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PLAYBOOK TEMPLATES

ISDA Master Agreement

An ISDA Master Agreement standardizes derivatives trading relationships, defining netting, collateral, and termination terms. This playbook assists counsel in managing counterparty risk and regulatory compliance under derivatives frameworks.

Events of Default

Why This Matters: Precise default provisions prevent opportunistic enforcement and ensure parties can address breaches promptly without disproportionate consequences.

Negotiation strategy

If you're the Party A:

Ensure that default events are clearly defined and include objective criteria. Advocate for reasonable cure periods to allow the borrower time to remedy defaults.

If you're the Party B:

Negotiate to limit the scope of default events to material breaches only. Seek to include cure periods and exclude minor or technical defaults.

Essential elements

1

Payment Default

Failure to make timely payments.
2

Insolvency

Inability to pay debts as due.
3

Breach of Agreement

Non-compliance with agreement terms.

Action framework

ACCEPT

Propose edits to clarify ambiguous terms and ensure cure periods are included.

EDIT

Reject clauses that allow termination for minor breaches or lack clear criteria.

ADD

Add language to specify cure periods and exclude minor breaches.

PRO TIP

Always ensure that the definition of 'material adverse change' is precise to avoid subjective interpretations.

Example clauses

FAVORABLE

Objective Default Triggers

"An Event of Default shall occur if the Borrower fails to make any payment when due and such failure is not remedied within five Business Days after notice."
NEUTRAL

Standard Default Clause

"A party becomes insolvent or is unable to pay its debts as they become due."
UNFAVORABLE

Broad Default Triggers

"Any breach of this Agreement shall constitute an Event of Default."

Fallbacks

High-Risk Projects

In high-risk projects, lenders may require more stringent default provisions to mitigate potential losses. Ensure these are balanced with reasonable cure periods.

Start-Up Financing

For start-ups, default provisions should consider the volatile nature of early-stage businesses and include flexible terms to accommodate growth challenges.

Cross-Border Transactions

In cross-border deals, consider jurisdictional differences in insolvency laws and ensure default provisions are enforceable in all relevant jurisdictions.
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