Miscellaneous - Equity Derivatives Provision

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2002 ISDA Equity Derivatives Definitions
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Resources About the Equity Derivatives Definitions | (full wikitext) | (nutshell wikitext)
Hot topics Synthetic Prime Brokerage Anatomy | The Triple Cocktail | Cancellation and Payment | Calculation Agent
TOC | 1 General Definitions | 2 Option Transactions | 3 Exercise of Options | 4 Forward Transactions | 5 Equity Swap Transactions | 6 Valuation | 7 Settlement | 8 Cash Settlement | 9 Physical Settlement | 10 Dividends | 11 Adjustments and Modifications | 12 Extraordinary Events · 12.8 Cancellation Amount · 12.9 Additional Disruption Events · 12.9 List of ADEs · 12.9(b) Consequences of ADEs | 13 Miscellaneous

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Section 13 in a Nutshell
Use at your own risk, campers!

Article 13 Miscellaneous
13.1. Non-Reliance. If “Non-Reliance” applies then each party represents to the other that:

(a) it is entering into such Transaction as principal;
(b) the other party is not its fiduciary;
(c) it is not relying upon any representations not made in writing under the ISDA Master Agreement or any Confirmations;
(d) it has sought such independent advice as it considers necessary, and it has made its own decisions based upon that advice and its own judgment and not upon anything said or done by the other party; and
(e) it fully understands the Transaction and is willing and able to assume the attendant risks.

13.2. Agreements and Acknowledgments Regarding Hedging Activities.

13.2(a) If “Agreements and Acknowledgments Regarding Hedging Activities” applies each party agrees that:
(i) neither party is relying on
(A) the manner or method in which the other party hedges
(B) any communication about the other party's hedging, or
(C) any statement made by such party about its hedging
and that
(ii)
(A) each party may, but doesn't have to, hedge;
(B) any hedges are the hedging party’s proprietary positions;
(C) neither party holds its Hedge Positions for the other party, and the other party has no interest in its Hedge Positions; and
(D) each party may hedge or not in its sole discretion.
13.2(b)Hedge Positions” means any positions in securities, derivatives or FX, any stock loans or any other arrangements a party makes to hedge Transactions, whether individually or across a portfolio.

13.3. Index Disclaimer. If “Index Disclaimer” applies:

(a) Index Sponsor not involved: Each party agrees that the Index Sponsor does not endorse the Transaction, make any representations about the Index, the Transaction or their respective performance and will not be liable to anyone for any error in the Index nor obliged advise anyone of any such error.
(b) Parties not liable for Index Sponsor: Neither party is affiliated with the Index Sponsor will be liable for any act or omission of the Index Sponsor relating to the Index, or represents, warrants, undertakes or accepts any responsibility for any aspect of the Index.

13.4. Additional Acknowledgments. If “Additional Acknowledgments” applies each party acknowledges that:

13.4(a) neither the other party nor its Affiliates provides professional advice on the Transaction;
13.4(b) it has been able evaluate the merits and risks of the Transaction to its satisfaction. It is not relying on any communication from the other party as professional advice, a recommendation or any kind of assurance about performance;
13.4(c) the other party may have commercial relationships with the issuer of any Underliers and may trade the Underliers or derivatives on them at any time and that such trading may affect the price of the Underliers and consequently the Transaction.

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Full text of Section 13

Article 13 Miscellaneous
Section 13.1. Non-Reliance. If “Non-Reliance” is specified as applicable in the related Confirmation, then unless agreed to the contrary expressly and in writing in the related Confirmation for a Transaction and notwithstanding any communication that each party (and/or its Affiliates) may have had with the other party, each party to a Transaction represents to the other party that:

(a) it is entering into such Transaction as principal (and not as agent or in any other capacity);
(b) neither the other party nor any of its Affiliates or agents are acting as a fiduciary for it;
(c) it is not relying upon any representations except those expressly set forth herein or in the ISDA Master Agreement (including the related Confirmations between them);
(d) it has consulted with its own legal, regulatory, tax, business, investments, financial, and accounting advisors to the extent that it has deemed necessary, and it has made its own investments, hedging, and trading decisions based upon its own judgment and upon any advice from such advisors as it has deemed necessary and not upon any view expressed by the other party or any of its Affiliates or agents; and
(e) it is entering into such Transaction with a full understanding of the terms, conditions and risks thereof and it is capable of and willing to assume those risks.

Section 13.2. Agreements and Acknowledgments Regarding Hedging Activities.

13.2(a) If “Agreements and Acknowledgments Regarding Hedging Activities” is specified as applicable in the related Confirmation, then unless agreed to the contrary expressly and in writing in the related Confirmation for a Transaction and notwithstanding any communication that each party (and/or its Affiliates) may have had with the other party, each party to a Transaction agrees and acknowledges that:
(i) when entering into, or continuing to maintain, such Transaction, neither party is relying on
(A) the manner or method in which the other party or any of its Affiliates may establish, maintain, adjust or unwind its Hedge Positions,
(B) any communication, whether written or oral, between the parties or any of their respective Affiliates with respect to any Hedging Activities of the other party or any of its Affiliates, or
(C) any representation, warranty or statement being made by such party or any of its Affiliates as to whether, when, how or in what manner or method such party or any of its Affiliates may engage in any Hedging Activities and that
(ii)
(A) each party and its Affiliates may, but are not obliged to, hedge any Transaction on a dynamic, static or portfolio basis, by holding a corresponding position in the securities or indices referenced by or underlying such Transaction or in any other securities or indices or by entering into any Hedge Position;
(B) any Hedge Position established by either party or any of its Affiliates is a proprietary trading position and activity of such party or such Affiliate;
(C) each party or such Affiliate is not holding the Hedge Positions or engaging in the Hedging Activities on behalf or for the account of or as agent or fiduciary for the other party, and the other party will not have any direct economic or other interest in, or beneficial ownership of, the Hedge Positions or Hedging Activities; and
(D) the decision to engage in Hedging Activities is in the sole discretion of each party, and each party and its Affiliates may commence or, once commenced, suspend or cease the Hedging Activities at any time as it may solely determine.
13.2(b)Hedge Positions” means any purchase, sale, entry into or maintenance of one or more (i) positions or contracts in securities, options, futures, derivatives or foreign exchange, (ii) stock loan transactions or (iii) other instruments or arrangements (howsoever described) by a party in order to hedge, individually or on a portfolio basis, a Transaction.
13.2(c)Hedging Activities” means any activities or transactions undertaken in connection with the establishment, maintenance, adjustment or termination of a Hedge Position.

Section 13.3. Index Disclaimer. If “Index Disclaimer” is specified as applicable in the related Confirmation, then each party to a Transaction entered into and subject to these Definitions agrees and acknowledges that such Transaction is not sponsored, endorsed, sold, or promoted by the Index or the Index Sponsor and no Index Sponsor makes any representation whatsoever, whether express or implied, either as to the results to be obtained from the use of the Index and/or the levels at which the Index stands at any particular time on any particular date or otherwise. No Index or Index Sponsor shall be liable (whether in negligence or otherwise) to any person for any error in the Index and the Index Sponsor is under no obligation to advise any person of any error therein. No Index Sponsor is making any representation whatsoever, whether express or implied, as to the advisability of purchasing or assuming any risk in connection with entering into any Transaction. Neither party to any Transaction shall have any liability to the other party for any act or failure to act by the Index Sponsor in connection with the calculation, adjustment or maintenance of the Index. Except as disclosed prior to the Trade Date, neither party nor its Affiliates has any affiliation with or control over the Index or Index Sponsor or any control over the computation, composition or dissemination of the Indices. Although the Calculation Agent will obtain information concerning the Indices from publicly available sources it believes reliable, it will not independently verify this information. Accordingly, no representation, warranty or undertaking (express or implied) is made and no responsibility is accepted by either party, its Affiliates or the Calculation Agent as to the accuracy, completeness and timeliness of information concerning the Indices.
Section 13.4. Additional Acknowledgments. If “Additional Acknowledgments” is specified as applicable in the related Confirmation, then unless agreed to the contrary expressly and in writing in the related Confirmation for a Transaction and notwithstanding any communication that each party (and/or its Affiliates) may have had with the other party, each party to a Transaction acknowledges that:

13.4(a) neither the other party nor its Affiliates provides investment, tax, accounting, legal or other advice in respect of such Transaction;
13.4(b) it has been given the opportunity to obtain information from the other party concerning the terms and conditions of such Transaction necessary in order for it to evaluate the merits and risks of the Transaction. Notwithstanding the foregoing, it and its advisors are not relying on any communication (written or oral and including, without limitation, opinions of third party advisors) of the other party or its Affiliates as
(i) legal, regulatory, tax, business, investments, financial, accounting or other advice,
(ii) a recommendation to enter into such Transaction or
(iii) an assurance or guarantee as to the expected results of such Transaction;
it being understood that information and explanations related to the terms and conditions of such Transaction are made incidental to the other party’s business and shall not be considered
(A) legal, regulatory, tax, business, investments, financial, accounting or other advice,
(B) a recommendation to enter into such Transaction or
(C) an assurance or guarantee as to the expected results of the Transaction.
Any such communication should not be the basis on which the recipient has entered into such Transaction, and should be independently confirmed by the recipient and its advisors prior to entering into the Transaction; and
13.4(c) the other party and/or its Affiliates may have banking or other commercial relationships with the issuer of the shares underlying such Transaction and may engage in proprietary trading in the Shares or the Index(es) (as applicable) or options, futures, derivatives or other instruments relating to the Shares or the Index(es) (as applicable) (including such trading as such party and/or its Affiliates deem appropriate in their sole discretion to hedge their market risk on such Transaction and other transactions relating to the Shares or the Index(es) (as applicable) between each party and/or its Affiliates and the other party or with third parties), and that such trading may affect the price of the Shares or the Index(es) (as applicable) and consequently the amounts payable or deliverable under such Transaction. Such trading may be effected at any time, including on or near the Valuation Date(s).

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Content and comparisons

Article 13. Miscellaneous

Section 13.1. Non-Reliance

Section 13.2. Agreements and Acknowledgments Regarding Hedging Activities

13.2(a) Agreements and Acknowledgments Regarding Hedging Activities applicable
13.2(b) Hedge Positions
13.2(c) Hedging Activities

Section 13.3. Index Disclaimer

Section 13.4. Additional Acknowledgments



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Summary

Non-reliance

ISDA’s crack drafting squad™’s very own, verbose, take on standard termsheet boilerplate. There is a standard Non-Reliance provision in the Schedule to the ISDA Master Agreement — why they didn’t put it in the 2002 ISDA itself you may stoop to wonder — so query why ISDA has thought to include this. After all, if it is in the Schedule it is redundant here; if the parties have negotiated it out of their Schedule — they won’t have — then what prospect is there that they will agree it here, specifically for Equity Derivatives?

Hedging activities

An enormous wodge of text which states the bleeding obvious. It is well-meaningly intended to disarm paranoid tax lawyers[1] who worry that an equity derivative (especially a delta-one synthetic prime brokerage transaction) might look like a wheeze to do the taxman out of stamp duty or other transaction tax attaching to a cash equity trade. This acknowledgment is meant to encourage the taxman not to recharacterise the derivative as a cash equity order in disguise.

It has, as the Bard put it, a “methinks the lady doth protest too much” feel about it, but you will see it applied in the synthetic PB space. Though it would be an odd hedge about which these characteristics did not apply.

In the actual 2002 ISDA Equity Derivatives Definitions, “Hedge Positions” is really used only for that “what me guv no i never” acknowledgement about Hedging Activities in Section 13.2(a). However, many users co-opt it more fully into their master confirmations.

Now. Would a Hedge Position include any FX transactions required to convert positions and proceeds of hedge disposal into the Settlement Currency? You may find assiduous fellows that would find it prudent to clarify. Not this one, however: FX risk seems to this commentator to be a natural consequence of Section 13.2(b), so no such anality required.

Whither the Hedging Party?

A more careful draftsperson might have mentioned that the Hedging Party might not necessarily be one of the counterparties, but might be an affiliate, and this wording might have more clearly captured that.

A lover of fair, large and liberal interpretations of tiresome legal agreements might wonder whether it would be much of a stretch to extend reference to the “arrangements (howsoever described) by a party in order to hedge” to include affiliates and hedging agents of course. Especially where, as they will, they will pass the costs of those hedges on to the direct party (since — ahh — otherwise they wouldn’t be hedges.
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See also

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References


  1. Are there any other kinds?