Inability of Head or Home Office to Perform Obligations of Branch - ISDA Provision

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2002 ISDA Master Agreement
A Jolly Contrarian owner’s manual

Resources and navigation

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 ᐅ to expand:

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

5(e) Head office unable to perform branch’s obligations. If:

(i) an Illegality or a Force Majeure occurs a branch of an Affected Party other than its head office; AND
(ii) it has representated that its head office will be liable for all branch obligations (per Section 10(a))[1]; AND
(iii) the Non-Affected Party asks the Affected Party to perform through its head office; AND
(iv) the Affected Party cannot perform because its head office would also be subject to an Illegality or a Force Majeure if tried to do so, then as long as that situation prevails, that failure will not count as a Failure to Pay or Credit Support Default for the Affected Party.

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Full text of Section 5(e)

5(e) Inability of Head or Home Office to Perform Obligations of Branch. If (i) an Illegality or a Force Majeure Event occurs under Section 5(b)(i)(1) or 5(b)(ii)(1) and the relevant Office is not the Affected Party’s head or home office, (ii) Section 10(a) applies, (iii) the other party seeks performance of the relevant obligation or compliance with the relevant provision by the Affected Party’s head or home office and (iv) the Affected Party’s head or home office fails so to perform or comply due to the occurrence of an event or circumstance which would, if that head or home office were the Office through which the Affected Party makes and receives payments and deliveries with respect to the relevant Transaction, constitute or give rise to an Illegality or a Force Majeure Event , and such failure would otherwise constitute an Event of Default under Section 5(a)(i) or 5(a)(iii)(1) with respect to such party, then, for so long as the relevant event or circumstance continues to exist with respect to both the Office referred to in Section 5(b)(i)(1) or 5(b)(ii)(1) , as the case may be, and the Affected Party’s head or home office, such failure will not constitute an Event of Default under Section 5(a)(i) or 5(a)(iii)(1). view template

Related agreements and comparisons

Related Agreements
Click here for the text of Section 5(e) in the 1992 ISDA
Comparisons
Nothing to see here, folks.

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Content and comparisons

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Summary

In a nutshell squared: If an Affected Party’s head office is subject to a Force Majeure or Illegality, It can’t be whacked for not performing a branch’s obligations under the Section 10(a) rep.

From the “shoot me” department, this multi-line bunker-buster introduced into the 2002 ISDA which, to give it some kind of credit, doesn’t generate a great deal of comment in the course of your average negotiation. That is as likely to be because it is so stupefyingly dull that no one has summoned the fortitude to read it as it is because it is a sensible, prudent allocation of risk.

But here you are, especially for you, the Jolly Contrarian’s Nutshell service renders it for you in emperor’s couturier style.
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See also

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References

  1. When — and why — would it not make that rep? Search me.