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2016 ISDA Credit Support Annex (VM) (English law)
A Jolly Contrarian owner’s manual™
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Paragraph 3 in a Nutshell™
Use at your own risk, campers!
3(a) Transfers. All transfers of Eligible Credit Support (VM), Equivalent Credit Support (VM), Interest Payment (VM) or Equivalent Distributions will be made following the relevant receipient’s instructions:
- 3(a)(i) for cash, by transfer into the recipient’s bank account;
- 3(a)(ii) for physically settled certificated securities, by delivery in appropriate physical form to the recipient with duly executed transfer instruments, stamps and documents needed to effect legally valid transfer of legal and beneficial title to the recipient; and
- 3(a)(iii) for book-entry securities, by causing the securities intermediary to change its books and records to reflect a legally effective transfer of legal and beneficial title to the recipient.
Subject to Paragraph 4, if a deliveror receives a demand for Eligible Credit Support (VM) or Equivalent Credit Support (VM) by the Notification Time, then it must transfer by the close of business on the Regular Settlement Day for the date of the demand; if later than that, by close of business on the Regular Settlement Day for the following day.
3(b) Calculations. The Valuation Agent will calculate Value and Exposure for Paragraph 2 (transfers) and 4(a) (disputes) as of the Valuation Time.
When calculating Value, it may use close of businessValues for the Eligible Credit Support (VM) as of the Valuation Time. When calculating Exposure, it may use close of business data in relevant markets as of the Valuation Time.
The Valuation Agent will transmit its calculations by the Notification Time on the Local Business Day following the Valuation Date (or other calculation date).
3(c) Exchanges.
- (i) On any Local Business Day the Transferor may ask the Transferee to exchange some “New Credit Support (VM)” for some “Original Credit Support (VM)” already in its Credit Support Balance (VM).
- (ii) If the Transferee consents:
- (A) the Transferor must transfer the New Credit Support (VM) to the Transferee on the Settlement Day after it receives the Transferee’s consent; and
- (B) the Transferee must transfer to equivalent Original Credit Support (VM), with a prevailing Value as close as practicable to, but not more than, that of the New Credit Support (VM), to the Transferor on the Settlement Day after the Transferee receives the New Credit Support (VM) (the “Exchange Date”).
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Full text of Paragraph 3
Paragraph 3. Transfers, Calculations and Exchanges
3(a) Transfers. All transfers under this Annex of any Eligible Credit Support (VM), Equivalent Credit Support (VM), Interest Payment (VM) or Equivalent Distributions will be made in accordance with the instructions of the Transferee or Transferor, as applicable, and will be made:
- 3(a)(i) in the case of cash, by transfer into one or more bank accounts specified by the recipient;
- 3(a)(ii) in the case of certificated securities which cannot or which the parties have agreed will not be delivered by book-entry, by delivery in appropriate physical form to the recipient or its account accompanied by any duly executed instruments of transfer, transfer tax stamps and any other documents necessary to constitute a legally valid transfer of the transferring party’s legal and beneficial title to the recipient; and
- 3(a)(iii) in the case of securities which the parties have agreed will be delivered by book-entry, by causing the relevant depository institution (s) or other securities intermediaries to make changes to their books and records sufficient to result in a legally effective transfer of the transferring party’s legal and beneficial title to the recipient or its agent.
Subject to Paragraph 4, and unless otherwise specified in Paragraph 11, if a demand for the transfer of Eligible Credit Support (VM) or Equivalent Credit Support (VM) is received by the Notification Time, then the relevant transfer will be made not later than the close of business on the Regular Settlement Day relating to the date such demand is received; if a demand is received after the Notification Time, then the relevant transfer will be made not later than the close of business on the Regular Settlement Day relating to the day after the date such demand is received.
3(b) Calculations. All calculations of Value and Exposure for purposes of Paragraph 2 and Paragraph 4(a) will be made by the relevant Valuation Agent as of the relevant Valuation Time, provided that, the Valuation Agent may use, in the case of any calculation of (i) Value, Values most recently reasonably available for close of business in the relevant market for the relevant Eligible Credit Support (VM) as of the Valuation Time and (ii) Exposure, relevant information or data most recently reasonably available for close of business in the relevant market(s) as of the Valuation Time. The Valuation Agent will notify each party (or the other party, if the Valuation Agent is a party) of its calculations not later than the Notification Time on the Local Business Day following the applicable Valuation Date (or, in the case of Paragraph 4(a), following the date of calculation).
3(c) Exchanges.
- (i) Unless otherwise specified in Paragraph 11, the Transferor may on any Local Business Day by notice inform the Transferee that it wishes to transfer to the Transferee Eligible Credit Support (VM) specified in that notice (the “New Credit Support (VM)”) in exchange for certain Eligible Credit Support (VM) (the “Original Credit Support (VM)”) specified in that notice comprised in the Transferor’s Credit Support Balance (VM).
- (ii) If the Transferee notifies the Transferor that it has consented to the proposed exchange,
- (A) the Transferor will be obliged to transfer the New Credit Support (VM) to the Transferee on the first Settlement Day following the date on which it receives notice (which may be oral telephonic notice) from the Transferee of its consent and
- (B) the Transferee will be obliged to transfer to the Transferor Equivalent Credit Support (VM) in respect of the Original Credit Support (VM) not later than the Settlement Day following the date on which the Transferee receives the New Credit Support (VM), unless otherwise specified in Paragraph 11(e) (the “Exchange Date”); provided that the Transferee will only be obliged to transfer Equivalent Credit Support (VM) with a Value as of the date of transfer as close as practicable to, but in any event not more than, the Value of the New Credit Support (VM) as of that date.
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Content and comparisons
Aside from the tedious suffix action on the defined terms, the provision is largely the same as for the 1995 CSA. They have binned a long for the avoidance of doubt disquisition about telexes and faxes in 3(a)(iii) and to compensate have indulged in some unnecessary details in 3(b) about what values and inputs the Valuation Agent may use in coming up with a valuation. A salutary thanks-for-phoning-in kind of effort.
Note, however, differences that are created by the different definitions of Settlement Day in the ’95, versus Regular Settlement Day in the ’16.
Summary
Template:M summ 2016 CSA 3
See also
- Transaction terminations and VM for a more in-depth discussion of the interaction of transaction termination amounts and adjustments to the Credit Support Balance that they create.
References
ISDA 2016 English Law VM Credit Support Annex
A Jolly Contrarian owner’s manual™
Transfers, Calculations and Exchanges in a Nutshell™
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Original text
Paragraph 3. Transfers, Calculations and Exchanges
3(a) Transfers. All transfers under this Annex of any Eligible Credit Support (VM), Equivalent Credit Support (VM), Interest Payment (VM) or Equivalent Distributions will be made in accordance with the instructions of the Transferee or Transferor, as applicable, and will be made:
- 3(a)(i) in the case of cash, by transfer into one or more bank accounts specified by the recipient;
- 3(a)(ii) in the case of certificated securities which cannot or which the parties have agreed will not be delivered by book-entry, by delivery in appropriate physical form to the recipient or its account accompanied by any duly executed instruments of transfer, transfer tax stamps and any other documents necessary to constitute a legally valid transfer of the transferring party’s legal and beneficial title to the recipient; and
- 3(a)(iii) in the case of securities which the parties have agreed will be delivered by book-entry, by causing the relevant depository institution (s) or other securities intermediaries to make changes to their books and records sufficient to result in a legally effective transfer of the transferring party’s legal and beneficial title to the recipient or its agent.
Subject to Paragraph 4, and unless otherwise specified in Paragraph 11, if a demand for the transfer of Eligible Credit Support (VM) or Equivalent Credit Support (VM) is received by the Notification Time, then the relevant transfer will be made not later than the close of business on the Regular Settlement Day relating to the date such demand is received; if a demand is received after the Notification Time, then the relevant transfer will be made not later than the close of business on the Regular Settlement Day relating to the day after the date such demand is received.
3(b) Calculations. All calculations of Value and Exposure for purposes of Paragraph 2 and Paragraph 4(a) will be made by the relevant Valuation Agent as of the relevant Valuation Time, provided that, the Valuation Agent may use, in the case of any calculation of (i) Value, Values most recently reasonably available for close of business in the relevant market for the relevant Eligible Credit Support (VM) as of the Valuation Time and (ii) Exposure, relevant information or data most recently reasonably available for close of business in the relevant market(s) as of the Valuation Time. The Valuation Agent will notify each party (or the other party, if the Valuation Agent is a party) of its calculations not later than the Notification Time on the Local Business Day following the applicable Valuation Date (or, in the case of Paragraph 4(a), following the date of calculation).
3(c) Exchanges.
- (i) Unless otherwise specified in Paragraph 11, the Transferor may on any Local Business Day by notice inform the Transferee that it wishes to transfer to the Transferee Eligible Credit Support (VM) specified in that notice (the “New Credit Support (VM)”) in exchange for certain Eligible Credit Support (VM) (the “Original Credit Support (VM)”) specified in that notice comprised in the Transferor’s Credit Support Balance (VM).
- (ii) If the Transferee notifies the Transferor that it has consented to the proposed exchange,
- (A) the Transferor will be obliged to transfer the New Credit Support (VM) to the Transferee on the first Settlement Day following the date on which it receives notice (which may be oral telephonic notice) from the Transferee of its consent and
- (B) the Transferee will be obliged to transfer to the Transferor Equivalent Credit Support (VM) in respect of the Original Credit Support (VM) not later than the Settlement Day following the date on which the Transferee receives the New Credit Support (VM), unless otherwise specified in Paragraph 11(e) (the “Exchange Date”); provided that the Transferee will only be obliged to transfer Equivalent Credit Support (VM) with a Value as of the date of transfer as close as practicable to, but in any event not more than, the Value of the New Credit Support (VM) as of that date.
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Resources and Navigation
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Comparisons
security interest CSAs: There is no such exact provision in the security interest CSAs. The equivalent provision is Paragraph 4, Conditions Precedent, Transfer Timing, Calculations and Substitutions, but it works quite differently on account of it being a pledge and not title transfer.
title transfer CSAs: Aside from the tedious suffix action on the defined terms, the 2016 VM CSA provision is largely the same as for the 1995 CSA. They have binned a long doubt-avoiding disquisition about telexes and faxes in 3(a)(iii) and to compensate have indulged in some unnecessary details in 3(b) about what values and inputs the Valuation Agent may use in coming up with a valuation. A salutary thanks-for-phoning-in kind of effort.
Note, however, differences that are created by the different definitions of Settlement Day in the ’95, versus Regular Settlement Day in the ’16.
Basics
Transfer Amount: a JC confection
Editorial note: for ease of reference, and to avoid having to repeatedly write:
Delivery Amount and/or Return Amount as the case may from time to time and for the time being be
JC — always one for making things up as he goes along — invented his own ISDA term: “Transfer Amount”.
This just meant do designate “the amount which one party must pay to another party under the CSA on any day”. That is, well, “the Delivery Amount and/or Return Amount as the case may from time to time and for the time being be”.
Transfer timings
We have set out the transfer timings — no small minefield — in the premium section, since it was really painful to do. Freeloaders: just be aware of the slippage due to the Notification Time, the mindwarp that is the definition of Settlement Day and Regular Settlement Day, and the fact that the relevant Local Business Day is in the place of receipt, not Transmission, and so on.
The reality is that collateral operations teams have got most of this taped, automated, and if anything were to foul up they would have long since ironed it out. And the move to call-cash daily margining has probably decomplicated things, too.
Exchanges
A counterparty who has posted one form of Eligible Credit Support and can ask the Transferee to switch it for something else. The Transferee doesn’t have to, but derivatives counterparties being the reasonable commercial fellows they are — and their operations teams being no-nonsense pragmatists they are — they will generally allow this as part of the normal ebb and flow of collateral operations. Probably less of a thing now 2016 VM CSAs tend to be cash only and base currency cash at that, but the possibility remains, and as, to our enduring regreet, we know, ISDA’s crack drafting squad™ is not usually one to let unexplored possibilities go undocumented.
Note here the Transferor can ask for an exchange, but the Transferee is not obliged to accept it. This is a fundamental provision of “title transfer”: once the Eligible Credit Support is delivered under a title-transfer 1995 CSA, the Transferee owns it absolutely. It only has to return Equivalent Credit Support. This is a special, legal ninja[1] use of the word “equivalent”. It means “fungible”; exactly the same as ~; not “broadly similar to ~”.
This is important also from a pricing (and operational) perspective: otherwise the Transferor would have a “worst-of” option and would be entitled to continually switch into the "cheapest to deliver" of the Eligible Credit Support. Needless to say, the increased collateral flows would also increase the operational burden.
Delivery Amounts: Contrast this with Delivery Amounts, where a Transferor has the option to deliver the cheapest of the Eligible Credit Support specified in the 1995 CSA.
Return Amounts: A Transferee does have a (limited) option in terms of selecting the Return Amount should there be a requirement to return posted credit support: it can select the cheapest to deliver of all the Eligible Credit Support that has been posted to it which currently comprises its Credit Support Balance.
Questions
Demand Date not a Local Business Day: What if the Demand Date is not a Local Business Day? E.g., what if it is received after the Notification Time on a Friday, meaning the Settlement Day takes place on the date on which a trade, effected on a Saturday, would have been settled in accordance with customary practice?
- Securities: For securities this is ok: a trade effected on a non-business day would be deemed to be effected on the next following Local Business Day anyway, so it would pick this up.
- Cash: For cash, not so clear.
What happens if the transferred credit support changes in value on the Settlement Day?
What happens to Exposures if the Settlement Day is a long time after the Demand Date?[2] Is the demand, if answered with irrevocable instructions to deliver, treated as having been met, or does the Exposure stay outstanding until the collateral actually comes in? The answer (counterintuitive, given that the Transferee remains subject to the credit exposure during this time) is YES, thanks to the definitions of Delivery Amount and Return Amount, both of which include the words:
“...the Value as of that Valuation Date of the Transferor’s Credit Support Balance (adjusted to include any prior Delivery Amount and to exclude any prior Return Amount, the transfer of which, in either case, has not yet been completed and for which the relevant Settlement Day falls on or after such Valuation Date).”
What if I have to pay out a Transaction termination amount which the counterparty is already holding all or some of by way of variation margin? Since it will owe me that back, we can just off set those and call it quits, right? Wrong. See our separate article on that issue.
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See also
- Transaction terminations and VM for a more in-depth discussion of the interaction of transaction termination amounts and adjustments to the Credit Support Balance that they create.
References