Close-out Amount - 1992 ISDA Provision
Overview
ISDA’s crack drafting squad™ introduced the Close-out Amount into the 2002 ISDA to correct the total trainwreck of a close-out methodology set out in the 1992 ISDA.
So the dirty secret is that there isn’t a “Close-out Amount” as such under a 1992 ISDA (or the 1987 ISDA) but, in places on this wiki, we’ll refer to one anyway, because it is better, more elegant, more stylish prose than
“... the amount determined following early termination of a Terminated Transaction using Market Quotation or Loss (as the case may be) and the Second Method, seeing as no-one in their right mind would agree to the First Method, under the 1992 ISDA”.
In the context of a 1992 ISDA that is what we mean by “Close-out Amount”.
Summary
In the “good old days” of the 1992 ISDA, you valued Terminated Transactions according to Market Quotation or Loss and those un-intuitive and — well,in the case of the first, flat-out nutso — “First” and “Second” Methods. There is a “Settlement Amount” concept under the 1992 ISDA, but it only really relates to Market Quotation.
Note the prominent requirement to achieve a “reasonable” (1992 ISDA) or “commercially reasonable” (2002 ISDA) result. On what that latter lovely expression means see Barclays v Unicredit. Spoiler: it’s basically good for brokers, as long as they aren’t being total dicks.
On the difference between an “Early Termination Amount” and a “Close-out Amount”
Regrettably, the 1992 ISDA features neither an Early Termination Amount nor a Close-out Amount. The 2002 ISDA has both, which looks like rather an indulgence until you realise that they do different things.
A Close-out Amount is the termination value for a single Transaction, or a related group of Transactions that a Non-Defaulting Party or Non-Affected Party calculates while closing out an 2002 ISDA, but it is not the final, overall sum due under the ISDA Master Agreement itself. Each of the determined Transaction Close-out Amounts summed with the various Unpaid Amounts to arrive at the Early Termination Amount, which is the total net sum due under the ISDA Master Agreement after the close-out process. (See Section 6(e)(i) for more on that).
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- JC’s “nutshell” summary of the clause
- Background reading and long-form essays
- On dealer polls (still germane, even in 2002) and their utter forlornity, as evidenced in the Lehman litigation
- What about penalties suffered as a result of failures by a party to perform its obligations? The strange case of Emissions Allowances
See also
- Section 6(e) of the ISDA Master Agreement
- Early Termination Amount
- Barclays v Unicredit on what amounts to acting in a “commercially reasonable manner”