Failure to pay Collateral - GMSLA Provision
Commentary
10.1(a) in a Nutshell™ (GMSLA edition)
- 10.1(a) Failure to Deliver: The failure, when required under Paragraph 5, of:
- (i) either party to pay or repay Cash Collateral; or
- (ii) the Borrower to deliver any other Collateral to the Lender;
Commentary
There are great tales of worthy fellows around the market trying to tweak this provision because, by apparent oversight, it doesn't capture a failure to return Equivalent (non cash) Collateral.
But this may not be an accident, for the same reason a failure to redeliver Equivalent Securities isn't an Event of Default. Indeed, it looks like a plainly deliberate omission. The drafters were careful to capture the payment or repayment of cash, and deliveries and further deliveries of Collateral, but not the return of Equivalent Collateral.
A counterparty may have on-lent, or on-collateralised, with non-cash Collateral it has been posted. It may have exactly the same difficulties in getting hold of it to redeliver as a borrower may in getting hold of Equivalent Securities. So the rememedy is to withhold the return of securities, buy in and mini-close out under 9.2 which gives the aggrieved party equivalent rights, but not the right to close out the whole agreement (until there's a failure of the mini-close out settlement amount itself).
GMSLA Equivalence
Techy linguistic aside: Now here’s a funny thing. In the 2000 GMSLA, there were four defined terms relating to the Securities and Collateral that pass between the parties to a stock loan, all of them nouns:
But under the 2010 GMSLA, there are just three; two shorter nouns and an adjective:
This means you can move from the utterly tiring “Securities, Collateral, Equivalent Securities or Equivalent Collateral” which is fire-hosed throughout the 2000 GMSLA to the less offensive “Securities, Collateral or their Equivalents” in the 2010 GMSLA.[1]
See Also
update to anat|gmsla
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- ↑ Well,you could have, but the drafters didn’t.