For ease of reference, the Board
is republishing, with permission, the full text of the ISDA 2020 IBOR
Fallbacks Protocol (ISDA protocol), published on October 23, 2020,
by the International Swaps and Derivatives Association, Inc. The full
text of the ISDA protocol follows:
ISDA 2020
IBOR Fallbacks Protocol
Published on October
23, 2020
By the International Swaps and Derivatives
Association, Inc.
The International Swaps and Derivatives Association, Inc.
(ISDA) has published this ISDA 2020 IBOR Fallbacks Protocol (this
Protocol) to enable parties to Protocol Covered Documents to amend
the terms of each such Protocol Covered Document to (i) in respect
of a Protocol Covered Document which incorporates, or references a
rate as defined in, a Covered ISDA Definitions Booklet, include in
the terms of such Protocol Covered Document either the terms of, or
a particular defined term included in, the Supplement to the 2006
ISDA Definitions, finalized on October 23, 2020 and to be published
by ISDA and effective on January 25, 2021 (the IBOR Fallbacks Supplement)
and (ii) in respect of a Protocol Covered Document which otherwise
references a Relevant IBOR, include in the terms of such Protocol
Covered Document new fallbacks for that Relevant IBOR.
Accordingly, a party may adhere
to this Protocol and be bound by its terms by completing and delivering
a letter substantially in the form of Exhibit 1 to this Protocol (an
Adherence Letter) to ISDA, as agent, as described below (each such
party, an Adhering Party).
1. Adherence
to and Effectiveness of the Protocol
(a) By
adhering to this Protocol in the manner set forth in this paragraph
1, each Adhering Party agrees, in consideration of the mutual promises
and covenants contained herein, that the terms of each Protocol Covered
Document between such Adhering Party and any other Adhering Party
will be amended in accordance with the terms and subject to the conditions
set forth in the Attachment hereto.
(b) Adherence
to this Protocol will be evidenced by the execution and online delivery,
in accordance with this paragraph, to ISDA, as agent, of an Adherence
Letter (in accordance with subparagraphs 1(b)(i) to 1(b)(iii) below).
ISDA shall have the right, in its sole and absolute discretion, upon
at least thirty calendar days’ notice on the “ISDA 2020
IBOR Fallbacks Protocol” section of its website at www.isda.org
(or by other suitable means), to designate a closing date of this
Protocol (such closing date, the Cut-off Date). After the Cut-off
Date, ISDA will not accept any further Adherence Letters to this Protocol.
(i) Each Adhering Party will access the
“Protocols” section of the ISDA website at www.isda.org
to enter information online that is required to generate its form
of Adherence Letter and will submit payment of any applicable fee.
Either by directly downloading the populated Adherence Letter from
the Protocol system or upon receipt via email of the populated Adherence
Letter, each Adhering Party will sign and upload the signed Adherence
Letter as a PDF (portable document format) attachment into the Protocol
system. Once the signed Adherence Letter has been approved and accepted
by ISDA, such Adhering Party will receive an email confirmation of
the Adhering Party’s adherence to this Protocol.
(ii) A conformed copy of each
Adherence Letter containing, in place of each signature, the printed
or typewritten name of each signatory will be published by ISDA so
that it may be viewed by all Adhering Parties. Each Adhering Party
agrees that, for evidentiary purposes, a conformed copy of an Adherence
Letter certified by the General Counsel (or other appropriate officer)
of ISDA will be deemed to be an original.
(iii) Each Adhering Party agrees that the
determination of the date and time of acceptance of any Adherence
Letter will be determined by ISDA in its absolute discretion. Any
Adherence Letter which is dated and delivered to ISDA before the date
on which this Protocol is published will be deemed to have been delivered
on the date on which this Protocol is published.
(c) As between two Adhering Parties, the agreement to
make the amendments contemplated by this Protocol, on the terms and
conditions set forth in this Protocol, will be effective on the Implementation
Date and that agreement will form part of each Protocol Covered Document
from the later of the Implementation Date and the related Protocol
Covered Document Date. The amendments contemplated by this Protocol
shall be made on the later of (i) the Implementation Date and (ii)
the Protocol Effective Date.
(A) The Protocol Effective
Date with respect to a Protocol Covered Document shall be January
25, 2021.
(B) The
Implementation Date with respect to any two Adhering Parties shall
be the date of acceptance by ISDA, as agent, of an Adherence Letter
(in accordance with paragraph 1(b) above) from the later of such two
Adhering Parties to adhere except that:
(I) In respect of any Protocol
Covered Document into which an Agent has entered on behalf of a Client,
subject to paragraph 3(m) below, the Implementation Date shall be
the date specified in subparagraph 3(g)(i)(A), subparagraph 3(g)(i)(B),
subparagraph 3(g)(i)(C), paragraph 3(h), paragraph 3(i) or paragraph
3(j) below, as applicable; and
(II) In respect of any Non-Agent Executed
Protocol Covered Document, subject to paragraph 3(m) below, the Implementation
Date shall be the day specified in paragraph 3(l) below.
Acceptance
by ISDA of a subsequent or revised Adherence Letter from either such
Adhering Party will not have the effect of changing such Implementation
Date.
(d) This Protocol
is intended for use without negotiation, but without prejudice to
any amendment, modification or waiver in respect of a Protocol Covered
Document that the parties may otherwise effect in accordance with
the terms of that Protocol Covered Document.
(i) In adhering to this Protocol, an Adhering
Party may not specify additional provisions, conditions or limitations
in its Adherence Letter.
(ii) Any purported adherence that ISDA, as agent, determines in good
faith is not in compliance with this Protocol will be void and ISDA
will inform the relevant party of such fact as soon as reasonably
possible after making such determination.
(e) Each Adhering Party acknowledges and agrees that adherence to
this Protocol is irrevocable, except that an Adhering Party may, after
the Protocol Effective Date, deliver to ISDA, as agent, a notice substantially
in the form of Exhibit 2 to this Protocol that is effective (determined
pursuant to paragraph 3(f) below) on any Protocol Business Day (a
Revocation Notice) to designate the next Revocation Date as the last
date on which an Implementation Date can occur in respect of any Protocol
Covered Document between the counterparty and such Adhering Party.
Following the effective delivery of a Revocation Notice by an Adhering
Party, this Protocol will not amend any Protocol Covered Document
between that Adhering Party and another Adhering Party for which the
Implementation Date would occur after the related Revocation Date.
(i) If an Agent adheres to this Protocol
on behalf
of a Client, then, if the Client effectively delivers a Revocation
Notice in accordance with this paragraph 1(e), this Protocol will
not amend any Protocol Covered Document between another Adhering Party
and that Client entered into by that Client itself or by the Agent
on behalf of that Client or any Non-Agent Executed Protocol Covered
Document (if applicable), in each case, for which the Implementation
Date would occur after the Revocation Date designated as the last
date on which an Implementation Date can occur in the Client’s
Revocation Notice.
(ii)
If an Agent delivers a Revocation Notice in accordance with this paragraph
1(e) on behalf of a Client and the Client separately adheres to this
Protocol directly rather than through the agency of an Agent, then
the Revocation Notice delivered by the Agent will not prevent an Implementation
Date from occurring after the Revocation Date in respect of any Protocol
Covered Document into which the Client has entered with another Adhering
Party (including through the Agent).
(iii) Subparagraph 1(e)(i), subparagraph
1(e)(ii) and subparagraph 1(e)(iii) are without prejudice to any amendment
effected pursuant to this Protocol to any Protocol Covered Document
between two Adhering Parties for which the Implementation Date occurred
on or before the day on which that Revocation Date occurs or is deemed
to occur, regardless of the date on which such Protocol Covered Document
is entered into, and any such amendment shall be effective notwithstanding
the occurrence or deemed occurrence of such Revocation Date.
(iv) Each Revocation Notice
must be delivered by the means specified in paragraph 3(f) below.
(v) Each Adhering Party
agrees that, for evidentiary purposes, a conformed copy of a Revocation
Notice certified by the General Counsel or an appropriate officer
of ISDA will be deemed to be an original.
(vi) Any purported revocation that ISDA,
as agent, determines in good faith is not in compliance with this
paragraph 1(e) will be void and ISDA will inform the relevant party
of such fact as soon as reasonably possible after making such determination.
2. Representations and Undertakings
(a) As of the later of (i) the date on which
an Adhering Party adheres to this Protocol in accordance with paragraph
1 above (which will be the date of acceptance by ISDA of an Adherence
Letter from that Adhering Party (in accordance with paragraph 1(b)
above)) and (ii) the Protocol Covered Document Date, such Adhering
Party represents to each other Adhering Party with which it has entered
into a Protocol Covered Document (which representations will be deemed
to be repeated on the Protocol Effective Date and the Implementation
Date if one or both such dates are later than the date on which such
Adhering Party adheres to this Protocol) each of the following matters:
(A) Status. It is, if relevant, duly organized
and validly existing under the laws of the jurisdiction of its organization
or incorporation and, if relevant under such laws, in good standing
or, if it otherwise represents its status in or pursuant to the Protocol
Covered Document, has such status.
(B) Powers. It has the power to execute and deliver the Adherence Letter and
to perform its obligations under the Adherence Letter and the Protocol
Covered Document as amended by the Adherence Letter and this Protocol
(including the Attachment hereto), and has taken all necessary action
to authorize such execution, delivery and performance.
(C) No Violation or Conflict. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision
of its constitutional documents, any order or judgment of any court
or other agency of government applicable to it or any of its assets
or any contractual restriction binding on or affecting it or any of
its assets.
(D) Consents. All governmental and other consents
that are required to have been obtained by it with respect to the Adherence
Letter and the Protocol Covered Document, as amended by the Adherence
Letter and this Protocol (including the Attachment hereto), have been
obtained and are in full force and effect and all conditions of any
such consents have been complied with.
(E) Obligations
Binding. Its obligations under the Adherence Letter and the Protocol
Covered Document, as amended by the Adherence Letter and this Protocol
(including the Attachment hereto), constitute its legal, valid and
binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors’ rights generally
and subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding
in equity or at law)).
(F) Credit Support. Its adherence
to this Protocol and any amendment contemplated by this Protocol (including
the Attachment hereto) will not, in and of itself, adversely affect
the enforceability, effectiveness or validity of any obligations owed,
whether by it or by any third party, under any Credit Support Document
or Third Party Credit Support Document in respect of its obligations
relating to any Protocol Covered Document as amended by the Adherence
Letter and this Protocol (including the Attachment hereto).
(b) Each Adhering Party agrees with each
other Adhering Party with which it has entered into a Protocol Covered
Document that each of the foregoing representations will be deemed,
in the case of a Protocol Covered Document that is an ISDA Master
Agreement, to be a representation for purposes of Section 5(a)(iv)
and in the case of any other Protocol Covered Document, to be a representation
for purposes of any analogous provisions of each such Protocol Covered
Document, that is made by each Adhering Party as of the later of (i)
the date on which such Adhering Party adheres to this Protocol in
accordance with paragraph 1 above and (ii) the Protocol Covered Document
Date and which is deemed repeated on the Protocol Effective Date and
the Implementation Date if one or both such dates are later than the
date on which such Adhering Party adheres to this Protocol.
(c) Undertakings in respect
of Protocol Covered Documents with Third Party Credit Support Documents. With respect to Protocol Covered Documents with Third Party Credit
Support Documents that expressly require the consent, approval, agreement,
authorization or other action of a Third Party to be obtained, each
Adhering Party whose obligations under such arrangements are secured,
guaranteed or otherwise supported by such Third Party undertakes to
each other Adhering Party with which it has entered into such arrangements
that it has obtained the consent (including by way of paragraph 2(d)
below), approval, agreement, authorization or other action of such
Third Party and that it will, upon demand, deliver evidence of such
consent, approval, agreement, authorization or other action to such
other Adhering Party.
(d) Deemed Third Party Consent. Each Adhering Party which is also
a Third Party in relation to a Third Party Credit Support Document
is hereby deemed to have consented to the amendments imposed by this
Protocol on the Protocol Covered Document supported by such Third
Party Credit Support Document.
3. Miscellaneous
(a) Entire Agreement;
Restatement; Survival.
(i) This Protocol constitutes the entire
agreement and understanding of the Adhering Parties with respect to
its subject matter and supersedes all oral communication and prior
writings (except as otherwise provided herein) with respect thereto.
Each Adhering Party acknowledges that in adhering to this Protocol
it has not relied on any oral or written representation, warranty
or other assurance (except as provided for or referred to elsewhere
in this Protocol or in the Attachment) and waives all rights and remedies
which might otherwise be available to it in respect thereof, except
that nothing in this Protocol will limit or exclude any liability
of an Adhering Party for fraud.
(ii) Except for any amendment deemed to
be made pursuant to this Protocol in respect of any Protocol Covered
Document, all terms and conditions of each Protocol Covered Document
will continue in full force and effect in accordance with its provisions
as in effect immediately prior to the date on which it first becomes
subject to this Protocol. Except as explicitly stated in this Protocol,
nothing herein shall constitute a waiver or release of any rights
of any Adhering Party under any Protocol Covered Document to which
such Adhering Party is a party or a provider or recipient of credit
support. This Protocol will, with respect to its subject matter, survive,
and any amendments made or deemed to be made pursuant to this Protocol
will form a part of each Protocol Covered Document between the Adhering
Parties, notwithstanding any statements in a Protocol Covered Document
to the effect that such Protocol Covered Document constitutes the
entire agreement and understanding between the parties to such Protocol
Covered Document with respect to the subject of such Protocol Covered
Document.
(b) Exclusion of Agreements. Notwithstanding anything in paragraph
1(a) above, with respect to any agreement between Adhering Parties,
if the parties to such agreement have expressly stated in such agreement
or otherwise agreed in writing that this Protocol shall not apply,
then such agreement shall not be a Protocol Covered Document.
(c) Amendments. An amendment,
modification or waiver in respect of the matters contemplated by this
Protocol (including, for the avoidance of doubt, any amendment, modification
or waiver relating to the alignment of a Protocol Covered Document
with an instrument for which such Protocol Covered Document is intended
to serve as a hedge (or vice versa)) will only be effective in respect
of a Protocol Covered Document if made in accordance with the terms
of the Protocol Covered Document and then only with effect between
the parties to that Protocol Covered Document.
(d) Headings. The headings used in
this Protocol and any Adherence Letter are for convenience of reference
only and are not to affect the construction of or to be taken into
consideration in interpreting this Protocol or any Adherence Letter.
(e) Governing Law. This Protocol and each Adherence Letter will, as between two Adhering
Parties and in respect of each Protocol Covered Document between them,
be governed by and construed in accordance with the laws of England
and Wales, without reference to choice of law doctrine, provided that
the amendments to each Protocol Covered Document shall be governed
by and construed in accordance with the law specified to govern that
Protocol Covered Document and otherwise in accordance with the applicable
choice of law doctrine.
(f) Notices. Any Revocation Notice must be
in writing and delivered as a locked PDF (portable document format)
attachment to an email to ISDA at isda@isda.org and will be deemed
effectively delivered on the date it is delivered unless, on the date
of that delivery, ISDA’s London office is closed or that communication
is delivered after 5:00 p.m., London time, in which case that communication
will be deemed effectively delivered on the next day ISDA’s
London office is open.
(g) Ability of an Agent to Adhere to the Protocol on Behalf of a Client.
(i) An Agent may adhere to
this Protocol:
(A) On behalf of all Clients represented
by such Agent (in which case, such Agent need not identify each Client
through an online platform available generally to the industry, including,
for example, the ISDA Amend platform provided by IHS Markit (a Platform)
and, in respect of any Protocol Covered Document into which the Agent
has entered on behalf of those Clients, the Implementation Date shall
be the date of acceptance by ISDA of an Adherence Letter (in accordance
with paragraph 1(b) above) from the later of the two Adhering Parties
to adhere);
(B)
On behalf of only those Clients represented by such Agent that such
Agent specifically names or identifies through a Platform and, in
respect of any Protocol Covered Document into which the Agent has
entered on behalf of any such Client, the Implementation Date shall
be the date shown on the Platform as the date on which the Agent communicates
the name or identity of that Client to the other Adhering Party (or,
if later, the date of acceptance by ISDA, as agent, of an Adherence
Letter from the other Adhering Party); or
(C) On behalf of all Clients represented
by such Agent, excluding any Clients whose name or identity the Agent
communicates to the other Adhering Party through a Platform as a Client
excluded from adherence, subject to subparagraph 3(h)(i) below, on
or before the date of acceptance by ISDA of an Adherence Letter (in
accordance with paragraph 1(b) above) from the later of the two Adhering
Parties to adhere (in which case, such Agent need not identify each
Client on whose behalf it adheres through a Platform). In respect
of any Protocol Covered Document into which the Agent has entered
on behalf of any Client whose name or identity has not been communicated
to the other Adhering Party through a Platform as a Client excluded
from adherence, the Implementation Date shall (subject to subparagraph
3(h)(i) below) be the date of acceptance by ISDA of an Adherence Letter
(in accordance with paragraph 1(b) above) from the later of the two
Adhering Parties to adhere. If the Agent has not communicated the
name or identity of any Clients excluded from adherence to the other
Adhering Party through a Platform on or before the date of acceptance
by ISDA of an Adherence Letter (in accordance with paragraph 1(b)
above) from the later of the two Adhering Parties to adhere, then
(subject to subparagraph 3(h)(i) below) in respect of any Protocol
Covered Document into which the Agent has entered on behalf of any
Client, the Implementation Date shall be the date of acceptance by
ISDA of an Adherence Letter (in accordance with paragraph 1(b) above)
from the later of the two Adhering Parties to adhere, and, in each
case, if the Agent elects for Option 2 in its Adherence Letter, on
behalf of those Clients whose name or identity the Agent communicates
to the other Adhering Party through a Platform as being a Client in
respect of which subparagraph 3(g)(ii)(B)(II) below applies (in which
case, the Implementation Date in respect of any Non-Agent Executed
Protocol Covered Document shall be as specified in subparagraph 3(l) below).
(ii) In each case, the Agent can elect
to apply the amendments in this Protocol to either:
(A) In respect
of all those Clients on whose behalf the Agent adheres pursuant to
subparagraph 3(g)(i)(A), subparagraph 3(g)(i)(B) or subparagraph 3(g)(i)(C)
above, each Protocol Covered Document into which the Agent has entered
on behalf of those Clients (Option 1); or
(B) In respect of all those Clients
on whose behalf the Agent adheres pursuant to subparagraph 3(g)(i)(A),
subparagraph 3(g)(i)(B) or subparagraph 3(g)(i)(C) above, each Protocol
Covered Document into which the Agent has entered on behalf of those
Clients and (II) in respect of those Clients on whose behalf the Agent
adheres whose name or identity the Agent communicates to the other
Adhering Party through a Platform as being a Client in respect of
which this subparagraph 3(g)(ii)(B)(II) applies, each Protocol Covered
Document into which the Agent did not enter on behalf of those Clients
but which the Agent has the authority from the relevant Client to
amend (for the purpose of this Protocol, documents described in this
subparagraph 3(g)(ii)(B)(II) being Non-Agent Executed Protocol
Covered Documents and the date shown on the Platform as the date on which
the Agent communicates the name or identity of the Client to the other
Adhering Party for the purposes of this subparagraph 3(g)(ii)(B)(II)
being the Identification Date) (Option 2). If an Agent adheres
to this Protocol and elects for Option 2, in respect of any Client
on whose behalf the Agent adheres pursuant to subparagraph 3(g)(i)(A),
subparagraph 3(g)(i)(B) or subparagraph 3(g)(i)(C) above whose name
or identity is communicated to the other Adhering Party as being a
Client in respect of which subparagraph 3(g)(ii)(B)(II) above applies,
Protocol Covered Documents referred to in both subparagraph 3(g)(ii)(B)(I)
and subparagraph 3(g)(ii)(B)(II) above will be amended in accordance
with the terms of this Protocol. For the avoidance of doubt, any Protocol
Covered Document into which the Agent did not enter on behalf of a
Client and which the Agent does not have the authority from the relevant
Client to amend will not constitute a Non-Agent Executed Protocol
Covered Document.
(iii) The election for Option 1 or Option
2 shall be made in the Adherence Letter. Adherence by the Agent shall
only be effective with respect to those Protocol Covered Documents
described in Option 1 or Option 2, as applicable, and as elected in
the Adherence Letter (subject to, if the Agent elects for Option 2
and with respect to Non-Agent Executed Protocol Covered Documents,
(A) Subparagraph 3(g)(iv) and paragraph 3(l) below and (B)
the Agent communicating the name or identity of those Clients on behalf
of which it is amending Non-Agent Executed Protocol Covered Documents
to the other Adhering Party, in accordance with subparagraph 3(g)(ii)(B)(II)
above (regardless of whether the Agent adheres to this Protocol using
the approach described in subparagraph 3(g)(i)(A), subparagraph 3(g)(i)(B)
or subparagraph 3(g)(i)(C) above)).
(iv) If an Agent adheres to this Protocol
and elects for Option 2 in its Adherence Letter, then, in respect
of any Non-Agent Executed Protocol Covered Document only, the Agent
shall, as soon as reasonably practicable following a written request
(including by email) from the other Adhering Party, and in any event
by no later than the end of the fifteenth calendar day following such
request, provide reasonable evidence satisfactory to the other Adhering
Party in its sole discretion supporting the Agent’s authority
to amend such documents, provided that:
(A) If, prior to the
date of acceptance by ISDA of an Adherence Letter (in accordance with
paragraph 1(b) above) from the later of the Agent and the other Adhering
Party to adhere, the Agent has delivered to the other Adhering Party
a copy, or relevant extracts, of the agreement (such as an investment
management agreement) pursuant to which the relevant Client appoints
the Agent to act on its behalf and authorizes the Agent to make the
amendments contemplated by this Protocol to the Non-Agent Executed
Protocol Covered Document (whether or not such authority expressly
refers to this Protocol), then, subject to the other Adhering Party’s
right to request (which request must be in writing (which includes
by email)) an additional copy of that agreement or those relevant
extracts (which request shall be made no later than the end of the
fifteenth calendar day following the later of the Identification Date
and the date of acceptance by ISDA, as agent, of an Adherence Letter
from that other Adhering Party), the Agent need not provide any further
evidence supporting its authority to amend that Non-Agent Executed
Protocol Covered Document on behalf of that Client for the purposes
of this Protocol and, in respect of that Non-Agent Executed Protocol
Covered Document, shall be deemed to have provided reasonable evidence
satisfactory to the other Adhering Party on (I) if the other Adhering
Party does not request an additional copy of that agreement or those
relevant extracts, the end of the fifteenth calendar day following
the later of the Identification Date and the date of acceptance by
ISDA, as agent, of an Adherence Letter from that other Adhering Party
or (II) If the other Adhering Party does request an additional copy
of that agreement or those relevant extracts, the day on which that
additional copy is delivered to the other Adhering Party;
(B) If the other Adhering
Party does not request such evidence by the end of the fifteenth calendar
day following the later of the Identification Date and the date of
acceptance by ISDA, as agent, of an Adherence Letter from that other
Adhering Party, then the Agent shall be deemed to have provided reasonable
evidence satisfactory to the other Adhering Party at the end of that
fifteenth calendar day;
(C) Subject to subparagraph 3(g)(iv)(A) above, following the delivery
of any such evidence by the Agent to the other Adhering Party, unless
the other Adhering Party notifies the Agent to the contrary by the
end of the fifteenth calendar day following the day on which such
evidence is delivered, the Agent shall be deemed to have provided
reasonable evidence satisfactory to the other Adhering Party at the
end of that fifteenth calendar day;
(D) If:
(I) following written request
from the other Adhering Party, the Agent does not provide the other
Adhering Party with any evidence supporting its authority to amend
such documents or, if subparagraph 3(g)(iv)(A) above applies, with
an additional copy of the relevant agreement or extracts, by the end
of the fifteenth calendar day following such written request; or
(II) subject to subparagraph
3(g)(iv)(A) above, the other Adhering Party determines that the evidence
provided by the Agent is not satisfactory and notifies the Agent accordingly
by the end of the fifteenth calendar day following the day on which
such evidence is delivered, Then request for evidence and the Agent’s
right to provide such evidence and, in respect of any such evidence,
subject to subparagraph 3(g)(iv)(C) above, the Non-Agent Executed
Protocol Covered Document shall not be amended by this Protocol; and
(E)
Any failure by the Agent to provide the other Adhering Party with
such evidence shall not give rise to a Potential Event of Default
or an Event of Default (each as defined in the ISDA Master Agreement),
or any similar event, under that Non-Agent Executed Protocol Covered
Document or other contractual right of action under this Protocol
or that Non-Agent Executed Protocol Covered Document.
(v) If an Agent adheres
to this Protocol and specifically names or identifies one or more
Clients
(A) On whose behalf it is adhering (as
contemplated in subparagraph 3(g)(i)(B) above), (B) which are excluded
from adherence (as contemplated in subparagraph 3(g)(i)(C) above),
and/or (C) on whose behalf it is amending Non-Agent Executed Protocol
Covered Documents (as contemplated in subparagraph 3(g)(ii)(B)(II)
above), as applicable, through a Platform, that Agent shall provide
the legal entity identifier (LEI) of each such Client through such
Platform.
(vi) If an Agent adheres to this Protocol on behalf of a Client by
executing and delivering an Adherence Letter on behalf of such Client
in accordance with paragraph 1 above and this paragraph 3(g), references
to the Adhering Party for purposes of this Protocol (including the
Attachment hereto) and the Adherence Letter shall be interpreted to
refer to such Client. If, in respect of a Client, more than one Adherence
Letter is accepted by ISDA in accordance with paragraph 1(b) above
(by virtue of the Client adhering on its own behalf and one or more
Agents adhering on behalf of that Client), then:
(A) If ISDA
accepts an Adherence Letter from an Agent on behalf of a Client after it accepts
an Adherence Letter from that Client, any document entered into by:
(I) That Agent acting on behalf of that Client; or
(II) If the Agent elects for Option 2 in its
Adherence Letter, that Client on its own behalf but which the Agent
has the authority from the relevant Client to amend, in each case,
which has a Protocol Covered Document Date prior to:
(1) The Protocol Effective Date; or
(2) If later, the date of acceptance
by ISDA, as agent, of an Adherence Letter from that Agent (or, if
later, the date of acceptance by ISDA, as agent, of an Adherence Letter
from the other Adhering Party),
will be deemed to have
“a Protocol Covered Document Date prior to the Protocol Effective
Date (or, if later, the date of acceptance by ISDA, as agent, of an
Adherence Letter (in accordance with paragraph 1(b) above) from the
later of the two Adhering Parties to adhere)” for the purposes
of the definitions of Protocol Covered Confirmation, Protocol Covered
Credit Support Document and Protocol Covered Master Agreement below;
and
(B) If ISDA accepts
an Adherence Letter from a Client after it accepts an Adherence Letter
from an Agent on behalf of that Client, any document entered into
by the Client, whether directly or through the agency of an Agent,
which has a Protocol Covered Document Date prior to:
(I) The Protocol
Effective Date; or if later, the date of acceptance by ISDA, as agent,
of an Adherence Letter from that Client (or, if later, the date of
acceptance by ISDA, as agent, of an Adherence Letter from the other
Adhering Party), will be deemed to have “a Protocol Covered
Document Date prior to the Protocol Effective Date (or, if later,
the date of acceptance by ISDA, as agent, of an Adherence Letter (in
accordance with paragraph 1(b) above) from the later of the two Adhering
Parties to adhere)” for the purposes of the definitions of Protocol
Covered Confirmation, Protocol Covered Credit Support Document and
Protocol Covered Master Agreement below.
(vii) If an Agent adheres
to this Protocol on behalf of a Client, then as of the later of (A)
the date on which such Agent adheres to this Protocol in accordance
with paragraph 1 above and (B) the Protocol Covered Document Date,
such Agent represents to each Adhering Party (I) with which it has
entered into a Protocol Covered Document on behalf of such Client
or (II) which is a party to any Non-Agent Executed Protocol Covered
Document (which representation will be deemed to be repeated on the
Protocol Effective Date and on the Implementation Date if one or both
such dates are later than the date on which such Agent adheres to
this Protocol) that it has, as at the relevant Implementation Date,
all necessary authority to enter into the Adherence Letter on behalf
of such Client. In respect of any Client referred to in paragraph
3(h), paragraph 3(i), paragraph 3(j) or paragraph 3(k) below, the
Agent represents that it has, as at the relevant Implementation Date,
all necessary authority to apply the terms of the Adherence Letter
to such Client.
(h) Clients Added to an Agent Protocol Covered Document
after the date of acceptance by ISDA of an Adherence Letter from the
later of the Agent and the other Adhering Party to adhere.
(i) Subject to subparagraph
3(h)(ii) below, in respect of any Client added to an Agent Protocol
Covered Document between an Agent and an Adhering Party after the
date of acceptance by ISDA of an Adherence Letter (in accordance with
paragraph 1(b) above) from the later of the Agent and the other Adhering
Party to adhere (a New Client), the Agent and such Adhering Party
agree that the terms of such Agent Protocol Covered Document as between
such Adhering Party and any New Client will be subject to the amendments
effected by this Protocol and as between the Adhering Party and the
New Client the Implementation Date shall be the date on which the New Client
is added to the Agent Protocol Covered Document, unless otherwise
agreed between such Agent and such Adhering Party (which agreement
may, if the Agent adheres to this Protocol using the approach in subparagraph
3(g)(i)(C) above, be reached by the Agent communicating to the other
Adhering Party through a Platform, at the time the New Client is added
to the Agent Protocol Covered Document, that the New Client is excluded
from adherence).
(ii)
If an Agent adheres to this Protocol using the approach described
in subparagraph 3(g)(i)(B) above and therefore specifically names
or identifies one or more Clients on whose behalf it is adhering,
then in order for the terms of an Agent Protocol Covered Document
as between an Adhering Party and any New Client to be subject to the
amendments effected by this Protocol, the Agent shall communicate
the identity of each New Client (including the legal entity identifier
(LEI)) to the other Adhering Party which is a party to the Agent Protocol
Covered Document to which the New Client is added through a Platform
and, as between the other Adhering Party and that New Client, the
Implementation Date shall be the date shown on the Platform as the
date on which the Agent communicates the identity of that New Client
to the other Adhering Party through that Platform.
(i) Clients Added to an Agent’s
List of Identified In-Scope Clients after the date of Acceptance by
ISDA of the Agent’s Adherence Letter. If an Agent adheres
to this Protocol using the approach described in subparagraph 3(g)(i)(B)
above and therefore specifically names or identifies one or more Clients
on whose behalf it is adhering, then for the purposes of subparagraph
3(g)(ii)(A) or 3(g)(ii)(B)(I) above, as applicable, it may communicate
the name or identity of additional Clients on whose behalf it is adhering
(through a Platform) to another Adhering Party after the date of acceptance
by ISDA, as agent, of its Adherence Letter and, as between that other
Adhering Party and the additional Client, the Implementation Date
shall be the date shown on the Platform as the date on which the Agent
communicates the identity of that additional Client to the other Adhering
Party through that Platform for those purposes (or, if later, the
date of acceptance by ISDA, as agent, of an Adherence Letter from
that other Adhering Party), unless otherwise agreed between such Agent
and such Adhering Party.
(j) Clients Removed from an Agent’s List of
Excluded Clients after the date of Acceptance by ISDA of the Agent’s
Adherence Letter. If an Agent adheres to this Protocol using
the approach described in subparagraph 3(g)(i)(C) above and therefore
specifically names or identifies one or more Clients as excluded from
adherence, then for the purposes of subparagraph 3(g)(ii)(A) or 3(g)(ii)(B)(I)
above, as applicable, the Agent may, after the date of acceptance
by ISDA, as agent, of its Adherence Letter, remove one or more of
those Clients from its list of excluded Clients through a Platform
and, as between any other Adhering Party and that Client, the Implementation
Date shall be the date shown on the Platform as the date on which
the Agent communicates to the other Adhering Party that the Client
is removed from the list of excluded Clients (or, if later, the date
of acceptance by ISDA, as agent, of an Adherence Letter from that
other Adhering Party), unless otherwise agreed between such Agent
and such Adhering Party.
(k) Clients Added to an Agent’s List of Clients
in respect of which subparagraph 3(g)(ii)(B)(II) above applies. If an Agent adheres to this Protocol, elects for Option 2 in its
Adherence Letter and therefore specifically names or identifies one
or more Clients in respect of which subparagraph 3(g)(ii)(B)(II) above
applies, then it may name or identify additional Clients in respect
of which subparagraph 3(g)(ii)(B)(II) above applies (through a Platform)
after the date of acceptance by ISDA, as agent, of its Adherence Letter.
(l) Authority to
amend Non-Agent Executed Protocol Covered Documents. If an Agent
adheres to this Protocol and elects for Option 2 (as described in
subparagraph 3(g)(ii) above), then, in respect of each Non-Agent Executed
Protocol Covered Document, the Implementation Date shall be the day
on which the Agent is deemed to have provided evidence supporting
the Agent’s authority to amend such Non-Agent Executed Protocol
Covered Document to the other Adhering Party pursuant to subparagraph
3(g)(iv) above and, for the purposes of subparagraph 3(g)(iii) above,
with respect to such Non-Agent Executed Protocol Covered Documents
only, the Agent’s adherence will be deemed effective on that
day.
(m) Implementation
Date if both an Agent and a Client adhere to this Protocol or if more
than one Agent adheres for a Client. If an Agent adheres to this
Protocol and, in respect of a particular Client and a Protocol Covered
Document into which the Agent has entered on behalf of that Client
or a Non-Agent Executed Protocol Covered Document, there is, pursuant
to the terms of this Protocol, more than one Implementation Date,
then, notwithstanding any provision to the contrary in this Protocol,
the Implementation Date shall be the first of those dates to occur.
(n) Adhering Party that
is an Agent with respect to a Protocol Covered Document. An Adhering
Party that executes a Protocol Covered Document (including an annex
thereto) as agent with respect to that Protocol Covered Document,
shall not for purposes of this Protocol be considered to be a party
to or to have entered into such Protocol Covered Document solely by
acting as agent with respect to that Protocol Covered Document except
as expressly provided therein.
4. Definitions
References in this Protocol and the Attachment
to the following terms shall have the following meanings:
Additional Credit Support Document means the documents
(which, for the avoidance of doubt, shall be deemed to include any
annexes or appendices thereto) set out in Part 2 of the Additional
Documents Annex to this Protocol.
Additional
Master Agreement means the documents (which, for the avoidance
of doubt, shall be deemed to include any annexes or appendices thereto)
set out in Part 1 of the Additional Documents Annex to this Protocol.
Adherence Letter has the meaning given to
such term in the introductory paragraphs hereof.
Adhering Party has the meaning given to such term in the introductory
paragraphs hereof, as construed in accordance with subparagraph 3(g)(vi)
above where relevant.
Agent means an entity
that enters into a Protocol Covered Document (or which has the authority
to amend a Non-Agent Executed Protocol Covered Document) and executes
and delivers an Adherence Letter with respect to this Protocol on
behalf of, and as agent for, one or more Clients. With respect to
paragraph 3(h) above, Agent also means an entity that enters into
a Protocol Covered Document and executes and delivers an Adherence
Letter pursuant to subparagraph 3(g)(i) above solely for purposes
of amending such agreements to which New Clients may be added under
paragraph 3(h) above.
Agent Protocol Covered
Document means any Protocol Covered Document signed by the Agent
on behalf of one or more Clients prior to the Protocol Effective Date
(or, if later, the date of acceptance by ISDA, as agent, of an Adherence
Letter (in accordance with paragraph 1(b) above) from the later of
the Agent and the other Adhering Party to adhere), including any agreement
that is signed as an umbrella agreement by an Agent and an Adhering
Party prior to the Protocol Effective Date (or, if later, the date
of acceptance by ISDA, as agent, of an Adherence Letter (in accordance
with paragraph 1(b) above) from the later of the Agent and the other
Adhering Party to adhere) which would be a Protocol Covered Document
but for the absence of any underlying Client which is an Adhering
Party.
Client means, with respect to an
Agent, a client, investor, fund, account and/or other principal on
whose behalf the Agent acts.
Confirmation means,
in respect of a transaction, one or more documents or other confirming
evidence exchanged between the parties or otherwise effective for
the purpose of confirming or evidencing the transaction.
Covered ISDA Definitions Booklet means each of
the 2006 ISDA Definitions, the 2000 ISDA Definitions, the 1998 ISDA
Euro Definitions, the 1998 Supplement to the 1991 ISDA Definitions
and the 1991 ISDA Definitions, each as published by ISDA.
Credit Support Document means, in respect of an
Adhering Party and a Protocol Covered Document, any document in effect
on the Implementation Date, which by its terms secures, guarantees
or otherwise supports such Adhering Party’s obligations under
such Protocol Covered Document from time to time, whether or not such
document is specified as such therein or in the Protocol Covered Document.
Cut-off Date has the meaning given to such
term in paragraph 1(b) above.
IBOR Fallbacks
Supplement has the meaning given to such term in the introductory
paragraphs hereof.
Identification Date has
the meaning given to such term in subparagraph 3(g)(ii)(B)(II) above.
Implementation Date has the meaning given
to such term in subparagraph 1(c)(B) above.
ISDA has the meaning given to such term in the introductory paragraphs
hereof.
ISDA Credit Support Document means
each of the following documents:
(a) 1994 ISDA Credit Support Annex (Bilateral
Form; ISDA Agreements Subject to New York Law Only);
(b) 1995 ISDA Credit Support Annex (Bilateral
Form—Transfer; ISDA Agreements Subject to English law);
(c) 1995 ISDA Credit Support
Deed (Bilateral Form—Security Interest; ISDA Agreements Subject
to English Law);
(d)
1995 ISDA Credit Support Annex (Bilateral Form—Loan and Pledge;
Security Interest Subject to Japanese Law);
(e) 1995 ISDA Credit Support Annex (Bilateral
Form—Transfer; ISDA Agreement Subject to French Law);
(f) 1995 ISDA Credit Support
Annex (Bilateral Form—Transfer; ISDA Agreement Subject to Irish
Law);
(g) 2008 ISDA
Credit Support Annex (Loan/Japanese Pledge);
(h) 2013 Standard Credit Support Annex
(New York Law);
(i)
2013 Standard Credit Support Annex (English Law);
(j) 2014 Standard Credit Support Annex
(New York Law—Multicurrency Settlement);
(k) 2014 Standard Credit Support Annex
(English Law—Multicurrency Settlement);
(l) 2014 ISDA Korean Law Credit
Support Annex (Bilateral Form—Loan and Pledge; Credit Support
Annex Subject to Korean Law);
(m) 2016 Credit Support Annex for Variation
Margin (VM) (Bilateral Form; ISDA Agreements Subject to New York Law
Only), including any such form entered into between the Parties pursuant
to the ISDA 2016 Variation Margin Protocol;
(n) 2016 Credit Support Annex for Variation
Margin (VM) (Bilateral Form—Transfer; ISDA Agreements Subject
to English Law), including any such form entered into between the
Parties pursuant to the ISDA 2016 Variation Margin Protocol;
(o) 2016 Credit Support Annex
for Variation Margin (VM) (Bilateral Form—Loan; ISDA Agreements
Subject to Japanese Law), including any such form entered into between
the Parties pursuant to the ISDA 2016 Variation Margin Protocol;
(p) 2016 Credit Support
Annex for Variation Margin (VM) (Bilateral Form—Transfer; ISDA
Agreements Subject to French Law); or
(q) 2016 Credit Support Annex for Variation
Margin (VM) (Bilateral Form—Transfer; ISDA Agreements Subject
to Irish Law).
ISDA Master Agreement means an ISDA 2002 Master Agreement, an ISDA 2002 Master Agreement
(French law), an ISDA 2002 Master Agreement (Irish law), a 1992 ISDA
Master Agreement (Multicurrency—Cross Border), a 1992 ISDA Master
Agreement (Local Currency—Single Jurisdiction), a 1987 ISDA
Interest Rate Swap Agreement or a 1987 ISDA Interest Rate and Currency
Exchange Agreement, in each case as published by ISDA.
Master Agreement means an agreement which may
be an ISDA Master Agreement or an Additional Master Agreement that
has been entered into (a) by execution by the parties thereto (whether
directly or through the agency of an Agent) or (b) by execution by
the parties thereto (whether directly or through the agency of an
Agent) of a Confirmation pursuant to which a party is deemed to have
entered into an ISDA Master Agreement or an Additional Master Agreement
with the other party.
New Client has the
meaning given to such term in paragraph 3(h)(i) above.
Non-Agent Executed Protocol Covered Documents has the meaning
given to such term in subparagraph 3(g)(ii)(B)(II) above.
Platform has the meaning given to such term in
paragraph 3(g)(i)(A) above.
Protocol has
the meaning given to such term in the introductory paragraphs hereof.
Protocol Business Day means a day following
the Protocol Effective Date on which commercial banks and foreign
exchange markets are generally open to settle payments in both London
and New York.
Protocol Covered Confirmation means, subject to subparagraph 3(g)(vi) above, a Confirmation which
is entered into between two Adhering Parties (whether directly or
through the agency of an Agent and, if through the agency of an Agent,
whether executed by that Agent or by an entity on behalf of that Agent),
has a Protocol Covered Document Date prior to the Protocol Effective
Date (or, if later, the date of acceptance by ISDA, as agent, of an
Adherence Letter (in accordance with paragraph 1(b) above) from the
later of the two Adhering Parties to adhere) and:
(a) supplements, forms part of and is subject
to, or is otherwise governed by, a Master Agreement and incorporates
a Covered ISDA Definitions Booklet;
(b) supplements, forms part of and is subject
to, or is otherwise governed by, a Master Agreement and references
a Relevant IBOR “as defined” in, or otherwise provides
that the Relevant IBOR has the meaning given in, a Covered ISDA Definitions
Booklet (regardless of whether such Covered ISDA Definitions Booklet
is incorporated in full in that Confirmation); and/or
(c) supplements, forms part
of and is subject to, or is otherwise governed by, a Master Agreement
and references a Relevant IBOR, howsoever defined.
Protocol Covered Credit Support Document1 means, subject to subparagraph 3(g)(vi)
above, any ISDA Credit Support Document or Additional Credit Support
Document which is entered into between two Adhering Parties (whether
directly or through the agency of an Agent and, if through the agency
of an Agent, whether executed by that Agent or by an entity on behalf
of that Agent), has a Protocol Covered Document Date prior to the
Protocol Effective Date (or, if later, the date of acceptance by ISDA,
as agent, of an Adherence Letter (in accordance with paragraph 1(b)
above) from the later of the two Adhering Parties to adhere) and:
(a) Incorporates a Covered
ISDA Definitions Booklet;
(b) References a Relevant IBOR “as defined” in, or otherwise
provides that the Relevant IBOR has the meaning given in, a Covered
ISDA Definitions Booklet (regardless of whether such Covered ISDA
Definitions Booklet is incorporated in full in that ISDA Credit Support
Document or Additional Credit Support Document); and/or
(c) References a Relevant IBOR,
howsoever defined.
Protocol Covered
Document Date means, in respect of any document, the date of such
document, howsoever described therein, provided that (a) if such document
has different dates specified therein, one of which includes a date
specified as an “as of” date, such date shall be the Protocol
Covered Document Date, and (b) if such document is a Confirmation
(other than a master confirmation agreement, including any related
general terms confirmation), the Protocol Covered Document Date shall
be the Trade Date.
Protocol Covered Documents means Protocol Covered Confirmations, Protocol Covered Master Agreements
and Protocol Covered Credit Support Documents, other than any such
documentation governing cleared transactions (including any transactions
that are “Client Transactions” (or in substance equivalent)
under a 2016 ISDA/FIA Client Cleared OTC Derivatives Addendum or any
agreement that in substance relates to the same matters as those contemplated
by the 2016 ISDA/FIA Client Cleared OTC Derivatives Addendum between
a clearing member and its client).
Protocol
Covered Master Agreement means, subject to subparagraph 3(g)(vi)
above, a Master Agreement which is entered into (or deemed entered
into) between two Adhering Parties (whether directly or through the
agency of an Agent and, if through the agency of an Agent, whether
executed by that Agent or by an entity on behalf of that Agent), has
a Protocol Covered Document Date prior to the Protocol Effective Date
(or, if later, the date of acceptance by ISDA, as agent, of an Adherence
Letter (in accordance with paragraph 1(b) above) from the later of
the two Adhering Parties to adhere) and:
(a) Incorporates a Covered ISDA Definitions
Booklet;
(b) References
a Relevant IBOR “as defined” in, or otherwise provides
that the Relevant IBOR has the meaning given in, a Covered ISDA Definitions
Booklet (regardless of whether such Covered ISDA Definitions Booklet
is incorporated in full in that Master Agreement); and/or
(c) References a Relevant
IBOR, howsoever defined.
Protocol Effective
Date has the meaning given to such term in subparagraph 1(c)(A)
above.
Relevant IBOR means:
(a) Any of sterling LIBOR (London interbank
offered rate), Swiss franc LIBOR (London interbank offered rate),
U.S. dollar LIBOR (London interbank offered rate), euro LIBOR (London
interbank offered rate), the euro interbank offered rate, Japanese
yen LIBOR (London interbank offered rate), the Japanese yen Tokyo
interbank offered rate, the euroyen Tokyo interbank offered rate,
the bank bill swap rate, the Canadian dollar offered rate, the Hong
Kong interbank offered rate, the Singapore dollar swap offer rate
and the Thai baht interest rate fixing; and
(b) LIBOR (London interbank offered rate)
with no reference to, or indication of, the currency of the relevant
LIBOR (London interbank offered rate) (including, for the avoidance
of doubt, the reference in Section 7.3 (Corrections to Published
Prices) of the 2005 ISDA Commodity Definitions to “the spot
offered rate for deposits in the payment currency in the London interbank
market as at approximately 11:00 a.m., London time”), in each
case, howsoever defined or described (whether in English or in any
other language) in the relevant Protocol Covered Document.
Revocation Date means, with respect to a Revocation
Notice and an Adhering Party, the last Protocol Business Day of the
calendar month following the calendar month in which that Revocation
Notice is effectively delivered by that Adhering Party to ISDA.
Revocation Notice has the meaning given to
such term in paragraph 1(e) above.
Third Party means, in relation to an agreement supported by a Third Party Credit
Support Document, any party to such Third Party Credit Support Document
other than either of the Adhering Parties which are parties to the
agreement.
Third Party Credit Support Document means, with respect to an Adhering Party and a Protocol Covered
Document, any Credit Support Document which is executed by one or
more Third Parties (whether or not an Adhering Party is a party thereto),
whether or not such document is specified as a Third Party Support
Document or as a Credit Support Document therein or in the Protocol
Covered Document.
Trade Date means, in respect
of a Protocol Covered Confirmation (other than a master confirmation
agreement, including any related general terms confirmation), the
date on which the parties enter into the related transaction.
Exhibit 1 to the ISDA 2020 IBOR Fallbacks Protocol
Form of Adherence Letter
[Letterhead of Adhering Party]
[Date]
International Swaps and Derivatives Association,
Inc.
Ladies and Gentlemen,
ISDA 2020 IBOR Fallbacks Protocol
The purpose
of this letter is to confirm our adherence to the ISDA 2020 IBOR Fallbacks
Protocol as published by the International Swaps and Derivatives Association,
Inc. (ISDA) on October 23, 2020 (the Protocol). By submitting this
Adherence Letter, we confirm that we are an Adhering Party to the
Protocol. This letter constitutes, as between each other Adhering
Party and us, an Adherence Letter as referred to in the Protocol.
The definitions and provisions contained in the Protocol are incorporated
into this Adherence Letter, which will supplement and form part of
each Protocol Covered Document between us and each other Adhering
Party.
1. Specified Terms for Adhering
Party as Principal
As between each Adhering
Party and us, we acknowledge and agree that the amendments in the
Attachment to the Protocol shall apply to each Protocol Covered Document
to which we are a party in accordance with the terms of the Protocol
and this Adherence Letter.
2. Appointment
as Agent and Release
We hereby appoint ISDA
as our agent for the limited purposes of the Protocol and accordingly
we waive any rights and hereby release ISDA from any claims, actions
or causes of action whatsoever (whether in contract, tort or otherwise)
arising out of or in any way relating to this Adherence Letter or
our adherence to the Protocol or any actions contemplated as being
required by ISDA.
3. Arbitration Agreement
and Class Action Waiver
By adhering to the
Protocol, we agree that all claims or disputes arising out of or in
connection with adherence to the Protocol shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce
(the Rules) by three arbitrators, and hereby waive any right to assert
any such claims or disputes against ISDA as a representative or member
in any class or representative action. The claimant(s) (as defined
in the Rules) shall nominate one arbitrator in the `Request for Arbitration’.
The respondent(s) (as defined in the Rules) shall nominate one arbitrator
in the `Answer to the Request’. The two party-nominated arbitrators
shall then have 30 days to agree, in consultation with the parties
to the arbitration, upon the nomination of a third arbitrator to act
as president of the tribunal, barring which the International Chamber
of Commerce Court shall select the third arbitrator (or any arbitrator
that claimant(s) or respondent(s) shall fail to nominate in accordance
with the foregoing). This agreement to arbitrate shall not be affected
by the Revocation Notice as described in the Protocol.
4. Payment
Each Adhering
Party or, if such Adhering Party is a Client on whose behalf an Agent
adheres to this Protocol, each Agent, that is classified by ISDA
for purposes of membership of ISDA as an “ISDA Primary Member”
must submit a one-time fee of U.S. $500 to ISDA at or before the submission
of this Adherence Letter. Each Adhering Party or, if such Adhering
Party is a Client on whose behalf an Agent adheres to this Protocol,
each Agent, which is not an “ISDA Primary Member” is not
required to submit a fee to ISDA if this Adherence Letter is submitted
prior to the Protocol Effective Date. If an Adhering Party or, if
such Adhering Party is a Client on whose behalf an Agent adheres to
this Protocol, an Agent, which is not an “ISDA Primary Member”
submits this Adherence Letter on or after the Protocol Effective Date,
such Adhering Party or Agent (as applicable) must submit a onetime
fee of U.S. $500 to ISDA at or before the submission of this Adherence
Letter.
5. Contact Details
Our contact details for purposes of this Adherence Letter
are:
Name:
Company Name:
Address:
Phone:
Fax:
Email:
We consent to the publication of a conformed copy of this
letter by ISDA and to the disclosure by ISDA of the contents of this
letter.
Yours faithfully,
By:
Name:
Title:
Specified Terms for Adhering Party as Agent3 The election for Option 1 or Option 2 below should only be made by
an Agent. Any entity which adheres to the Protocol and which is not
acting as an Agent should not complete the election below.
As between each Adhering Party and us, we acknowledge
and agree that the amendments in the Attachment to the Protocol shall
apply to each:
Option 1
□ Protocol Covered Document into which we have entered
on behalf of one or more Clients covered in accordance with the terms
of the Protocol and this Adherence Letter (as contemplated by Option
1 in the Protocol); or
Option 2
□ Protocol Covered Document into (i) which
we have entered on behalf of one or more Clients covered in accordance
with the terms of the Protocol and this Adherence Letter and (ii)
which we did not enter on behalf of one or more Clients but which
we otherwise have the authority from the relevant Client to amend
in accordance with and subject to the terms of the Protocol and this
Adherence Letter (as contemplated by Option 2 in the Protocol).
We agree, in our capacity as Agent for the relevant Client(s),
to provide each other Adhering Party, as soon as reasonably practicable
following such other Adhering Party’s written request (including
by email), and in any event by no later than the end of the fifteenth
calendar day following such request (and as required by and in accordance
with subparagraph 3(g)(iv) of the Protocol), with reasonable evidence
satisfactory to such other Adhering Party in its sole discretion supporting
our authority to amend any Protocol Covered Document into which we
did not enter on behalf of one or more Clients (whose name or identity
we communicate to the other Adhering Party through a Platform as being
a Client in respect of which subparagraph 3(g)(ii)(B)(II) of the Protocol
applies).
Failure to provide an Adhering Party with such evidence
shall (unless the Agent is deemed to have provided such evidence,
pursuant to subparagraph 3(g)(iv) of the Protocol), only in respect
of those Non-Agent Executed Protocol Covered Documents between the
relevant Client(s) and such Adhering Party, result in this Adherence
Letter being ineffective unless and until we, in our capacity as Agent
for the relevant Client(s), are deemed to have provided that Adhering
Party with such evidence pursuant to subparagraph 3(g)(iv) of the
Protocol. Failure to provide an Adhering Party with such evidence
shall not give rise to a Potential Event of Default or an Event of
Default (each as defined in the ISDA Master Agreement), or any similar
event, under those Protocol Covered Documents or other contractual
right of action under this Protocol or those Protocol Covered Documents.
Exhibit 2 to the ISDA 2020 IBOR Fallbacks Protocol
Form of Revocation Notice
[Letterhead of Adhering Party]
[Date]
International Swaps and Derivatives Association,
Inc.
Send to: isda@isda.org
Ladies and Gentlemen,
ISDA 2020 IBOR Fallbacks
Protocol—Designation of a Revocation Date
The purpose of this letter is to notify you that we wish to designate
a Revocation Date as the last date on which an Implementation Date
can occur pursuant to the terms of the ISDA 2020 IBOR Fallbacks Protocol
as published by the International Swaps and Derivatives Association,
Inc. (ISDA) on October 23, 2020 (the Protocol) in respect of any Protocol
Covered Document between us and any other Adhering Party.
This letter constitutes a Revocation
Notice as referred to in the Protocol.
We consent to the publication of the conformed copy of
this notice by ISDA on and after the Revocation Date and to the disclosure
by ISDA of the contents of this letter.
Yours
faithfully,
By:
Name:
Title:
Signature:
ANNEX
to the ISDA 2020 IBOR Fallbacks Protocol: Additional Documents
Part 1: Additional Master Agreements
(a) 2001 FBF Master Agreement relating to Transactions
on Forward Financial Instruments.
(b) 2007 FBF
Master Agreement relating to Transactions on Forward Financial Instruments.
(c) 2013 FBF Master Agreement relating to Transactions
on Forward Financial Instruments.
(d) 1994 AFB
Master Agreement for Foreign Exchange and Derivatives Transactions.
(e) 1997 AFTI/FBF Master Agreement for Loans of Securities.
(f) 2007 AFTI/FBF Master Agreement for Loans of
Securities.
(g) 2007 FBF Master Agreement for
Repurchase Transactions.
(h) 1994 AFTB Master
Agreement for Repurchase Transactions with Delivery of Securities.
(i) Execution Annex with respect to the AFB/FBF 1994/2001/2007/2013
Master Agreements.
(j) 1997 Spanish Master Agreement
(Contrato Marco de Operaciones Financieras or CMOF) published by Asociación
Española de Banca (Spanish Banking Association) and Confederación
Española de Cajas de Ahorros (Spanish Confederation of Savings Banks).
(k) Annex III to the 1997 Spanish Master Agreement
(Contrato Marco de Operaciones Financieras or CMOF) published by Asociación
Española de Banca (Spanish Banking Association) and Confederación
Española de Cajas de Ahorros (Spanish Confederation of Savings Banks).
(l) 2009 Spanish Master Agreement (Contrato
Marco de Operaciones Financieras or CMOF) published by Asociación
Española de Banca (Spanish Banking Association) and Confederación
Española de Cajas de Ahorros (Spanish Confederation of Savings Banks).
(m) Annex III to the 2009 Spanish Master Agreement (Contrato
Marco de Operaciones Financieras or CMOF) published by Asociación
Española de Banca (Spanish Banking Association) and Confederación
Española de Cajas de Ahorros (Spanish Confederation of Savings Banks).
(n) 2013 Spanish Master Agreement (Contrato Marco
de Operaciones Financieras or CMOF) published by Asociación Española
de Banca (Spanish Banking Association) and Confederación Española
de Cajas de Ahorros (Spanish Confederation of Savings Banks).
(o) Annex III to the 2013 Spanish Master Agreement (Contrato
Marco de Operaciones Financieras or CMOF) published by Asociación
Española de Banca (Spanish Banking Association) and Confederación
Española de Cajas de Ahorros (Spanish Confederatión of Savings Banks).
(p) 2003 Swiss Master Agreement for OTC Derivative
Instruments published by the Swiss Bankers Association.
(q) 2013 Swiss Master Agreement for OTC Derivative Instruments
published by the Swiss Bankers Association (for use in connection
with certain ISDA definitions).
(r) 2013 Swiss
Master Agreement for OTC Derivative Instruments published by the Swiss
Bankers Association (non-ISDA version not for use in connection with
any ISDA definitions).
(s) 1999 Bilateral Swiss
Master Agreement for Repo Transactions published by the Swiss Bankers
Association.
(t) 1999 Multilateral Swiss Master
Agreement for Repo Transactions published by the Swiss Bankers Association.
(u) 2011 Swiss Master Agreement for Securities Lending
and Borrowing prepared by the Swiss Bankers Association.
(v) 2001 Master Agreement for Financial Transactions
sponsored by the Banking Federation of the European Union (EBF or
FBE) in cooperation with the European Savings Banks Group (ESBG) and
the European Association of Cooperative Banks (EACB).
(w) 2004 Master Agreement for Financial Transactions sponsored by
the Banking Federation of the European Union (EBF or FBE) in cooperation
with the European Savings Banks Group (ESBG) and the European Association
of Cooperative Banks (EACB).
(x) 2020 Master Agreement
for Financial Transactions sponsored by the Banking Federation of
the European Union (EBF or FBE) in cooperation with the European Savings
Banks Group (ESBG) and the European Association of Cooperative Banks
(EACB).
(y) Austrian Master Agreement for Financial
Transactions (Österreichischer Rahmenvertrag für Finanztermingeschäfte
or ÖRV).
(z) 1997 International Foreign Exchange
and Options Master Agreement (FEOMA).
(aa) 1993
International Foreign Exchange Master Agreement (IFEMA).
(bb) 1997 International Foreign Exchange Master Agreement
(IFEMA).
(cc) 1997 International Currency Options
Market (ICOM) Master Agreement.
(dd) 2005 International
Foreign Exchange and Currency Option Master Agreement (IFXCO).
(ee) 1992 PSA/ISMA Global Master Repurchase Agreement
(GMRA).
(ff) 1995 PSA/ISMA Global Master Repurchase
Agreement (GMRA).
(gg) 2000 TBMA/ISMA Global Master
Repurchase Agreement (GMRA).
(hh) 2011 SIFMA/ICMA
Global Master Repurchase Agreement (GMRA).
(ii)
2000 ISLA Global Master Securities Lending Agreement (GMSLA).
(jj) 2010 ISLA Global Master Securities Lending Agreement
(GMSLA).
(kk) 2018 ISLA Global Master Securities
Lending Agreement (GMSLA)—Security Interest over Collateral.
(ll) 1993 TBMA/SIA Master Securities Loan
Agreement (MSLA).
(mm) 2000 TBMA/SIA Master Securities
Loan Agreement (MSLA).
(nn) 2017 SIFMA Master Securities
Loan Agreement (MSLA).
(oo) 1987 PSA Master Repurchase
Agreement (MRA).
(pp) 1996 TBMA Master Repurchase
Agreement (MRA).
(qq) 2000 SIFMA Master OTC Options
Agreement.
(rr) 1989 TBMA Master Dealer Agreement,
OTC Option Transaction—U.S. Treasury Securities.
(ss) Emissions Master LF-IETA Master Agreement.
(tt) WSPP Agreement.
(uu) 2004 FIA
Grid Trade Master Agreement.
(vv) EEI Master Power
Purchase & Sale Agreement.
(ww) EL Master—Electricity
Power Master Agreement.
(xx) 1994 LBMA/FEC International
Bullion Master Agreement (English law version).
(yy) 1994 LBMA/FEC International Bullion Master Agreement (New York
law version).
(zz) 1997 ASLA Australian Master
Securities Lending Agreement (AMSLA).
(aaa) 2002
ASLA Australian Master Securities Lending Agreement (AMSLA).
(bbb) 2003 ASLA Australian Master Securities Lending
Agreement (AMSLA).
(ccc) GISB Base Short-Term
Contract for Sale and Purchase of Natural Gas.
(ddd) NAESB Base Contract for Sale and Purchase of Natural Gas.
(eee) 1996 Master Gilt Edged Stock Lending Agreement
(GESLA).
(fff) 1996 Master Equity and Fixed Interest
Stock Lending Agreement (MEFISLA).
(ggg) 1994 Equity
and Fixed Interest Stock Lending (Agency) Agreement.
(hhh) 1994 Overseas Securities Lender’s Agreement (OSLA).
(iii) 1995 Overseas Securities Lender’s Agreement
(OSLA).
(jjj) globalCOAL Standard Coal Trading
Agreement (SCoTA).
(kkk) KOFIA Agreement on Margin
Transactions.
(lll) KOFIA Agreement on Foreign
Exchange Margin Trading.
(mmm) KOFIA Agreement
on Securities Lending and Borrowing.
(nnn) KOFIA
Agreement on Repurchase Agreement (Repo) between Institutions.
(ooo) KOFIA Agreement on Repurchase Agreement (Repo)
with Customers.
(ppp) KOFIA best practice Korean
language agreement template for OTC derivatives.
(qqq) Investment Industry Regulatory Organization of Canada (IIROC)
Repurchase/Reverse Repurchase Transaction Agreement.
(rrr) Master Agreement Concerning Stock Lending Transactions (kabuken tou taishaku torihiki ni kansuru kihon keiyakusho) (including
without limitation separate agreements to be executed pursuant to
or in connection with that Master Agreement such as Supplemental Memorandum
of Understanding (kabuken tou taishaku torihiki ni kansuru kihon
keiyakusho fuzoku oboegaki)) published by Japan Securities Dealers
Association.
(sss) Master Agreement Concerning
Bond Lending Transactions (saiken taishaku torihiki ni kansuru
kihon keiyakusho) (including without limitation separate agreements
to be executed pursuant to or in connection with that Master Agreement
such as Supplemental Memorandum of Understanding (saiken taishaku
torihiki ni kansuru kihon keiyakusho fuzoku oboegaki)) published
by Japan Securities Dealers Association.
(ttt)
Master Agreement Concerning Bond Repo Transactions (saiken tou
no gensaki torihiki ni kansuru kihon keiyakusho) (including without
limitation separate agreements to be executed pursuant to or in connection
with that Master Agreement such as Supplemental Memorandum of Understanding
(saiken tou no gensaki torihiki ni kansuru kihon keiyakusho fuzoku
oboegaki)) published by Japan Securities Dealers Association.
(uuu) Mexican Master Derivatives Agreement (Contrato
Marco para Operaciones Financieras Derivadas) published by Asociación
de Bancos de Mexico (ABM) y Asociación Mexicana de Instituciones Bursatiles
(AMIB).
(vvv) Mexican Master Securities Purchase
and Sale/Repo Agreement (Contrato Marco para Operaciones de Compraventa
de Valores y Reporto) published by Asociación de Bancos de Mexico
(ABM) y Asociación Mexicana de Instituciones Bursatiles (AMIB).
Part 2: Additional Credit Support Documents
(a) 2007 FBF Collateral Annex.
(b) 1997 ABF Collateral Annex.
(c) AFB/FBF Addendum
to the ISDA 2016 Credit Support Annex for Variation Margin (VM).
(d) 2008 Credit Support Appendix to the Swiss Master
Agreement for OTC Derivative Instruments published by the Swiss Bankers
Association.
(e) 2015 Credit Support Appendix
to the Swiss Master Agreement for OTC Derivative Instruments published
by the Swiss Bankers Association.
(f) Credit Support
Appendix for Variation Margin to the Swiss Master Agreement for OTC
Derivative Instruments published by the Swiss Bankers Association.
(g) Mexican Credit Support Agreement related to
Derivatives (Contrato Global para Otorgar Garantías respecto de Operaciones
Financieras Derivadas) published by Asociación de Bancos de Mexico
(ABM) y Asociación Mexicana de Instituciones Bursatiles (AMIB).
ATTACHMENT to the ISDA 2020 IBOR Fallbacks Protocol
1. Amendments to Protocol Covered Documents
Incorporating the 2006 ISDA Definitions
If
a Protocol Covered Document incorporates the 2006 ISDA Definitions,
the version of the 2006 ISDA Definitions so incorporated shall be
amended in accordance with the terms of the IBOR Fallbacks Supplement
(and, if that Protocol Covered Document is a Protocol Covered Master
Agreement, any reference to a term defined in the 2006 ISDA Definitions
in a Confirmation which supplements, forms part of and is subject
to that Protocol Covered Master Agreement will be a reference to the
term as defined in the 2006 ISDA Definitions as amended in accordance
with the IBOR Fallbacks Supplement).
2. Amendments
to Protocol Covered Documents Incorporating the 2000 ISDA Definitions
If a Protocol Covered Document incorporates
the 2000 ISDA Definitions, the version of the 2000 ISDA Definitions
so incorporated shall be amended in accordance with the terms of the
IBOR Fallbacks Supplement (and, if that Protocol Covered Document
is a Protocol Covered Master Agreement, any reference to a term defined
in the 2000 ISDA Definitions in a Confirmation which supplements,
forms part of and is subject to that Protocol Covered Master Agreement
will be a reference to the term as defined in the 2000 ISDA Definitions
as amended in accordance with the IBOR Fallbacks Supplement), provided
that the IBOR Fallbacks Supplement shall be deemed amended as follows:
(a) Each of the following sections shall be deleted:
(i) “GBP-LIBOR-BBA-Bloomberg”;
(ii) “CHF-LIBOR-BBA-Bloomberg”;
(iii) “USD-LIBOR-BBA-Bloomberg”;
(iv) “EUR-LIBOR-BBA-Bloomberg”;
(v) “JPY-LIBOR-FRASETT”;
(vi) “JPY-LIBOR-BBA-Bloomberg”;
(vii) “JPY-TIBOR-TIBM-(All
Banks)-Bloomberg”;
(viii) “AUD-BBR-BBSW-Bloomberg”;
(ix) “CAD-BA-CDOR-Bloomberg”;
and
(x) “HKD-HIBOR-HKAB-Bloomberg”;
(b) The section titled “EUR-EURIBOR-Reuters”
will be re-titled “EUR-EURIBOR-Telerate” and references
in such section (or in related sections) to “EUR-EURIBOR-Reuters”
will be deleted and replaced with “EUR-EURIBOR-Telerate”;
(c) The section titled “AUD-BBR-AUBBSW”
will be re-titled “AUD-BBR-ISDC” and references in such
section (or in related sections) to “AUD-BBR-AUBBSW” will
be deleted and replaced with “AUDBBR-ISDC”;
(d) The section titled “SGD-SOR-VWAP” will
be re-titled “SGD-SOR-Telerate” and references in such
section (or in related sections) to “SGD-SOR-VWAP” will
be deleted and replaced with “SGD-SOR-Telerate”;
(e) In the section titled “THB-THBFIX-Reuters”,
the paragraph entitled “No Index Cessation Effective Date”
shall be deemed amended as follows:
(i) The words ““THB-THBFIX-Reference
Banks” as the applicable Floating Rate Option” will be
deleted and replaced with the words ““THB-SOR-Reference
Banks” as the applicable Floating Rate Option, but with the
following variations:” and subparagraphs (a), (b) and (c) of
Section 7.1(z)(iii) of the 2000 ISDA Definitions will be inserted
immediately thereafter; and
(ii) The last sentence in that paragraph
will be deleted; and
(f) All references
to section numbers within the 2006 ISDA Definitions will be deemed
to be references to the equivalent sections within the 2000 ISDA Definitions.
3. Amendments to Protocol Covered Documents
Incorporating the 1991 ISDA Definitions and/or the 1998 Supplement
to the 1991 ISDA Definitions
If a Protocol
Covered Document incorporates the 1991 ISDA Definitions and/or the
1998 Supplement to the 1991 ISDA Definitions, the version of the 1991
ISDA Definitions and/or the 1998 Supplement to the 1991 ISDA Definitions
(as applicable) so incorporated shall be amended in accordance with
the terms of the IBOR Fallbacks Supplement (and, if that Protocol
Covered Document is a Protocol Covered Master Agreement, any reference
to a term defined in the 1991 ISDA Definitions and/or the 1998 Supplement
to the 1991 ISDA Definitions in a Confirmation which supplements,
forms part of and is subject to that Protocol Covered Master Agreement
will be a reference to the term as defined in the 1991 ISDA Definitions
and/or the 1998 Supplement to the 1991 ISDA Definitions as amended
in accordance with the IBOR Fallbacks Supplement), provided that the
IBOR Fallbacks Supplement shall be deemed amended as follows:
(a) If the Protocol Covered Document incorporates the
1991 ISDA Definitions only, the 1991 ISDA Definitions as supplemented
by the 1998 Supplement to the 1991 ISDA Definitions or the 1998 Supplement
to the 1991 ISDA Definitions only, each of the following sections
shall be deleted:
(i) “GBP-LIBOR-BBA-Bloomberg”;
(ii) “CHF-LIBOR-BBA-Bloomberg”;
(iii) “USD-LIBOR-BBA-Bloomberg”;
(iv) “EUR-LIBOR-BBA-Bloomberg”;
(v) “EUR-EURIBOR-Reuters”;
(vi) “JPY-LIBOR-FRASETT”;
(vii) “JPY-LIBOR-BBA-Bloomberg”;
(viii) “JPY-TIBOR-17097”;
(ix) “JPY-TIBOR-TIBM-(All
Banks)-Bloomberg”;
(x) “AUD-BBR-BBSW-Bloomberg”;
(xi) “CAD-BA-CDOR-Bloomberg”;
(xii) “HKD-HIBOR-HKAB-Bloomberg”;
and
(xiii) “THB-THBFIX-Reuters”;
(b) If the Protocol Covered Document incorporates
the 1991 ISDA Definitions only, each of the following sections shall
be deleted:
(i) “JPY-TIBOR-ZTIBOR”;
and
(ii) “SGD-SOR-VWAP”;
(c) If the Protocol Covered Document incorporates
the 1991 ISDA Definitions as supplemented by the 1998 Supplement to
the 1991 ISDA Definitions or the 1998 Supplement to the 1991 ISDA
Definitions only, the section titled “SGD-SOR-VWAP” will
be re-titled “SGD-SOR-Telerate” and references in such
section (or in related sections) to “SGD-SOR-VWAP” will
be deleted and replaced with “SGD-SOR-Telerate”;
(d) The section titled “EUR-LIBOR-BBA” will
be re-titled “XEU-LIBOR-BBA” and references in such section
(or in related sections) to “EUR-LIBOR-BBA” will be deleted
and replaced with “XEU-LIBOR-BBA”;
(e) The section titled “AUD-BBR-AUBBSW” will be re-titled
“AUD-BBR-ISDC” and references in such section (or in related
sections) to “AUD-BBR-AUBBSW” will be deleted and replaced
with “AUD-BBR-ISDC”; and
(f) All references
to section numbers within the 2006 ISDA Definitions will be deemed
to be references to the equivalent sections within the 1991 ISDA Definitions
or the 1998 Supplement to the 1991 ISDA Definitions (as applicable).
4. Amendments to Protocol Covered Documents
Incorporating the 1998 ISDA Euro Definitions
If a Protocol Covered Document incorporates the 1998 ISDA Euro Definitions:
(a) the version of the 1998 ISDA Euro Definitions
so incorporated shall be amended in accordance with the terms of the
IBOR Fallbacks Supplement (and, if that Protocol Covered Document
is a Protocol Covered Master Agreement, any reference to a term defined
in the 1998 ISDA Euro Definitions in a Confirmation which supplements,
forms part of and is subject to that Protocol Covered Master Agreement
will be a reference to the term as defined in the 1998 ISDA Euro Definitions
as amended in accordance with the IBOR Fallbacks Supplement), provided
that the IBOR Fallbacks Supplement shall be deemed amended as follows:
(i) Each of the following
sections shall be deleted:
(A) “GBP-LIBOR-BBA”;
(B) “GBP-LIBOR-BBA-Bloomberg”;
(C) “CHF-LIBOR-BBA”;
(D) “CHF-LIBOR-BBA-Bloomberg”;
(E) “USD-LIBOR-BBA”;
(F) “USD-LIBOR-BBA-Bloomberg”;
(G) “EUR-LIBOR-BBA-Bloomberg”;
(H) “JPY-LIBOR-FRASETT”;
(I) “JPY-LIBOR-BBA”;
(J) “JPY-LIBOR-BBA-Bloomberg”;
(K) “JPY-TIBOR-17097”;
(L) “JPY-TIBOR-TIBM-(All
Banks)-Bloomberg”;
(M) “JPY-TIBOR-ZTIBOR”;
(N) “AUD-BBR-AUBBSW”;
(O) “AUD-BBR-BBSW”;
(P) “AUD-BBR-BBSW-Bloomberg”;
(Q) “CAD-BA-CDOR”;
(R) “CAD-BA-CDOR-Bloomberg”;
(S) “HKD-HIBOR-HKAB”;
(T) “HKD-HIBOR-HKAB-Bloomberg”;
(U) “SGD-SOR-VWAP”;
and
(V) “THB-THBFIX-Reuters”;
(ii) the
section titled “EUR-EURIBOR-Reuters” will be re-titled
“EUR-EURIBOR-Telerate” and references in such section
(or in related sections) to “EUR-EURIBOR-Reuters” will
be deleted and replaced with “EUR-EURIBOR-Telerate”; and
(iii) all references to section numbers within the 2006 ISDA Definitions
will be deemed to be references to the equivalent sections within
the 1998 ISDA Euro Definitions.
(b)
If a Relevant Rate (as defined in the 1991 ISDA Definitions) is to
be determined pursuant to Section 4.3(b) (Price Source Fallbacks) of the 1998 ISDA Euro Definitions and “rates for deposits
in euros” referred to in that section are required for any determination
but are not available, they shall be deemed to be references to a
Relevant IBOR (and, in particular, the euro interbank offered rate)
to which paragraph 6 of this Attachment applies.
5. Amendments to Protocol Covered Documents Which Reference
a Relevant IBOR “as defined”, or as Having the Meaning Given,
in a Covered ISDA Definitions Booklet
A Protocol
Covered Document of the type described in subparagraph (b) of, respectively,
the definition of Protocol Covered Confirmation, Protocol Covered
Credit Support Document or Protocol Covered Master Agreement shall
be amended so that the reference to the Relevant IBOR “as defined
in”, or the reference to the Relevant IBOR as having the meaning
given in, the Covered ISDA Definitions Booklet will instead be a reference
to the relevant Rate Option in the IBOR Fallbacks Supplement (or,
if there is more than one relevant Rate Option, the first relevant
Rate Option in the IBOR Fallbacks Supplement) for the Relevant IBOR
“as defined in the IBOR Fallbacks Supplement” (and, if
that Protocol Covered Document is a Protocol Covered Master Agreement,
any reference to the Relevant IBOR (as defined in that Protocol Covered
Master Agreement) in a Confirmation which supplements, forms part
of and is subject to that Protocol Covered Master Agreement will be
a reference to the relevant Rate Option in the IBOR Fallbacks Supplement
(or, if there is more than one relevant Rate Option, the first relevant
Rate Option in the IBOR Fallbacks Supplement) for the Relevant IBOR
“as defined in the IBOR Fallbacks Supplement”), provided
that:
(a) If the Relevant IBOR is:
(i) “EUR-EURIBOR-Telerate”,
it will be deemed to be a reference to “EUR-EURIBOR-Reuters”;
(ii) “AUD-BBR-ISDC”,
it will be deemed to be a reference to “AUD-BBR-AUBBSW”;
(iii) “XEU-LIBOR-BBA”,
it will be deemed to be a reference to “EUR-LIBOR-BBA”;
and
(iv) “SGD-SOR-Telerate”,
it will be deemed to be a reference to “SGD-SOR-VWAP”,
in each case, as defined in the IBOR Fallbacks Supplement; and
(b) If the Relevant IBOR is “THB-THBFIX-Reuters”
and the Covered ISDA Definitions Booklet is the 2000 ISDA Definitions,
the IBOR Fallbacks Supplement shall be deemed amended in accordance
with subparagraph 2(e) of this Attachment.
6. Amendments to Certain Protocol Covered Documents That Reference
a Relevant IBOR
If a Protocol Covered Document
is of the type described in subparagraph (c) of, respectively, the
definition of Protocol Covered Confirmation, Protocol Covered Credit
Support Document or Protocol Covered Master Agreement and, in each
case, includes a reference to a Relevant IBOR pursuant to which the
Relevant IBOR is required for any determination, and:
(a)(i) The Relevant IBOR which
is required for that determination is neither the Singapore dollar
swap offer rate nor the Thai baht interest rate fixing, (ii) the Relevant
IBOR which is required for that determination has not been published
by the source that is specified or otherwise ordinarily used to determine
the level of the Relevant IBOR on the day on which it is required,
and (iii) an Index Cessation Effective Date with respect to the Relevant
IBOR has not occurred, then the reference to the Relevant IBOR will
be deemed to be a reference to the rate as provided by the administrator
of the Relevant IBOR and published by an authorized distributor of
the Relevant IBOR or the administrator of the Relevant IBOR itself
in respect of the day on which it is required. If neither an authorized
distributor nor the administrator has published or provided the Relevant
IBOR in respect of that day and an Index Cessation Effective Date
with respect to the Relevant IBOR has not occurred, then, unless otherwise
agreed by the parties, the reference to the Relevant IBOR will be
deemed to be a reference to:
(A) A rate formally recommended for
use by the administrator of the Relevant IBOR; or
(B) A rate formally recommended for
use by:
(I) If the Relevant IBOR which is required
for that determination is Swiss franc LIBOR, the competent authority
responsible for supervising that rate or the administrator of that
rate;
(II) If the Relevant
IBOR which is required for that determination is sterling LIBOR, euro
LIBOR or the euro interbank offered rate, the supervisor which is
responsible for supervising the Relevant IBOR or the administrator
of the Relevant IBOR;
(III)
If the Relevant IBOR which is required for that determination is Japanese
yen LIBOR, the Japanese yen Tokyo interbank offered rate or the euroyen
Tokyo interbank offered rate, a committee officially endorsed or convened
by the Bank of Japan for the purposes of recommending an alternative
rate for that Relevant IBOR (which rate may be produced by the Bank
of Japan or another administrator) or any other supervisor which is
responsible for supervising the Relevant IBOR or the administrator
of the Relevant IBOR;
(IV) If the Relevant IBOR which is required for that determination
is U.S. dollar LIBOR, the Federal Reserve Board or the Federal Reserve
Bank of New York or any other supervisor which is responsible for
supervising the Relevant IBOR or the administrator of the Relevant
IBOR; and
(V) If the Relevant
IBOR which is required for that determination is the bank bill swap
rate, the Australian Securities and Investments Commission (or any
successor to the Australian Securities and Investments Commission
in its role as supervisor of the bank bill swap rate),
in each case, during the period
of nonpublication of the Relevant IBOR and for so long as an Index
Cessation Effective Date has not occurred. If a rate described in
subparagraph (A) above is available, that rate shall apply. If no
such rate is available but, in respect of the Relevant IBOR, a rate
described in subparagraph (B) above, if applicable, is available,
that rate shall apply. If neither a rate described in subparagraph
(A) above is available nor a rate described in subparagraph (B) above,
if applicable, is available, then the Calculation Agent shall determine
a commercially reasonable alternative for the Relevant IBOR, taking
into account any rate implemented by central counterparties and/or
futures exchanges, in each case with trading volumes in derivatives
or futures referencing the Relevant IBOR that the Calculation Agent
considers sufficient for that rate to be a representative alternative
rate.
If the Relevant IBOR is the Hong Kong interbank offered
rate and the Protocol Covered Document provides that the Hong Kong
Association of Banks’ (or any successor’s) typhoon and
rainstorm arrangements (as published on the Hong Kong Association
of Banks’ website or on any successor website) apply, then those
typhoon and rainstorm arrangements shall continue to apply and shall
take precedence over the provisions of this paragraph 6(a);
(b)(i) The Relevant IBOR which
is required for that determination is the Singapore dollar swap offer
rate, (ii) the Singapore dollar swap offer rate has not been published
by the source that is specified or otherwise ordinarily used to determine
the level of the Singapore dollar swap offer rate on the day on which
it is required and (iii) an Index Cessation Effective Date with respect
to U.S. dollar LIBOR has not occurred, then the reference to the Singapore
dollar swap offer rate will be deemed to be a reference to the substitute
rate announced by ABS Benchmarks Administration Co Pte. Ltd. (or its
successor as administrator or sponsor of that rate) in respect of
the Singapore dollar swap offer rate.
If ABS Benchmarks Administration Co Pte. Ltd. (or
its successor as administrator or sponsor of that rate) has not announced
a substitute rate by 9:00 p.m., Singapore time, on the Relevant Original
Fixing Date and an Index Cessation Effective Date with respect to
U.S. dollar LIBOR has not occurred, then, unless otherwise agreed
by the parties, the reference to the Singapore dollar swap offer rate
will be deemed to be a reference to:
(A) A rate formally recommended
for use by the administrator of the Singapore dollar swap offer rate;
or
(B) A rate formally
recommended for use by the Monetary Authority of Singapore (or any
other supervisor which is responsible for supervising the Singapore
dollar swap offer rate or the administrator of the Singapore dollar
swap offer rate) or a committee officially endorsed or convened by
the Monetary Authority of Singapore (or any other supervisor which
is responsible for supervising the Singapore dollar swap offer rate
or the administrator of the Singapore dollar swap offer rate),
in each case, during the
period of non-publication of the Singapore dollar swap offer rate
and for so long as an Index Cessation Effective Date with respect
to U.S. dollar LIBOR has not occurred. If a rate described in subparagraph
(A) above is available, that rate shall apply. If no such rate is
available but a rate described in subparagraph (B) above is available,
that rate shall apply. If neither a rate described in subparagraph
(A) above nor a rate described in subparagraph (B) above is available,
then the Calculation Agent shall determine a commercially reasonable
alternative for the Singapore dollar swap offer rate, taking into
account any rate implemented by central counterparties and/or futures
exchanges, in each case with trading volumes in derivatives or futures
referencing the Singapore dollar swap offer rate that the Calculation
Agent considers sufficient for that rate to be a representative alternative
rate;
(c)(i) The Relevant
IBOR which is required for that determination is the Thai baht interest
rate fixing, (ii) the Thai baht interest rate fixing has not been
published by the source that is specified or otherwise ordinarily
used to determine the level of the Thai baht interest rate fixing
on the day on which it is required and (iii) an Index Cessation Effective
Date with respect to U.S. dollar LIBOR has not occurred, then the
reference to the Thai baht interest rate fixing will be deemed to
be a reference to “THB-THBFIX-Reference Banks” (as defined
in the 2006 ISDA Definitions) but with the references to (A) “Reset
Date” being replaced by “the day on which the rate is
required”; (B) “Designated Maturity” being replaced
by “the period of time in respect of which the Thai baht interest
rate fixing is to be determined”; (C) “Calculation Period”
being replaced by “period”; and (D) “Representative
Amount” being replaced by “an amount that is representative
for a single transaction in the relevant market at the relevant time”.
If the rate cannot be determined pursuant to “THB-THBFIX-Reference
Banks” (as defined in the 2006 ISDA Definitions) and an Index
Cessation Effective Date with respect to U.S. dollar LIBOR has not
occurred, the rate will be determined by the Calculation Agent taking
into consideration all available information that in good faith it
deems relevant;
(d) Subject to paragraphs
6(e), (f) and (g) below, an Index Cessation Event has occurred with
respect to the Relevant IBOR (or, if the Relevant IBOR is either the
Singapore dollar swap offer rate or the Thai baht interest rate fixing,
with respect to U.S. dollar LIBOR), then the reference to the Relevant
IBOR will be deemed to be a reference to the Applicable Fallback Rate
from and including either the Index Cessation Effective Date or, if
the Relevant IBOR is observed on a day that is a period of time prior
to the date for which the Relevant IBOR is set, such period of time
following the Index Cessation Effective Date, provided that:
(i) If the Applicable Fallback Rate is
Fallback Rate (SONIA), Fallback Rate (SARON), Fallback Rate (SOFR),
Fallback Rate (EuroSTR), Fallback Rate (TONA), Fallback Rate (AONIA),
Fallback Rate (CORRA), Fallback Rate (HONIA), Fallback Rate (SOR)
or Fallback Rate (THBFIX), then the rate for the Relevant Original
Fixing Date will be the Applicable Fallback Rate for the `Original
IBOR Rate Record Day’ (or, if Fallback Rate (SOR) or Fallback
Rate (THBFIX) is the Applicable Fallback Rate, for the `Original SOR
Rate Record Day’ or `Original THBFIX Rate Record Day’,
as applicable) that corresponds to the Relevant Original Fixing Date,
as most recently provided or published as at the Applicable Cut-off
Time. If neither the provider of the Applicable Fallback Rate (or
a successor provider, which, if the Applicable Fallback Rate is Fallback
Rate (SO NIA), Fallback Rate (SARON), Fallback Rate (SOFR), Fallback Rate
(EuroSTR), Fallback Rate (TONA), Fallback Rate (AONIA), Fallback Rate
(CORRA) or Fallback Rate (HONIA), is approved and/or appointed by
ISDA from time to time) provides, nor any authorized distributors
publish, the Applicable Fallback Rate for that `Original IBOR Rate
Record Day’ (or that `Original SOR Rate Record Day’ or
`Original THBFIX Rate Record Day’, as applicable) at, or prior
to, the Applicable Cutoff Time and a Fallback Index Cessation Effective
Date with respect to that Applicable Fallback Rate has not occurred,
then the rate for the Relevant Original Fixing Date will be the Applicable
Fallback Rate as most recently provided or published at the Applicable
Cutoff Time for the most recent `Original IBOR Rate Record Day’
(or `Original SOR Rate Record Day’ or `Original THBFIX Rate
Record Day’, as applicable), notwithstanding that such day does
not correspond to the Relevant Original Fixing Date;
(ii) If (A) the Applicable Fallback Rate
is SONIA, the GBP Recommended Rate, SARON, the NWG Recommended Rate,
the Modified SNB Policy Rate, SOFR, the Fed Recommended Rate, OBFR,
the FOMC Target Rate, EuroSTR, the ECB Recommended Rate, Modified
EDFR, TONA, the JPY Recommended Rate, AONIA, the RBA Recommended Rate,
CORRA, the CAD Recommended Rate, the BOC Target Rate, HONIA, the HKD
Recommended Rate, the MAS Recommended Rate, SORA, the BOT Recommended
Rate or THOR, (B) neither the administrator provides nor authorized
distributors publish that Applicable Fallback Rate (or if the Applicable
Fallback Rate is the Modified SNB Policy Rate or Modified EDFR, the
index, benchmark or other price source that is referred to in the
definition thereof) and (C) a Fallback Index Cessation Effective Date
with respect to that Applicable Fallback Rate has not occurred, then,
in respect of any day for which that Applicable Fallback Rate is required,
references to that Applicable Fallback Rate will be deemed to be references
to the last provided or published Applicable Fallback Rate. If the
Applicable Fallback Rate is the Modified SNB Policy Rate or Modified
EDFR, references to that Applicable Fallback Rate in subparagraph
6(d)(ii)(C) above shall be deemed to be references to the index, benchmark
or other price source that is referred to in the definition of Modified
SNB Policy Rate or Modified EDFR, as applicable; and
(iii) If the Applicable Fallback Rate is
UK Bank Rate, in respect of any day for which the UK Bank Rate is
required, references to the UK Bank Rate will be deemed to be references
to the last provided or published UK Bank Rate as at close of business
in London on that day.
If the Relevant
IBOR is the Singapore dollar swap offer rate or the Thai baht interest
rate fixing, an Index Cessation Event with respect to U.S. dollar
LIBOR will also occur if the Relevant IBOR in the relevant tenor (which
under the 2006 ISDA Definitions would be equivalent to the “Designated
Maturity”) has not been published by the source that is specified
or otherwise ordinarily used to determine the level of the Relevant
IBOR and, as of the Relevant Original Fixing Date, U.S. dollar LIBOR
in the relevant tenor (which under the 2006 ISDA Definitions would
be equivalent to the “Designated Maturity”) has been permanently
discontinued or is Non- Representative and there is either no U.S.
dollar LIBOR which has not been permanently discontinued and which
is not Non-Representative for a period which is longer than that relevant
tenor or no U.S. dollar LIBOR which has not been permanently discontinued
and which is not Non-Representative for a period which is shorter
than that relevant tenor. The related Index Cessation Effective Date
shall be the first date on which there is no such longer or shorter
rate or, if later, the first date on which U.S. dollar LIBOR in the
relevant tenor (which under the 2006 ISDA Definitions would be equivalent
to the “Designated Maturity”) is permanently unavailable
or Non-Representative.
For the purposes of this paragraph 6(d), references to
an “Original IBOR Rate Record Day”, “Original SOR
Rate Record Day” and “Original THBFIX Rate Record Day”
are to that term as used on the Fallback Rate Screen. For the purposes
of the immediately preceding paragraph above, (A) references to a
rate being “permanently discontinued” or “permanently
unavailable” shall be deemed to be references to such rate being
permanently discontinued or permanently unavailable following a public
statement or publication of information which would constitute an
Index Cessation Event in accordance with subparagraphs (a) and (b)
of the definition thereof in respect of that rate in the relevant
tenor and (B) references to “U.S. dollar LIBOR” in the
definition of “Non-Representative” shall be deemed to
be references to the relevant tenor of U.S. dollar LIBOR;
(e) If the Relevant IBOR which is required for that determination
is neither the Singapore dollar swap offer rate nor the Thai baht
interest rate fixing and:
(i) The determination for which the Relevant
IBOR is required is ordinarily made by reference to linear interpolation
between two rates, each of which is based on the Relevant IBOR, then
(notwithstanding paragraph 6(d) above) the provisions of Section 7.9(a)
of the 2006 ISDA Definitions shall be deemed to apply, provided that
the Calculation Agent shall make such adaptations as are reasonable
and necessary to the provisions of Section 7.9(a) of the 2006 ISDA
Definitions in order to apply them to the relevant Protocol Covered
Document;
(ii) The
Relevant IBOR which is required for that determination is to be determined
by reference to one or more rates, either (A) at least one of which
has been permanently discontinued, or (B) if the Relevant IBOR is
a Relevant LIBOR, at least one of which is Non-Representative, and,
in either case, at least two Relevant IBOR tenors, at least one of
which is shorter than the period of time in respect of which the Relevant
IBOR is to be determined and at least one of which is longer than
the period of time in respect of which the Relevant IBOR is to be
determined, have not been permanently discontinued (and, if the Relevant
IBOR is a Relevant LIBOR, are not Non- Representative), then the provisions
of Section 8.5 and Section 8.6 of the 2006 ISDA Definitions shall
be deemed to apply, provided that the Calculation Agent shall make
such adaptations as are reasonable and necessary to the provisions
of Sections 8.5 and 8.6 of the 2006 ISDA Definitions in order to apply
them to the relevant Protocol Covered Document;
(iii) The Relevant IBOR which is required
for that determination is to be determined by reference to a tenor
of the Relevant IBOR which has been permanently discontinued (or,
if the Relevant IBOR is a Relevant LIBOR, which is Non-Representative),
and there are either no shorter or no longer tenors in respect of
the Relevant IBOR which have not been permanently discontinued (or,
if the Relevant IBOR is a Relevant LIBOR, which are not Non-Representative),
then an Index Cessation Event shall be deemed to have occurred with
respect to the Relevant IBOR and the Index Cessation Effective Date
shall be the first date on which there is either no such shorter or
no such longer tenor or, if later, the first date on which the Relevant
IBOR in the relevant tenor is permanently unavailable (or, if the
Relevant IBOR is a Relevant LIBOR, Non-Representative);
(iv) In the event of any inconsistency
between the provisions of subparagraph 6(e)(ii) or subparagraph 6(e)(iii)
above and the provisions of subparagraph 6(e)(i) above, subparagraph
6(e)(i) above shall prevail; and
(v) In the event of any inconsistency between
the provisions of subparagraph 6(e)(ii) or subparagraph 6(e)(iii)
above and paragraph 6(d) above (including any terms used in paragraph
6(d) above and defined below), subparagraph 6(e)(ii) or subparagraph
6(e)(iii) above (as applicable) shall prevail.
For the purposes of this paragraph
6(e), (A) references to a rate being “permanently discontinued”
shall be deemed to be references to such rate being permanently discontinued
following a public statement or publication of information which would
constitute an Index Cessation Event in accordance with subparagraphs
(a) and (b) of the definition thereof in respect of that rate in the
relevant tenor, (B) references to the “Relevant LIBOR”
in the definition of “Non-Representative” shall be deemed
to be references to the relevant tenor of the Relevant LIBOR and (C)
Section 7.9(a), 8.5 and 8.6 of the 2006 ISDA Definitions shall be
construed in accordance with Sections 7.3(r) and 7.3(s) of the 2006
ISDA Definitions;
(f) If the Relevant IBOR which
is required for that determination is the Singapore dollar swap offer
rate or the Thai baht interest rate fixing and the determination for
which the Relevant IBOR is required is ordinarily made by reference
to linear interpolation between two rates, each of which is based
on the Relevant IBOR, then (notwithstanding paragraph 6(d) above)
the provisions of Section 7.10(a) of the 2006 ISDA Definitions shall
be deemed to apply, provided that the Calculation Agent shall make
such adaptations as are reasonable and necessary to the provisions
of Section 7.10(a) of the 2006 ISDA Definitions in order to apply
them to the relevant Protocol Covered Document.
For the purposes of this paragraph 6(f), Section
7.10(a) of the 2006 ISDA Definitions shall be construed in accordance
with Sections 7.3(r) and 7.3(s) of the 2006 ISDA Definitions;
(g) If (i) the Relevant IBOR which is required for that
determination is the Singapore dollar swap offer rate or the Thai
baht interest rate fixing and the Applicable Fallback Rate is Fallback
Rate (SOR) or Fallback Rate (THBFIX), as applicable, (ii) the determination
for which the Relevant IBOR is required is not ordinarily made by
reference to linear interpolation between two rates and (iii) the
period of time for which the rate is required (which under the 2006
ISDA Definitions would be the “Calculation Period”) is
shorter than the Relevant IBOR in the relevant tenor (which under
the 2006 ISDA Definitions would be the “Designated Maturity”),
then (notwithstanding paragraph 6(d) above) the provisions of Section
7.11(a) of the 2006 ISDA Definitions shall be deemed to apply, provided
that the Calculation Agent shall make such adaptations as are reasonable
and necessary to the provisions of Section 7.11(a) of the 2006 ISDA
Definitions in order to apply them to the relevant Protocol Covered
Document; and
(h) If the definition, methodology,
formula or other means of calculating the Relevant IBOR or the Applicable
Fallback Rate (or, if applicable, the index, benchmark or other price
source that is referred to in the Relevant IBOR or the Applicable
Fallback Rate) is modified, each party acknowledges that, unless otherwise
specified or agreed, references to that Relevant IBOR or the Applicable
Fallback Rate (or the index, benchmark or other price source that
is referred to in the Relevant IBOR or the Applicable Fallback Rate)
shall be to the Relevant IBOR or the Applicable Fallback Rate (or
the index, benchmark or other price source that is referred to in
the Relevant IBOR or the Applicable Fallback Rate) as modified. In
the event of any inconsistency between this paragraph 6(h) and paragraphs
6(a) through 6(d) above (including any terms used in those paragraphs
and defined below and including subparagraphs 6(e)(ii) and 6(e)(iii)
above as they apply in priority to paragraph 6(d) above), paragraphs
6(a) through 6(d) above including subparagraphs 6(e)(ii) and 6(e)(iii)
as they apply in priority to paragraph 6(d) above shall prevail.
If the Relevant IBOR referenced in the Protocol Covered
Document is LIBOR with no reference to, or indication of, the currency
of the relevant LIBOR (including, for the avoidance of doubt, the
reference in Section 7.3 (Corrections to Published Prices)
of the 2005 ISDA Commodity Definitions to “the spot offered
rate for deposits in the payment currency in the London interbank
market as at approximately 11:00 a.m., London time”), then the
reference to LIBOR (howsoever defined or described) in the Protocol
Covered Document will be deemed to be a reference to LIBOR in the
currency of the related payment for which LIBOR is required pursuant
to the terms of the Protocol Covered Document and paragraphs 6(a),
6(d) and 6(e) above, and the related definitions below, shall be construed
accordingly.
For the purposes of any Protocol Covered Document which
does not include a definition of “Calculation Agent”,
the term “Calculation Agent” shall be deemed to be a reference
to a party or parties who would ordinarily be responsible for calculating
or determining any rates or amounts payable under the relevant Protocol
Covered Document and performing any associated duties.
If the Protocol Covered Document
to which this paragraph 6 applies is a Protocol Covered Master Agreement,
the Relevant IBOR is defined in the Protocol Covered Master Agreement
and that definition is referenced in a Confirmation that supplements,
forms part of and is subject to that Protocol Covered Master Agreement,
then the reference in the Protocol Covered Master Agreement to the
Relevant IBOR as amended by this paragraph 6 will also apply to the
reference to the Relevant IBOR in that Confirmation.
For these purposes:
Applicable Banking Days means, if the Relevant IBOR is:
(a) Swiss franc LIBOR, U.S. dollar LIBOR
or Japanese yen LIBOR, London Banking Days (as defined in the 2006
ISDA Definitions);
(b)
Euro LIBOR or the euro interbank offered rate, TARGET Settlement Days
(as defined in the 2006 ISDA Definitions);
(c) The Japanese yen Tokyo interbank offered
rate or the euroyen Tokyo interbank offered rate, Tokyo Banking Days
(as defined in the 2006 ISDA Definitions);
(d) The Singapore dollar swap offer rate,
Singapore and London Banking Days (as defined in the 2006 ISDA Definitions);
and
(e) The Thai baht
interest rate fixing, Bangkok Banking Days (as defined in the 2006
ISDA Definitions).
Applicable Cut-off
Time means:
(a) for Fallback Rate (SONIA), 11:30 a.m.,
London time;
(b) for
Fallback Rate (SARON), 8:30 p.m., Zurich time;
(c) for Fallback Rate (SOFR), 10:30 a.m.,
New York City time;
(d) for Fallback Rate (EuroSTR), 11:30 a.m., Frankfurt time;
(e) for Fallback Rate (TONA),
12:30 p.m., Tokyo time;
(f) for Fallback Rate (AONIA), 11:30 a.m., Sydney time;
(g) for Fallback Rate (CORRA),
11:30 a.m., Toronto time;
(h) for Fallback Rate (HONIA), 7:30 p.m., Hong Kong time;
(i) for Fallback Rate (SOR),
11:30 a.m., New York City time; and
(j) for Fallback Rate (THBFIX), 10:00 a.m.,
Bangkok time, in each case, on the Fallback Observation Day.
Applicable Fallback Rate means, in respect
of a Relevant IBOR, for the purposes of:
(a) Sterling LIBOR, Fallback Rate (SONIA)
or if a Fallback Index Cessation Event has occurred with respect to
Fallback Rate (SONIA), then the Applicable Fallback Rate for any Fallback
Observation Day that occurs on or after the Fallback Index Cessation
Effective Date with respect to Fallback Rate (SONIA) will be the Sterling
Overnight Index Average (“SONIA”) rate administered by
the Bank of England (or any successor administrator), to which the
Calculation Agent shall apply the most recently published spread,
as at the Fallback Index Cessation Effective Date with respect to
Fallback Rate (SONIA), referred to in the definition of “Fallback
Rate (SONIA)” after making such adjustments to SONIA as are
necessary to account for any difference in term structure or tenor
of SONIA by comparison to Fallback Rate (SONIA) and by reference to
the Bloomberg IBOR Fallback Rate Adjustments Rule Book. If a Fallback
Index Cessation Effective Date occurs with respect to each of Fallback
Rate (SONIA) and SONIA, then the Applicable Fallback Rate for any
Fallback Observation Day that occurs on or after the Fallback Index
Cessation Effective Date with respect to Fallback Rate (SONIA) (or,
if later, the Fallback Index Cessation Effective Date with respect to SONIA)
will be the GBP Recommended Rate, to which the Calculation Agent shall
apply the most recently published spread, as at the Fallback Index
Cessation Effective Date with respect to Fallback Rate (SONIA), referred
to in the definition of “Fallback Rate (SONIA)” after
making such adjustments to the GBP Recommended Rate as are necessary
to account for any difference in term structure or tenor of the GBP
Recommended Rate by comparison to Fallback Rate (SONIA) and by reference
to the Bloomberg IBOR Fallback Rate Adjustments Rule Book. If there
is no GBP Recommended Rate before the end of the first London Banking
Day (as defined in the 2006 ISDA Definitions) following the Fallback
Index Cessation Effective Date with respect to Fallback Rate (SONIA)
(or, if later, the end of the first London Banking Day following the
Fallback Index Cessation Effective Date with respect to SONIA), or
there is a GBP Recommended Rate and a Fallback Index Cessation Effective
Date subsequently occurs with respect to it, then the Applicable Fallback
Rate for any Fallback Observation Day that occurs on or after the
Fallback Index Cessation Effective Date with respect to Fallback Rate
(SONIA) (or, if later, the Fallback Index Cessation Effective Date
with respect to SONIA) or the Fallback Index Cessation Effective Date
with respect to the GBP Recommended Rate (as applicable) will be the
UK Bank Rate, to which the Calculation Agent shall apply the most
recently published spread, as at the Fallback Index Cessation Effective
Date with respect to Fallback Rate (SONIA), referred to in the definition
of “Fallback Rate (SONIA)” after making such adjustments
to the UK Bank Rate as are necessary to account for any difference
in term structure or tenor of the UK Bank Rate by comparison to Fallback
Rate (SONIA) and by reference to the Bloomberg IBOR Fallback Rate
Adjustments Rule Book;
(b) Swiss franc LIBOR, Fallback Rate (SARON) or if a Fallback Index
Cessation Event has occurred with respect to Fallback Rate (SARON),
then the Applicable Fallback Rate for any Fallback Observation Day
that occurs on or after the Fallback Index Cessation Effective Date
with respect to Fallback Rate (SARON) will be the Swiss Average Rate
Overnight (“SARON”) administered by SIX Swiss Exchange
AG (or any successor administrator), to which the Calculation Agent
shall apply the most recently published spread, as at the Fallback
Index Cessation Effective Date with respect to Fallback Rate (SARON),
referred to in the definition of “Fallback Rate (SARON)”
after making such adjustments to SARON as are necessary to account
for any difference in term structure or tenor of SARON by comparison
to Fallback Rate (SARON) and by reference to the Bloomberg IBOR Fallback
Rate Adjustments Rule Book.
If a Fallback Index Cessation Effective Date occurs
with respect to each of Fallback Rate (SARON) and SARON, then the
Applicable Fallback Rate for any Fallback Observation Day that occurs
on or after the Fallback Index Cessation Effective Date with respect
to Fallback Rate (SARON) (or, if later, the Fallback Index Cessation
Effective Date with respect to SARON) will be the NWG Recommended
Rate, to which the Calculation Agent shall apply the most recently
published spread, as at the Fallback Index Cessation Effective Date
with respect to Fallback Rate (SARON), referred to in the definition
of “Fallback Rate (SARON)” after making such adjustments
to the NWG Recommended Rate as are necessary to account for any difference
in term structure or tenor of the NWG Recommended Rate by comparison
to Fallback Rate (SARON) and by reference to the Bloomberg IBOR Fallback
Rate Adjustments Rule Book.
If there is no NWG Recommended Rate before the end
of the first Zurich Banking Day (as defined in the 2006 ISDA Definitions)
following the Fallback Index Cessation Effective Date with respect
to Fallback Rate (SARON) (or, if later, the end of the first Zurich
Banking Day following the Fallback Index Cessation Effective Date with respect
to SARON), then the Applicable Fallback Rate for any Fallback Observation
Day that occurs on or after the Fallback Index Cessation Effective
Date with respect to Fallback Rate (SARON) (or, if later, the Fallback
Index Cessation Effective Date with respect to SARON) will be the
Modified SNB Policy Rate, to which the Calculation Agent shall apply
the most recently published spread, as at the Fallback Index Cessation
Effective Date with respect to Fallback Rate (SARON), referred to
in the definition of “Fallback Rate (SARON)” after making
such adjustments to the Modified SNB Policy Rate as are necessary
to account for any difference in term structure or tenor of the Modified
SNB Policy Rate by comparison to Fallback Rate (SARON) and by reference
to the Bloomberg IBOR Fallback Rate Adjustments Rule Book;
(c) U.S. dollar LIBOR, Fallback
Rate (SOFR) or if a Fallback Index Cessation Event has occurred with
respect to Fallback Rate (SOFR), then the Applicable Fallback Rate
for any Fallback Observation Day that occurs on or after the Fallback
Index Cessation Effective Date with respect to Fallback Rate (SOFR)
will be the Secured Overnight Financing Rate (“SOFR”)
administered by the Federal Reserve Bank of New York (or any successor
administrator), to which the Calculation Agent shall apply the most
recently published spread, as at the Fallback Index Cessation Effective
Date with respect to Fallback Rate (SOFR), referred to in the definition
of “Fallback Rate (SOFR)” after making such adjustments
to SOFR as are necessary to account for any difference in term structure
or tenor of SOFR by comparison to Fallback Rate (SOFR) and by reference
to the Bloomberg IBOR Fallback Rate Adjustments Rule Book.
If a Fallback Index Cessation Effective Date occurs
with respect to each of Fallback Rate (SOFR) and SOFR, then the Applicable
Fallback Rate for any Fallback Observation Day that occurs on or after
the Fallback Index Cessation Effective Date with respect to Fallback
Rate (SOFR) (or, if later, the Fallback Index Cessation Effective
Date with respect to SOFR) will be the Fed Recommended Rate, to which
the Calculation Agent shall apply the most recently published spread,
as at the Fallback Index Cessation Effective Date with respect to
Fallback Rate (SOFR), referred to in the definition of “Fallback
Rate (SOFR)” after making such adjustments to the Fed Recommended
Rate as are necessary to account for any difference in term structure
or tenor of the Fed Recommended Rate by comparison to Fallback Rate
(SOFR) and by reference to the Bloomberg IBOR Fallback Rate Adjustments
Rule Book.
If there is no Fed Recommended Rate before the end
of the first U.S. Government Securities Business Day (as defined in
the 2006 ISDA Definitions) following the Fallback Index Cessation
Effective Date with respect to Fallback Rate (SOFR) (or, if later,
the end of the first U.S. Government Securities Business Day following
the Fallback Index Cessation Effective Date with respect to SOFR),
or there is a Fed Recommended Rate and a Fallback Index Cessation
Effective Date subsequently occurs with respect to it, then the Applicable
Fallback Rate for any Fallback Observation Day that occurs on or after
the Fallback Index Cessation Effective Date with respect to Fallback
Rate (SOFR) (or, if later, the Fallback Index Cessation Effective
Date with respect to SOFR) or the Fallback Index Cessation Effective
Date with respect to the Fed Recommended Rate (as applicable) will
be OBFR, to which the Calculation Agent shall apply the most recently
published spread, as at the Fallback Index Cessation Effective Date
with respect to Fallback Rate (SOFR), referred to in the definition
of “Fallback Rate (SOFR)” after making such adjustments
to OBFR as are necessary to account for any difference in term structure
or tenor of OBFR by comparison to Fallback Rate (SOFR) and by reference
to the Bloomberg IBOR Fallback Rate Adjustments Rule Book. If there
is no Fed Recommended Rate, or there is a Fed Recommended Rate and
a Fallback Index Cessation Effective Date subsequently occurs with
respect to it, and a Fallback Index Cessation Effective Date also
occurs with respect to OBFR, then the Applicable Fallback Rate for
any Fallback Observation Day that occurs on or after the Fallback
Index Cessation Effective Date with respect to OBFR (or, if later,
the Fallback Index Cessation Effective Date with respect to the Fed
Recommended Rate, SOFR or Fallback Rate (SOFR), as applicable) will
be the FOMC Target Rate, to which the Calculation Agent shall apply
the most recently published spread, as at the Fallback Index Cessation
Effective Date with respect to Fallback Rate (SOFR), referred to in
the definition of “Fallback Rate (SOFR)” after making
such adjustments to the FOMC Target Rate as are necessary to account
for any difference in term structure or tenor of the FOMC Target Rate
by comparison to Fallback Rate (SOFR) and by reference to the Bloomberg
IBOR Fallback Rate Adjustments Rule Book;
(d) Euro LIBOR and the euro interbank offered
rate, Fallback Rate (EuroSTR) or if a Fallback Index Cessation Event
has occurred with respect to Fallback Rate (EuroSTR), then the Applicable
Fallback Rate for any Fallback Observation Day that occurs on or after
the Fallback Index Cessation Effective Date with respect to Fallback
Rate (EuroSTR) will be the Euro Short-Term Rate (“EuroSTR”)
administered by the European Central Bank (or any successor administrator),
to which the Calculation Agent shall apply the most recently published
spread, as at the Fallback Index Cessation Effective Date with respect
to Fallback Rate (EuroSTR), referred to in the definition of “Fallback
Rate (EuroSTR)” after making such adjustments to EuroSTR as
are necessary to account for any difference in term structure or tenor
of EuroSTR by comparison to Fallback Rate (EuroSTR) and by reference
to the Bloomberg IBOR Fallback Rate Adjustments Rule Book. If a Fallback
Index Cessation Effective Date occurs with respect to each of Fallback
Rate (EuroSTR) and EuroSTR, then the Applicable Fallback Rate for
any Fallback Observation Day that occurs on or after the Fallback
Index Cessation Effective Date with respect to Fallback Rate (EuroSTR)
(or, if later, the Fallback Index Cessation Effective Date with respect
to EuroSTR) will be the ECB Recommended Rate, to which the Calculation
Agent shall apply the most recently published spread, as at the Fallback
Index Cessation Effective Date with respect to Fallback Rate (EuroSTR),
referred to in the definition of “Fallback Rate (EuroSTR)”
after making such adjustments to the ECB Recommended Rate as are necessary
to account for any difference in term structure or tenor of the ECB
Recommended Rate by comparison to Fallback Rate (EuroSTR) and by reference
to the Bloomberg IBOR Fallback Rate Adjustments Rule Book.
If no ECB Recommended Rate is recommended before
the end of the first TARGET Settlement Day (as defined in the 2006
ISDA Definitions) following the Fallback Index Cessation Effective
Date with respect to Fallback Rate (EuroSTR) (or, if later, the end
of the first TARGET Settlement Day following the Fallback Index Cessation
Effective Date with respect to EuroSTR), or a Fallback Index Cessation
Effective Date with respect to the ECB Recommended Rate subsequently
occurs, then the Applicable Fallback Rate for any Fallback Observation
Day that occurs on or after the Fallback Index Cessation Effective
Date with respect to Fallback Rate (EuroSTR) (or, if later, the Fallback
Index Cessation Effective Date with respect to EuroSTR) or the Fallback
Index Cessation Effective Date with respect to the ECB Recommended
Rate (as applicable) will be Modified EDFR, to which the Calculation
Agent shall apply the most recently published spread, as at the Fallback
Index Cessation Effective Date with respect to Fallback Rate (EuroSTR),
referred to in the definition of “Fallback Rate (EuroSTR)”
after making such adjustments to Modified EDFR as are necessary to
account for any difference in term structure or tenor of Modified
EDFR by comparison to Fallback Rate (EuroSTR) and by reference to
the Bloomberg IBOR Fallback Rate Adjustments Rule Book;
(e) Japanese yen LIBOR, the
Japanese yen Tokyo interbank offered rate and the euroyen Tokyo interbank
offered rate, Fallback Rate (TONA) or if a Fallback Index Cessation
Event has occurred with respect to Fallback Rate (TONA), then the
Applicable Fallback Rate for any Fallback Observation Day that occurs
on or after the Fallback Index Cessation Effective Date with respect
to Fallback Rate (TONA) will be the Tokyo Overnight Average Rate (“TONA”)
administered by the Bank of Japan (or any successor administrator),
to which the Calculation Agent shall apply the most recently published
spread, as at the Fallback Index Cessation Effective Date with respect
to Fallback Rate (TONA), referred to in the definition of “Fallback
Rate (TONA)” after making such adjustments to TONA as are necessary
to account for any difference in term structure or tenor of TONA by
comparison to Fallback Rate (TONA) and by reference to the Bloomberg
IBOR Fallback Rate Adjustments Rule Book. If a Fallback Index Cessation
Effective Date occurs with respect to each of Fallback Rate (TONA)
and TONA, then the Applicable Fallback Rate for any Fallback Observation
Day that occurs on or after the Fallback Index Cessation Effective
Date with respect to Fallback Rate (TONA) (or, if later, the Fallback
Index Cessation Effective Date with respect to TONA) will be the JPY
Recommended Rate, to which the Calculation Agent shall apply the most
recently published spread, as at the Fallback Index Cessation Effective
Date with respect to Fallback Rate (TONA), referred to in the definition
of “Fallback Rate (TONA)” after making such adjustments
to the JPY Recommended Rate as are necessary to account for any difference
in term structure or tenor of the JPY Recommended Rate by comparison
to Fallback Rate (TONA) and by reference to the Bloomberg IBOR Fallback
Rate Adjustments Rule Book;
(f) The bank bill swap rate, Fallback Rate
(AONIA) or if a Fallback Index Cessation Event has occurred with respect
to Fallback Rate (AONIA), then the Applicable Fallback Rate for any
Fallback Observation Day that occurs on or after the Fallback Index
Cessation Effective Date with respect to Fallback Rate (AONIA) will
be the interbank overnight cash rate (“AONIA”) administered
by the Reserve Bank of Australia (or any successor administrator),
to which the Calculation Agent shall apply the most recently published
spread, as at the Fallback Index Cessation Effective Date with respect
to Fallback Rate (AONIA), referred to in the definition of “Fallback
Rate (AONIA)” after making such adjustments to AONIA as are
necessary to account for any difference in term structure or tenor
of AONIA by comparison to Fallback Rate (AONIA) and by reference to
the Bloomberg IBOR Fallback Rate Adjustments Rule Book. If a Fallback
Index Cessation Effective Date occurs with respect to each of Fallback
Rate (AONIA) and AONIA, then the Applicable Fallback Rate for any
Fallback Observation Day that occurs on or after the Fallback Index
Cessation Effective Date with respect to Fallback Rate (AONIA) (or,
if later, the Fallback Index Cessation Effective Date with respect
to AONIA) will be the RBA Recommended Rate, to which the Calculation
Agent shall apply the most recently published spread, as at the Fallback
Index Cessation Effective Date with respect to Fallback Rate (AONIA),
referred to in the definition of “Fallback Rate (AONIA)”
after making such adjustments to the RBA Recommended Rate as are necessary
to account for any difference in term structure or tenor of the RBA
Recommended Rate by comparison to Fallback Rate (AONIA) and by reference
to the Bloomberg IBOR Fallback Rate Adjustments Rule Book;
(g) The Canadian dollar offered
rate, Fallback Rate (CORRA) or if a Fallback Index Cessation Event
has occurred with respect to Fallback Rate (CORRA), then the Applicable
Fallback Rate for any Fallback Observation Day that occurs on or after
the Fallback Index Cessation Effective Date with respect to Fallback
Rate (CORRA) will be the Canadian Overnight Repo Rate Average (“CORRA”)
administered by the Bank of Canada (or any successor administrator),
to which the Calculation Agent shall apply the most recently published
spread, as at the Fallback Index Cessation Effective Date with respect to Fallback
Rate (CORRA), referred to in the definition of “Fallback Rate
(CORRA)” after making such adjustments to CORRA as are necessary
to account for any difference in term structure or tenor of CORRA
by comparison to Fallback Rate (CORRA) and by reference to the Bloomberg
IBOR Fallback Rate Adjustments Rule Book. If a Fallback Index Cessation
Effective Date occurs with respect to each of Fallback Rate (CORRA)
and CORRA, then the Applicable Fallback Rate for any Fallback Observation
Day that occurs on or after the Fallback Index Cessation Effective
Date with respect to Fallback Rate (CORRA) (or, if later, the Fallback
Index Cessation Effective Date with respect to CORRA) will be the
CAD Recommended Rate, to which the Calculation Agent shall apply the
most recently published spread, as at the Fallback Index Cessation
Effective Date with respect to Fallback Rate (CORRA), referred to
in the definition of “Fallback Rate (CORRA)” after making
such adjustments to the CAD Recommended Rate as are necessary to account
for any difference in term structure or tenor of the CAD Recommended
Rate by comparison to Fallback Rate (CORRA) and by reference to the
Bloomberg IBOR Fallback Rate Adjustments Rule Book. If there is no
CAD Recommended Rate before the end of the first Toronto Banking Day
(as defined in the 2006 ISDA Definitions) following the Fallback Index
Cessation Effective Date with respect to Fallback Rate (CORRA) (or,
if later, the end of the first Toronto Banking Day following the Fallback
Index Cessation Effective Date with respect to CORRA), or there is
a CAD Recommended Rate and a Fallback Index Cessation Effective Date
subsequently occurs with respect to it, then the Applicable Fallback
Rate for any Fallback Observation Day that occurs on or after the
Fallback Index Cessation Effective Date with respect to Fallback Rate
(CORRA) (or, if later, the Fallback Index Cessation Effective Date
with respect to CORRA) or the Fallback Index Cessation Effective Date
with respect to the CAD Recommended Rate (as applicable) will be the
BOC Target Rate, to which the Calculation Agent shall apply the most
recently published spread, as at the Fallback Index Cessation Effective
Date with respect to Fallback Rate (CORRA), referred to in the definition
of “Fallback Rate (CORRA)” after making such adjustments
to the BOC Target Rate as are necessary to account for any difference
in term structure or tenor of the BOC Target Rate by comparison to
Fallback Rate (CORRA) and by reference to the Bloomberg IBOR Fallback
Rate Adjustments Rule Book;
(h) The Hong Kong interbank offered rate,
Fallback Rate (HONIA) or if a Fallback Index Cessation Event has occurred
with respect to Fallback Rate (HONIA), then the Applicable Fallback
Rate for any Fallback Observation Day that occurs on or after the
Fallback Index Cessation Effective Date with respect to Fallback Rate
(HONIA) will be the Hong Kong Dollar Overnight Index Average (“HONIA”)
rate administered by the Treasury Markets Association (or any successor
administrator), to which the Calculation Agent shall apply the most
recently published spread, as at the Fallback Index Cessation Effective
Date with respect to Fallback Rate (HONIA), referred to in the definition
of “Fallback Rate (HONIA)” after making such adjustments
to HONIA as are necessary to account for any difference in term structure
or tenor of HONIA by comparison to Fallback Rate (HONIA) and by reference
to the Bloomberg IBOR Fallback Rate Adjustments Rule Book. If a Fallback
Index Cessation Effective Date occurs with respect to each of Fallback
Rate (HONIA) and HONIA, then the Applicable Fallback Rate for any
Fallback Observation Day that occurs on or after the Fallback Index
Cessation Effective Date with respect to Fallback Rate (HONIA) (or,
if later, the Fallback Index Cessation Effective Date with respect
to HONIA) will be the HKD Recommended Rate, to which the Calculation
Agent shall apply the most recently published spread, as at the Fallback
Index Cessation Effective Date with respect to Fallback
Rate (HONIA), referred to in the definition of “Fallback Rate
(HONIA)” after making such adjustments to the HKD Recommended
Rate as are necessary to account for any difference in term structure
or tenor of the HKD Recommended Rate by comparison to Fallback Rate
(HONIA) and by reference to the Bloomberg IBOR Fallback Rate Adjustments
Rule Book; the Singapore dollar swap offer rate, Fallback Rate (SOR)
or if a Fallback Index Cessation Event has occurred with respect to
Fallback Rate (SOR), then the Applicable Fallback Rate for any Fallback
Observation Day that occurs on or after the Fallback Index Cessation
Effective Date with respect to Fallback Rate (SOR) will be the MAS
Recommended Rate or, if there is no MAS Recommended Rate before the
end of the first Singapore Banking Day (as defined in the 2006 ISDA
Definitions) following the Fallback Index Cessation Effective Date
with respect to Fallback Rate (SOR), or there is a MAS Recommended
Rate and a Fallback Index Cessation Effective Date subsequently occurs
with respect to it, then the Applicable Fallback Rate for any Fallback
Observation Day that occurs on or after the Fallback Index Cessation
Effective Date with respect to Fallback Rate (SOR) or the Fallback
Index Cessation Effective Date with respect to the MAS Recommended
Rate (as applicable) will be SORA, to which the Calculation Agent
shall make such adjustments as are necessary to account for any difference
in term structure or tenor of SORA by comparison to Fallback Rate
(SOR) and by reference to the Calculation Methodology for Fallback
Rate (SOR); and
(i)
The Thai baht interest rate fixing, Fallback Rate (THBFIX) or if a
Fallback Index Cessation Event has occurred with respect to Fallback
Rate (THBFIX), then the Applicable Fallback Rate for any Fallback
Observation Day that occurs on or after the Fallback Index Cessation
Effective Date with respect to Fallback Rate (THBFIX) will be the
BOT Recommended Rate or, if there is no BOT Recommended Rate before
the end of the first Bangkok Banking Day (as defined in the 2006 ISDA
Definitions) following the Fallback Index Cessation Effective Date
with respect to Fallback Rate (THBFIX), or there is a BOT Recommended
Rate and a Fallback Index Cessation Effective Date subsequently occurs
with respect to it, then the Applicable Fallback Rate for any Fallback
Observation Day that occurs on or after the Fallback Index Cessation
Effective Date with respect to Fallback Rate (THBFIX) or the Fallback
Index Cessation Effective Date with respect to the BOT Recommended
Rate (as applicable) will be THOR, to which the Calculation Agent
shall make such adjustments as are necessary to account for any difference
in term structure or tenor of THOR by comparison to Fallback Rate
(THBFIX) and by reference to the Bank of Thailand THBFIX Fallback
Rate Adjustments Rule Book.
Bank
of Thailand THBFIX Fallback Rate Adjustments Rule Book means the
THBFIX Fallback Rate Adjustments Rule Book published by the Bank of
Thailand as updated from time to time.
Bloomberg
IBOR Fallback Rate Adjustments Rule Book means the IBOR Fallback
Rate Adjustments Rule Book published by Bloomberg Index Services Limited
(or a successor provider as approved and/or appointed by ISDA from
time to time) as updated from time to time in accordance with its
terms.
BOC Target Rate means the Bank of
Canada’s Target for the Overnight Rate as set by the Bank of
Canada and published on the Bank of Canada’s website (as defined
in the 2006 ISDA Definitions).
BOT Recommended
Rate means the rate (inclusive of any spreads or adjustments)
recommended as the replacement for Fallback Rate (THBFIX) by the Bank
of Thailand or by a committee officially endorsed or convened by the
Bank of Thailand (which rate may be produced by the Bank of Thailand
or another administrator) and as provided by the administrator of
that rate in respect of the day for which that rate is required (which
under the 2006 ISDA Definitions would be the “Reset Date”)
or, if that rate is not provided by the administrator of that rate
(or a successor administrator), published by an authorized distributor.
CAD Recommended Rate means the rate (inclusive
of any spreads or adjustments) recommended as the replacement for
CORRA by a committee officially endorsed or convened by the Bank of
Canada for the purpose of recommending a replacement for CORRA (which
rate may be produced by the Bank of Canada or another administrator)
and as provided by the administrator of that rate or, if that rate
is not provided by the administrator thereof (or a successor administrator),
published by an authorized distributor. “Calculation Methodology
for Fallback Rate (SOR)” means the Calculation Methodology for
Fallback Rate (SOR) published by ABS Benchmarks Administration Co
Pte. Ltd. as updated from time to time.
ECB
Recommended Rate means the rate (inclusive of any spreads or adjustments)
recommended as the replacement for EuroSTR by the European Central
Bank (or any successor administrator of EuroSTR) and/or by a committee
officially endorsed or convened by the European Central Bank (or any
successor administrator of EuroSTR) for the purpose of recommending
a replacement for EuroSTR (which rate may be produced by the European
Central Bank or another administrator) and as provided by the administrator
of that rate or, if that rate is not provided by the administrator
thereof (or a successor administrator), published by an authorized
distributor.
EDFR Spread means:
(a) If no ECB Recommended Rate is recommended
before the end of the first TARGET Settlement Day (as defined in the
2006 ISDA Definitions) following the Fallback Index Cessation Effective
Date with respect to Fallback Rate (EuroSTR) (or, if later, before
the end of the first TARGET Settlement Day following the Fallback
Index Cessation Effective Date with respect to EuroSTR), the arithmetic
mean of the daily difference between EuroSTR and the Eurosystem Deposit
Facility Rate over an observation period of 30 TARGET Settlement Days
starting 30 TARGET Settlement Days prior to the day on which the Fallback
Index Cessation Event with respect to Fallback Rate (EuroSTR) occurs
(or, if later, 30 TARGET Settlement Days prior to the day on which
the first Fallback Index Cessation Event with respect to EuroSTR occurs)
and ending on the TARGET Settlement Day immediately preceding the
day on which the Fallback Index Cessation Event with respect to Fallback
Rate (EuroSTR) occurs (or, if later, the TARGET Settlement Day immediately
preceding the day on which the first Fallback Index Cessation Event
with respect to EuroSTR occurs); or
(b) If a Fallback Index Cessation Event
with respect to the ECB Recommended Rate occurs, the arithmetic mean
of the daily difference between the ECB Recommended Rate and the Eurosystem
Deposit Facility Rate over an observation period of 30 TARGET Settlement
Days starting 30 TARGET Settlement Days prior to the day on which
the Fallback Index Cessation Event with respect to the ECB Recommended
Rate occurs and ending on the TARGET Settlement Day immediately preceding
the day on which that Fallback Index Cessation Event occurs.
Eurosystem Deposit Facility Rate means the
rate on the deposit facility, which banks may use to make overnight
deposits with the Eurosystem and which is published on the ECB’s
website (as defined in the 2006 ISDA Definitions).
Fallback Index Cessation Effective Date means, in respect
of a Fallback Index Cessation Event, the first date on which the Applicable
Fallback Rate is no longer provided. If the Applicable Fallback Rate
ceases to be provided on the same day that it would have been observed
but it was provided at the time at which it is ordinarily observed
(or, if no such time is specified, at the time at which it is ordinarily
published), then the Fallback Index Cessation Effective Date will
be the next day on which the rate would ordinarily have been published.
If the Applicable Fallback Rate is the Modified SNB Policy Rate or Modified
EDFR, references to the Applicable Fallback Rate in this definition
of “Fallback Index Cessation Effective Date” shall be
deemed to be references to the index, benchmark or other price source
that is referred to in the definition of Modified SNB Policy Rate
or Modified EDFR, as applicable.
Fallback Index
Cessation Event means, in respect of an Applicable Fallback Rate:
(a) A public statement or publication of
information by or on behalf of the administrator or provider of the
Applicable Fallback Rate announcing that it has ceased or will cease
to provide the Applicable Fallback Rate permanently or indefinitely,
provided that, at the time of the statement or publication, there
is no successor administrator or provider that will continue to provide
the Applicable Fallback Rate; or
(b) If the Applicable Fallback Rate is:
(i) Fallback Rate (SONIA), Fallback Rate (SARON), Fallback Rate (SOFR),
Fallback Rate (EuroSTR), Fallback Rate (TONA), Fallback Rate (AONIA),
Fallback Rate (CORRA) or Fallback Rate (HONIA), a public statement
or publication of information by the regulatory supervisor for the
administrator of the Underlying Rate, the central bank for the currency
of the Underlying Rate, an insolvency official with jurisdiction over
the administrator for the Underlying Rate, a resolution authority
with jurisdiction over the administrator for the Underlying Rate or
a court or an entity with similar insolvency or resolution authority
over the administrator for the Underlying Rate, which states that
the administrator of the Underlying Rate has ceased or will cease
to provide the Underlying Rate permanently or indefinitely, provided
that, at the time of the statement or publication, there is no successor
administrator that will continue to provide the Underlying Rate; or
(ii) SONIA, the GBP
Recommended Rate, SARON, the NWG Recommended Rate, the Modified SNB
Policy Rate, SOFR, the Fed Recommended Rate, OBFR, the FOMC Target
Rate, EuroSTR, the ECB Recommended Rate, Modified EDFR, TONA, the
JPY Recommended Rate, AONIA, the RBA Recommended Rate, CORRA, the
CAD Recommended Rate, the BOC Target Rate, HONIA, the HKD Recommended
Rate, Fallback Rate (SOR), the MAS Recommended Rate, SORA, Fallback
Rate (THBFIX), the BOT Recommended Rate or THOR, a public statement
or publication of information by the regulatory supervisor for the
administrator or provider of the Applicable Fallback Rate, the central
bank for the currency of the Applicable Fallback Rate, an insolvency
official with jurisdiction over the administrator or provider for
the Applicable Fallback Rate, a resolution authority with jurisdiction
over the administrator or provider for the Applicable Fallback Rate
or a court or an entity with similar insolvency or resolution authority
over the administrator or provider for the Applicable Fallback Rate,
which states that the administrator or provider of the Applicable
Fallback Rate has ceased or will cease to provide the Applicable Fallback
Rate permanently or indefinitely, provided that, at the time of the
statement or publication, there is no successor administrator or provider
that will continue to provide the Applicable Fallback Rate.
If the Applicable Fallback
Rate is the Modified SNB Policy Rate or Modified EDFR, references
to the administrator or provider of such rate in this definition of
“Fallback Index Cessation Event” shall be deemed to be
references to the administrator or provider of the index, benchmark
or other price source that is referred to in the definition of Modified
SNB Policy Rate or Modified EDFR, as applicable.
Fallback Observation Day means, in respect of an
Applicable Fallback Rate and unless otherwise agreed, the day that
is two Business Days (as defined in the relevant Protocol Covered
Document or, if that term is not defined therein, as defined in the
2006 ISDA Definitions and, in each case, for the purposes of
the payment which is calculated by reference to that Applicable Fallback
Rate) preceding the day on which payment by reference to that rate
is due (which under the 2006 ISDA Definitions would be equivalent
to the “Payment Date”).
Fallback
Rate (AONIA) means the term adjusted AONIA plus the spread relating
to the bank bill swap rate, in each case, for the period of time in
respect of which the Relevant IBOR is to be determined provided by
Bloomberg Index Services Limited (or a successor provider as approved
and/or appointed by ISDA from time to time), as the provider of term
adjusted AONIA and the spread, on the Fallback Rate (AONIA) Screen
(or by other means) or provided to, and published by, authorized distributors
at, or prior to, the Applicable Cut-off Time.
Fallback Rate (AONIA) Screen means the Bloomberg Screen (as
defined in the 2006 ISDA Definitions) corresponding to the Bloomberg
ticker for the fallback for the bank bill swap rate for the period
of time in respect of which the Relevant IBOR is to be determined
accessed via the Bloomberg Screen <FBAK> <GO> Page (or, if applicable,
accessed via the Bloomberg Screen <HP> <GO>) or any other published
source designated by Bloomberg Index Services Limited (or a successor
provider as approved and/or appointed by ISDA from time to time).
Fallback Rate (CORRA) means the term adjusted
CORRA plus the spread relating to the Canadian dollar offered rate,
in each case, for the period of time in respect of which the Relevant
IBOR is to be determined provided by Bloomberg Index Services Limited
(or a successor provider as approved and/or appointed by ISDA from
time to time), as the provider of term adjusted CORRA and the spread,
on the Fallback Rate (CORRA) Screen (or by other means) or provided
to, and published by, authorized distributors at, or prior to, the
Applicable Cut-off Time.
Fallback Rate (CORRA)
Screen means the Bloomberg Screen (as defined in the 2006 ISDA
Definitions) corresponding to the Bloomberg ticker for the fallback
for the Canadian dollar offered rate for the period of time in respect
of which the Relevant IBOR is to be determined accessed via the Bloomberg
Screen <FBAK> <GO> Page (or, if applicable, accessed via the
Bloomberg Screen <HP> <GO>) or any other published source designated
by Bloomberg Index Services Limited (or a successor provider as approved
and/or appointed by ISDA from time to time).
Fallback Rate (EuroSTR) means:
(a) The term adjusted EuroSTR; plus
(b) If the Relevant IBOR
is:
(i) Euro LIBOR, the spread relating
to euro LIBOR; or
(ii) The euro interbank offered rate, the spread relating to the
euro interbank offered rate,
in each case, for the period of time in
respect of which the Relevant IBOR is to be determined provided by
Bloomberg Index Services Limited (or a successor provider as approved
and/or appointed by ISDA from time to time), as the provider of term
adjusted EuroSTR and the spread, on the Fallback Rate (EuroSTR) Screen
(or by other means) or provided to, and published by, authorized distributors
at, or prior to, the Applicable Cut-off Time.
Fallback Rate (EuroSTR) Screen means the Bloomberg
Screen (as defined in the 2006 ISDA Definitions) corresponding to
the Bloomberg ticker for the fallback for euro LIBOR or the euro interbank
offered rate, as applicable, for the period of time in respect of
which the Relevant IBOR is to be determined accessed via the Bloomberg
Screen <FBAK> <GO> Page (or, if applicable, accessed via the
Bloomberg Screen <HP> <GO>) or any other published source designated
by Bloomberg Index Services Limited (or a successor provider as approved
and/or appointed by ISDA from time to time).
Fallback Rate (HONIA) means the term adjusted HONIA rate plus
the spread relating to the Hong Kong interbank offered rate, in each
case, for the period of time in respect of which the Relevant IBOR is to
be determined provided by Bloomberg Index Services Limited (or a successor
provider as approved and/or appointed by ISDA from time to time),
as the provider of term adjusted HONIA and the spread, on the Fallback
Rate (HONIA) Screen (or by other means) or provided to, and published
by, authorized distributors at, or prior to, the Applicable Cut-off
Time.
Fallback Rate (HONIA) Screen means
the Bloomberg Screen (as defined in the 2006 ISDA Definitions) corresponding
to the Bloomberg ticker for the fallback for the Hong Kong interbank
offered rate for the period of time in respect of which the Relevant
IBOR is to be determined accessed via the Bloomberg Screen <FBAK>
<GO> Page (or, if applicable, accessed via the Bloomberg Screen
<HP> <GO>) or any other published source designated by Bloomberg
Index Services Limited (or a successor provider as approved and/or
appointed by ISDA from time to time).
Fallback
Rate (SARON) means the term adjusted SARON plus the spread relating
to Swiss franc LIBOR, in each case, for the period of time in respect
of which the Relevant IBOR is to be determined provided by Bloomberg
Index Services Limited (or a successor provider as approved and/or
appointed by ISDA from time to time), as the provider of term adjusted
SARON and the spread, on the Fallback Rate (SARON) Screen (or by other
means) or provided to, and published by, authorized distributors at,
or prior to, the Applicable Cut-off Time.
Fallback
Rate (SARON) Screen means the Bloomberg Screen (as defined in
the 2006 ISDA Definitions) corresponding to the Bloomberg ticker for
the fallback for Swiss franc LIBOR for the period of time in respect
of which the Relevant IBOR is to be determined accessed via the Bloomberg
Screen <FBAK> <GO> Page (or, if applicable, accessed via the
Bloomberg Screen <HP> <GO>) or any other published source designated
by Bloomberg Index Services Limited (or a successor provider as approved
and/or appointed by ISDA from time to time).
Fallback Rate Screen means, if the Applicable Fallback Rate is:
(a) Fallback Rate (SONIA), the Fallback Rate (SONIA) Screen; (b) Fallback
Rate (SARON), the Fallback Rate (SARON) Screen; (c) Fallback Rate
(SOFR), the Fallback Rate (SOFR) Screen; (d) Fallback Rate (EuroSTR),
the Fallback Rate (EuroSTR) Screen; (e) Fallback Rate (TONA), the
Fallback Rate (TONA) Screen; (f) Fallback Rate (AONIA), the Fallback
Rate (AONIA) Screen; (g) Fallback Rate (CORRA), the Fallback Rate
(CORRA) Screen, (h) Fallback Rate (HONIA), the Fallback Rate (HONIA)
Screen, (i) Fallback Rate (SOR), the Fallback Rate (SOR) Screen; and
(j) Fallback Rate (THBFIX), the Fallback Rate (THBFIX) Screen.
Fallback Rate (SOFR) means the term adjusted
SOFR plus the spread relating to U.S. dollar LIBOR, in each case,
for the period of time in respect of which the Relevant IBOR is to
be determined provided by Bloomberg Index Services Limited (or a successor
provider as approved and/or appointed by ISDA from time to time),
as the provider of term adjusted SOFR and the spread, on the Fallback
Rate (SOFR) Screen (or by other means) or provided to, and published
by, authorized distributors at, or prior to, the Applicable Cut-off
Time.
Fallback Rate (SOFR) Screen means
the Bloomberg Screen (as defined in the 2006 ISDA Definitions) corresponding
to the Bloomberg ticker for the fallback for U.S. dollar LIBOR for
the period of time in respect of which the Relevant IBOR is to be
determined accessed via the Bloomberg Screen <FBAK> <GO> Page
(or, if applicable, accessed via the Bloomberg Screen <HP> <GO>)
or any other published source designated by Bloomberg Index Services
Limited (or a successor provider as approved and/or appointed by ISDA
from time to time).
Fallback Rate (SONIA) means the term adjusted SONIA rate plus the spread relating to sterling
LIBOR, in each case, for the period of time in respect of which the
Relevant IBOR is to be determined provided by Bloomberg Index Services
Limited (or a successor provider as approved and/or appointed
by ISDA from time to time), as the provider of term adjusted SONIA
and the spread, on the Fallback Rate (SONIA) Screen (or by other means)
or provided to, and published by, authorized distributors at, or prior
to, the Applicable Cut-off Time.
Fallback Rate
(SONIA) Screen means the Bloomberg Screen (as defined in the 2006
ISDA Definitions) corresponding to the Bloomberg ticker for the fallback
for sterling LIBOR for the period of time in respect of which the
Relevant IBOR is to be determined accessed via the Bloomberg Screen
<FBAK> <GO> Page (or, if applicable, accessed via the Bloomberg
Screen <HP> <GO>) or any other published source designated by
Bloomberg Index Services Limited (or a successor provider as approved
and/or appointed by ISDA from time to time).
Fallback Rate (SOR) means the rate based on actual transactions
in the U.S. dollar/Singapore dollar foreign exchange swap market and
a U.S. dollar interest rate calculated by reference to “Fallback
Rate (SOFR)” as defined above and including any fallback rate
that may apply pursuant to subparagraph (c) of the definition of “Applicable
Fallback Rate” above for the period of time in respect of which
the Relevant IBOR is to be determined provided by ABS Benchmarks Administration
Co Pte. Ltd. (or a successor provider), as the provider of Fallback
Rate (SOR), on the Fallback Rate (SOR) Screen (or by other means)
or provided to, and published by, authorized distributors at, or prior
to, the Applicable Cut-off Time.
Fallback Rate
(SOR) Screen means the Refinitiv Screen (as defined in the 2006
ISDA Definitions) corresponding to the Refinitiv ticker for the fallback
for the Singapore dollar swap offer rate for the period of time in
respect of which the Relevant IBOR is to be determined accessed via
the Refinitiv Screen <FBKSORFIX> (or, if applicable, accessed via
the relevant Refinitiv Screen for `price history’) or any other
published source designated by ABS Benchmarks Administration Co Pte.
Ltd. (or a successor provider).
Fallback Rate
(THBFIX) means the rate based on actual transactions in the U.S.
dollar/Thai baht foreign exchange swap market and a U.S. dollar interest
rate calculated by reference to “Fallback Rate (SOFR)”
as defined above and including any fallback rate that may apply pursuant
to subparagraph (c) of the definition of “Applicable Fallback
Rate” above for the period of time in respect of which the Relevant
IBOR is to be determined provided by the Bank of Thailand (or a successor
provider), as the provider of Fallback Rate (THBFIX), on the Fallback
Rate (THBFIX) Screen (or by other means) or provided to, and published
by, authorized distributors at, or prior to, the Applicable Cut-off
Time.
Fallback Rate (THBFIX) Screen means
the Refinitiv Screen (as defined in the 2006 ISDA Definitions) corresponding
to the Refinitiv ticker for the fallback for the Thai baht interest
rate fixing for the period of time in respect of which the Relevant
IBOR is to be determined accessed via the Refinitiv Screen <FBKTHBFIX>
(or, if applicable, accessed via the relevant Refinitiv Screen for
`price history’) or any other published source designated by
the Bank of Thailand (or a successor provider).
Fallback Rate (TONA) means:
(a) The term adjusted TONA; plus
(b) If the Relevant IBOR is:
(i) Japanese yen LIBOR, the spread relating to Japanese yen LIBOR;
(ii) The Japanese
yen Tokyo interbank offered rate, the spread relating to the Japanese
yen Tokyo interbank offered rate; or
(iii) the euroyen Tokyo interbank offered
rate, the spread relating to the euroyen Tokyo interbank offered rate,
in each
case, for the period of time in respect of which the Relevant IBOR
is to be determined provided by Bloomberg Index Services Limited (or
a successor provider as approved and/or appointed by ISDA from time
to time), as the provider of term adjusted TONA and the spread, on
the Fallback Rate (TONA) Screen (or by other means) or provided to,
and published by, authorized distributors at, or prior to, the Applicable
Cut-off Time.
Fallback Rate (TONA) Screen means the Bloomberg Screen (as defined in the 2006 ISDA Definitions)
corresponding to the Bloomberg ticker for the fallback for Japanese
yen LIBOR, the Japanese yen Tokyo interbank offered rate or the euroyen
Tokyo interbank offered rate, as applicable, for the period of time
in respect of which the Relevant IBOR is to be determined accessed
via the Bloomberg Screen <FBAK> <GO> Page (or, if applicable,
accessed via the Bloomberg Screen <HP> <GO>) or any other published
source designated by Bloomberg Index Services Limited (or a successor
provider as approved and/or appointed by ISDA from time to time).
Fed Recommended Rate means the rate (inclusive
of any spreads or adjustments) recommended as the replacement for
SOFR by the Federal Reserve Board or the Federal Reserve Bank of New
York, or by a committee officially endorsed or convened by the Federal
Reserve Board or the Federal Reserve Bank of New York for the purpose
of recommending a replacement for SOFR (which rate may be produced
by the Federal Reserve Bank of New York or another administrator)
and as provided by the administrator of that rate or, if that rate
is not provided by the administrator thereof (or a successor administrator),
published by an authorized distributor.
FOMC
Target Rate means the short-term interest rate target set by the
Federal Open Market Committee and published on the Federal Reserve’s
website (as defined in the 2006 ISDA Definitions) or, if the Federal
Open Market Committee does not target a single rate, the mid-point
of the short-term interest rate target range set by the Federal Open
Market Committee and published on the Federal Reserve’s website
(calculated as the arithmetic average of the upper bound of the target
range and the lower bound of the target range, rounded, if necessary,
in accordance with the method set forth in Section 8.1(c) of the 2006
ISDA Definitions).
GBP Recommended Rate means
the rate (inclusive of any spreads or adjustments) recommended as
the replacement for SONIA by (a) the administrator of SONIA if the
administrator of SONIA is a national central bank, or (b) if the national
central bank administrator of SONIA does not make a recommendation
or the administrator of SONIA is not a national central bank, a committee
designated for this purpose by one or both of the Financial Conduct
Authority (or any successor thereto) and the Bank of England and as
provided by the then administrator of that rate (or a successor administrator)
or, if that rate is not provided by the administrator thereof (or
a successor administrator), published by an authorized distributor.
HKD Recommended Rate means the rate (inclusive
of any spreads or adjustments) recommended as the replacement for
HONIA by the administrator of HONIA or by a committee officially endorsed
or convened by the administrator of HONIA for the purpose of recommending
a replacement for HONIA (which rate may be produced by the administrator
of HONIA or another administrator) and as provided by the administrator
of that rate or, if that rate is not provided by the administrator
thereof (or a successor administrator), published by an authorized
distributor.
Index Cessation Effective Date means, in respect of a Relevant IBOR (or, if either the Singapore
dollar swap offer rate or the Thai baht interest rate fixing is the
Relevant IBOR, U.S. dollar LIBOR) and one or more Index Cessation
Events, the first date on which the Relevant IBOR (or, if either the
Singapore dollar swap offer rate or the Thai baht interest rate fixing
is the Relevant IBOR, U.S. dollar LIBOR) is either (a) in respect
of a Relevant LIBOR (or, if the Relevant IBOR is the Singapore dollar
swap offer rate or the Thai baht interest rate fixing, in respect
of U.S. dollar LIBOR), Non-Representative by reference to the most
recent statement or publication contemplated in subparagraph (c) of
the definition of “Index Cessation Event” below and even
if such rate continues to be provided on such date or (b) no longer
provided. If the Relevant IBOR (or, if either the Singapore dollar
swap offer rate or the Thai baht interest rate fixing is the Relevant
IBOR, U.S. dollar LIBOR) ceases to be provided on the Relevant Original Fixing
Date but it was provided (and, in respect of a Relevant LIBOR (or,
if the Relevant IBOR is the Singapore dollar swap offer rate or the
Thai baht interest rate fixing, in respect of U.S. dollar LIBOR),
is not Non-Representative) at the time at which it is ordinarily observed,
then the Index Cessation Effective Date will be the next day on which
the rate would ordinarily have been published. An Index Cessation
Effective Date may also occur in accordance with paragraph 6(d), subparagraph
6(e)(ii) or subparagraph 6(e)(iii) above.
Index
Cessation Event means, in respect of a Relevant IBOR:
(a) A public statement or publication of
information by or on behalf of the administrator of the Relevant IBOR
announcing that it has ceased or will cease to provide the Relevant
IBOR permanently or indefinitely, provided that, at the time of the
statement or publication, there is no successor administrator that
will continue to provide the Relevant IBOR;
(b) A public statement or publication of
information by the regulatory supervisor for the administrator of
the Relevant IBOR, the central bank for the currency of the Relevant
IBOR, an insolvency official with jurisdiction over the administrator
for the Relevant IBOR, a resolution authority with jurisdiction over
the administrator for the Relevant IBOR or a court or an entity with
similar insolvency or resolution authority over the administrator
for the Relevant IBOR, which states that the administrator of the
Relevant IBOR has ceased or will cease to provide the Relevant IBOR
permanently or indefinitely, provided that, at the time of the statement
or publication, there is no successor administrator that will continue
to provide the Relevant IBOR; or
(c) If the Relevant IBOR is sterling LIBOR,
Swiss franc LIBOR, U.S. dollar LIBOR, euro LIBOR, Japanese yen LIBOR,
the Singapore dollar swap offer rate or the Thai baht interest rate
fixing, a public statement or publication of information by the regulatory
supervisor for the administrator of such Relevant IBOR (or, if the
Relevant IBOR is the Singapore dollar swap offer rate or the Thai
baht interest rate fixing, by the regulatory supervisor for the administrator
of U.S. dollar LIBOR) announcing that (i) the regulatory supervisor
has determined that such Relevant IBOR is no longer, or as of a specified
future date will no longer be, representative of the underlying market
and economic reality that such Relevant IBOR is intended to measure
and that representativeness will not be restored and (ii) it is being
made in the awareness that the statement or publication will engage
certain contractual triggers for fallbacks activated by pre-cessation
announcements by such supervisor (howsoever described) in contracts,
provided that, if either the Singapore dollar swap offer rate or the
Thai baht interest rate fixing is the Relevant IBOR, references to
the “Relevant IBOR” in subparagraphs (a), (b) and (c)(i)
above of this definition of “Index Cessation Event” will
be deemed to be references to U.S. dollar LIBOR.
An Index Cessation Event may also occur in accordance
with paragraph 6(d), subparagraph 6(e)(ii) or subparagraph 6(e)(iii)
above.
JPY Recommended Rate means
the rate (inclusive of any spreads or adjustments) recommended as
the replacement for TONA by a committee officially endorsed or convened
by the Bank of Japan for the purpose of recommending a replacement
for TONA (which rate may be produced by the Bank of Japan or another
administrator) and as provided by the administrator of that rate or,
if that rate is not provided by the administrator thereof (or a successor
administrator), published by an authorized distributor.
MAS Recommended Rate means the rate (inclusive
of any spreads or adjustments) recommended as the replacement for
Fallback Rate (SOR) by the Monetary Authority of Singapore or by a
committee officially endorsed or convened by the Monetary Authority
of Singapore (which rate may be produced by the Monetary Authority
of Singapore or another administrator) and as provided by the administrator
of that rate in respect of the day for which that rate is required (which
under the 2006 ISDA Definitions would be the “Reset Date”)
or, if that rate is not provided by the administrator of that rate
(or a successor administrator), published by an authorized distributor.
Modified EDFR means a rate equal to the Eurosystem
Deposit Facility Rate plus the EDFR Spread.
Modified SNB Policy Rate means a rate equal to the SNB Policy
Rate plus the SNB Spread.
Non-Representative means, in respect of a Relevant LIBOR (or, if the Relevant IBOR
is the Singapore dollar swap offer rate or the Thai baht interest
rate fixing, in respect of U.S. dollar LIBOR), the regulatory supervisor
for the administrator of the Relevant LIBOR (or, if the Relevant IBOR
is the Singapore dollar swap offer rate or the Thai baht interest
rate fixing, U.S. dollar LIBOR):
(a) Has determined and announced that the
Relevant LIBOR (or, if the Relevant IBOR is the Singapore dollar swap
offer rate or the Thai baht interest rate fixing, U.S. dollar LIBOR)
is no longer representative of the underlying market and economic
reality it is intended to measure and representativeness will not
be restored; and
(b)
Is aware that certain contractual triggers for fallbacks activated
by pre-cessation announcements by such supervisor (howsoever described)
in contracts have been or are engaged, provided that such Relevant
LIBOR (or, if the Relevant IBOR is the Singapore dollar swap offer
rate or the Thai baht interest rate fixing, U.S. dollar LIBOR) will
be `Non-Representative’ by reference to the date indicated in
the most recent statement or publication contemplated in subparagraph
(c) of the definition of “Index Cessation Event” above.
NWG Recommended Rate means the rate
(inclusive of any spreads or adjustments) recommended as the replacement
for SARON by any working group or committee in Switzerland organized
in the same or a similar manner as the National Working Group on Swiss
Franc Reference Rates that was founded in 2013 for purposes of, among
other things, considering proposals to reform reference interest rates
in Switzerland, and as provided by the administrator of that rate
or, if that rate is not provided by the administrator thereof (or
a successor administrator), published by an authorized distributor.
OBFR means the Overnight Bank Funding Rate,
as provided by the Federal Reserve Bank of New York (or a successor
administrator) on the New York Fed’s website (as defined in
the 2006 ISDA Definitions) or, if that rate is not provided by the
Federal Reserve Bank of New York (or a successor administrator), published
by an authorized distributor.
RBA Recommended
Rate means the rate (inclusive of any spreads or adjustments)
recommended as the replacement for AONIA by the Reserve Bank of Australia
(which rate may be produced by the Reserve Bank of Australia or another
administrator) and as provided by the administrator of that rate or,
if that rate is not provided by the administrator thereof (or a successor
administrator), published by an authorized distributor.
Relevant LIBOR means sterling LIBOR, Swiss franc
LIBOR, U.S. dollar LIBOR, euro LIBOR and Japanese yen LIBOR. “Relevant
Original Fixing Date” means, in respect of a Relevant IBOR and
unless otherwise agreed, the day on which that Relevant IBOR would
have been observed (which under the 2006 ISDA Definitions would be
the “Reset Date” or, if the Relevant IBOR is Swiss franc
LIBOR, U.S. dollar LIBOR, euro LIBOR, the euro interbank offered rate,
Japanese yen LIBOR, the Japanese yen Tokyo interbank offered rate,
the euroyen Tokyo interbank offered rate, the Singapore dollar swap
offer rate or the Thai baht interest rate fixing, the day that is
two Applicable Banking Days preceding a relevant “Reset Date”,
as applicable).
SNB Policy Rate means the
policy rate of the Swiss National Bank.
SNB
Spread means the historical median between SARON and the SNB Policy
Rate over an observation period of two years starting two years prior
to the day on which the Fall back Index Cessation Event with respect to Fallback
Rate (SARON) occurs (or, if later, two years prior to the day on which
the first Fallback Index Cessation Event with respect to SARON occurs)
and ending on the Zurich Banking Day (as defined in the 2006 ISDA
Definitions) immediately preceding the day on which the Fallback Index
Cessation Event with respect to Fallback Rate (SARON) occurs (or,
if later, the Zurich Banking Day immediately preceding the day on
which the first Fallback Index Cessation Event with respect to SARON
occurs), as determined by the Calculation Agent.
SORA means the Singapore Overnight Rate Average as provided
by the Monetary Authority of Singapore (or a successor administrator)
on the Monetary Authority of Singapore’s website (as defined
in the 2006 ISDA Definitions) (or as published by its authorized distributors).
THOR means the Thai Overnight Repurchase
Rate as provided by the Bank of Thailand as administrator of the benchmark
(or a successor administrator) on the Bank of Thailand’s website
(as defined in the 2006 ISDA Definitions) (or as published by its
authorized distributors).
UK Bank Rate means
the official bank rate as determined by the Monetary Policy Committee
of the Bank of England and published by the Bank of England from time
to time.
Underlying Rate means, if the Applicable
Fallback Rate is: (a) Fallback Rate (SONIA), SONIA; (b) Fallback Rate
(SARON), SARON; (c) Fallback Rate (SOFR), SOFR; (d) Fallback Rate
(EuroSTR), EuroSTR; (e) Fallback Rate (TONA), TONA; (f) Fallback Rate
(AONIA), AONIA; (g) Fallback Rate (CORRA), CORRA; and (h) Fallback
Rate (HONIA), HONIA.
7. Negative Interest
Protocol
The parties agree that the amendments
made by this Protocol do not constitute a “Spread Provision”
(as defined in the ISDA 2014 Collateral Agreement Negative Interest
Protocol published on May 12, 2014 by ISDA).
Published by permission of the International Swaps and Derivatives
Association, Inc. (“ISDA”) ISDA® reserves all rights
in the Protocol.
Source: ISDA 2020 IBOR
Fallbacks Protocol, published on October 23, 2020, by the International
Swaps and Derivatives Association, Inc.,
https://assets.isda.org/media/3062e7b4/08268161-pdf/.
