

Handwaving appeals to one another’s good natures with this talk of reasonableness and, of course, both parties will probably be incentivised to keep the trade on foot if some unfortunate tax eventuality comes about — seeing as they were incentivised enough to start it —but ultimately, this is an agreement to agree, however you dress it up, and is as contractually enforceable as one. That is, not very.

Section 6(b)(iv)

What a beast. If you track it through in Nutshell™ terms, it isn’t as bad as it looks, but you have the ISDA ninja’s gift for over-complication, and ISDA’s crack drafting squad™’s yen for dismal drafting, to thank for this being the trial it is.

To make it easier, we’ve invented some concepts and taken a few liberties:

“Unaffected Transaction”, which saves you all that mucking around saying “Transactions other than those that are, or are deemed, to be Affected Transactions” and so on;

Termination Event Notice: An elegant and self-explanatory alternative to “after an Affected Party gives notice under Section 6(b)(i)”.

We take it as logically true that you can’t give 20 days’ notice of something which you then say will happen in fewer than 20 days. Therefore, there is no need for all this “designate a day not earlier than the day such notice is effective” nonsense.

So with that all out the way, here is how it works. Keep in mind that, unlike Events of Default, Termination Events can arise through no fault of the Affected Party and, therefore, are not always as apocalyptic in consequence. Depending what they are, they may be cured or worked-around, and dented Transactions that can’t be panel-beaten back into shape may be surgically excised, allowing the remainder of the ISDA Master Agreement, and all Unaffected Transactions under it, to carry on as normal. So here goes:

Divide up the types of Termination Event

Tax ones: If a Tax Event or a TEUM where the party merging is the one that suffers the tax, the parties have a month to try to rearrange matters between them, their offices and affiliates to avoid the tax issue. Only once that has failed are you in Termination Event territory. See Section 6(b)(ii) and 6(b)(iii).

Non-Affected Party ones: If it’s a CEUM, an ATE or a TEUM where the Non-Affected Party suffers the tax, then if the other guy is a Non-Affected Party, then (whether or not you are) you may designate an Early Termination date for the Affected Transactions.

Illegality and Force Majeure: Here, if you are on a 2002 ISDA, there may be a Waiting Period to sit through, to see whether the difficulty clears. For Force Majeure Event it is eight Local Business Days; for Illegality other than one preventing performance of a Credit Support Document: three Local Business Days. So, sit through it. Why is there exception for Illegality on a Credit Support Document? Because, even though it wasn’t your fault, illegality of a Credit Support Document profoundly changes your credit assessment (in a way that arguably, even a payment or delivery obligation doesn’t), and that is the most fundamental risk you are managing under the ISDA Master Agreement. You may find yourself staring at this forbidding north wall of text — on of the most fearsome north walls in all derivatives mountaineering — and for a while begin to wonder whether your eyes are burning, or your brains leaking out of your ears. And just wait till you see what a structured finance lawyer will do with it. there are crevices, cracks, ice-covered chimneys, great glazed traverses which have claimed many a valiant eaglet.

But, friends, we are aeronauts of the spirit!

“Why just in this direction, thither where all the suns of humanity have hitherto gone down? Will it perhaps be said of us one day that we too, steering westward, hoped to reach an India – but that it was our fate to be wrecked against infinity?”

Let us not be daunted by der Morderwand!

Section 6(b)(i): Notice

It starts off gently. If you are subject to a Termination Event — remember these are generally extraneous things beyond your control like Tax Events, Illegality, Force Majeure, for which you can’t really be blamed, but which affect your capacity to efficiently perform the agreement, so this is nothing really to be ashamed about, even though it might colour your counterparty’s view of carrying on — you must notify your counterparty.

Section 6(b)(ii): Transfer to Avoid Termination Event

Things start to go a bit wobbly. You sense that ISDA’s crack drafting squad™ has been on the sauce, or marching powder or something, and became attached to the idea of trying to codify the unknowable future. It gets worse before it gets better but here the permutations are about the parties tax status: either the Tax law has changed for one or other party — a Tax Event — or a party has executed some fancy cross-border merger which has somehow changed its tax residence, status, or eligibility of favourable tax treatment: this is a Tax Event Upon Merger. Here, in essence, you have a little window to sort yourself out, if you hadn’t done that before the merger (isn’t that what Tax advisors are for, by the way?).

Tax Event Upon Merger is also apt to create magnificent rounds of three-dimensional ninja combat drafting, because there is an Affected Party, and a Burdened Party, and they are not ~ necessarily ~ the same, and that is even before you worry about what has happened if there is a Credit Event Upon Merger (could be, right? There is a merger... so why not?) and/or a Force Majeure going on at the same time.

In any case: the Affected Party of a simple Tax Event, or the Affected Party of a TEUM who is also the Burdened Party must try doggedly for twenty days to transfer its rights and obligations to an unaffected Office or Affiliate before it is allowed to trigger an Early Termination Date. In any case the innocent, Unaffected Party, has a varnished right to decline the transfer if it can’t trade with the designated transferee.

Section 6(b)(iii) Two Affected Parties

Well, if they are both Affected Parties they can do their best to agree a fix, but this is what all eagle-eyed members of legal squad will recognise as an agreement to agree. Template:M gen 2002 ISDA 6(b)(iv)

Section 6(b)(iv) Right to Terminate

What a beast. If you track it through in Nutshell™ terms, it isn’t as bad as it looks, but you have the ISDA ninja’s gift for over-complication, and ISDA’s crack drafting squad™’s yen for dismal drafting, to thank for this being the trial it is.

To make it easier, we’ve invented some concepts and taken a few liberties:

“Unaffected Transaction”, which saves you all that mucking around saying “Transactions other than those that are, or are deemed, to be Affected Transactions” and so on;

Termination Event Notice: An elegant and self-explanatory alternative to “after an Affected Party gives notice under Section 6(b)(i)”.

We take it as logically true that you can’t give 20 days’ notice of something which you then say will happen in fewer than 20 days. Therefore, there is no need for all this “designate a day not earlier than the day such notice is effective” nonsense.

So with that all out the way, here is how it works. Keep in mind that, unlike Events of Default, Termination Events can arise through no fault of the Affected Party and, therefore, are not always as apocalyptic in consequence. Depending what they are, they may be cured or worked-around, and dented Transactions that can’t be panel-beaten back into shape may be surgically excised, allowing the remainder of the ISDA Master Agreement, and all Unaffected Transactions under it, to carry on as normal. So here goes:

Divide up the types of Termination Event

Tax ones: If a Tax Event or a TEUM where the party merging is the one that suffers the tax, the parties have a month to try to rearrange matters between them, their offices and affiliates to avoid the tax issue. Only once that has failed are you in Termination Event territory. See Section 6(b)(ii) and 6(b)(iii).

Non-Affected Party ones: If it’s a CEUM, an ATE or a TEUM where the Non-Affected Party suffers the tax, then if the other guy is a Non-Affected Party, then (whether or not you are) you may designate an Early Termination date for the Affected Transactions.

Illegality and Force Majeure: Here, if you are on a 2002 ISDA, there may be a Waiting Period to sit through, to see whether the difficulty clears. For Force Majeure Event it is eight Local Business Days; for Illegality other than one preventing performance of a Credit Support Document: three Local Business Days. So, sit through it. Why is there exception for Illegality on a Credit Support Document? Because, even though it wasn’t your fault, illegality of a Credit Support Document profoundly changes your credit assessment (in a way that arguably, even a payment or delivery obligation doesn’t), and that is the most fundamental risk you are managing under the ISDA Master Agreement. Template:M detail 2002 ISDA 6(b)

Subsection 6(b)(i)

Section 6(b)(i): Notice

It starts off gently. If you are subject to a Termination Event — remember these are generally extraneous things beyond your control like Tax Events, Illegality, Force Majeure, for which you can’t really be blamed, but which affect your capacity to efficiently perform the agreement, so this is nothing really to be ashamed about, even though it might colour your counterparty’s view of carrying on — you must notify your counterparty. Template:M detail 2002 ISDA 6(b)(i)

Subsection 6(b)(ii)

Discussion

Once the Waiting Period expires, it will be a Termination Event entitling either party to terminate some or all Affected Transactions. Partial termination is permitted because the impact on an event on each Transaction may differ from case to case (eg transactions forming part of a structured finance deal like a repack or a CDO) might not be easily replaced, so the disadvantages of terminating may outweigh the advantages.

As far as branches are concerned this is relatively uncontroversial, especially if yours is a multi-branch ISDA Master Agreement. But there is an interesting philosophical question here, for, without an express pre-existing contractual right to do so, a party may not unilaterally transfer its obligations under a contract to someone else. That, being a novation, requires the other party’s consent. This is deep contractual lore, predating the First Men and even the Children of the Woods. So if the Affected Party identifies an affiliate to whom it can transfer its rights and obligations, the Non-affected Party still may withhold consent. True, it is obliged to provide consent if its policies permit but — well — y’know. Polices? Given the credit department’s proclivities for the fantastical, it’s a fairly safe bet they’ll be able to find something if they don’t feel up to it.

That is to say, this commitment falls some wat short of the JC’s favourite confection: “in good faith and a commercially reasonable manner”.

Note also that if an Non-Affected Party does elect partial termination, the Affected Party has the right to terminate some or all of the remaining Transactions: this prevents Non-Affected Parties being opportunistic. Heaven forfend.

Section 6(b)(ii): Transfer to Avoid Termination Event

Things start to go a bit wobbly. You sense that ISDA’s crack drafting squad™ has been on the sauce, or marching powder or something, and became attached to the idea of trying to codify the unknowable future. It gets worse before it gets better but here the permutations are about the parties tax status: either the Tax law has changed for one or other party — a Tax Event — or a party has executed some fancy cross-border merger which has somehow changed its tax residence, status, or eligibility of favourable tax treatment: this is a Tax Event Upon Merger. Here, in essence, you have a little window to sort yourself out, if you hadn’t done that before the merger (isn’t that what Tax advisors are for, by the way?).

Tax Event Upon Merger is also apt to create magnificent rounds of three-dimensional ninja combat drafting, because there is an Affected Party, and a Burdened Party, and they are not ~ necessarily ~ the same, and that is even before you worry about what has happened if there is a Credit Event Upon Merger (could be, right? There is a merger... so why not?) and/or a Force Majeure going on at the same time.

In any case: the Affected Party of a simple Tax Event, or the Affected Party of a TEUM who is also the Burdened Party must try doggedly for twenty days to transfer its rights and obligations to an unaffected Office or Affiliate before it is allowed to trigger an Early Termination Date. In any case the innocent, Unaffected Party, has a varnished right to decline the transfer if it can’t trade with the designated transferee. Template:M detail 2002 ISDA 6(b)(ii)

Subsection 6(b)(iii)

Discussion

Handwaving appeals to one another’s good natures with this talk of reasonableness and, of course, both parties will probably be incentivised to keep the trade on foot if some unfortunate tax eventuality comes about — seeing as they were incentivised enough to start it —but ultimately, this is an agreement to agree, however you dress it up, and is as contractually enforceable as one. That is, not very.

Section 6(b)(iii) Two Affected Parties

Well, if they are both Affected Parties they can do their best to agree a fix, but this is what all eagle-eyed members of legal squad will recognise as an agreement to agree. Template:M detail 2002 ISDA 6(b)(iii)

Subsection 6(b)(iv)

Discussion

What a beast. If you track it through in Nutshell™ terms, it isn’t as bad as it looks, but you have the ISDA ninja’s gift for over-complication, and ISDA’s crack drafting squad™’s yen for dismal drafting, to thank for this being the trial it is.

To make it easier, we’ve invented some concepts and taken a few liberties:

“Unaffected Transaction”, which saves you all that mucking around saying “Transactions other than those that are, or are deemed, to be Affected Transactions” and so on;

Termination Event Notice: An elegant and self-explanatory alternative to “after an Affected Party gives notice under Section 6(b)(i)”.

We take it as logically true that you can’t give 20 days’ notice of something which you then say will happen in fewer than 20 days. Therefore, there is no need for all this “designate a day not earlier than the day such notice is effective” nonsense.

So with that all out the way, here is how it works. Keep in mind that, unlike Events of Default, Termination Events can arise through no fault of the Affected Party and, therefore, are not always as apocalyptic in consequence. Depending what they are, they may be cured or worked-around, and dented Transactions that can’t be panel-beaten back into shape may be surgically excised, allowing the remainder of the ISDA Master Agreement, and all Unaffected Transactions under it, to carry on as normal. So here goes:

Divide up the types of Termination Event

Tax ones: If a Tax Event or a TEUM where the party merging is the one that suffers the tax, the parties have a month to try to rearrange matters between them, their offices and affiliates to avoid the tax issue. Only once that has failed are you in Termination Event territory. See Section 6(b)(ii) and 6(b)(iii).

Non-Affected Party ones: If it’s a CEUM, an ATE or a TEUM where the Non-Affected Party suffers the tax, then if the other guy is a Non-Affected Party, then (whether or not you are) you may designate an Early Termination date for the Affected Transactions.

Illegality and Force Majeure: Here, if you are on a 2002 ISDA, there may be a Waiting Period to sit through, to see whether the difficulty clears. For Force Majeure Event it is eight Local Business Days; for Illegality other than one preventing performance of a Credit Support Document: three Local Business Days. So, sit through it. Why is there exception for Illegality on a Credit Support Document? Because, even though it wasn’t your fault, illegality of a Credit Support Document profoundly changes your credit assessment (in a way that arguably, even a payment or delivery obligation doesn’t), and that is the most fundamental risk you are managing under the ISDA Master Agreement. Template:M gen 2002 ISDA 6(b)(iv) Template:M detail 2002 ISDA 6(b)(iv)

Subsection 6(c)

Comparison between versions

The framers of the 2002 ISDA daringly changed a “shall” to a “will” in the final line. We approve, to be clear, but this is kind of out of character for ISDA’s crack drafting squad™. Otherwise, identical.

Discussion

Once you have designated your Early Termination Date under Section 6(a), proceed directly to Section 6(e) to determine the Close-out Amount (if you are under a 2002 ISDA, or “tiresomely unlabelled amount payable upon early termination of the ISDA Master Agreement” if you a labouring under a 1992 ISDA).

The key thing to observe here is that, suddenly, all Transactions vanish, and all payments and deliveries due under them are suspended, to be replaced by the single Close-out Amount per Transaction, which is then subsumed into the Early Termination Amount for the whole agreement. Note the Close-out Amount does not have an independent existence as a payable amount owed by any party at any point: it is simply a calculation one makes, by reference to a now extinguished Transaction, on the way to determining the whole-agreement Early Termination Amount. This is why a Transaction-specific guarantee is a flawed type of Credit Support Document — at the very point you call upon it, the Transaction will vanish. To see the steps to closing out the ISDA, see Right to Terminate Following Event of Default. Template:M detail 2002 ISDA 6(c)

Subsection 6(d)

Comparison between versions

Broadly similar between the versions. Main differences are basic architectural ones (no definition of “Early Termination Amount” or “Close-out Amount” in the 1992 ISDA, for example), and the 2002 is a little more finicky, dealing with what to do if there are two Affected Parties, and also blithering on for a few lines about interest.

Discussion

Section 6(d) is to do with working out the termination value of Transactions for which you’ve just designated an Early Termination Date (or, in the 1992 ISDA, the thing you wished they’d defined as an Early Termination Date).

Under the ’92 one uses Loss and Market Quotation, and all that Second Method malarkey, and in the 2002 ISDA the much neater and tidier Close-out Amount concept.

Generally, this is good fat-tail paranoia material, so once upon a time parties used to negotiate it heavily. General SME-drain from the negotiation talent pool over the years due to vigorous down-skilling means people are less fussed about it now.

A popular parlour game among those pedants who still insist on using the 1992 ISDA — or, in fairness, are forced to by some other pedant further up their chain, or a general institutional disposition towards pedantry — is to laboriously upgrade every inconsistent provision in the 1992 ISDA to the 2002 ISDA standard except the one provision of the 1992 ISDA they always liked — if the pedant is in question is from the Treasury department, that will be the longer grace period in the Failure to Pay; if she is from Credit, it absolutely won’t be.

You might well ask why anyone would be so bloody-minded, but then you might well ask why anybody watches films from the Fast and Furious franchise. Because they can.

Or, possibly, to preserve the slightly more generous grace periods for Failure to Pay (three days in the 1992 ISDA versus one in the 2002 ISDA) and Bankruptcy (thirty days in the 1992 ISDA versus 15 in the 2002 ISDA) in which case, you’d retrofit longer grace periods into the new version, wouldn’t you? But no). Section 6(d) gives the ISDA ninja a bit of a chicken-and-egg situation on close-out as, having served your Section 6(a) notice designating a point in the near future as the Early Termination Date, you must now ascertain termination values for the Terminated Transactions as of that date, before that date, but you can’t really work out their mark-to-market values at any time before that date, not being able to see into the future or anything.

Anyway, that’s a conundrum for your trading people (and in-house metaphysicians) to deal with and it need not trouble we eagles of the law. For our purposes, the trading and risk people need to come up with Close-out Amounts for all outstanding Transactions. Once they have done that you are ready for your Section 6(e) notice. Template:M detail 2002 ISDA 6(d)

Subsection 6(e)

Comparison between versions

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

The 1987 ISDA was half-cocked and shambolic, and laboured under the wishful illusion that if the other guy blew up, even if he was in the money, it was kind of okay to just flip him the bird and walk off with a windfall (in the form of not owing him the money you like, actually owed him). Not cool these days. Once folks realised this wouldn’t fly from a netting perspective they tried to fix it in the 1992 ISDA, whose close-out methodology is truly hideous.

ISDA’s crack drafting squad™ overhauled whole close-out process, soup to nuts, in the 2002 ISDA, and is now much more straightforward — as far as you could ever say that about ISDA’s crack drafting squad™’s output. But a large part of the fanbase — that part west of Cabo da Roca — sticks with the 1992 ISDA. Odd.

Differences, in very brief:

The 1992 ISDA has the infamous Market Quotation and Loss measures of value, and the perennially-ignored First Method and the more sensible Second Method means of evaluating the termination value of terminated Transactions. The 2002 ISDA has just the Close-out Amount to cover everything. So while the 1992 ISDA is far more elaborate and over-engineered, this is not to deny that the 2002 ISDA is elaborate or over-engineeered.

The 2002 ISDA has a new Section 6(e)(iv) dealing with Adjustment for Illegality or Force Majeure Event. This wasn’t needed in the 1992 ISDA, which didn’t have Force Majeure Event at all, and a less sophisticated Illegality.

Discussion

For our step-by-step guide to closing out an ISDA Master Agreement see Section 6(a).

On the difference between an “Early Termination Amount” and a “Close-out Amount”

Regrettably, the 1992 ISDA features neither an Early Termination Amount nor a Close-out Amount. The 2002 ISDA has both, which looks like rather an indulgence until you realise that they do different things.

A Close-out Amount is the termination value for a single Transaction, or a related group of Transactions that a Non-Defaulting Party or Non-Affected Party calculates while closing out an 2002 ISDA, but it is not the final, overall sum due under the ISDA Master Agreement itself. Each of the determined Transaction Close-out Amounts summed with the various Unpaid Amounts to arrive at the Early Termination Amount, which is the total net sum due under the ISDA Master Agreement after the close-out process. (See Section 6(e)(i) for more on that).

Subsection 6(f)

Comparison between versions

Neither the 1987 ISDA not the 1992 ISDA has a specific set-off provision, although the 1992 manages to define Set-off anyway.

ISDA published a suggested set-off provision in the 1992 User’s Guide, but no-one liked it, and before long several home-made versions were percolating around the market. These often permitted set-off between the Innocent Party’s Affiliates and the non-performing party.

ISDA’s crack drafting squad™ got the hint and implemented a fully-fledged set-off provision based on this language into the 2002 ISDA — but not without a little boo-boo. As to which, read on —

Discussion

One does not exercise a set-off right willy nilly. Unless one is, mutually, settlement netting (where on a given day I owe you a sum, you owe me a sum, and we agree to settle by one of us paying the other the difference) set-off is a drastic remedy which will be seen as enemy action. You would not do it, without agreement, to any client you expected to keep. So, generally, use set-off as a remedy it only arises following an event of default.

A bit of a bish in the 2002 ISDA

Set-off in the 2002 ISDA borrows from the text used to build it into the 1992 ISDA but still contains a rather elementary fluff-up: it imagines a world like our own, but where the Early Termination Amount is payable one way, while all Other Amounts are only payable the other. Life, as any fule kno, is not always quite that convenient.

For example:

Payer owes Payee an Early Termination Amount of 10 Payee owes Payer Other Amounts of 50 Net: Payee owes Payer 40.

But what if there are Other Amounts payable the same way as the Early Termination Amount?

Payer owes Payee an Early Termination Amount of 10 Payer owes Payee Other Amounts of 40 Payee owes Payer Other Amounts of 50 Net: Payee owes Payer 40. Whoops: Payee is still owed 40 by Payer so is an unsecured creditor '

Not ideal. But fixable if you’re prepared to add some dramatically anal language:

6(f) Set-Off. Any Early Termination Amount (or any other amounts, whether or not arising under this Agreement, matured, contingent and irrespective of the currency, place of payment of booking of the obligation)” payable to one party (the “Payee”) by the other party (the “Payer”), ...

Red letter day for ISDA’s crack drafting squad™

Whatever else you might have to say about ISDA’s set off provision — and as this page demonstrates, there’s quite a bit to say — one thing that stands out is how appallingly drafted it is.

The expression, “in circumstances where there is a Defaulting Party or where there is one Affected Party in the case where either a Credit Event Upon Merger has occurred or any other Termination Event in respect of which all outstanding Transactions are Affected Transactions has occurred” will make your head spin, but it is meant to strike two contingencies: All Transactions are being terminated, and one Party is at fault.

The ’squad’s own pedantic approach to drafting, which separates Events of Default from Termination Events, and labels the perpetrators differently (“Defaulting Party” for the former; “Affected Party” for the latter, is to blame here.

In any case one would only impose Section 6(f) set off where your counterparty has gone fully tetas arriba and you have terminated all Transactions. In any other cases you would effect set-offs by mutually-agreed-at-the-time payment netting, which does not require any pre-existing legal right.

Cross-affiliate set-off

The 2002 ISDA’s Set-off provision refers to a “Payer” and “Payee”. Since either the “Payer” or the “Payee” could be the Innocent Party, including Affiliates into the 2002 definition becomes problematic and cumbersome.

Generally, market practice is therefore to do the following:

• Where Affiliates are required: to use bespoke wording.
• Where Affiliates are not required: use the 2002 ISDA standard set-off wording above.

But cross affiliate set-off is a pretty rum affair in any case. Generally, set-off requires mutuality of payment, currency, time and counterparty, so setting off between affiliates is liable to challenge anyway (unless you have cross-guarantee arrangements). And in these modern days of bank recovery and resolution, conjoining claims between entities which are supposed to be siloed and independent isn’t really the thing.

Scope of Set-off

The 2002 ISDA set-off wording allows set-off following an Event of Default, CEUM, or any other Termination Event where there is one Affected Party and all outstanding transactions are Affected Transactions.

Often brokers will also want to set-off where there is an Illegality or ATE. There is no specific reference to all Transactions being Affected Transactions but this is implied in any set-off provision by its nature:

• If only some transactions are Affected Transactions and so only a portion of outstanding Transactions are being terminated then there is an on-going relationship and unilateral set-off is not appropriate.
• i.e., if you weren’t terminating all Transactions, it would be drastic and counterproductive to a relationship to use a set-off.
• As such, the Tax Event and Tax Event Upon Merger provisions (those not caught by your wording) are more likely to only affect certain transactions and not all Transactions and therefore set-off is not likely to be relevant in such instances.
• Force Majeure: The 1992 ISDA contains no Force Majeure provision. Commercially, it is not likely that an ISDA Master Agreement would be closed-out as a result of a Termination Event as these are generally viewed as non-fault and set-off would generally not be relevant.

• Illegality does allow either party to terminate but this is limited to all Affected Transactions which may not result in a close-out of the entire ISDA Master Agreement. In fact, the definition used of Affected Transactions makes it clear that in the cases of Illegality, Tax Event Upon Merger or Tax Event then it will only be transactions affected by the Termination Event that are closed-out. In relation to ATEs and CEUM this will be all Transactions and so set-off is relevant.

Bespoke wording to capture affiliate set-off

If you are the “live-dangerously” sort who wants to capture cross-affiliate set off, try amending the first line of Section 6(f) to read as follows:

6(f) Set-Off. Any Early Termination Amount amounts, whether or not arising under this Agreement, matured, contingent and irrespective of their currency, place of payment or booking payable to one party or its Affiliates, if it is the Non-defaulting Party or Non-affected Party (the “Payee”) by the other party or its Affiliates, if it is the Non-defaulting Party or Non-affected Party (the “Payer”), in circumstances where there is a Defaulting Party or where there is one Affected Party in the case where either a Credit Event Upon Merger has occurred or any other Termination Event in respect of which all outstanding Transactions are Affected Transactions has occurred, will, at the option of the Non-defaulting Party or the Non-affected Party, as the case may be (“X”) (and without prior notice to the Defaulting Party or the Affected Party, as the case may be), be reduced by its set-off against any other amounts (“Other Amounts”) payable by the Payee to the Payer (whether or not arising under this Agreement, matured or contingent and irrespective of the currency, place of payment or place of booking of the obligation).

From the prose stylist’s point of view this is quite the monstrous contraption. But the “ISDA way” leads us to this outcome.

So what are we trying to say here, and is there a better way of saying it?

Firstly, we are talking only about situations where there is a catastrophic, credit-induced close-out of the whole ISDA — one that precipitates the total breakdown of the relationship between the parties. In any other case neither party would use a mandatory set-off.

Secondly, the Innocent Party — the JC made this term up, by the way, but it is useful — is the one who is bringing its own Affiliate rights and liabilities into the frame for set-off. It cares not one whit for the Guilty Party, which is presently smoking hulk straddling the median strip, remember, much less any of its Affiliates (who are most likely similarly indisposed).

So how might we say this, given a fresh piece of paper?

6(f) Set-off: Following the designation of an Early Termination Date for all Transactions where there is one Innocent Party, that party may, by notice, set-off any Payables it owes against any Payables the other party owes the Innocent Party, converting currencies if necessary and estimating unascertained obligations in good faith, but accounting for any difference between its estimate and the amount when it is finally ascertained. In this clause:

“Innocent Party” means a Non-defaulting Party or a Non-affected Party, as the case may be and, when determining any Payables owed by or to such a party, includes its Affiliates.
“Payable” means any amount owed by the party in question, whether or not arising under this Agreement, matured or contingent and irrespective of its currency, place of payment or booking.

Section 7

Section 7 in a nutshell

7. Transfer
Subject to Section 6(b)(ii), neither party may transfer any interest in or obligation under this Agreement without the other party’s prior written consent, except:―

7(a) Due to a merger with, or consolidation of substantially all of its assets into, another entity; and

7(b) A transfer of its rights to an Early Termination Amount under Sections 8, 9(h) and 11.

Comparison between versions

No great difference between the versions of Section 7 other than those yielded by ISDA’s crack drafting squad™ satisfying its usual yen for redundancy and over-particularity.

Any right under any contract is subject to applicable law, after all, and converting “any amount payable on early termination under Section 6(e)” to “the Early Termination Amount together with any amounts payable under various other random clauses of the agreement as a result of its early termination” may be more exacting than the 1992 ISDA version, but you could as easily have fixed it just by deleting “under section 6(e)”.

Discussion

Section 7 ought to head off the temptation felt, for example, by legal eagles who should come to be handling novations in years to come to insert laborious representations and warranties that neither party has assigned any of its obligations — but knowing the sorts of legal eagles who usually get assigned to such thrilling tasks, it won’t. Nor will the fact that the 2004 ISDA Novation Definitions includes that representation. Sigh. Template:M gen 2002 ISDA 7 Template:M detail 2002 ISDA 7

Section 8

Section 8 in a nutshell

8. Contractual Currency
8(a) Payment in the Contractual Currency: Each payment under this Agreement must be made in the currency specified for that payment (the “Contractual Currency”). Payments made in a Non-Contractual Currency will only discharge an obligation to the extent the recipient, having converted it into the Contractual Currency in good faith using commercially reasonable procedures, achieves the full amount payable in the Contractual Currency.

(i) If the converted amount falls short of the amount payable in the Contractual Currency, the payer must immediately pay the necessary balance in the Contractual Currency.

(ii) If the converted amount exceeds the full amount payable in the Contractual Currency, the payee must promptly refund the excess.

8(b) Judgments. If a party obtains judgment in a Non-Contractual Currency against the other for any amount due under this Agreement and, having recovered that judgment debt, a shortfall or excess remains over the original amount due in the Contractual Currency (due to the exchange rate at which the judgment creditor, in good faith and a commercially reasonable manner, converted the judgement debt into the Contractual Currency), that judgment creditor:

(i) will be entitled to immediately receive from the other party, the value of any such shortfall in the Contractual Currency; and

(ii) must promptly refund to the other party any such excess in the Contractual Currency.

8(c) Separate Indemnities. The indemnities in this Section 8 are independent of the parties’ other obligations in this Agreement. They create separate causes of action. They will apply notwithstanding any indulgence granted to the payer by the payee, or any other claims made or judgments awarded for amounts due under this Agreement.
8(d) Evidence of Loss. Under Section 8, it will be enough if a party can show that it would have suffered a loss had it actually made the currency conversion.

Comparison between versions

But for a burst of excitement and vigour by dint of which ISDA’s crack drafting squad™ found itself desirous of moving the obvious-stating “rate of exchange” definition from Section 8(b) to the main definitions section — a result of that unnecessarily defined expression also showing up in the 2002 ISDA’s new Section 6(f) — and for a mildly different way of expressing the idea of “commercial reasonableness” — Section 8 of the 1992 ISDA survived unscathed when overhauled for the 2002 ISDA.

There is no definition of Non-Contractual Currency in the ISDA Master Agreement. But I made one, because it makes life easier. Just go with me on this one.

Discussion

This is what, in the bond world, they call a currency indemnity. A currency indemnity is a part of the boilerplate that is so deeply entrenched, a piece of cod that passeth so much understanding, that generations of legal eagles have just abided by it, never asking what it is or why it is there. The young JC was one such eagle.

The currency indemnity just is. You will find in in the ISDA, in loans, bonds, repacks — in fact sprayed wordily over almost any kind of financial instrument; a kind of comfy textual furniture to make it all seem serious and important.

In a nutshell: roll with it

So if you are in a hurry, stop there: a currency indemnity is fine; people don’t usually fiddle with it: leave it; carry on.

Do not expect much by way of negotiation (among others, for the same reason: no-one else knows any better than you do what one should negotiate in a currency indemnity).

For those who remain curious

For those with the time and deep natural curiosity, or who are vexed about the “i” word, we offer the following. Take it with a pinch of salt; after all, we wrote it with one.

Let’s say I borrow from you, in euros.

Being an OG in the international capital markets, in the course of my business I will truck in all kinds of flakey currencies, payments in kind and weird securities — but I will still promise to repay my loan from you, in euros. That is my resting, fundamental contractual obligation. Euros.

Now, being an OG, I will have a sophisticated treasury function to watch lovingly over my cashflows, and it will execute such hedges currency conversions and otherwise work whatever magic I need to meet my outgoings, including the principal and interest I owe you.

This much should not really be a surprise: I borrow in euros, I repay in euros.

But all this goes out the window if — heaven forfend, and all that — I go titten hoch. At this point my treasury team would find it hard to execute the necessary hedges and conversions, even if they weren’t wandering around outside the building, woozily clutching Iron Mountain boxes full of gonks, deal toys, tombstones, pilfered stationery and personal effects. But, alas and alack, they will be. This is the whole of the law.

Now the receivers and administrators will busily be calling in, converting and collecting and liquidating my remaining assets, cash balances and generally figuring out how to best sort out my creditors, of which you are but one. There is a disaster scenario in which a failed, or failing, debtor — me — has no euros and instead offers up cash in non-contractual currencies, by way of full or partial satisfaction of what I owe. This isn’t Local courts which administer my insolvency might oblige them to do this.

No, that isn’t what the contract preferred, but it is a fact of life, so the contract allows it. That is what the currency indemnity does. It gudgingly, grants that this sort of thing can happen and puts some parameters around what goes down in such a case.

Components of a normal currency indemnity

This will boil down to the following:

Limited discharge: A non-contractual currency will only discharge the debt to the value in the contractual currency that the creditor achieves by converting it into the contractual currency in the market on reasonable terms.

No prejudice re the shortfall: If there is a shortfall, the debtor remains immediately liable for the balance: that is, the partial payment in the non-contractual currency doesn’t somehow hamstring the creditor’s legal rights to go after the rest

Reimburse excess: If there is an excess — happy days, right? — the creditor should promptly return it. Ie the non-currency payment is only am unconditional payment to the extent of the debt. This is quite a complicated ontological concept which it is best not to think about, so call this an absolute payment with a contingent reimbursement right.

Court judgments: If you are imprudent to litigate with a capital markets OG in its own jurisdiction, and you are awarded damages in a non-contractual currency (the JC is no litigator but is given to understand local courts can do this sort of thing, whether the victor likes it or not), then the same issue arises, and it is treated the same way.

Separate indemnities: Just to bring home the point, if accepting the non-contractual currency does somehow operate to undermine or waive the primary obligation to pay in full in the contractual currency, then the obligations created by the currency indemnity clause stand as separate indemnity payments. (This, by the way, is “indemnity” in its narrow sense, as “a unilateral obligation to pay a defined sum of money not by way of recompense or damages for some other failure, but just because you have agreed to pay it” and not in its “Help! Help! We are all going to die under a Cardozan excess of indeterminate liability” sense.) This is probably most important in the context of judgment debts, where the debtor might (rightly) complain that it had no choice but to pay in the local currency, and therefore try to argue that that local currency judgment, if paid in full, should discharge the debt ad to hell with the vagaries of the foreign exchange markets. The currency indemnity should put, er, paid to that argument by constructing an entirely independent obligation to pay the balance.

No requirement to actually convert: You may see a rider, as in the ISDA, that one should not have to actually convert the currency you received at a loss to prove a loss: it is okay to keep your money in the tendered currency and not crystallise the position.

Section 8(a)

One could have stopped after the first sentence, but it is a rare ISDA ninja that can help himself babbling. ISDA ninjas would make terrible used-car salespeople.

Why the ISDA Master Agreement feels the need to contemplate the discharge of obligations in one currency by payment of an amount in another — non-compliance with the clear terms of the contract in other words — we can only guess. The payer’s ability to plow this obverse furrow still depends on the payee’s good humour: the payee is not obliged to indulge the payer, but may, by converting the tendered amount into the Contractual Currency.

If there is a shortfall, the payer must pay it immediately — fair, since the payer is craving the recipient’s indulgence in the first place and is really courting a Failure to Pay or Deliver by his cavalier behaviour.

If there is an excess, the recipient must return it promptly — also fair, seeing as she didn’t ask to be paid in Brazilian Real, and had to go to all the trouble of converting it and faffing around at the FX counter at that little shop in the arcade near Liverpool Street.

Section 8(b)

Enforcing judgments in far-flung places

It is a fact of life that when enforcing a cross-border contract, you may find yourself journeying to foreign climes in a bid to prise assets and payments out of a foreign counterparty. Places like Italy. With the best will in the world, and the firmest written intentions that the agreement be governed by English law and justiciable exclusively by her majesty’s courts, that may still mean engaging with, and obtaining judgments from foreign court systems, if that is where your counterparty and its financial resources are located. Those courts may be obliged to award their judgments, about your judgment, in their local currency. That exposes you to FX risk. This clause requires the parties to true up — immediately, should the windfall accrue to the Defaulting Party, only promptly if it accrues to the innocent one — by reference to a fairly determined “rate of exchange”.

Nerd’s point: This obligation is, strictly speaking, an indemnity obligation, in the true sense of that concept, in that is a payment that becomes due by reference to an externality that was not caused by breach of contract (even though originally it might have arisen out of one). So that’s nice.

Rate of exchange

Abvout that “rate of exchange” — in the 1992 ISDA defined on the spot; in the 2002 ISDA promoted to the big league and featuring in the main Definitions section. Allow the JC a pet moan. Goddamn “definitions”.

You could scarcely ask for a less necessary definition. In their hearts, you sense ISDA’s crack drafting squad™ knew this, for they couldn’t find it in themselves to even capitalise it. In the 1992 ISDA, rate of exchange didn’t even make the Definitions section, but was half-heartedly tacked onto the end of a clause halfway through the Contractual Currency section. It made it into the 2002 ISDA’s Definitions Section only because it somehow wangled its unecessary way into the new Set-off clause (Section 6(f) of the 2002 ISDA).

But if two guiding principles of defining terms are (i) don’t, for terms you only use once or twice, and (ii) don’t, if the meaning of the thing you are considering defining is patently obvious — then “rate of exchange” comprehensively fails the main criteria of a good definition.

The JC’s general view is, all other things being equal, to ease comprehension, eschew definitions.

Also, could they not have used “exchange rate”, instead of rate of exchange?

Section 8(c)

So who even knew the things in Section 8(a) and 8(b) were indemnities?

They are, in the strict literal sense of an indemnity: a contractual promise to pay a sum of money (the difference between the amount paid in the Non-Contractual Currency and the actual amount owed in the Contractual Currency) in circumstances not (strictly) amounting to a breach; they are not in the popular (but misconceived) conception of an indemnity as some kind of all-conquering smart bomb.

Now, we must hush, if we want to get home at a reasonable hour, because the Indemnity is one of the JC’s pet subjects. Get him started and that’s the evening gone.

Section 8(d)

So if your clottish counterparty can’t follow simple instructions and sends you Lire rather than Pesetas, and thereby fails to cover your loss, as long as you can prove what the exchange rate was at the time you would have exchanged it into the Contractual Currency, you can recover a loss, even if you didn’t.

Now this, to me, seems a little controversial. What if the exchange rate dropped through the floor, then recovered, and the Non-Affected Party held his nerve. Can he then cherry-pick? Template:M detail 2002 ISDA 8

Section 9

Section 9 in a nutshell

9. Miscellaneous
9(a) Entire Agreement. This Agreement is the entire agreement between the parties on its subject matter. Neither party has relied on any representation (except the actual Representations) when entering into it and each party therefore waives all rights it might otherwise have to claim it has. That said, nothing will limit either party’s liability for fraud.
9(b) Amendments. An amendment of, or waiver given under, this Agreement will only be effective if in writing and executed by each of the parties otherwise suitably electronically confirmed.
9(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and 6(c)(ii), the parties’ obligations will survive the termination of any Transaction.
9(d) Remedies Cumulative. Except otherwise stated, a party’s rights under this Agreement are additional to any rights it happens to have at law.
9(e) Counterparts and Confirmations.

9(e)(i) Counterparts: This Agreement (and any amendment) may be executed in counterparts.

9(e)(ii) Confirmations: The parties will be bound by the terms of each Transaction from the moment they agree to those terms. They must agree a confirmation (which they will designate as a Confirmation) as soon as practicable afterwards. The Confirmation will be evidence of a binding supplement to this Agreement. They may do this electronically (including by email!).

9(f) No Waiver of Rights. A failure to exercise any right under this Agreement will not waive that right. Any exercise of a right will not be preclude any later exercise of that right, or the exercise of any other right.
9(g) Headings. Headings in this Agreement are for convenience only and should not be considered when interpreting this Agreement.
9(h)(i) Prior to Early Termination. Before an Early Termination Date is designated for the relevant Transaction:―

(1) Interest on Defaulted Payments. If a party defaults on any payment obligation, it will pay interest on the overdue amount from the original due date to the actual payment date (excluding any relevant Waiting Period), at the Default Rate.

(2) Compensation for Defaulted Deliveries. If a party defaults on any delivery obligation, it will, on demand:

(A) compensate the other party per the relevant Confirmation; and

(B) pay interest on the fair market value of the delivery obligation from the original due date to the actual delivery date (excluding any period to which clause (4) below applies), at the Default Rate. The innocent party will determine the fair market value as of the scheduled delivery date in good faith and a commercially reasonable manner.

(3) Interest on Deferred Payments. If:―

(A) a party does not pay an amount that, but for Section 2(a)(iii), would have been payable, it will, subject to (B) and (C) below, pay interest on demand from the date the amount would otherwise have been payable to the date it actually becomes payable, at the Applicable Deferral Rate;

(B) a payment is deferred under Section 5(d), the party which would otherwise have been required to make it will (as long as no Event of Default or Potential Event of Default exists, pay interest on demand from the original due date to the earlier of the date it is no longer deferred and the date on which the Event of Default or Potential Event of Default occurs, at the Applicable Deferral Rate; or

(C) a party fails (after giving effect to any deferral period set out in (B) above) to make any payment because of an Illegality or a Force Majeure Event it will, as long as the Illegality or Force Majeure Event continues and no Event of Default or Potential Event of Default exists, pay interest on demand from the date the party failed to make the payment (or, if later, the date the payment is no longer deferred) to the earlier of the date on which the Illegality or Force Majeure Event ceases and the date on which an Event of Default or Potential Event of Default occurs to that party (excluding any period in which compensation is due under clause (B) above), at the Applicable Deferral Rate.

(4) Compensation for Deferred Deliveries. If:―

(A) a party does not settle any delivery that, but for Section 2(a)(iii), it would have been required to make; or

(B) a delivery is deferred under Section 5(d); or

(C) a party fails to deliver because of an Illegality or Force Majeure Event when any applicable Waiting Period has expired,

that party will compensate and pay interest to the other party on demand (after such delivery becomes required) as required the relevant Confirmation.

9(h)(ii) Early Termination. Upon an Early Termination Date on a Transaction:―

9(h)(ii)(1) Unpaid Amounts. To determine an Unpaid Amount for that Transaction, interest will accrue on any payment obligation or the fair market value of any delivery obligation from the date the obligation was due to be performed until the Early Termination Date, at the Applicable Close-out Rate.

9(h)(ii)(2) Interest on Early Termination Amounts. If an Early Termination Amount is due it must be paid with interest in the Termination Currency from the Early Termination Date until the date it is paid, at the Applicable Close-out Rate.

9(h)(iii) Interest Calculation. Any interest under this Section will compound daily and be for the actual number of days elapsed.

Comparison between versions

Section 9(a): The first sentence is more or less the same in each version. Then the 2002 ISDA adds a lengthy disclaimer of any pre-contractual representations — presumably, not counting the express ones patiently documented in Section 3.
Section 9(b): Section 9(b) is, as far as makes any difference whatsoever unchanged between the 1992 ISDA and the 2002 ISDA. There are some formalistic changes, but — you know.
Section 9(c): Section 9(c) is identical as between 1992 ISDA and the 2002 ISDA.
Section 9(d): This clause is identical in the 1992 ISDA and the 2002 ISDA.
Section 9(e): But for some finicking around at the margin — allowing Confirmations to be exchanged by telex, fax or email; that kind of thing — the 2002 ISDA is substantially the same as for the 1992 ISDA
Section 9(f): This clause is identical in the 1992 ISDA and the 2002 ISDA.
Section 9(g): This clause is identical in the 1992 ISDA and the 2002 ISDA.
Section 9(h): There is no strict equivalent to Section 9(h) in the 1992 ISDA. But see Section 2(e), which is a half-arsed attempt at the same thing.

Friends of the JC will know that “half-arsed” isn’t always bad, of course — it can be quite good, in fact — characterising, as it does, the sum total of the JC’s paltry achievements on this barren rock — and in any case, it leaves something to the imagination and we all like a little private intellectual space to indulge our whims and fantasies every now and then, don’t we?

As you step through this monstrosity, going to town on devilish details as it does, you may find it leads you directly into the “I’m sorry I asked” file.

Are you sorry yet? Well, you did ask.

Discussion

Section 9(a)

What you see is what you get, folks: if it ain’t written down in the ISDA Master Agreement, it don’t count, so no sneaky oral representations. But, anus matronae parvae malas leges faciunt, as we Latin freaks say: good luck in enforcing that if your counterparty is a little old lady.

Note also that liability for a fraudulent warranty or misrepresentation won’t be excluded. So if your oral representation or warranty is a bare-faced lie, the innocent party can maybe still rely on it in entering the agreement, even if it isn’t written down, though good luck parsing the universe of possible scenarios to figure out when that qualification might bite.

Smart-arse point: A warranty is a contractual assurance, made as part of a concluded contract, and cannot, logically, be relied on by the other party when entering into the contract. An assurance on which one relies when deciding to enter into a contract is a representation.

Confirmations

“This Agreement”, courtesy of how it is defined in Section 1(c), includes the ISDA Master pre-printed form, Schedule and each Confirmation entered into under it.

The entire agreement clause is legal boilerplate to nix any unwanted application of the parol evidence rule — to make sure one only cares for the four corners of the written agreement, and no extra-documentational squirrelling is allowed. Which might be a problem because the time-honoured understanding between all right-thinking derivatives trading folk is that the oral agreement, between the traders is the binding legal agreement, and not the subsequent confirmation, hammered out between middle office and operations folk after the trade is done. Hasten to Section 9(e)(ii) — the Confirmation is only evidence of the binding agreement. Could that be it?

Section 9(b)

ISDA’s crack drafting squad™ takes a clause which didn’t really need to be said, and converts it into a monster. If we convert this to symbolic logic it must mean this:

Effective amendment or waiver =In writing AND [EITHER executed by each party OR confirmed by exchange of [EITHER Telex OR electronic message]]

“In writing” means recorded for posterity, in words ingestable by means of the eyes, as opposed to the ears. This is not the OED definition, I grant you — I made it up just now — but it zeroes in on the immutable fact that, whether it is on parchment, paper, cathode ray tube, LED screen or electronic reader, you take in writing by looking at it. Not “orally” — from the mouth — or for that matter, “aurally” — through the ears — nor, in the JC’s favourite example, via semaphore — by a chap waving flags from a distant hill — but in visible sentences, made up of visual words.

Sentences. Words. Mystic runes carved upon the very living rock. Anything else? Could “writing” include memes? GIFs? Emojis? We suppose so — but do you “write” them, as such? — but to the wider question “can communications apprehended visually but of a non-verbal nature be contractually significant?” the answer is undoubtedly yes.

Acceptance, to be legally binding, need not be “in writing”. Nor “orally”. Acceptance just needs to be clear. Whether one has accepted is a matter for the laws of evidence. There is little doubt that one who has signed, sealed and delivered a parchment deed by quill in counterpart has accepted its contents — it is about as good evidence as you could ask for, short of the fellow admitting it in cross-examination — but a merchant need not, and often does not, reach this gold standard when concluding commercial arrangements about town.

Who has not stumbled morosely into the newsagent of a Sunday morning, wordlessly pushed a copper across the counter and left with a copy of The Racing Post, not having exchanged as much as a glance with the proprietor? Do we doubt for an instant that a binding contract was formed during that terse interaction?

There is, in theory, a whole ecosystem of non-verbal communications — winks, nods, wags, shaken heads, facial tics and cocked eyebrows — and nor should we forget, those who stand on distant hills and communicate by smoke signal, Greek heroes who miscommunicate their safe return by sail colour or modern admirals who transmit instructions to the fleet using a flag sequence.

Any of these can, in theory, convey offer, acceptance and consideration as well can a written or oral communication.

Emojis

The King’s Bench of Saskatchewan — not an English court to be sure, but of persuasive value, especially when speaking this much sense — has recently affirmed the JC’s conviction about emojis 😬.

In an argument about whether a merchant was bound to supply a consignment of flax on the back of an exchange of SMS messages.

The plaintiff drew up a contract to purchase SWT 86 metric tonnes of flax from the defendant, wet-signed it, took a photo of the contract and texted the photo to the defendant with the text message: “Please confirm flax contract”.

The defendant texted back “👍”.

The defendant didn’t eventually deliver the flax, and by the time the plaintiff could source alternative flax prices had gone up. The plaintiff claimed damages.

The defendant argued the thumbs-up emoji simply confirmed that he received the Flax contract but was not acceptance of its terms. He claimed he was waiting for the full terms and conditions of the Flax Contract to review and sign. Partly on the basis of a prior course of dealing with deals done on monosyllabic text messages, the court wasn’t having it:

“This court readily acknowledges that a 👍 emoji is a non-traditional means to “sign” a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a “signature” – to identify the signator ... and as I have found above – to convey ... acceptance of the flax contract.

I therefore find that under these circumstances that the provisions of [the Canadian Sale of Goods Act 1978] have been met and the flax contract is therefore enforceable. ”

Section 9(c)

Netting and close-out

Why should this matter here? Well, because netting, in a word. Here the fabulous nuances of the ISDA Master Agreement come into play. Close-out netting — as we all know, a clever if somewhat artificial and, in practical application, quite tedious concept — is not something that just happens by operation of the common law. Set-off, which does, is a narrower and flakier thing requiring all kinds of mutuality that might not apply to your ISDA Master Agreement.

The contractual device of close-out netting, by contrast, relies on the patient midwifery of ISDA’s crack drafting squad™ and the sophisticated contrivances they popped into the ISDA Master Agreement: especially the parts that say all Transactions form a Single Agreement, and those long and dusty passages in Section 6 which painfully recount how one terminates those Transactions and nets down all the resulting exposures should things go tits up.

Now, it really wouldn’t do if one were found to have thrown those clever legal artifacts on the fire before seeking the common law’s help to manage your way out of a portfolio with a busted counterparty would it. Section 9(c) is there to avoid the doubt that you might have done so: Just because you’ve declared an Early Termination Date, that doesn’t mean all bets are off. Just the live Transactions.

As far as the JC can see, through his fogged-up, purblind spectacles, this doubt, like most, didn’t need avoiding and shouldn’t have been present in the mind of a legal eagle of stout mental fortitude: it is clear on its face that terminating a transaction under pre-specified mechanism in the contract is not to cancel the contract and sue for damages, but to exercise an option arising under it, and all your mechanical firepower remains in place.

Indeed, there is no mechanism for terminating an ISDA Master Agreement itself, at all. Even in peace-time. This has led at least one commentator to hypothesise that this proves that derivatives trading is all some kind of Illuminati conspiracy.

Section 9(d)

Over the centuries the common law, as we know, has done a fine job of shaping and polishing a merchant’s remedies for breach of contract: — remedies which are, broadly, indifferent to what the contract happens to say.

The reason for that is simple: by the time a merchant comes to ask about its rights upon breach, the instrument that conferred them is broken.

Fruity expectations of a healthy, long and fecund forward relationship lie suffocating upon the salted earth. The contract is the proverbial “ex parrot”: it is no longer a reliable guide to how one should expect the other to behave. The defaulter is a defaulter and cannot be relied upon to do what she promised to do. So, nor is the aggrieved party be expected to carry on doggedly popping coppers in the slot: the common law asks that she conducts herself reasonably and with good faith in the circumstances; it does not demand a total want of common sense.

The sacred pact having fractured, it is for the court to draw upon its centuries of analogy to put the matters right.

It does that by reference to its own principles, not the contract’s: causation, contribution, foreseeability and determinacy of loss. the court applies these to the deal the suitor thought it had to work out a juridical compensation for its loss of bargain.

That is the magnificent furniture the laws of England bestow upon us. It seems counterproductive — passive aggressive, almost — for a party to insist, in detail, on what should happen its customer does not do it promises to do. Bloody-minded, almost.

Where the contract involves a bank, though — especially one that is lending you money — it is de rigueur. Banks like to rule out doubt, help themselves to extra rights: liens, set-off, netting of liabilities — banking contracts are a kind of research and development department where clever people contrive intricate clockwork escapements governing the grounds on which they deploy capital. Here “ex-parrotness” is the overriding mischief a lender seeks to manage, and legal eagles like to reinforce the ancient customary rules of contract.

It isn’t that the common law is no good; it is just that where you clearly foresee a specific breach, a contract can be better. The law of unintended consequences rules the world of finance, though, and it is not hard to imagine carefully drawn contractual terms working out worse than the general rules relating to fundamental breach. Hence this boilerplate: careful provisions designed to assist a wronged party should not be allowed to get in the way of general law of contract if it would work out to be better, and this slug of boilerplate is meant, to ensure — by means of contractual term — that they do not.

Section 9(e)

In which the ISDA Master Agreement deals with the pointless topic of counterparts, and the workaday one of Confirmations.

Section 9(e)(i) Counterparts

There is an impassioned essay about the idiocy of counterparts clauses elsewhere. For now, just know this:

Black’s Law Dictionary has the following to say on counterparts:

“Where an instrument of conveyance, as a lease, is executed in parts, that is, by having several copies or duplicates made and interchangeably executed, that which is executed by the grantor is usually called the “original,” and the rest are “counterparts;” although, where all the parties execute every part, this renders them all originals.”

Sometimes it is important that more than one copy of a document is recognised as an “original” — for tax purposes, for example, or where “the agreement” must be formally lodged with a land registry. But these cases, involving the conveyance of real estate, are rare — non-existent, indeed, when the field you are ploughing overflows with flowering ISDA Master Agreements, confidentiality agreements and so on. If yours does — and if you are still reading, I can only assume it does, or you are otherwise at some kind of low psychological ebb — a “counterparts” clause is as useful to you as a chocolate tea-pot.

Indeed: even for land lawyers, all it does is sort out which, of a scrum of identical documents signed by different people, is the “original”. This is doubtless important if you are registering leases in land registries, or whatever other grim minutiae land lawyers care about — we banking lawyers have our own grim minutiae to obsess about, so you should forgive us for not giving a tinker’s cuss about yours, die Landadler.

ANYWAY — if your area of legal speciality doesn’t care which of your contracts is the “original” — and seeing as, Q.E.D., they’re identical, why should it? — a counterparts clause is a waste of trees. If the law decrees everyone has to sign the same physical bit of paper (and no legal proposition to our knowledge does, but let’s just say), a clause on that bit of paper saying that they don’t have to, is hardly going to help.

Mark it, nuncle: there is a chicken-and-egg problem here; a temporal paradox — and you know how the JC loves those. For if your contract could only be executed on several pieces of paper if the parties agreed that, then wouldn’t you need them all to sign an agreement, saying just that, on the same piece of paper? And since, to get that agreement, they will have to sign the same piece of paper, why don’t you just have done with it and have them all sign the same copy of the blessèd contract, while you are at it?

But was there ever a logical cul-de-sac so neat, so compelling, that it stopped a legal eagle insisting on stating it anyway, on pain of cratering the trade? There are little eaglets to feed, my friends.

“Trade” versus “confirmation”: celebrity death-match

If a trader agrees one thing, and the confirmation the parties subsequently sign says another, which gives? A 15 second dealing-floor exchange on a crackly taped line, or the carefully-wrought ten page, counterpart-executed legal epistle that follows it?

The original oral trade prevails. As to why — we address that in the premium section.

Dare we mention ... email?

Note also the addition of e-mail as a means of communication to the 2002 ISDA (email not really having been a “thing” in 1992). This caused all kinds of fear and loathing among the judiciary, when asked about it, as can be seen in the frightful case of Greenclose v National Westminster Bank plc.Oh dear, oh dear, oh dear.

Timely confirmation regulations and deemed consent

Both EMIR and Dodd Frank have timely confirmation requirements obliging parties to have confirmed their scratchy tape recordings within a short period (around 3 days). This fell out of a huge backlog in confirming structured credit derivatives trades following the Lehman collapse.

Roger Moore indahouse

Lastly, a rare opportunity to praise those maestros of legal word-wrangelry, ISDA’s crack drafting squad™. In Section 9(e)(ii), they contemplate that one might agree a Transaction “orally or otherwise”. This is a smidgen wider than the usual legal eagle formulation of orally or in writing. It shows that while the swaps whizzes were conservative about how to close out a Transaction, when putting one on you are constrained only by the bounds of your imagination and the limits of interpersonal ambiguity: not just written words, nor even oral ones, but the whole panoply of possible human communications: semaphore, naval flags, Morse code, waggled eyebrows, embarrassed smiles and any other kinds of physical gesture.

Section 9(f)

Waiver: a place where the laws of the New World and the Old diverge. Does one really need a contractual provision dealing with the consequences of a fellow’s good-natured indulgence when carrying on commerce under an ISDA Master Agreement? Those with an English qualification will snort, barking reference to Hughes v Metropolitan Railway and say this Section 9(f) is inconsequential fluff that goes without saying; those acquainted with the Uniform Commercial Code and the monstrous slabs of Manhattan will tread more carefully, lest they create a “course of dealing”.

Since the ISDA Master Agreement was designed with either legal system in mind, ISDA’s crack drafting squad™ came up with something that would work in either. To be sure, it is calculated to offend literary stylists and those whose attention span favours minimalism amongst those who ply their trade in the old country, but it does no harm.

Section 9(g)

So suddenly, in Section 9(g) of all places, the members of ISDA’s crack drafting squad™ wake up out of their collective fever dream, and this is what they say: It’s like, “okay, so we wrote them; we did put them here — hands up, we admit it — but we don’t mean anything by them”. And what is a fellow to make of the headings before Section 9 that, short days ago, being a logical fellow, I read, enjoyed and imbued with symbolic meaning? Am I supposed to just throw that crystalline construct away now? It just seems such a waste.

Don’t you just love lawyers?

Section 9(h)

Section 9(h) deals with the various scenarios where interest — over and above the amounts stated to be payable as Fixed Rate and Floating Rate Options under a given Transaction — might apply to deferred and delayed payments under the ISDA.

Those scenarios are:

Payment default: Someone fails to pay money under a Transaction when they are meant to.

Delivery default: Someone fails to deliver a non-money asset under a Transaction when they are meant to.

Non-default deferral: Some other externality intervenes to make payment impossible, which does not amount to default: a market disruption, a Force Majeure Event, a forced suspension of obligations for reasons beyond the control or fault of either party.

The innocent and the damned

In that magically over-complicated way that is the blast signature of ISDA’s crack drafting squad™, the interest rate that applies to delinquency differs depending on the reason for it; the more “at fault” a party is, the more punitive the rate.

“Innocent” deferrals attract a rate called the Applicable Deferral Rates. The more punitive one are called Default Rates. (This, by the way, is one of the significant “upgrades” from the 1992 ISDA, which had a rather half-hearted penalty interest provision in Section 2(e)).

Assets versus cash

Also, the calculation basis is more complicated if the deferral involves the delivery of an asset since you need a way of figuring out the market value of the asset on which interest can be said to accrue.

Waiting periods

And since one kind of deferral can morph into another — upon the expiry of a Waiting Period, for example — the exact computation of deferrals is fraught. You might even think that the ’squad’s quest for infinite exactitude in a scenario which in many cases will include a bankrupt debtor who isn’t going to pay you much of what you are owed in any case, is a bit overdone. We couldn’t possibly comment.

Subsection 9(a)

Comparison between versions

The first sentence is more or less the same in each version. Then the 2002 ISDA adds a lengthy disclaimer of any pre-contractual representations — presumably, not counting the express ones patiently documented in Section 3.

Discussion

What you see is what you get, folks: if it ain’t written down in the ISDA Master Agreement, it don’t count, so no sneaky oral representations. But, anus matronae parvae malas leges faciunt, as we Latin freaks say: good luck in enforcing that if your counterparty is a little old lady.

Note also that liability for a fraudulent warranty or misrepresentation won’t be excluded. So if your oral representation or warranty is a bare-faced lie, the innocent party can maybe still rely on it in entering the agreement, even if it isn’t written down, though good luck parsing the universe of possible scenarios to figure out when that qualification might bite.

Smart-arse point: A warranty is a contractual assurance, made as part of a concluded contract, and cannot, logically, be relied on by the other party when entering into the contract. An assurance on which one relies when deciding to enter into a contract is a representation.

Confirmations

“This Agreement”, courtesy of how it is defined in Section 1(c), includes the ISDA Master pre-printed form, Schedule and each Confirmation entered into under it.

The entire agreement clause is legal boilerplate to nix any unwanted application of the parol evidence rule — to make sure one only cares for the four corners of the written agreement, and no extra-documentational squirrelling is allowed. Which might be a problem because the time-honoured understanding between all right-thinking derivatives trading folk is that the oral agreement, between the traders is the binding legal agreement, and not the subsequent confirmation, hammered out between middle office and operations folk after the trade is done. Hasten to Section 9(e)(ii) — the Confirmation is only evidence of the binding agreement. Could that be it? Template:M gen 2002 ISDA 9(a) Template:M detail 2002 ISDA 9(a)

Subsection 9(b)

Discussion

ISDA’s crack drafting squad™ takes a clause which didn’t really need to be said, and converts it into a monster. If we convert this to symbolic logic it must mean this:

Effective amendment or waiver =In writing AND [EITHER executed by each party OR confirmed by exchange of [EITHER Telex OR electronic message]]

“In writing” means recorded for posterity, in words ingestable by means of the eyes, as opposed to the ears. This is not the OED definition, I grant you — I made it up just now — but it zeroes in on the immutable fact that, whether it is on parchment, paper, cathode ray tube, LED screen or electronic reader, you take in writing by looking at it. Not “orally” — from the mouth — or for that matter, “aurally” — through the ears — nor, in the JC’s favourite example, via semaphore — by a chap waving flags from a distant hill — but in visible sentences, made up of visual words.

Sentences. Words. Mystic runes carved upon the very living rock. Anything else? Could “writing” include memes? GIFs? Emojis? We suppose so — but do you “write” them, as such? — but to the wider question “can communications apprehended visually but of a non-verbal nature be contractually significant?” the answer is undoubtedly yes.

Acceptance, to be legally binding, need not be “in writing”. Nor “orally”. Acceptance just needs to be clear. Whether one has accepted is a matter for the laws of evidence. There is little doubt that one who has signed, sealed and delivered a parchment deed by quill in counterpart has accepted its contents — it is about as good evidence as you could ask for, short of the fellow admitting it in cross-examination — but a merchant need not, and often does not, reach this gold standard when concluding commercial arrangements about town.

Who has not stumbled morosely into the newsagent of a Sunday morning, wordlessly pushed a copper across the counter and left with a copy of The Racing Post, not having exchanged as much as a glance with the proprietor? Do we doubt for an instant that a binding contract was formed during that terse interaction?

There is, in theory, a whole ecosystem of non-verbal communications — winks, nods, wags, shaken heads, facial tics and cocked eyebrows — and nor should we forget, those who stand on distant hills and communicate by smoke signal, Greek heroes who miscommunicate their safe return by sail colour or modern admirals who transmit instructions to the fleet using a flag sequence.

Any of these can, in theory, convey offer, acceptance and consideration as well can a written or oral communication.

Emojis

The King’s Bench of Saskatchewan — not an English court to be sure, but of persuasive value, especially when speaking this much sense — has recently affirmed the JC’s conviction about emojis 😬.

In an argument about whether a merchant was bound to supply a consignment of flax on the back of an exchange of SMS messages.

The plaintiff drew up a contract to purchase SWT 86 metric tonnes of flax from the defendant, wet-signed it, took a photo of the contract and texted the photo to the defendant with the text message: “Please confirm flax contract”.

The defendant texted back “👍”.

The defendant didn’t eventually deliver the flax, and by the time the plaintiff could source alternative flax prices had gone up. The plaintiff claimed damages.

The defendant argued the thumbs-up emoji simply confirmed that he received the Flax contract but was not acceptance of its terms. He claimed he was waiting for the full terms and conditions of the Flax Contract to review and sign. Partly on the basis of a prior course of dealing with deals done on monosyllabic text messages, the court wasn’t having it:

“This court readily acknowledges that a 👍 emoji is a non-traditional means to “sign” a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a “signature” – to identify the signator ... and as I have found above – to convey ... acceptance of the flax contract.

I therefore find that under these circumstances that the provisions of [the Canadian Sale of Goods Act 1978] have been met and the flax contract is therefore enforceable. ”

Subsection 9(c)

Comparison between versions

Section 9(c) is identical as between 1992 ISDA and the 2002 ISDA.

Discussion

Template:M summ 2002 ISDA 9(c) Template:M gen 2002 ISDA 9(c) Template:M detail 2002 ISDA 9(c)

Subsection 9(d)

Comparison between versions

This clause is identical in the 1992 ISDA and the 2002 ISDA.

Discussion

Template:Rights cumulative capsule Template:M gen 2002 ISDA 9(d) Template:M detail 2002 ISDA 9(d) Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book chapter Template:2002 isda book chapter Template:2002 isda book chapter Template:2002 isda book chapter Template:2002 isda book chapter Template:2002 isda book subchapter}} Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter Template:2002 isda book subchapter