Mini Gautam, B.S.L LL.B from ILS Law College and currently pursuing LLM in International Financial Law from Kings College London.
Anshuman Chanda, B.S.L LL.B from ILS Law College and currently pursuing LLM in Tax Law from Kings College London.
ISDA Master Agreement – The Bible for Derivative Transactions
Exchange traded derivatives products are almost standardized products with very limited variations. An OTC transaction, on the other hand, is a privately negotiated contract on whatever terms the parties agree. Although the OTC derivatives market is not yet regulated, a certain element of standardization in this market has been achieved through the resort on a global scale to standard market documentation which makes the whole documentation process easier and faster.
ISDA or the International Swaps and Derivatives Association has been at the forefront in bringing about this development. ISDA is the largest financial association in the world.
Since its inception ISDA has developed standard market documentation to reduce risk and shape the derivatives industry in which its principal members, i.e. the major OTC derivatives dealers, operate. Its most notable achievement has been the development of the ISDA master agreement, initially in 1987, and later revised in 1992 and again in 2002 and made applicable to OTC derivatives generally.
The ISDA master agreement, consists of (i) the standard agreement (the ISDA Master) which governs the general contractual relationship between the parties, (ii) the Schedule used by the parties to negotiate terms in the standard agreement or to provide for new or additional provisions and (iii) the Confirmation which sets out the economic and financial terms of the individual transaction being entered into and which may incorporate by reference one or more standard ISDA Definitions booklets, depending on the type of transaction being traded, for instant the 2003 ISDA Credit Derivative Definitions are used with respect to Credit Default Swaps. The ISDA master agreement provides a hierarchy rule in case of a discrepancy or conflict between the various documents. Thus, in terms of Section 1(b), in case of an inconsistency between the schedule and the master agreement, the schedule prevails and in case of an inconsistency between the provisions of the confirmation and the master agreement including the schedule, the confirmation will prevail for the purpose of the relevant transaction it is meant to cover. The ISDA master agreement and the schedule are signed only once by the parties to govern all their OTC derivatives, while the confirmation is exchanged or countersigned each time a new transaction is entered into. This practice helps to save time and provides the parties with almost a standard product in which they just have to fill in the details. User’s Guides published by ISDA explain the terms and provisions of the master agreement and are a great help. The governing law of the ISDA master agreement is either English law or New York law.
Conditions Precedent: Section 2(a)(iii)
Each obligation of each party is subject to the CP that:
1. No Event of Default or Potential Event of Default with respect to the other party has occurred and is continuing;
2. The CP that no Early Termination Date in respect of the relevant transaction has occurred or been effectively designated;
3. Each other condition specified in this Agreement to be a CP for the purposes of this Section 2(a)(iii).
Payment Netting: Section 2 (c)
If on any date amounts would otherwise be payable (i) in the same currency and (ii) in respect of the same Transaction, by each party to the other, then each party’s obligation to make payment of any amount will be automatically satisfied and discharged and, if the aggregate amount that would otherwise have been payable by one party exceeds the aggregate amount that would otherwise have been payable by the other party, replaced by an obligation upon the party by which the larger aggregate amount would have been payable to pay to the other party the excess of the larger aggregate amount over the smaller aggregate amount.
“Multiple Transaction Payment Netting” – The parties may elect in respect of 2 or more Transactions that a net amount and payment obligation will be determined in respect of all amounts payable on the same date in the same currency in respect of those Transactions, regardless of whether such amounts are payable in respect of the same Transaction. The election may be made in the Schedule or Confirmation by specifying that “Multiple Transaction Payment Netting” applies to the Transactions.
Representations: Section 3
a) Basic Representations:
i. Status – Duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation.
ii. Powers – Power to execute this Agreement and any other document relating to this Agreement and to perform its obligations under this Agreement and any obligations it has under any Credit Support Document to which it is a party.
iii. No Violation or Conflict – Such execution, delivery or performance do any violate any law applicable to it.
iv. Consents – All governmental and other required consents have been obtained.
v. Obligations Binding – Its obligations under this Agreement or any Credit Support Document to which it is party constitute its legal, valid and binding obligations.
b) Absence of certain events: No Event of Default/Potential Event of Default/Termination Event has occurred and is continuing and no such event or circumstance would occur as a result of it performing obligations under this Agreement or any Credit Support Document.
c) Absence of Litigation: There is not pending or threatened against it, or any of its Credit Support Providers or any of its applicable Specified Entities any action, suit or proceeding at law or in equity or before any court, tribunal or any arbitrator that is likely to affect the legality, validity and enforceability against it of this Agreement or any Credit Support Document.
d) Accuracy of Specified Information: All applicable information that is furnished in writing by or on behalf of it to the other party is true, accurate and complete in every material respect.
e) Payer Tax Representation: Each representation made by it in the Schedule for this purpose is accurate and true.
f) Payee Tax representations: Each representation made by it in the Schedule for this purpose is accurate and true.
g) No Agency: It is entering into this Agreement, including each Transaction as principal and not agent of any person/entity.
Agreements: Section 4
a) Furnish Specified Information: It will deliver to the other party, or in certain cases to such governmental or tax authority as the other party reasonably directs:
i. Any forms, documents or certificates relating to taxation specified in the Schedule or any Confirmation;
ii. Any other documents specified in the Schedule or Confirmation;
iii. Upon reasonable demand by such other party, any form or document that maybe required or reasonably requested in writing in order to allow such other party or its Credit Support Provider to make a payment under this Agreement or any applicable Credit Support Document without any deduction or withholding for or on account of any Tax or with such deduction or withholding at a reduced rate, in each case at a date specified in the Schedule or Confirmation, or if none is specified, as soon as practicable.
b) Maintain Authorizations: It will use all reasonable efforts to maintain in full force and effect all consents of any governmental or other authority that are required to be obtained by it with respect to this Agreement or any Credit Support Document to which it is a party.
c) Comply with Laws: It will comply in all material respects with all applicable laws and orders to which it may be subject if failure so to comply would materially impair its ability to perform its obligations under this Agreement or any Credit Support Document to which it is a party.
d) Tax Agreement: It will give notice of any failure of a representation made by it under Section 3(f) to be accurate and true promptly upon learning of such failure.
e) Payment of Stamp Tax: Subject to s.11, it will pay any Stamp Tax levied or imposed upon it by a jurisdiction in which it is incorporated, organized, managed and controlled or considered to have its seat or where an office through which it is acting for the purpose of this Agreement is located (“Stamp Tax Jurisdiction”).
The Events of Default: Section 5(a)
The events of default listed in the master agreement are intended to identify circumstances where the risk of non-performance is considered so great that the basis of the relationship between the parties is deemed to have broken down. They form the fundamental basis of the contractual relationship between the parties. It enables the non-defaulting party to crystallize its position by closing out and to take enforcement proceedings to recover the full amount due before the defaulting party commences winding up or administration proceedings. These events of default are:
1. Failure to Pay or Deliver: Failure to pay or deliver under any of the payment or delivery obligations if such failure is not remedied within one Local Business Day/Local Delivery Day and in each case notice of the failure is given to the party: Section 5(a)(i);
2. Breach of Agreement: Repudiation of Agreement: Any breach of other provisions of the master agreement (other than the obligation to make any payment or delivery) if such failure is not remedied within 30 days after notice of such failure is given to the party: Section 5(a)(ii);
3. Credit Support Default: A default under any credit support document (e.g. guarantee or collateral arrangements which have become enforceable) which supports the obligations of any of the parties, whether given by the party itself or by a third party (the credit support provider). This event also covers cases where a credit support document becomes ineffective or the person bound by it repudiates it or challenges its validity: Section 5(a)(iii);
4. Misrepresentation: Any misrepresentation, by the party or its Credit Support Provider, other than payer or payee tax representations since the financial burden of any withholding tax is placed on the party in breach: Section 5(a)(iv);
5. Default under Specified Transaction: A default under other derivative transactions (referred to as ‘Default under Specified Transaction’) not governed by the master agreement between the parties, their credit support providers or any of the entities specified in the Schedule (usually affiliates of the parties, called ‘Specified Entity’). Three defaults are covered: (i) a default resulting in the acceleration or close-out of a specified transaction, (ii) a default occurring on the last payment or delivery date for such a transaction (where the default is not remedied at the end of any grace period or, in the absence of a grace period, within three business days) or (iii) a repudiation or disclaimer of such a transaction (In the case of the 2002 master agreement, such a default may also include challenging the validity of such a transaction): Section 5(a)(v);
6. Cross default: A cross default by either of the parties or any credit support provider or any “specified entity” under an agreement relating to any obligation (‘Specified Indebtedness’) (This event has to be specifically stated by the parties in the schedule to apply) in respect of borrowed money which exceeds a predetermined threshold amount. This could be either a default through which the specified indebtedness has been accelerated or is capable of being accelerated, or it is a payment default in excess of the threshold amount: Section 5(a)(vi);
7. Bankruptcy: Bankruptcy of any of the parties, credit support provider or “specified entity.” This event covers a number of insolvency-related events, including dissolution, insolvency, arrangements with creditors, commencement of insolvency proceedings, winding-up resolution, appointment of insolvency official, enforcement actions, and analogous events and action in furtherance of or indicating consent, approval or acquiescence in any of these events: Section 5(a)(vii);
8. Merger Without Assumption: Merger or the transfer of all or substantially all of its assets of a party or any Credit Support Provider of such party to another entity without transferring the obligations under the master agreement or without ensuring that any credit support document remains in force. In the case a party transfers some (but NOT all or almost all) of its assets to another entity, there is no event of default, but such transfer would require the consent of the other party; Section 5(a)(viii).
Termination Events: Section 5 (b)
Termination events comprise the following:
1. Illegality: Illegality arising out of any change of law or change in the interpretation of law which makes it unlawful for a party or its credit support provider (which will be the ‘Affected Party’; as the case may be) to make any payment or delivery due from it or to comply with any material obligation, or for any obligation arising under a credit support document to be performed. The term ‘unlawful’ is to be widely construed to refer to breach of any treaty, law, rule or regulation of the jurisdiction where performance is required: Section 5(b)(i);
2. Force Majeure Event: A force majeure event which makes performance by either party or its credit support provider (which will be the ‘Affected Party’; as the case may be) to make or receive any payment or delivery due under the master agreement or any credit support document, or to comply with any material provision, impossible or impracticable and this event persists for eight business days. If the impossibility or impracticability is due to performance becoming unlawful, the illegality event of default will take precedence and no force majeure event will occur as a result: Section 5(b)(ii);
3. Tax Event: The imposition or substantial likelihood of its imposition, of a withholding tax due to an action taken by a taxing authority or a change of law. In this case the affected party is the party that suffers the financial burden of the withholding tax, namely the party having to gross up (where the other party has no connection with the jurisdiction imposing the tax) or the party suffering a deduction of tax on the payments due to it (where there is no such connection): Section 5(b)(iii);
4. Tax Event Upon Merger: The imposition of a withholding tax due to the merger of a party or the transfer of all or substantially all of its assets to another entity. It is the party which is the subject of the merger or to which the assets have been transferred that is treated as the affected party, regardless of whether it suffers the financial burden of the withholding tax that arises as a result of the merger: Section 5(b)(iv);
5. Credit Event Upon Merger: If “Credit even Upon Merger” is specified in the Schedule as applying to the party, a “designated event” occurs with respect to such party, any Credit Support provider of such party or any applicable Specified Entity, and such a designated event does not constitute a merger without assumption. Merger of a party or a similar corporate restructuring resulting in the party’s credit being materially weakened. This will be the case where a company in a strong financial position merges with a much weaker one, i.e. where the credit-worthiness of the entity resulting from the merger or (under the 2002 version) the entity to which a substantial part of the assets or shares in the company are transferred, is materially weaker than that of the original party: Section 5(b)(v);
6. Additional Termination Events: Any other additional termination event or events specified by the parties in the schedule or a confirmation. An additional termination event that is often included relates to the downgrading of the credit worthiness of one of the parties (and may also include their affiliates or any credit support provider), so that if the credit rating falls below a certain level this would constitute a termination event: Section 5(b)(vi).
Since a derivative transaction may not be a beneficial deal if a withholding tax is levied on payments or deliveries, each party is expected to make certain payer tax representations in the Schedule to confirm the absence of any withholding taxes in their respective jurisdictions. In order for the parties to make these representations, the payer may ask the payee to establish that it meets certain specified criteria (through payee tax representations) or may need the payee to complete certain tax forms.
Where a withholding tax becomes due and it is established that the withholding tax was due from the outset, the payer will be obliged to gross-up its payments (Grossing-up implies that the payer is required to pay a larger amount in a way that the payee still receives the amount that was originally its due) provided that:
(a) That tax is not an ‘Indemnifiable Tax’ (i.e. tax imposed due to a connection between the jurisdiction of the recipient and the taxing jurisdiction);
(b) It is not due to the payee tax representations being untrue; and
(c) It is not due to a failure by the recipient to deliver any tax forms.
Early Termination: Section 6(a) and (b)
I. Right to Termination following Event of Default: Section 6(a)-
If, at any time an Event of Default with respect to a party (the “Defaulting Party”) has occurred and is then continuing, the other party (the “Non-defaulting Party”) may, by not giving more than 20 days notice to the Defaulting Party specifying the relevant Event of Default, designate a day not earlier than the day such notice is effective as an Early Termination Date in respect of all outstanding transactions.
II. Right to Terminate following Termination Event: Section 6(b)-
· Notice: If a Termination Event other than a Force Majeure occurs, an Affected Party will, promptly upon becoming aware of it, notify the other party, specifying the nature of that Termination Event and each Affected transaction, and will also give the other party such other information about that Termination Event as the other party may reasonably require. If a Force Majeure event occurs, each party will, promptly upon becoming aware of it, use all reasonable efforts to notify the other party, specifying the nature of the Force Majeure event, and will also give the other party such other information about that Force Majeure event as the other party may reasonably require: Section 6(b)(i).
· Transfer to avoid Termination Event: If a Tax Event occurs and there is only one Affected Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the Affected Party, the Affected Party will, use all reasonable efforts (which will not require such party to incur a loss, other than immaterial, incidental expenses) to transfer within 20 days after it gives notice all its rights and obligations under this Agreement in respect of the Affected Transactions to another of its Offices or Affiliates so that such Termination Event ceases to exist; Section 6(b)(ii).
· Two Affected Parties: If a Tax Event occurs and there are 2 Affected Parties, each party will use all reasonable efforts to reach an agreement within 30 days after notice of such occurrence is given to avoid the Termination Event; Section 6(b)(iii).
· Right to Terminate: If a transfer or an agreement as given above has not been effected with respect to all Affected Transactions within 30 days after an Affected Party gives notice or a Credit Event Upon Merger or an Additional Termination Event occurs, or a Tax Event Upon Merger occurs and the Burdened Party is not the Affected Party; the Burdened Party in case of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event or an Additional Termination Event if there are 2 Affected Parties, or the Non-Affected Party in the case of a Credit Event Upon Merger or an Additional Termination Event if there is only one Affected Part may, if the relevant Termination Event is then continuing, by not more than 20 days notice to the other party, designate a day not earlier than the day such notice is effective as an Early Termination Date in respect of all Affected Transactions; Section 6(b)(iv)(1).
· If at any time an Illegality or Force Majeure Event has occurred and is continuing and any applicable Waiting Period has expired, either party may by not giving more than 20 days’ notice to the other party designate a day not earlier than the day on which such notice becomes effective as an Early Termination Date in respect of all Affected Transactions; Section 6(b)(iv)(2).
Automatic Early Termination: Section 6(a)
Another important provision in the ISDA master agreement is the automatic early termination clause. If this provision is selected to apply in the schedule, on the occurrence of certain specified events related to the bankruptcy, an automatic termination of all transactions is deemed to have taken place before the commencement of the insolvency proceedings without the giving of any notice.
Payments on Early Termination: Section 6(e)
The amount payable on close-out of all outstanding transactions depends on which version of the ISDA master agreement is used. Under the 1992 version the parties must choose between the ‘Market Quotation’ and the ‘Loss’ method. Under the first option, the party making the calculations obtains quotations (at least three, but preferably four) from leading dealers in the relevant market for a replacement transaction (In terms of the definition of ‘Market Quotation’, each quotation is the amount the dealer would require from (a positive amount) - or would pay to (a negative amount) - the relevant party for the dealer to enter into an agreement with that party providing for a new replacement transaction (or group or groups of transactions, as the case may be), that would have the effect of preserving for such party the economic equivalent of any payment or delivery (whether the underlying obligation was absolute or contingent and assuming the satisfaction of each applicable condition precedent) by the parties. In providing such quotations, the dealer is to take into account any existing credit support document with respect to the obligations of such party. The highest and lowest quotations are disregarded and the market quotation for the terminated transaction or group of terminated transactions is the average of the remaining quotations. (Section 14, 1992 ISDA master agreement).
The second option, used for the more complex structured transactions, entitles the calculating party to determine the total losses and costs/gains arising out of a close-out. (The definition of ‘Loss’ provides that the calculating party may include any loss of bargain, cost of funding or, at the election of such party but without duplication, loss or cost incurred as a result of its terminating, liquidating, obtaining or re-establishing any hedge or related trading position. Alternatively, the calculating party may obtain market quotations for rates and prices. (Section 14, 1992 ISDA master agreement))
This is, evidently, the more subjective method. The loss method may be applied even if market quotation is selected if the calculating party reasonably believes that using market quotation may produce a commercially irrational result. Market quotation applies by default if the parties fail to select a method in the schedule.(Besides the choice of calculation mechanism, parties should also choose between ‘First Method’ or ‘Second Method’, with the second method applying by default. Under the first method, the amount resulting from the calculation method, if positive is payable by the defaulting (or affected) party to the other. If the amount is negative, the non-affected party would pay the absolute value of that amount to the affected party, but there would be no obligation on the non-defaulting party to make any payment to the defaulting party. Alternatively, under the second method the non-defaulting party would pay over the absolute value of the negative amount to the defaulting party. (Section 6(e), 1992 ISDA master agreement))
The 2002 version provides for a combined market quotation/loss calculation mechanism and requires that the calculation is based on the cost that would be incurred in replacing the rights and obligations that have been terminated or the gain that would be made in doing so. Hence, this mechanism has the features of the market quotation method, with the difference that the cost is not necessarily determined by reference to quotations obtained from dealers. The reason behind including this provision is to help in current times where due to market imbalances it is not possible to obtain market quotations. Costs include the payment of interest.
Early Termination Amount
· Events of Default- Sum of the Close-out Amount or Close-out Amounts determined by the Non-defaulting Party plus Unpaid Amounts owed to the Non-defaulting Party on or before the Early Termination Date less Unpaid Amounts owed to the Defaulting Party on or before the Early Termination Date.
· Termination Events (One Affected Party)- Same as Events of Default where Non-Defaulting Party will be read as Non-Affected Party
· Termination Events (Two Affected Parties) - one-half of difference between sum of Close-out Amount or Close-out Amounts determined by each Affected Party plus Unpaid Amounts owed to the party determining the higher amount less Unpaid Amounts owed to the party determining the lower amount.
Close-out Netting: Section 6
The process of calculating the final close-out amount rests on the ability of the parties to the master agreement to perform close-out netting. Close-out netting is the process by which, upon the occurrence of a particular event, all obligations owed by two parties become due and, are converted into monetary claims so that a single amount is owed by one party to the other.
Set-Off: section 6(f)
Any Early Termination Amount payable to one party (the “Payee”) by the other party (the “Payer”), in circumstances where there is a Defaulting Party or where there is one Affected Party in the case where either a Credit Event Upon Merger has occurred or any other Termination Event in respect of which all outstanding Transactions are Affected Transactions has occurred, will, at the option of the Non-Defaulting Party or the Non-Affected Party, be reduced by its set-off against any other amounts (“Other Amounts”) payable by the Payee to the Payer.
Contractual Currency: Section 8
· Each payment under the Agreement to be made in the relevant currency specified in the Agreement for that payment (the Contractual Currency): Section 8(a)
· If for any reason the amount in the Contractual Currency falls short, the party required to make the payment will pay the additional amount, if for any reason the amount so received exceeds the amount, the party receiving the payment will refund the excess.
Interest and Compensation: Section 9(h)
Prior to Early Termination:
· Interest on Defaulted Payments: If a party defaults in the performance of any payment obligation, it will, to the extent permitted by applicable law, pay interest on the overdue amount on demand in the same currency, for the period from (and including) the original due date for payment to (but excluding) the date of actual payment, at the Default Rate.
· Compensation for Defaulted Deliveries: If a party defaults in the performance of any obligation required to be settled by delivery, it will on demand (a) compensate the other party to the extent provided in the relevant Confirmation or elsewhere in the Agreement and (b) unless otherwise provided by applicable law, pay to the other party interest on an amount equal to the fair market value of that which is required to be delivered in the same currency as that amount, for the period from (and including) the originally scheduled date for delivery to (but excluding) the date of actual delivery.
The fair market value will be determined as of the originally scheduled date of delivery, in good faith and using commercially reasonable procedures, by the party that was entitled to take delivery.
· Interest on Deferred Payments: If a party does not pay any amount that would have been payable, it will, to the extent permitted by applicable law, pay interest (before as well as after judgment) on that amount to the other party on demand in the same currency, for the period from (and including) the original due date for payment to (but excluding) the date of actual payment, at the Applicable Deferral Rate.
· Compensation for Deferred Deliveries: If a party does not perform any obligation required to be settled by delivery and a delivery is deferred or it fails to make a delivery due to the occurrence of Illegality or a Force Majeure Event at a time when any applicable waiting period has expired; it will on demand (a) compensate the other party to the extent provided in the relevant Confirmation or elsewhere in the Agreement and (b) unless otherwise provided by applicable law, pay to the other party compensation and interest.
Following Early Termination:
· Unpaid Amounts: For the purpose of determining any Unpaid Amount in respect of the relevant Transaction, and to the extent permitted by applicable law, interest will accrue on the amount of any payment obligation or the amount equal to the fair market value of any obligation required to be settled by delivery included in such determination in the same currency as that amount, for the period from (and including) the date the relevant obligation was required to have been performed to (but excluding) the relevant Early Termination Date, at the Applicable Close-Out Rate.
· Interest on Early Termination Amounts: If an Early Termination Amount is due in respect of such Early Termination Date, that amount will, to the extent permitted by applicable law, be paid together with interest on that amount in the Termination Currency, for the period from (and including) such Early Termination date to (but excluding) the date the amount is paid, at the Applicable Close-Out Rate.
Offices; Multibranch Parties: Section 10
· If Section 10(a) is specified in the Schedule as applying, each party that enters into a Transaction through an Office other than its head or home office represents to and agrees with the other party that, notwithstanding the place of booking or its jurisdiction of incorporation or organization, its obligations are the same in terms of recourse against it as if it had entered the transaction through its head or home office.
· If a party is specified as a Multibranch Party in the Schedule, such party may, book a Transaction in and make and receive payments and deliveries with respect to a Transaction through any Office listed in respect of that party in the Schedule.
· The Office through which a party enters into a Transaction will be the Office specified for that party in the relevant Confirmation or as otherwise agreed by the parties in writing, and, if an Office for that party is not specified in the Confirmation or agreed by the parties in writing, its head or home office.
Governing Law and Jurisdiction: Section 13
· Governing Law: Law specified in the Schedule: Section 13(a).
· Jurisdiction: Submission to jurisdiction of the English courts now generally non-exclusive if the Proceedings do not involve a Convention court and exclusive if the Proceedings do involve a Convention Court. Non-exclusive jurisdiction of the Courts of the State of New York.
It is not incorrect to say that along with the other Definition Booklets, the ISDA Master forms the Bible for all Over the Counter derivative transactions. The 1987 ISDA Master version is, by and large, no longer used by the business community. The 2002 version is gradually gaining acceptance in the international financial community although it has not been completely implemented. The 2002 version has a few useful new features such as a force majeure termination event clause, set-off provisions and a new method of calculating close-out payment amounts. There are no other differences between the two.
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