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ISDA 2020 IBOR Fallback Protocol
Published by ISDA on October 23, 2020
ISDA published the 2020 IBOR Fallback 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 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 Janaury 25, 2021 (the IBOR Fallbacks Supplement) and (ii) in respect of a Protocol Covered Document which otherwise references a Relevant IBOR, including teh terms of such Protocol Covered Document new fallback 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 the Paragraph 1, each Adhering Party agrees, in consideration of the mutual promises and covenants contained herein, that the terms of each Prototol Covered Document between such Adhering Party and 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 Protocols" section of its website. (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.
- Each Adhering Party witll access the "protocols" section of the ISDA website 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 e-mail of the populated Adherence Letter, each Adhering Party will sign and upload the signed Adherence Letter as a PDF 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.
- 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.
- 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 the 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.
- The Protocol Effective Date with respect to a protocol covered document shall be January 25, 2021.
- 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:
- In respect of any protocol covered document into which an Agent has entered on befalf 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), paragraph3(h), paragraph 3(i) or paragraph 3(j) below, as applicable; and
- in respect of any non-agent executed protocol covered document, subject to paragraph 3(m) below, the implementation date shall be the date specified in paragraph 3(i) 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 negotation, but with prejudice to any amendment, modification or waiver in respect of a protocol covered document that that parties may otherwise effect in accordance with the terms of that protocol covered document.
- In adhering to this protocol, an adhering party may not specify additional provisions, conditions or limitations in its adherence letter.
- Any purpoted 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 this protocol effective date, deliver to ISDA, as agent, a notice substantially in the form of Exhibit 2 to this protocol that is effective on any protocol business day (a recocation date) 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.
END OF MY NOTES