Additional Termination Event - ISDA Provision

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).

2002 ISDA

Additional Termination Event. If any “Additional Termination Event” is specified in the Schedule or any Confirmation as
applying, the occurrence of such event (and, in such event, the Affected Party or Affected Parties will be as specified for
such Additional Termination Event in the Schedule or such Confirmation).

Tricks for the Young Players

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".

Best Practice Note: Therefore adding any new Termination Event must ALWAYS be achieved by labelling it a new "Additional Termination Event under Section 5(b)(v), and not a separate event under a new Section 5(b)(vi) etc. If, instead of being expressed as an “Additional Termination Event” under section 5(b)(v), which is how the ISDA Mechanism is intended to operate, it is set out as a new “5(b)(vi)” 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?