Comparison of Creditor Protections. Scope of Compliance

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1 U.S. Stay Regulatins (Citatins t Final FRB Rule) Scpe f Cmpliance Cmparisn f Creditr Prtectins 2018 ISDA Prtcl Scpe f Cmpliance Cmpliance with the U.S. Stay Regulatins is permitted n a grup-bygrup basis (d)(1) Cvered QFCs and cvered affiliate credit enhancements 1 that supprt cvered QFCs may prvide fr a default right where the direct party t the cvered QFC becmes subject t a receivership, inslvency, liquidatin, reslutin r similar prceeding. (Nte: Similar prceeding is nt limited t U.S. prceeding.) (d)(2) Cvered QFCs and cvered affiliate credit enhancements that supprt cvered QFCs may prvide fr a default right where the direct party t the cvered QFC des nt satisfy a payment r delivery bligatin pursuant t (1) the cvered QFC r (2) anther cntract between the same parties that gives rise t a default right in the cvered QFC (d)(3) Cmpliance with the 2018 ISDA Prtcl is n a universal basis with respect t adhering entities that are regulated entities under the U.S. Stay Regulatins. Incrprating the text f the 2018 ISDA Prtcl by reference int cvered QFCs is a permitted means f cmplying with the rules nly fr entities that have previusly adhered t the 2018 ISDA Prtcl. Sectin 2(b) f 2018 ISDA Prtcl: Affiliate in U.S. Inslvency Prceedings (Nt a Credit Enhancement Prvider) If an affiliate f the direct party t a cvered QFC becmes subject t U.S. inslvency prceedings, 2 and such affiliate is nt a credit enhancement prvider with respect t such cvered QFC, then the cunterparty t the direct party (i.e., the adhering party r the Sectin 2 Stayed Party) may nly exercise Perfrmance Default Rights r Unrelated Default Rights with respect t the cvered QFC r such related credit enhancement. Perfrmance Default Rights are default rights that arise as a result f: (1) the direct party entering receivership, inslvency, liquidatin, reslutin r similar prceedings; (2) the direct party s failure t satisfy a payment r delivery bligatin t the Sectin 2 Stayed Party pursuant t the cvered QFC (including pursuant t a Credit Supprt Annex that frms a part f the cvered QFC), credit enhancement r any related cntract 3 between such parties; r 1 Creditr prtectins d nt apply t affiliate credit enhancements if a cvered entity, cvered FSI r cvered bank is nt the bligr. Creditr prtectins d nt apply if an affiliate f the direct party t a cvered QFC is nt a credit enhancement prvider with respect t such cvered QFC. 2 U.S. Inslvency Prceeding means Chapter 7 Prceedings, Chapter 11 Prceedings, FDIA Prceedings and SIPA Prceedings. 3 Related cntracts means with respect t a direct party and a Sectin 2 Stayed Party, any cntract under which the ccurrence f a default, event f default r similar event gives rise t a default right in a cvered QFC between such parties (including, fr example, cntracts identified in an ISDA Master Agreement as a Specified Transactin r Specified Indebtedness ). Cpyright 2018 by Internatinal Swaps and Derivatives Assciatin, Inc. 1

2 Cvered QFCs and cvered affiliate credit enhancements that supprt cvered QFCs may prvide fr a default right where the cvered affiliate supprt prvider r transferee des nt satisfy a payment r delivery bligatin pursuant t a cvered affiliate credit enhancement that supprts the cvered QFC at issue (f)(1) After the stay perid, cvered QFCs and cvered affiliate credit enhancements that supprt cvered QFCs may permit the exercise f a default right that is (directly r indirectly) related t the cvered affiliate supprt prvider becming subject t a receivership, inslvency, liquidatin, reslutin r similar prceeding if the cvered affiliate supprt prvider that remains bligated under the cvered affiliate credit enhancement becmes subject t a receivership, inslvency, liquidatin, reslutin r similar prceeding ther than a Chapter 11 prceeding. (Nte: Similar prceeding is nt limited t U.S. prceeding.) Cmparisn f Creditr Prtectins (3) the failure by a credit enhancement prvider under the cvered QFC, r any successr theret, t satisfy a payment r delivery bligatin t the Sectin 2 Stayed Party pursuant t the credit enhancement f such cvered QFC. Unrelated Default Rights include: (1) any default right that is nt slely based n an affiliate f the direct party becming subject t U.S. inslvency prceedings and that can be shwn, by clear and cnvincing evidence, t be nt related (directly r indirectly) T an affiliate f the direct party becming subject t U.S. inslvency prceedings; T any transfers t a transferee cntemplated by a transfer mtin; r T a DIP mtin AND (2) if a U.S. Parent f such direct party is nt a party in U.S. inslvency prceedings, any default right that is based slely n an affiliate f the direct party becming subject t inslvency r reslutin prceedings ther than U.S. inslvency prceedings (f)(2) After the stay perid, cvered QFCs and cvered affiliate credit enhancements that supprt cvered QFCs may permit the exercise f a default right that is (directly r indirectly) related t the cvered affiliate supprt prvider becming subject t a receivership, inslvency, liquidatin, reslutin r similar prceeding if a transferee f the cvered affiliate credit enhancement becmes subject t a receivership, inslvency, liquidatin, reslutin r similar prceeding. (Nte: Similar prceeding is nt limited t U.S. prceeding.) (f)(3) After the stay perid, cvered QFCs and cvered affiliate credit enhancements that supprt cvered QFCs may permit the exercise f a default right that is (directly r indirectly) related t the cvered affiliate Sectin 2(c) f ISDA 2018 Prtcl: Credit Enhancement Prvider in Chapter 11 Prceedings. If an affiliate f the direct party t a cvered QFC becmes subject t a U.S. inslvency prceeding and such affiliate is a credit enhancement prvider with respect t the cvered QFC and is subject t Chapter 11 Prceedings, then the cunterparty t the direct party (i.e., the adhering party r the Sectin 2 Stayed Party) may nly exercise Perfrmance Default Rights r Unrelated Default Rights with respect t the cvered QFC r the related credit enhancement. These abve limitatins n the exercise f the default rights are applicable during the stay perid. These limitatins will nly apply after the stay perid if such affiliate files either a Transfer Mtin r a DIP mtin befre the expiratin f the stay perid, and nly fr s lng as the specific Transfer Cnditins r DIP Cnditins are met. Cpyright 2018 by Internatinal Swaps and Derivatives Assciatin, Inc. 2

3 supprt prvider becming subject t a receivership, inslvency, liquidatin, reslutin r similar prceeding if the cvered affiliate supprt prvider des nt remain bligated, r a transferee des nt becme bligated, t the same r substantially similar extent as the cvered affiliate supprt prvider was bligated immediately prir t entering the receivership, inslvency, liquidatin, reslutin r similar prceeding with respect t: (1) the cvered affiliate credit enhancement; (2) all ther cvered affiliate credit enhancements prvided by the cvered affiliate supprt prvider in supprt f ther cvered direct QFCs between the direct party and supprted party; and (3) all cvered affiliate credit enhancements prvided by the cvered affiliate supprt prvider in supprt f ther cvered direct QFCs between the direct party and affiliates f the supprted party. (Nte: Similar prceeding is nt limited t U.S. prceeding.) (f)(4) Cvered QFCs and cvered affiliate credit enhancements that supprt cvered QFCs may permit the exercise f a default right after the stay perid that is (directly r indirectly) related t the cvered affiliate supprt prvider becming subject t a receivership, inslvency, liquidatin, reslutin r similar prceeding if, in the case f a transfer f the cvered affiliate credit enhancement t a transferee, (1) all f the wnership interests f the direct party directly r indirectly held by the affiliate supprt prvider are nt transferred t the transferee; r (2) reasnable assurance has nt been prvided that all r substantially all f the assets f the cvered affiliate supprt prvider r net prceeds f such assets will be transferred r sld t the transferee in a timely manner (excluding any assets reserved fr the payment f csts and expenses f administratin in the receivership, inslvency, liquidatin, reslutin r similar prceeding). (Nte: Similar prceeding is nt limited t U.S. prceeding.) Cmparisn f Creditr Prtectins Transfer Cnditins. These cnditins apply when the affiliate in Chapter 11 prceedings will be reslved by transferring substantially all f its assets (including subsidiaries), and nly certain liabilities (but nt capital liabilities), t anther entity that will cntinue peratins. The transferee is either a specially created bridge cmpany (as described under the Prtcl) r an unaffiliated third party that wuld be required t satisfy any ratings cnditins r ther financial cvenants applicable t the credit enhancement prvider under the cntract. During the stay perid, the transferee cntinues t satisfy its material payment and delivery bligatins t each f its creditrs and is nt subject t inslvency r reslutin prceedings. Upn the expiratin f the stay perid: A curt rder has been entered transferring, as sn as practicably pssible, all r substantially all f the assets f the affiliate in Chapter 11 prceedings, excluding any assets retained fr the csts and expenses f administratin, t the transferee; All f the direct r indirect wnership interests held by the affiliate in Chapter 11 prceedings in the direct party t a cvered QFC are transferred t the transferee by the end f the stay perid; and All credit enhancements prvided by the affiliate in Chapter 11 prceedings in respect f cvered QFCs between the Sectin 2 Stayed Party and the direct party and between the Sectin 2 Stayed Party s affiliates and the direct party are transferred t the transferee. Fllwing the stay perid: The direct party f the Sectin 2 Stayed Party remains registered with and licensed by its primary regulatr(s) t cntinue its business; Cpyright 2018 by Internatinal Swaps and Derivatives Assciatin, Inc. 3

4 Cmparisn f Creditr Prtectins Only if the transferee is a third party (nt a bridge cmpany), the thirdparty transferee cntinues t satisfy any financial cvenants in the relevant cvered QFC that were applicable t the party in Chapter 11 prceedings; and If the transferred credit enhancements are secured, the transferee cntinues t cmply with all prvisins regarding attachment, enfrceability, perfectin and pririty f the security interest. DIP Cnditins. These cnditins apply when the affiliate in Chapter 11 prceedings will be reslved by cntinuing peratins as a debtr in pssessin while its capital liabilities are restructured. The affiliate in Chapter 11 prceedings must be the tp-mst parent entity in the United States (a U.S. Parent). By the end f the stay perid, a curt rder has been entered under which the U.S. Parent remains bligated t the same extent as it was bligated immediately prir t becming a party in Chapter 11 prceedings, with respect t: All credit enhancements it prvides in supprt f cvered QFCs between a direct party (its subsidiary) and a Sectin 2 Stayed Party; and All credit enhancements it prvides in supprt f cvered QFCs between the direct party and each affiliate f such Sectin 2 Stayed Party (i.e., n cherry-picking between affiliates in a cunterparty grup). By the end f the Stay Perid, a Creditr Prtectin Order with respect t each credit enhancement abve has been entered by the curt fr the benefit f the applicable Sectin 2 Stayed Parties that prvides that: Claims under the credit enhancement are granted administrative pririty status; Cpyright 2018 by Internatinal Swaps and Derivatives Assciatin, Inc. 4

5 Cmparisn f Creditr Prtectins A Sectin 2 Stayed Party may terminate cvered QFCs immediately and withut seeking curt apprval if (i) the direct party fails t meet any f its material bligatins under cvered QFCs r (ii) the U.S. Parent fails t meet any f its material bligatins under applicable credit enhancements; and A Sectin 2 Stayed Party may terminate cvered QFCs immediately and withut seeking curt apprval if (i) the direct party fails t pay r deliver a clse-ut amunt under cvered QFCs between the direct party and anther stayed cunterparty r (ii) the U.S. Parent fails t satisfy its bligatins when due under credit enhancements in respect f such cvered QFCs. Fllwing the stay perid, the direct party f the Sectin 2 Stayed Party remains registered with and licensed by its primary regulatr(s) t cntinue its business. Sectin 2(d) f 2018 ISDA Prtcl: Exercise f Default Rights Based n Payment Failure f U.S. Parent Credit Enhancement Prvider t Other Sectin 2 Stayed Parties. With respect t a U.S. Parent that is subject t Chapter 11 Prceedings and has filed a DIP mtin, and if a Sectin 2 Stayed Party s ability t exercise default rights has been stayed pursuant t Transfer Cnditins r DIP Cnditins, the Sectin 2 Stayed Party can nevertheless exercise such default rights if: (1) the direct party fails t pay r deliver any clse-ut amunt when due, in accrdance with the terms f any cvered QFC between such direct party and any ther Sectin 2 Stayed Party; and (2) the U.S. Parent in Chapter 11 prceedings fails t satisfy its bligatins, when due, in accrdance with the terms f any credit enhancement that supprts the cvered QFC (h)(1) Cpyright 2018 by Internatinal Swaps and Derivatives Assciatin, Inc. 5

6 Cvered QFCs and cvered affiliate credit enhancements may permit the exercise f a default right that is related (directly r indirectly) t the cvered affiliate supprt prvider becming subject t FDI Act prceedings, after the FDI Act stay perid, if the cvered affiliate credit enhancement is nt transferred pursuant t 12 U.S.C. 1821(e)(9)- (e)(10) and any regulatins prmulgated thereunder (h)(2) Cvered QFCs and cvered affiliate credit enhancements may permit the exercise f a default right that is related (directly r indirectly) t the cvered affiliate supprt prvider becming subject t FDI Act prceedings, during the FDI Act stay perid, if the default right may nly be exercised s as t permit the supprted party under the cvered affiliate credit enhancement t suspend perfrmance f its bligatins under the cvered QFC t the same extent as the supprted party wuld be entitled t d if the cvered QFC were with the cvered affiliate supprt prvider and were treated in the same manner as the cvered affiliate credit enhancement. Cmparisn f Creditr Prtectins Sectin 2(e) f 2018 ISDA Prtcl: Credit Enhancement Prvider in FDIA Prceedings If an affiliate t a direct party that is a credit enhancement prvider becmes subject t FDIA Prceedings, the Sectin 2 Stayed Party shall be entitled t exercise Perfrmance Default Rights r Unrelated Default Rights nly. These limitatins n the exercise f default rights are applicable during the FDIA stay perid (which lasts until 5 PM Eastern Time n the business day fllwing the affiliate s entry int receivership under the FDIA). These limitatins will be applicable after the stay perid nly if the credit enhancement (and any interest and bligatin in r under, and any prperty security, such credit enhancement) between the credit enhancement prvider and the Sectin 2 Stayed Party (r prvided by the credit enhancement prvider in respect f such cvered QFC) has been transferred by the FDIC in accrdance with the FDIA QFC Transfer Prvisins. Further, during such FDIA Prceedings, the Sectin 2 Stayed Party may exercise any cntractual rights t suspend perfrmance with respect t its bligatins under the cvered QFC t same extent it wuld be entitled t d if the cvered QFC were a QFC with the credit enhancement prvider and were treated in the same manner as the credit enhancement. Burden f Prf The party seeking t exercise a default right in respect f a cvered QFC must demnstrate by clear and cnvincing evidence r a similar r higher burden f prf that its right t exercise such default right is permitted under the rules. Burden f Prf The Sectin 2 Stayed Party bears the burden f establishing that a Default Right may be exercised. With respect t Unrelated Default Rights (but nt Perfrmance Default Rights ), the Sectin 2 Stayed Party must shw by clear and cnvincing evidence that a Default Right is nt related, directly r indirectly, t an affiliate f the direct party becming a party in U.S. prceedings, t transfers under a Transfer Mtin r t a DIP mtin. Cpyright 2018 by Internatinal Swaps and Derivatives Assciatin, Inc. 6