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2014 ISDA Credit Derivatives Definitions
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Section 8 in a Nutshell™
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Full text of Section 8
Article 8. Terms Relating to Physical Settlement
Section 8.1 Physical Settlement. If “Physical Settlement” is specified as the Settlement Method in the related Confirmation (or if Physical Settlement is applicable as the Fallback Settlement Method in accordance with Section 6.1 (Auction Settlement)), Buyer shall, subject to Sections 5.1 (Settlement), 10.1 (Settlement Suspension) and 11.2(c)(ii) (Additional Representations and Agreements for Physical Settlement), on or prior to the Physical Settlement Date, Deliver to Seller the Deliverable Obligations specified in the Notice of Physical Settlement or any NOPS Amendment Notice, as applicable, and Seller shall pay to Buyer the Physical Settlement Amount that corresponds to the Deliverable Obligations that Buyer has Delivered. If Buyer Delivers Deliverable Obligations in an amount greater than the Deliverable Obligations specified in the Notice of Physical Settlement or any NOPS Amendment Notice, as applicable, Seller shall not be required to pay more than the Physical Settlement Amount that corresponds to the Deliverable Obligations specified in the Notice of Physical Settlement or any NOPS Amendment Notice, as applicable. For purposes of the foregoing, Delivery by Buyer and payment by Seller shall be made in accordance with market practice applicable to the Deliverable Obligation on the Delivery Date.
In the case of Deliverable Obligations that are (a) Borrowed Money, Buyer shall Deliver Deliverable Obligations with an Outstanding Principal Balance and (b) not Borrowed Money, Buyer shall Deliver Deliverable Obligations with a Due and Payable Amount (or, in the case of either (a) or (b), the equivalent Currency Amount of any such amount), in each case in the aggregate amount as of the relevant Delivery Dates that is equal to the Floating Rate Payer Calculation Amount; provided that Buyer may Deliver Deliverable Obligations with an Outstanding Principal Balance or a Due and Payable Amount, as applicable, (or the equivalent Currency Amount of any such amount), in the aggregate amount as of the relevant Delivery Dates that is either (i) greater than the Floating Rate Payer Calculation Amount, in which case Seller shall not be required to pay more than the Physical Settlement Amount to Buyer, or (ii) less than the Floating Rate Payer Calculation Amount, in which case Seller shall not be required to pay more than the proportion of the Physical Settlement Amount that corresponds to the Deliverable Obligations Delivered, subject to Section 11.2(c)(ii) (Additional Representations and Agreements for Physical Settlement).
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Section 8.2 Notice of Physical Settlement. “Notice of Physical Settlement” means a notice from Buyer to Seller that (a) confirms that Buyer intends to settle the Credit Derivative Transaction and requires performance in accordance with Physical Settlement , (b) contains a detailed description of each Deliverable Obligation that Buyer intends to Deliver to Seller, including , if available and applicable, the CUSIP or ISIN number (or, if such identifying number is not available or applicable, the rate and tenor) of each such Deliverable Obligation and (c) specifies the Outstanding Principal Balance or Due and Payable Amount, as applicable, or the equivalent amount in the Settlement Currency (in each case, the “Outstanding Amount”) and, if different, the face amount, of each such Deliverable Obligation and the aggregate Outstanding Amount of all Deliverable Obligations specified in the Notice of Physical Settlement that Buyer intends to Deliver to Seller (the “Aggregate Outstanding Amount”).
Buyer may, from time to time, notify Seller in the manner specified above (each such notification, a “NOPS Amendment Notice”) that Buyer is replacing, in whole or in part, one or more Deliverable Obligations specified in the Notice of Physical Settlement or a prior NOPS Amendment Notice, as applicable, (to the extent the relevant Deliverable Obligation has not been Delivered as of the date such NOPS Amendment Notice is effective). A NOPS Amendment Notice shall contain a revised detailed description of each replacement Deliverable Obligation that Buyer will Deliver to Seller (each, a “Replacement Deliverable Obligation”) and shall also specify the Outstanding Amount of each Deliverable Obligation identified in the Notice of Physical Settlement or a prior NOPS Amendment Notice, as applicable, that is being replaced (with respect to each such Deliverable Obligation, the “Replaced Deliverable Obligation Outstanding Amount”). The Outstanding Amount of each Replacement Deliverable Obligation identified in a NOPS Amendment Notice shall be determined by applying the Revised Currency Rate to the relevant Replaced Deliverable Obligation Outstanding Amount. The Outstanding Amount of the Replacement Deliverable Obligations specified in any NOPS Amendment Notice in aggregate with the Outstanding Amount of the Deliverable Obligations specified in the Notice of Physical Settlement or any earlier NOPS Amendment Notice which, in each case, are not being replaced must not be greater than the Aggregate Outstanding Amount. Each such NOPS Amendment Notice must be effective on or prior to the Physical Settlement Date (determined without reference to any change resulting from such NOPS Amendment Notice).
A form of Notice of Physical Settlement is set forth in Exhibit C.
Notwithstanding the foregoing, (i) Buyer may correct any errors or inconsistencies in the detailed description of each Deliverable Obligation contained in the Notice of Physical Settlement or any
NOPS Amendment Notice, as applicable, by notice to Seller prior to the relevant Delivery Date and (ii) if Asset Package Delivery is applicable, Buyer shall on the NOPS Effective Date, or as soon as reasonably practicable thereafter (but in any case, prior to the Delivery Date), notify Seller of the detailed description of the Asset Package, if any, that it intends to Deliver to Seller in lieu of the Prior Deliverable Obligation or Package Observable Bond, if any, specified in the Notice of Physical Settlement or NOPS Amendment Notice, as applicable, it being understood in each case that such notice shall not constitute a NOPS Amendment Notice.
Section 8.3 NOPS Effective Date. “NOPS Effective Date” means the date on which an effective Notice of Physical Settlement or NOPS Amendment Notice, as the case may be, is delivered by Buyer.
Section 8.4 Relevant Holder. “Relevant Holder” means a holder of the Prior Deliverable Obligation or Package Observable Bond, as the case may be, with an Outstanding Principal Balance or Due and Payable Amount, as applicable, immediately prior to the relevant Asset Package Credit Event, equal to the Outstanding Amount specified in respect of such Prior Deliverable Obligation or Package Observable Bond in the Notice of Physical Settlement, or NOPS Amendment Notice, as applicable.
Section 8.5 Asset Package. “Asset Package” means, in respect of an Asset Package Credit Event, all of the Assets in the proportion received or retained by a Relevant Holder in connection with such relevant Asset Package Credit Event (which may include the Prior Deliverable Obligation or Package Observable Bond, as the case may be). If the Relevant Holder is offered a choice of Assets or a choice of combinations of Assets, the Asset Package will be the Largest Asset Package. If the Relevant Holder is offered, receives and retains nothing, the Asset Package shall be deemed to be zero.
Section 8.6 Largest Asset Package. “Largest Asset Package” means, in respect of a Prior Deliverable Obligation or a Package Observable Bond, as the case may be, the package of Assets for which the greatest amount of principal has been or will be exchanged or converted (including by way of amendment), as determined by the Calculation Agent by reference to Eligible Information. If this cannot be determined, the Largest Asset Package will be the package of Assets with the highest immediately realizable value, determined by the Calculation Agent in accordance with the methodology, if any, determined by the relevant Credit Derivatives Determinations Committee.
Section 8.7 Asset. “Asset” means each obligation, equity, amount of cash, security, fee (including any “early-bird” or other consent fee), right and/or other asset, whether tangible or otherwise and whether issued, incurred, paid or provided by the Reference Entity or a third party (or any value which was realized or capable of being realized in circumstances where the right and/or other asset no longer exists).
Section 8.8 Asset Package Delivery. Asset Package Delivery will apply if an Asset Package Credit Event occurs, unless (i) such Asset Package Credit Event occurs prior to the Credit Event Backstop Date determined in respect of the Credit Event specified in the Credit Event Notice or DC Credit Event Announcementapplicable to the Event Determination Date, or (ii) if the Reference Entity is a Sovereign, no Package Observable Bond exists immediately prior to such Asset Package Credit Event.
Section 8.9 Asset Package Credit Event. “Asset Package Credit Event” means:
- (a) if “Financial Reference Entity Terms” and “Governmental Intervention” are specified as applicable in the related Confirmation:
- (i) a Governmental Intervention; or
- (ii) a Restructuring in respect of the Reference Obligation , if “Restructuring” is specified as applicable in the related Confirmation and such Restructuring does not constitute a Governmental Intervention; and
- (b) if the Reference Entity is a Sovereign and “Restructuring” is specified as applicable in the related Confirmation, a Restructuring,
in each case, whether or not such event is specified as the applicable Credit Event in the Credit Event Notice or the DC Credit Event Announcement.
Section 8.10 NOPS Cut-off Date. “NOPS Cut-off Date” means, subject, where applicable, to Section 10.1 (Settlement Suspension):
- (a) subject to Section 8.10(b), the later of:
- (i) the thirtieth calendar day after the Event Determination Date; and
- (ii) the tenth calendar day after either the date of the relevant DC Credit Event Announcementor of the relevant DC Credit Event Question Dismissal, if any (or, if the relevant Credit Event is an M(M)R Restructuring, the tenth calendar day after the Non-Standard Exercise Cut-off Date); or
- (b) if “Physical Settlement” is applicable pursuant to the Fallback Settlement Method in accordance with Section 6.1(a) or (b) (Auction Settlement) and:
- (i) the relevant Credit Event is not an M(M)R Restructuring, the later of (A) the date determined pursuant to Section 8.10(a)(i) and (B) the thirtieth calendar day after the Auction Cancellation Date or the No Auction Announcement Date occurring pursuant to Section
- (ii) 6.11(a) or (c)(i) (No Auction Announcement Date), as applicable; or
- (iii) the relevant Credit Event is an M(M)R Restructuring, either:
- (A) the later of:
- (I) the date determined pursuant to Section 8.10(a)(i); and
- (II) the thirtieth calendar day after:
- (x) a No Auction Announcement Date occurring pursuant to Section 6.11(a) (No Auction Announcement Date), if any;
(y) a No Auction Announcement Date occurring pursuant to Section 6.11(c)(i) (No Auction Announcement Date), if any; or
(z) the Auction Cancellation Date, if any, as applicable; or
- (B) the later of the Parallel Notice of Physical Settlement Date (or, if more than one should occur, the last Parallel Notice of Physical Settlement Date), and the Relevant City Business Day immediately following the Parallel Auction Cancellation Date, if any (or, if more than one should occur, the last Parallel Auction Cancellation Date), as applicable, in circumstances where either:
- (I) a No Auction Announcement Date occurs pursuant to Section 6.11(b) (No Auction Announcement Date) and such Credit Derivative Transaction has not been subject to exercise of the Movement Option; or
- (II) a No Auction Announcement Date occurs pursuant to Section 6.11(c)(ii) (No Auction Announcement Date) and such Credit Derivative Transaction has not been subject to exercise of the Movement Option,
provided that in the case of Sections 8.10(a)(ii) and (b), the relevant Credit Event Resolution Request Date, if any, occurred on or prior to the date described in Section 8.10(a)(i).
Section 8.11 Parallel Notice of Physical Settlement Date. “Parallel Notice of Physical Settlement Date” means “Notice of Physical Settlement Date” as defined in the relevant Parallel Auction Settlement Terms.
Section 8.12 Deliver.
- (a) “Deliver” means to deliver, novate, transfer (including, in the case of a Guarantee, transfer of the benefit of the Guarantee), assign or sell, as appropriate, in the manner customary for the settlement of the applicable Deliverable Obligations (which shall include executing all necessary documentation and taking any other necessary actions), in order to convey all right, title (or, with respect to Deliverable Obligations where only equitable title is customarily conveyed, all equitable title) and interest in the Deliverable Obligations specified in the Notice of Physical Settlement or any NOPS Amendment Notice, as applicable, to Seller free and clear of any and all liens, charges, claims or encumbrances (excluding any liens routinely imposed on all securities in a relevant clearance system, but including, without limitation, any counterclaim, defense (other than a counterclaim or defense based on the factors set forth in Section 4.1(a) to (d) (Credit Event)) or right of set-off by or of the Reference Entity or any applicable Underlying Obligor); provided that (i) if a Deliverable Obligation is a Direct Loan Participation, “Deliver” means to create (or procure the creation of) a participation in favor of Seller and (ii) if a Deliverable Obligation is a Guarantee, “Deliver” means to Deliver both the Underlying Obligation and the Guarantee, provided further that if the Guarantee has a Fixed Cap, (A) “Deliver” means to Deliver the Underlying Obligation, the Guarantee and all claims to any amounts which are subject to such Fixed Cap and (B) those claims shall be deemed to be Deliverable Obligations for purposes of Section 11.2 (Additional Representations and Agreements for Physical Settlement). “Delivery” and “Delivered” will be construed accordingly.
In the case of a Loan, Delivery shall be effected using documentation substantially in the form of the documentation customarily used in the relevant market for Delivery of such Loan at that time , provided further that Buyer and Seller agree to comply with the provisions of any documentation (which shall include any market advisory that the relevant Credit Derivatives Determinations Committee Resolves to approve for such purpose) that the relevant Credit Derivatives Determinations Committee Resolves constitutes documentation customarily used in the relevant market for Delivery of such Loan at that time, as such documentation may be amended to the extent the relevant Credit Derivatives Determinations Committee Resolves is appropriate, which is consistent with the delivery and payment obligations of the parties hereunder. Buyer and Seller further agree that compliance by Buyer and Seller with the provisions of any such documentation, shall be required for, and, without further action, constitute, Delivery for purposes of Section 8.12 (to the extent that such documentation contains provisions describing how Delivery should be effected) and neither Buyer nor Seller shall be permitted to request that the other party take, nor shall Buyer or Seller be required to take, any action under Sections 11.2(c)(i), (v) or (vi) (Additional Representations and Agreements for Physical Settlement), as applicable, unless otherwise contemplated by such documentation.
- (b) If Asset Package Delivery applies, (i) Delivery of a Prior Deliverable Obligation or a Package Observable Bond specified in the Notice of Physical Settlement or NOPS Amendment Notice, as applicable, may be satisfied by Delivery of the related Asset Package, and such Asset Package shall be treated as having the same currency, Outstanding Principal Balance or Due and Payable Amount, as applicable, as the Prior Deliverable Obligation or Package Observable Bond to which it corresponds had immediately prior to the Asset Package Credit Event, (ii) Sections 8.12(a) and 11.2 (Additional Representations and Agreements for Physical Settlement) shall be deemed to apply to each Asset in the Asset Package provided that if any such Asset is not a Bond, it shall be treated as if it were a Loan for these purposes, (iii) if the Asset Package is zero, the Outstanding Amount of the Prior Deliverable Obligation or Package Observable Bond shall be deemed to have been Delivered in full three Business Days following the date on which Buyer has notified Seller of the detailed description of the Asset Package that it intends to Deliver in accordance with Section 8.2 (Notice of Physical Settlement), (iv) Buyer may satisfy its obligation to make Delivery of the Prior Deliverable Obligation or Package Observable Bond in part by Delivery of each Asset in the Asset Package in the correct proportion and (v) if the relevant Asset is a Non-Transferable Instrument or Non-Financial Instrument, the Asset shall be deemed to be an amount of cash equal to the Asset Market Value.
Section 8.13 Non-Transferable Instrument. “Non-Transferable Instrument” means any Asset which is not capable of being transferred to institutional investors, excluding due to market conditions.
Section 8.14 Non-Financial Instrument. “Non-Financial Instrument” means any Asset which is not of the type typically traded in, or suitable for being traded in, financial markets.
Section 8.15 Asset Market Value. “Asset Market Value” means the market value of an Asset, as the Calculation Agent shall determine by reference to an appropriate specialist valuation or in accordance with the methodology determined by the Credit Derivatives Determinations Committee.
Section 8.16 Delivery Date. “Delivery Date” means, with respect to a Deliverable Obligation or an Asset Package, the date on which such Deliverable Obligation is Delivered (or deemed Delivered under Section 8.12(b)(iii) (Deliver)).
Section 8.17 Physical Settlement Date. “Physical Settlement Date” means the last day of the longest Physical Settlement Period following the NOPS Cut-off Date. If all Deliverable Obligations specified in the Notice of Physical Settlement or any NOPS Amendment Notice, as applicable are Delivered on or before the Physical Settlement Date, the date that Buyer completes Delivery of such Deliverable Obligations shall be the Termination Date.
Section 8.18 Physical Settlement Amount. “Physical Settlement Amount” means the Floating Rate Payer Calculation Amount multiplied by the Reference Price.
Section 8.19 Physical Settlement Period. “Physical Settlement Period” means, subject to Section 10.1 (Settlement Suspension), the number of Business Days specified as such in the related Confirmation or, if a number of Business Days is not so specified, then, with respect to a Deliverable Obligation specified in the Notice of Physical Settlement or any NOPS Amendment Notice, as applicable, the longest number of Business Days for settlement in accordance with then current market practice of such Deliverable
Obligation, as the Calculation Agent shall determine after consultation with the parties; provided that if Buyer has notified Seller that it intends to Deliver an Asset Package in lieu of a Prior Deliverable Obligation or a Package Observable Bond, the Physical Settlement Period shall be thirty Business Days.
Section 8.20 Currency Amount. “Currency Amount” means with respect to (a) a Deliverable Obligation specified in a Notice of Physical Settlement that is denominated in a currency other than the Settlement Currency, an amount converted to the Settlement Currency using a conversion rate determined by reference to the Currency Rate and (b) a Replacement Deliverable Obligation specified in a NOPS Amendment Notice, an amount converted to the Settlement Currency (or, if applicable, back into the Settlement Currency) using a conversion rate determined by reference to the Currency Rate, if any, and each Revised Currency Rate used to convert each Replaced Deliverable Obligation Outstanding Amount specified in each NOPS Amendment Notice with respect to that portion of the Credit Derivative Transaction into the currency of denomination of the relevant Replacement Deliverable Obligation.
Section 8.21 Currency Rate. “Currency Rate” means with respect to (a) a Deliverable Obligation specified in the Notice of Physical Settlement or any NOPS Amendment Notice, as applicable, the rate of conversion between the Settlement Currency and the currency in which the Outstanding Amount of such Deliverable Obligation is denominated that is either (i) determined by reference to the Currency Rate Source as at the Next Currency Fixing Time, or (ii) if such rate is not available at such time, as the Calculation Agent shall determine in a commercially reasonable manner after consultation with the parties and (b) a Replacement Deliverable Obligation specified in a NOPS Amendment Notice, the Revised Currency Rate.
Section 8.22 Revised Currency Rate. “Revised Currency Rate” means, with respect to a Replacement Deliverable Obligation specified in a NOPS Amendment Notice, the rate of conversion between the currency in which the Replaced Deliverable Obligation Outstanding Amount is denominated and the currency in which the Outstanding Amount of such Replacement Deliverable Obligation is denominated that is determined either (a) by reference to the Currency Rate Source as at the Next Currency Fixing Time, or (b) if such rate is not available at such time, as the Calculation Agent shall determine in a commercially reasonable manner after consultation with the parties.
Section 8.23 Next Currency Fixing Time. “Next Currency Fixing Time” means 4:00 p.m. (London time) on the London Business Day immediately following the date on which the Notice of Physical Settlement or relevant NOPS Amendment Notice, as applicable, is effective.
Section 8.24 Currency Rate Source. “ Currency Rate Source” means the mid-point rate of conversion published by WM/Reuters at 4:00 p.m. (London time), or any successor rate source approved by the relevant Credit Derivatives Determinations Committee.
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