Best Practices for Fund Managers When Entering Into ISDAs

In the world of hedge funds, trading over-the-counter (OTC) derivatives in the form of swaps has become ubiquitous. Funds trade swaps for a variety of reasons, including to hedge certain risks, take speculative positions, access difficult-to-trade assets or employ synthetic leverage. Some funds prefer to use swaps to gain exposure to the underlying asset class, even when it could be accessed directly, as in the context of equity investing. For swaps that are traded on a bilateral basis, as opposed to on an exchange, most dealers require a fund to execute a variety of complex documents prior to entering into swap transactions. This three-part series assists our readers with understanding the various trading agreements required for a fund to engage in the OTC trading of swaps, certain key negotiated provisions in swap agreements, common amendments requested by dealers and what are currently viewed as “market terms” for certain provisions. The first article provides background on the various agreements that govern swaps, explains how the Dodd-Frank Act has introduced additional complications to the documentation process and offers advice on best practices for negotiating with dealers. The second article reviews the most commonly negotiated events of default and termination events in the trading agreements and offers suggestions for negotiating these provisions. The third article analyzes the key considerations for funds with respect to the collateral arrangements – the delivery of margin to mitigate counterparty risk – between the two parties. For additional insights on swaps regulatory reform, see “How Hedge Fund Managers Can Prepare for the Anticipated ‘End’ of LIBOR” (Aug. 24, 2017); and “Steps Hedge Fund Managers Should Take Now to Ensure Their Swap Trading Continues Uninterrupted When New Regulation Takes Effect March 1, 2017” (Feb. 9, 2017).

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