Affected Party - 1992 ISDA Provision

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1992 ISDA Master Agreement
A Jolly Contrarian owner’s manual

Definition of Affected Party in a Nutshell
Use at your own risk, campers!

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Definition of Affected Party in full

Affected Party” has the meaning specified in Section 5(b) (Termination Events).
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Related agreements and comparisons

Related Agreements
Click here for the text of Section Affected Party in the 2002 ISDA
Comparisons
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Resources and navigation

Resources Wikitext | Nutshell wikitext | 2002 ISDA wikitext | 2002 vs 1992 Showdown | 2006 ISDA Definitions | 2008 ISDA
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) Tax Event5(b)(iii) Tax Event Upon Merger5(b)(iv) Credit Event Upon Merger5(b)(v) Additional Termination Event

Index — Click ᐅ to expand:

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Content and comparisons

Not even ISDA’s crack drafting squad™ could confect something worthwhile to say which might improve this Spartan piece of text. But note the concept of Affected Party is sprayed liberally throughout Section 5(b), and it means something different in almost every context so you’re guaranteed to have fun there.

Elsewhere there is much monkeying around as regards the concept of Illegality, particularly insofar as it relates to Credit Support Documents, and the newly introduced Force Majeure.
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Summary

One who is subject to a Section 5(b) Termination Event, but not a Section 5(a) Event of Default — thus one of a marginally less opprobrious character, seeing as Termination Events are generally not considered to be one’s fault as such, but just sad things that happen that no-one expected, or wanted, but bring what was once a beautiful relationship to an end. It’s not you, it’s — well, it’s not me either — it’s just that confounded tax event that occurred upon your recent merger.

Note that, in its wisdom, ISDA’s crack drafting squad™ chose not to have a generic term for the sort of person who is subject to either a Termination Event or an Event of Default, so there is much “Defaulting Party and/or Affected Party, as the case may be” sort of malarkey. This depresses we prose stylists, but ISDA’s crack drafting squad™ has never cared about us, so we should hardly be surprised.

One lump or two?

And given its relentless quest for infinitesimal particularity — and accepting for a moment it is warranted[1] — perhaps ISDA’s crack drafting squad™ has a point, for “Affected Party” appears in subtly different guises in each of the Termination Events. Sometimes there is one Affected Party; sometimes there are two.

For all Termination Events except Credit Event Upon Merger, there is at least the theoretical potential that both parties could be affected: the same Illegality, can impede both parties’ performance, obviously enough; as can the same pandemic, plague of locusts or aquatic invastion be a Force Majeure for both. Likewise a Tax Event — if both parties are in the same jurisdiction — even if they are not, come to think of it — and for the same reason Tax Event Upon Merger might stretch its clammy claws to impact even the innocent b bystander. But a Credit Event Upon Merger affects only the party being merged, and while Additional Termination Events are al fresco, and therefore could potentially be affect both, in practice they tend to be heavily credit-focussed, and really should have been designated as “Additional Events of Default”.

Editorial comment: had only ISDA’s crack drafting squad™ thought to call Credit Event Upon Merger an Event of Default and not a Termination Event, much of this confusion might have been saved.

In any case, where there are two Affected Parties there is not a “victim” and a “perpetrator” as such, but you are in this odd new millennial world where everyone’s a victim, either party may trigger the Termination Event, both may estimate replacement prices on termination and they have to split the difference.

Where there is one Affected Party, only the Unaffected Party can terminate, and it is responsible for obtaining the valuation.
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General discussion

Events of Default vs. Termination Events: Showdown

Puzzled ISDA ingénues[2] may wonder why there are Events of Default and Termination Events under the, er, eye-ess-dee-aye. In any weather, there seem to be rather a lot of them. And there is a third, hidden category: Additional Termination Events that the parties crowbar into the Schedule.

Do we really need all these,[3] and what is the difference?

So, with feeling:

Events of Default...

Termination Events ...

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For details freaks

In the heyday of ISDA negotiation[9] just who was the Affected Party and how one should value and terminate an Affected Transaction used to be much more of a source of controversy than it is today.

This might be a function of the market’s general move to the 2002 ISDA closeout methodology, being far less fraught and bamboozling then the one in the 1992 ISDA, refraining as it does from absurdities like the First Method and alternative Market and Loss methods of valuing replacement transactions. Even those who insist on staying with the 1992 ISDA — Hello, Cleveland! — are often persuaded to upgrade the closeout methodology.

It might also be that the specific expertise as to what happens in a close out has dissipated over the years as swap dealers and investment managers have outsourced and downskilled their negotiation functions.

But the JC likes to think that in this mature market, the commercial imperative plays a part here. Termination Events come in two types: catastrophic ones, which signal the end of the relationship — and usually the ongoing viability of one of the counterparties — altogether; and Transaction-specific ones, which no-one intended or wanted, everyone regrets, but which will soon be water under the bridge, for parties who will continue to trade new derivatives into glorious, golden perpetuity.

Now any swap dealer who regards a Transaction-specific Termination Event as an opportunity to gouge its counterparty can expect a frosty reception next time its salespeople are pitching new trading axes to the CIO.

On the other hand if, when your valuation reaches her, the CIO is wandering around outside her building with an Iron Mountain box, she will be less bothered about the wantonness of your termination mark — it being no longer her problem — and as far as she does care about it all, will console herself with the reality that you are not likely to see much of that money anyway once her former employer’s insolvency estate has been wound up.
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See also

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References

  1. ~Grimaces~ Right. Moment over.
  2. The sorts of people who are interested in learning about sw-æps under an eye-ess-dee-aye. Come on, you were one once.
  3. Controversial view: No, except to protect the livelihoods of an entire cottage industry of sheeple.
  4. You will never guess who.
  5. Please write to me, at youwerewrongyoudolt@jollycontrarian.com, if you ever encounter a close-out — a real, actually-gone-through-with-it, Section 6, whole-ISDA close out based purely on an Additional Termination Event (or, actually, any event other than a Failure to Pay or Deliver or a Bankruptcy) You will be my Black Swan.
  6. I mean the Defaulting Party.
  7. Though this won’t stop excitable credit officers seeking to add that obligation in the negotiation.
  8. by no means clear: has ever anyone seen a live example of a credit event upon merger?
  9. For the record, I put the golden age of ISDA negotiation as late 90s, early noughties. We were young, carefree, crazy kids.