Credit Support Default - 1992 ISDA Provision

From The Jolly Contrarian
Jump to navigation Jump to search

1992 ISDA Master Agreement
A Jolly Contrarian owner’s manual

Section 5(a)(iii) in a Nutshell
Use at your own risk, campers!

Template:Nutshell 1992 ISDA 5(a)(iii) view template

Section 5(a)(iii) in full

5(a)(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such party to comply with or perform any agreement or obligation to be complied with or performed by it in accordance with any Credit Support Document if such failure is continuing after any applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support Document or the failing or ceasing of such Credit Support Document to be in full force and effect for the purpose of this Agreement (in either case other than in accordance with its terms) prior to the satisfaction of all obligations of such party under each Transaction to which such Credit Support Document relates without the written consent of the other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the validity of, such Credit Support Document;

view template

Related agreements and comparisons

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

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:

Get in touch
Comments? Questions? Suggestions? Requests? Sign up for our newsletter? Questions? We’d love to hear from you.
BREAKING: Get the new weekly newsletter here Old editions here

Content and comparisons

A bit of pedantic flannel found its way into the 2002 ISDA — it captures not just the failure of the Credit Support Document itself, but any security interest granted under it, catering to the legal eagle’s most paranoid fears that a contractual right can have some sort of distinct ontological existence independently from the agreement which gives it breath and enforceable currency in the first place. But otherwise the same.
Template

Summary

Note the charming contingency that ISDA’s crack drafting squad™ allows that a counterparty might default under a credit assurance offered by someone else altogether.

Before you even put your hand up: no, a Credit Support Annex between the two counterparties is not a Credit Support Document, at least under the English law construct: there it is a “Transaction” under the ISDA Master Agreement. It is somewhat different with a 1994 ISDA CSA (NY law), but even there the Users’ Guide cautions against treating a direct swap counterparty as a “Credit Support Provider” — the Credit Support Provider is meant to be a third party. However we think the effluxion of time and habitual pedantry of our American friends has eroded that presumption: these days a 1994 New York law CSA is routinely listed as a Credit Support Document.

Therefore, tediously — and we think it was avoiding precisely this tediosity that the Users’ Guide had in mind, but, best laid plans and all that — there is an ontological difference between the mechanics of close out when it comes to a failure under a 1994 New York law CSA when compared to non-payment under a 1995 English Law CSA. A 1995 English Law CSA is a Transaction under the ISDA Master Agreement and is not a Credit Support Document. A failure to meet a margin call under a that annex or any of its modern English-law successors is therefore a Failure to Pay or Deliver under Section 5(a)(i) of the actual ISDA Master Agreement; a failure to post under a 1994 New York law CSA is a Section 5(a)(iii) Credit Support Default.

Does this, in practical point of fact, make any difference at all? Is a Section 5(a)(i) Event of Default somehow stronger; more intimately connected to what you are about and therefore subtly preferable; more proper; having greater correctitude; or a matter of better form?

As far as this old goat comprehends the world, it is not.
Template

See also

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

References