Template:Failure to pay procedure: Difference between revisions

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===[[Closing out]] an {{isdama}} following an {{isdaprov|Event of Default}}===
JC’s has updated the step-by-step guide to closing out an ISDA and it is now {{premium}}. You can access it '''[[pjc:Close out|here]]'''.
Here is the [[JC]]’s handy guide to [[closing out]] an {{isdama}}. We have assumed you are [[closing out]] as a result of a {{{{{1}}}|Failure to Pay or Deliver}} under Section {{{{{1}}}|5(a)(i)}}, because — unless you have inadvertently crossed some [[Tannhäuser Gate|portal, wormhole]] into a parallel but stupider universe — if an {{isdama}} had gone toes-up, that’s almost certainly why. That, or at a pinch {{{{{1}}}|Bankruptcy}}. Don’t try telling your [[credit officer]]s this by the way: he won’t believe you and might be terribly wounded.
 
In what follows “{{isdaprov|Close-out Amount}}” means, well, “{{isdaprov|Close-out Amount}}” (if under a {{2002ma}}) or “{{isda92prov|Loss}}” or “{{isda92prov|Market Quotation}}” amount (if under a {{1992ma}}), and “{{{{{1}}}|Early Termination Amount}}” means, for the {{1992ma}}, which neglected to give this key value a memorable name, “the amount, if any, payable in respect of an {{{{{1}}}|Early Termination Date}} and determined pursuant to Section {{isda92prov|6(e)}}”.
 
So, you will need:
*'''A failure''': A {{{{{1}}}|Failure to Pay or Deliver}}, on day '''T'''. This is an {{{{{1}}}|Event of Default}} under Section {{{{{1}}}|5(a)(i)}}. You must have:
::(i) a Failure by the {{{{{1}}}|Defaulting Party}} to make a payment or delivery when due;
::(ii) a notice by the {{{{{1}}}|Non-Defaulting Party}} under Section {{isdaprov|6(a)}} to the {{{{{1}}}|Defaulting Party}} that the failure ''has happened'' and designating an {{isdaprov|Early Termination Date}}, no more than twenty days in the future.
*'''Notice of failure''': The {{{{{1}}}|Non-defaulting Party}} must give notice of the {{{{{1}}}|Failure to Pay or Deliver}} (which since it is not due until the close of business on a given day, [[Q.E.D.]], can be validly given ''only after'' [[close of business]] on the due date for payment or delivery) and, by dint of Section {{{{{1}}}|12(a)}} ({{{{{1}}}|Notices}}),  will only be deemed effective on the following {{{{{1}}}|Local Business Day}}: ie  '''T+1'''. <ref>'''Spod’s note''': This notice requirement is key from a cross default}} perspective (if you have been indelicate enough to widen the scope of your [[cross default]] to include [[derivatives]], that is): if you don’t have it, ''any'' failure to pay under your {{isdama}}, however innocuous — even an operational oversight — automatically counts as an Event of Default, and gives a different person to the right to close ''their'' {{isdama}} with your Defaulting Party because of it defaulted to ''you'', even though (a) the Defaulting Party ''hasn’t'' defaulted to ''them'', and (b) you have decided not to take any action against the Defaulting Party yourself.</ref> Note also: you cannot send a close-out notice by [[email]], [[electronic messaging system]], or (if you have a {{1992ma}}, at any rate), by [[fax]]. The proper form is to have it hand-delivered by someone prepared to swear an affidavit as to when and where they delivered it to the {{isdaprov|Defaulting Party}}.
*'''[[Grace Period]]''': Once the notice is effective, the {{{{{1}}}|Defaulting Party}} has a window (the grace period) in which it can remedy the failure to pay or deliver.
:(i) The standard [[grace period]]s are set out in Section {{{{{1}}}|5(a)(i)}}. Be careful here: under a {{2002ma}} the standard is '''''one''''' {{isdaprov|Local Business Day}}. Under the {{1992ma}} the standard is '''''three''''' {{isda92prov|Local Business Day}}s. ''But check the {{{{{1}}}|Schedule}}'' because in either case this is the sort of thing that counterparties adjust: {{2002ma}}s are often adjusted to conform to the {{1992ma}} standard of three {{{{{1}}}|LBD}}s, for example.
:(ii) So: once you have a clear, notified {{isdaprov|Failure to Pay or Deliver}}, you have to wait ''at least'' one and possibly three or more {{isdaprov|Local Business Day}}s before doing anything about it. Therefore you are on tenterhooks until the [[close of business]] '''T+2''' {{isdaprov|LBD}}s (standard {{2002ma}}), or '''T+4''' {{isda92prov|LBD}}s (standard {{1992ma}}).
:(iii) At the expiry of this [[grace period]], you finally have a fully operational {{{{{1}}}|Event of Default}}. Now Section {{isdaprov|6(a)}} gives you the right, by not more than 20 days’ notice<ref>See discussion on at Section 6(a) about the silliness of that time limit.</ref> to designate an {{{{{1}}}|Early Termination Date}} for all outstanding {{isdaprov|Transaction}}s. So, at some point in the next twenty days.
:(iv) For this we go to Section {{{{{1}}}|6(e)}}, noting as we fly over it, that Section {{{{{1}}}|6(c)}} reminds us [[for the avoidance of doubt]] that even if the {{{{{1}}}|Event of Default}} which triggers the {{{{{1}}}|Early Termination Date}} evaporates in the meantime — these things happen, okay? — yon {{{{{1}}}|Defaulting Party}}’s goose is still irretrievably cooked.
*'''Determining {{isdaprov|Close-out Amount}}s'''<ref>Or their equivalents under the {{1992ma}}, of course.</ref>: There is a bit of a chicken-and-egg situation here as you must now ascertain termination values for the {{{{{1}}}|Terminated Transaction}}s as of the {{isdaprov|Early Termination Date}}, and you can’t really work out their [[mark-to-market]] values for that date at any time before then, unless you are able to see into the future and everything. Anyway, that’s a conundrum for your [[Trader|trading]] people (and in-house [[Metaphysics|metaphysicians]]) to deal with and it need not trouble we [[Legal Eagles|eagles of the law]]. For our purposes, the trading and risk people need to come up with {{isdaprov|Close-out Amount}}s<ref>See previous footnote.</ref> for all outstanding {{{{{1}}}|Transaction}}s. Once they have done that you are ready for your Section {{{{{1}}}|6(e)}} notice.
*'''{{{{{1}}}|Early Termination Amount}}''': Your inhouse metaphysicians having calculated your {{isdaprov|Close-out Amount}}s, you must assemble all the values into an {{{{{1}}}|Early Termination Amount}}.<ref>Or, in the {{1992ma}}’s estimable prose, “the amount, if any, payable in respect of an {{isdaprov|Early Termination Date}} and determined pursuant to this Section”.</ref>

Latest revision as of 17:23, 4 February 2024

JC’s has updated the step-by-step guide to closing out an ISDA and it is now premium content. You can access it here.

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