Breach of Agreement - 1992 ISDA Provision

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1992 ISDA Master Agreement
A Jolly Contrarian owner’s manual™

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Section 5(a)(ii) in a Nutshell

Use at your own risk, campers!
5(a)(ii) Breach of Agreement. Failure to perform any obligation (other than a payment or delivery obligation under this Agreement, to give notice of a Termination Event or to provide any required tax documentation) if not remedied within thirty days of notice;

Full text of Section 5(a)(ii)

5(a)(ii) Breach of Agreement. Failure by the party to comply with or perform any agreement or obligation (other than an obligation to make any payment under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give notice of a Termination Event or any agreement or obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party in accordance with this Agreement if such failure is not remedied on or before the thirtieth day after notice of such failure is given to the party;

Related agreements and comparisons

Related Agreements
Click here for the text of Section 5(a)(ii) in the 2002 ISDA
Click to compare this section in the 1992 ISDA and 2002 ISDA.

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Content and comparisons

Note the addition of Repudiation of Agreement to the 2002 ISDA. Common law purists like the JC will grumble that you don’t really need to set out repudiation as a breach justifying termination of a contract, because that’s what it is by definition but stating the bleeding obvious has never stopped ISDA’s crack drafting squad™ before.



A failure to perform any agreement, if not cured within 30 days, is an Event of Default, except for:

(i) those failures which already have their own special Event of Default (i.e., Failure to Pay or Deliver under Section 5(a)(i)) or
(ii) those that relate to tax, and which mean the party not complying will just get clipped for tax it rather would not.

These are the boring breaches of agreement: those of a not immediately existential consequence to a derivative relationship (like Failure to Pay or Deliver, or a party’s outright Bankruptcy) but which, if not promptly sorted out, justify shutting things down with extreme prejudice.

All rendered in ISDA’s crack drafting squad™’s lovingly tortured prose, of course: note a double negative extragvaganza in 5(a)(ii): not complying with an obligation that is not (inter alia) a payment obligation if not remedied within a month. High five, team ISDA.


See also

Template:M sa 1992 ISDA 5(a)(ii)