Template:Nutshell Pledge GMSLA 11: Difference between revisions

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{{pgmslaprov|11}} '''{{pgmslaprov|Consequences of an Event of Default}}''' <br>
{{pgmslaprov|11}} '''{{pgmslaprov|Consequences of an Event of Default}}''' <br>
{{pgmslaprov|11.1}} If an {{pgmslaprov|Event of Default}} occurs to either Party: <br>
{{pgmslaprov|11.1}} If an {{pgmslaprov|Event of Default}} happens to either Party: <br>
{{pgmslaprov|11.2}} '''[[Acceleration]]''': {{pgmslaprov|Borrower}}’s obligations under the {{pgmslaprov|Agreement}} will be accelerated so as to require immediate performance at the time of the {{pgmslaprov|Event of Default}} (the '''{{pgmslaprov|Termination Date}}'''). Performance will happen as follows.<br>
{{Nutshell Pledge GMSLA 11.2}}
:{{pgmslaprov|11.2(a)}} The {{pgmslaprov|Non-Defaulting Party}} will determine the {{pgmslaprov|Default Market Value}} of the {{pgmslaprov|Borrower}}’s delivery and payment obligations as at the {{pgmslaprov|Termination Date}} as set out in paragraph {{pgmslaprov|11.4}}.
{{Nutshell Pledge GMSLA 11.3}}
:{{pgmslaprov|11.2(b)}} Using those {{pgmslaprov|Default Market Value}}, [the {{pgmslaprov|Non-Defaulting Party}} will determine ''and notify'']<ref>Well, we ''assume'' it will be the [[Non-Defaulting Party - Pledge GMSLA Provision|NDP]]: the {{pgmsla}} rather brilliantly puts it into an unattributed [[passive]], as if God is going to to it, or it will magically happen by itself. Go,  {{islacds}}.</ref>what each Party owes under this Agreement as at the {{pgmslaprov|Termination Date}}, converting amounts into the {{pgmslaprov|Base Currency}} where necessary, will set those sums off against each other and Party owing the greater amount must pay the balance on the {{pgmslaprov|Business Day}} after notification.
{{Nutshell Pledge GMSLA 11.4}}
{{pgmslaprov|11.3}} '''Determining the {{pgmslaprov|Default Market Value}}''': The  {{pgmslaprov|Non-Defaulting Party}} will determine the '''{{pgmslaprov|Default Market Value}}''' of any {{pgmslaprov|Equivalent}} {{pgmslaprov|Securities}} according to paragraphs {{pgmslaprov|11.4}} to {{pgmslaprov|11.6}}, where the '''{{pgmslaprov|Appropriate Market}}''' is the most appropriate market for {{pgmslaprov|Securities}} of that description, as determined by the {{pgmslaprov|Non-Defaulting Party}}, the '''{{pgmslaprov|Default Valuation Time}}''' means the {{pgmslaprov|Close of Business}} in the {{pgmslaprov|Appropriate Market}} on the fifth dealing day after the {{pgmslaprov|Termination Date}}, '''{{pgmslaprov|Net Value}}''' means the {{pgmslaprov|Non-Defaulting Party}}’s reasonable opinion of their fair {{pgmslaprov|Market Value}} less (where {{pgmslaprov|Lender}} is the {{pgmslaprov|Defaulting Party}}) or plus (where {{pgmslaprov|Borrower}} is the {{pgmslaprov|Defaulting Party}}), all reasonable costs of any transaction needed under paragraph {{pgmslaprov|11.4}} or {{pgmslaprov|11.5}} ('''{{pgmslaprov|Transaction Costs}}''').<br>
{{pgmslaprov|11.5}} '''Where there’s no [[commercially reasonable]] value''': If, having tried in [[good faith]], the {{pgmslaprov|Non-Defaulting Party}} has not been able to sell nor purchase {{pgmslaprov|Securities}} under paragraph {{pgmslaprov|11.4(a)}} or obtain quotations under paragraph {{pgmslaprov|11.4(b)}}, or it considers the quotations it did obtain are not commercially reasonable, it may determine the {{pgmslaprov|Net Value}} of the {{pgmslaprov|Equivalent}} {{pgmslaprov|Securities}} and treat that as their {{pgmslaprov|Default Market Value}}. <br>
{{pgmslaprov|11.4}} '''Transactions and quotes''': If, between the {{pgmslaprov|Termination Date}} and the {{pgmslaprov|Default Valuation Time}}:
{{pgmslaprov|11.6}} If the {{pgmslaprov|Non-Defaulting Party}} has not determined the {{pgmslaprov|Default Market Value}} under {{pgmslaprov|11.4}}, it will equal the {{pgmslaprov|Net Value}} of the securities in question at the {{pgmslaprov|Default Valuation Time}}. However, if the {{pgmslaprov|Non-Defaulting Party}} determines it is not practicable to calculate a [[commercially reasonable]] {{pgmslaprov|Net Value}} at that time, the {{pgmslaprov|Default Market Value}} will be the {{pgmslaprov|Net Value}} it determines as soon as reasonably practicable after the {{pgmslaprov|Default Valuation Time}}. <br>
:{{pgmslaprov|11.4(a)}} as {{pgmslaprov|Non-Defaulting Party}}, the {{pgmslaprov|Borrower}} has sold or the {{pgmslaprov|Lender}} has purchased, [[fungible]] {{pgmslaprov|Equivalent}} {{pgmslaprov|Securities}} it may treat as the {{pgmslaprov|Default Market Value}}:
{{Nutshell Pledge GMSLA 11.7}}
::{{pgmslaprov|11.4(a)(i)}} in the case of a sale, the net proceeds of sale after deducting all {{pgmslaprov|Transaction Costs}};
{{pgmslaprov|11.8}} '''{{pgmslaprov|Set-off}}''': The {{pgmslaprov|Non-Defaulting Party}} may [[set off]] any amount due under paragraph {{pgmslaprov|11.2(b)}} against any amount payable the other way under any other agreement between the {{pgmslaprov|Parties}}. The {{pgmslaprov|Non Defaulting Party}} may estimate any [[unascertained obligation]] but must account for any difference once finally ascertained. This paragraph does not create a [[security interest]], or prejudice any other rights either party may have. <br>
::{{pgmslaprov|11.4(a)(ii)}} in the case of a purchase, the aggregate cost of such purchase, including {{pgmslaprov|Transaction Costs}};
:provided that, where the {{pgmslaprov|Securities}} sold or purchased are not in identical in amount to the {{pgmslaprov|Equivalent}} {{pgmslaprov|Securities}}, {{pgmslaprov|Non-Defaulting Party}} may  [[in good faith]] pro rate those values to determine the necessary {{pgmslaprov|Default Market Value}}.
:{{pgmslaprov|11.4(b)}} the {{pgmslaprov|Non-Defaulting Party}} has received [[bid]]s (where it is {{pgmslaprov|Borrower}}) or [[offer]]s (where it is {{pgmslaprov|Lender}}) for [[fungible]]  {{pgmslaprov|Equivalent}} {{pgmslaprov|Securities}} from at least two regular participants in the {{pgmslaprov|Appropriate Market}} in what it determines to be a commercially reasonable size, it may treat as the {{pgmslaprov|Default Market Value}} the arithmetic mean of the quoted prices as reasonably adjusted to account for for accrued but unpaid interest and {{pgmslaprov|Transaction Costs}}. <br>
{{pgmslaprov|11.5}} '''Where there’s no [[commercially reasonable]] value''': If, having tried in [[good faith]], the {{pgmslaprov|Non-Defaulting Party}} has managed neither to sell or purchase {{pgmslaprov|Securities}} under paragraph {{pgmslaprov|11.4(a)}}, nor obtain quotations under paragraph {{pgmslaprov|11.4(b)}}, or it has determined it would not be commercially reasonable to trade the {{pgmslaprov|Securities}} at the prices quoted under paragraph 11.4(b) above, the {{pgmslaprov|Non-Defaulting Party}} may determine the {{pgmslaprov|Net Value}} of the {{pgmslaprov|Equivalent}} {{pgmslaprov|Securities}} treat that {{pgmslaprov|Net Value}} as their {{pgmslaprov|Default Market Value}}. <br>
{{pgmslaprov|11.6}} If the {{pgmslaprov|Non-Defaulting Party}} has not determined the {{pgmslaprov|Default Market Value}} under paragraph {{pgmslaprov|11.4}}, it will equal the {{pgmslaprov|Net Value}} of the {{pgmslaprov|Equivalent}} {{pgmslaprov|Securities}} at the {{pgmslaprov|Default Valuation Time}} unless the {{pgmslaprov|Non-Defaulting Party}} it is not [[commercially reasonable]] to determine such {{pgmslaprov|Net Value}} at that time, in which case it will equal the {{pgmslaprov|Net Value}} that the {{pgmslaprov|Non-Defaulting Party}} determines as soon as reasonably practicable after the {{pgmslaprov|Default Valuation Time}}. <br>
{{pgmslaprov|11.7}} '''{{pgmslaprov|Other costs, expenses and interest payable in consequence of an Event of Default}}''': The {{pgmslaprov|Defaulting Party}} must pay the {{pgmslaprov|Non-Defaulting Party}} all its reasonable professional expenses in connection with the {{pgmslaprov|Event of Default}} with interest at the rate specified in paragraph 10 of the Schedule or, if not specified, the overnight [[LIBOR]] rate as at 11.00 a.m., London time. Interest will accrue daily on a compound basis. <br>
{{pgmslaprov|11.8}} '''{{pgmslaprov|Set-off}}''': The {{pgmslaprov|Non-Defaulting Party}} may [[set off]] any amount due under paragraph {{pgmslaprov|11.2(b)}} against any amount payable the other way under any other agreement between the Parties and for that purpose may in [[good faith]] estimate any unascertained obligations but must account for any difference when  the obligation is finally ascertained. This paragraph does not create a [[security interest]] and operates in addition to and without affecting any other right of [[set-off]], [[combination of accounts]], [[lien]] or other right to which any {{pgmslaprov|Party}} may be entitled. <br>

Latest revision as of 10:43, 7 June 2021

11 Consequences of an Event of Default
11.1 If an Event of Default happens to either Party:
11.2 Acceleration: Borrower’s obligations will be accelerated as at the time of the Event of Default (the Termination Date) as follows:

11.2(a) The Non-Defaulting Party will determine the Default Market Value of the Borrower’s delivery and payment obligations under paragraph 11.4 as at the Termination Date.
11.2(b) Using those values, [the Non-Defaulting Party will determine and notify][1]what each Party owes as at the Termination Date, converting amounts into the Base Currency at the Spot Rate where necessary, and will set those sums off against each other. The Party owing the greater amount must pay the difference on the Business Day after notification.

11.3 The Default Market Value of any Equivalent Securities will be determined under paragraphs 11.4 to 11.6 below, where:

Appropriate Market is the most appropriate market for any securities determined by the Non-Defaulting Party;
Default Valuation Time means the Close of Business in the Appropriate Market on the fifth dealing day after the Event of Default;
Net Value of any securities means the Non-Defaulting Party’s reasonable opinion of their fair Market Value less (where Lender is the Defaulting Party) or plus (where Borrower is the Defaulting Party), all reasonable costs of any transaction needed under paragraph 11.4 or 11.5 (Transaction Costs).

11.4 Transactions and quotes: If, between the Termination Date and the Default Valuation Time:

11.4(a) Actual sale or purchase: as Non-Defaulting Party, the Borrower has sold or the Lender has purchased, fungible Equivalent Securities it may treat as the Default Market Value the net proceeds of any sale (after deducting Transaction Costs) or the total cost of any purchase (including Transaction Costs). Were the securities sold or purchased are not in identical in amount to the Equivalent Securities, Non-Defaulting Party may in good faith pro rate those values to determine the necessary Default Market Value.
11.4(b) Market quotes: the Non-Defaulting Party has received bids (where it is Borrower) or offers (where it is Lender) for fungible Equivalent Securities from at least two regular participants in the Appropriate Market in what it determines to be a commercially reasonable size, it may treat as the Default Market Value the arithmetic mean of the quoted prices as reasonably adjusted to account for for accrued but unpaid interest and Transaction Costs.

11.5 Where there’s no commercially reasonable value: If, having tried in good faith, the Non-Defaulting Party has not been able to sell nor purchase Securities under paragraph 11.4(a) or obtain quotations under paragraph 11.4(b), or it considers the quotations it did obtain are not commercially reasonable, it may determine the Net Value of the Equivalent Securities and treat that as their Default Market Value.
11.6 If the Non-Defaulting Party has not determined the Default Market Value under 11.4, it will equal the Net Value of the securities in question at the Default Valuation Time. However, if the Non-Defaulting Party determines it is not practicable to calculate a commercially reasonable Net Value at that time, the Default Market Value will be the Net Value it determines as soon as reasonably practicable after the Default Valuation Time.
11.7 Costs and expenses following an Event of Default: The Defaulting Party must pay the Non-Defaulting Party’s reasonable professional expenses in connection with the Event of Default plus interest at the rate agreed by the Parties or, failing that, the overnight LIBOR rate as at 11.00 a.m., London time. Interest will accrue and compound daily.
11.8 Set-off: The Non-Defaulting Party may set off any amount due under paragraph 11.2(b) against any amount payable the other way under any other agreement between the Parties. The Non Defaulting Party may estimate any unascertained obligation but must account for any difference once finally ascertained. This paragraph does not create a security interest, or prejudice any other rights either party may have.

  1. Well, we assume it will be the NDP: the 2018 Pledge GMSLA rather brilliantly puts it into an unattributed passive, as if God is going to to it, or it will magically happen by itself. Go, ISLA’s crack drafting squad™.