Agreements - ISDA Provision

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2002 ISDA Master Agreement
A Jolly Contrarian owner’s manual™

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Resources Wikitext | Nutshell wikitext | 1992 ISDA wikitext | 2002 vs 1992 Showdown | 2006 ISDA Definitions | 2008 ISDA | JC’s ISDA code project
Navigation Preamble | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14
Events of Default: 5(a)(i) Failure to Pay or Deliver5(a)(ii) Breach of Agreement5(a)(iii) Credit Support Default5(a)(iv) Misrepresentation5(a)(v) Default Under Specified Transaction5(a)(vi) Cross Default5(a)(vii) Bankruptcy5(a)(viii) Merger without Assumption
Termination Events: 5(b)(i) Illegality5(b)(ii) Force Majeure Event5(b)(iii) Tax Event5(b)(iv) Tax Event Upon Merger5(b)(v) Credit Event Upon Merger5(b)(vi) Additional Termination Event

Index: Click to expand:

Section 4 in a Nutshell
Use at your own risk, campers!

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.
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Full text of Section 4

4. Agreements
Each party agrees with the other that, so long as either party has or may have any obligation under this Agreement or
under any Credit Support Document to which it is a party:―
4(a) Furnish Specified Information. It will deliver to the other party or, in certain cases under clause (iii) below, to such government or taxing authority as the other party reasonably directs:―

(i) any forms, documents or certificates relating to taxation specified in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation; and
(iii) upon reasonable demand by such other party, any form or document that may be required or reasonably requested in writing in order to allow such other party or its Credit Support Provider to make a payment under this Agreement or any applicable Credit Support Document without any deduction or withholding for or on account of any Tax or with such deduction or withholding at a reduced rate (so long as the completion, execution or submission of such form or document would not materially prejudice the legal or commercial position of the party in receipt of such demand), with any such form or document to be accurate and completed in a manner reasonably satisfactory to such other party and to be executed and to be delivered with any reasonably required certification, in each case by the date specified in the Schedule or such Confirmation or, if none is specified, as soon as reasonably practicable.

4(b) Maintain Authorisations. It will use all reasonable efforts to maintain in full force and effect all consents of any governmental or other authority that are required to be obtained by it with respect to this Agreement or any Credit Support Document to which it is a party and will use all reasonable efforts to obtain any that may become necessary in the future.
4(c) Comply With Laws. It will comply in all material respects with all applicable laws and orders to which it may be subject if failure so to comply would materially impair its ability to perform its obligations under this Agreement or any Credit Support Document to which it is a party.
4(d) Tax Agreement. It will give notice of any failure of a representation made by it under Section 3(f) to be accurate and true promptly upon learning of such failure.
4(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax levied or imposed upon it or in respect of its execution or performance of this Agreement by a jurisdiction in which it is incorporated, organised, managed and controlled or considered to have its seat, or where an Office through which it is acting for the purpose of this Agreement is located (“Stamp Tax Jurisdiction”), and will indemnify the other party against any Stamp Tax levied or imposed upon the other party or in respect of the other party’s execution or performance of this Agreement by any such Stamp Tax Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the other party.
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Related agreements and comparisons

Related Agreements
Click here for the text of Section 4 in the 1992 ISDA
Comparisons
Template:Isdadiff 4

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Content and comparisons

4 Agreements

4(a) Furnish Specified Information
4(b) Maintain Authorisations
4(c) Comply with Laws
4(d) Tax Agreement
4(e) Payment of Stamp Tax

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Summary

A hodge-podge of “state the bleeding obvious” rules, breach of some of which justifies (eventual) close-out as a “breach of agreement” — flagrantly breaking the law, carelessly losing one’s regulatory authorisations — and random tax provisions and indemnities, which by and large don’t justify close-out.

Section 4(a): “Specified information” is not actually a defined term under the ISDA Master Agreement but merely a capitalised heading. In the JC’s book, capitalising a heading is borderline illiteracy, but ISDA’s crack drafting squad™ feels differently about it and we have learned which battles to pick. At any rate, the “Specified Information”, so called, is that stuff set out in the Schedule at Part 3. These are the documents that the parties agree to deliver to each other at certain times. Part 3 itemises what must be delivered, by whom, by when, and whether the Specified Information in question is covered by the Section 3(d) representation as to its accuracy and completeness. (What good would any information be that was not covered by that representation? We will let you amble over to the article on Section 3(d) to consider that.)

The Part 3 table will also totally bugger up the formatting in your document: it is a well-known fact that no ISDA negotiator on the face of the earth knows how to format a table in Microsoft Word.

Then again, nor does anyone else.

Section 4(b): The counterpart to the “Consents” representation of Section 3(a)(iv), only about the future, neatly illustrating the difference between a representation, being a declaration of fact about the state of the world in the present or past, and a covenant, being a solemn promise to do something about it in the future. Neither the past nor the future is, as regards governmental consents, tremendously controversial, or even interesting, so we do not propose to say anything more about it.

Section 4(c): Hardly controversial that one must obey the law, but note this apparently inoffensive covenant converts that general public obligation into a private civil one, with definitive commercial consequences to your counterparty, hence the couching of the language in terms of materiality (twice) and specific ability to perform obligations under the ISDA Master Agreement.

Section 4(d): These reps allow the other party to pay without deduction for certain taxes. This covenant puts the onus on the payee (beneficiary) to ensure the other party (who is subject to the authority of the taxing authority in question) is not erroneously passing through moneys that it should withhold and for which it will be personally liable to account to the tax authority. It also gives the aggrieved payer a direct right of action to claim those amounts back off the forgetful payee.

Section 4(e): Basically, if there is any Stamp Tax imposed because of my existence or residence in a certain jurisdiction, whether imposed on me or you, I’ll pay it, unless it would have been imposed on you too. If we’re both in the same Stamp Tax Jurisdiction, the liability lies where it falls.
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General discussion

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

The importance of promptly furnishing[1] the documents for delivery goes as follows:

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.

What’s that Section 3(d) representation malarkey?

If one is required to “furnishSpecified 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.

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.

Withholding under the ISDA

TL;DR: The basic rationale is this:

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.

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See also

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References


  1. Sigh. Sending.