Failure by either Party to deliver - GMSLA Provision

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2010 Global Master Securities Lending Agreement
A Jolly Contrarian owner’s manual

Clause 9.3 in a Nutshell
Use at your own risk, campers!

9.3 Failure by either Party to deliver
Where a Party (the Transferor) fails to deliver Equivalent Securities or Collateral when due and the other Party (the Transferee) incurs interest, overdraft expenses or Buy in costs the Transferor must, within one Business Day of a demand, pay the Transferee and hold it harmless against those costs that arise directly from that failure other than (i) costs arising from the Transferee’s negligence or wilful default and (ii) any consequential losses).
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Clause 9.3 in full

9.3 Failure by either Party to deliver: Where a Party (the Transferor) fails to deliver Equivalent Securities or Equivalent Collateral by the time required under this Agreement or within such other period as may be agreed between the Transferor and the other Party (the Transferee) and the Transferee:

(a) incurs interest, overdraft or similar costs and expenses; or
(b) incurs costs and expenses as a direct result of a Buy in exercised against it by a third party,

then the Transferor agrees to pay within one Business Day of a demand from the Transferee and hold harmless the Transferee with respect to all reasonable costs and expenses listed in sub paragraphs (a) and (b) above properly incurred which arise directly from such failure other than (i) such costs and expenses which arise from the negligence or wilful default of the Transferee and (ii) any indirect or consequential losses.
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Related agreements and comparisons

Related agreements: Click here for the same clause in the 2018 Pledge GMSLA
Comparison: Template:Gmsladiff 9.3

Resources and navigation

2010 GMSLA: Full wikitext · Nutshell wikitext | GMLSA legal code
Pledge GMSLA: Hard copy (ISLA) · Full wikitext · Nutshell wikitext |
1995 OSLA: Full wikitext · Nutshell wikitext | GMSLA Netting
Let me Google that for you: Guide to equity finance | ISLA’s guide to securities lending for regulators and policy makers
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Content and comparisons

Template:M comp disc GMSLA 9.3
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Summary

Mini close-out

See the discussion on mini close-out under the 2010 GMSLA (and the 1995 Overseas Securities Lender's Agreement (OSLA) for that matter) and also the general discussion with regard to this clause in its wider context at clause 9.

Note also the clear exclusion of indirect and consequential losses, as well as losses to which the Transferee is contributorily negligent. [1]

Default interest

Are references here to interest to, like default interest under Clause 11.7? And if so are we in a world of LIBOR remediation?

Well, this old fellow’s opinion is no. Clause 11.7 of the 2010 GMSLA is specific to costs following actual close out on an Event of Default (a Buy-in isn’t an Event of Default), and only on professional expenses. The vibe here is you reimburse me my actual costs. So, the actual interest cost I incurred in funding the securities I bought in, rather than some abstract derivative notion of my costs represented by a benchmark.

Replacement costs and ISDA hedging language

Does it make sense to replace this clause with some convoluted shtick about the costs of Replacement Transactions or otherwise hedging the innocent party’s exposure? To determine follow this flow chart:

Not called the vampire squid for nothing, you know.

See also

References


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See also

See also

References


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References

  1. If you are thinking I just made up the adjective “contributorily”, and were about to conclude I’m maybe a bit reckless you might be interested to know it is actually a word.