Expenses - ISDA Provision
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2002 ISDA Master Agreement A Jolly Contrarian owner’s manual™ 11 in all its glory
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Overview
Observers will note that, but for the odd comma, Section 11 in the 1992 ISDA and the 2002 ISDA are identical. And deliciously brief. Not that they couldn’t be improved, of course; they just weren’t. The dear old Jolly Contrarian has improved it for you: in the panel top left.
Summary
An indemnity is all very well ...
Bear in mind, also, that your operating theory here is that your counterparty is a Defaulting Party — i.e., it is broke. So while it’s a fine thing, this indemnity might not be of much practical use.
Not covered in the Close-out calculation?
No. The “Expenses” referred to in this provision would not be captured by the definition of “Close Out Amount” or “Early Termination Amount” because, Q.E.D., they arise only once that amount has been determined and the Non-Defaulting Party is in the process of collecting it.
Stamp Tax and Section 4(e)
In the limited circumstance of default, this section modifies the arrangement for who pays Stamp Tax as set out in Section 4(e) (which says it is the person whose tax residence precipitates it).
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- The JC’s famous Nutshell™ summary of this clause
- Difference between Events of Default and Termination Events when it comes to Expenses