While a combination of low interest rates and negative experiences with complex pre–credit crunch hedging arrangements has resulted in the majority of hedges seen in recent years taking the form of interest rate caps, this will change as interest rates increase.
When an Event of Default or Potential Event of Default arises on an interest rate swap related to a real estate loan due to hedge provider insolvency, Original Section 2 gives the borrower the option whether to terminate the swap based on its Early Termination Amount.
A consultation exercise was launched to devise a means of allowing the non-defaulting party to decide whether to terminate in an “orderly and commercially reasonable way” while providing certainty to administrators that termination would occur “within a reasonable period”.
ISDA’s Response ISDA’s response was to create an optional amendment to Section 2 of the Master Agreement (“Revised Section 2”) under which on the occurrence of an Event of Default or Potential Event of Default, the defaulting party can give notice to the non-defaulting party requiring it to elect within a period of 90 days to terminate the Transaction or continue to make payments.
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Additionally, market reports indicate that some hedge providers now require Revised Section 2 in all of their ISDA Master Agreements as a matter of policy.
You are not required to send your original Adherence Letter(s) by mail to ISDA.
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