Execution of ISDA Master by Investment Funds
Investment funds (“IF”) entering into OTC derivatives transactions should enter into an ISDA Master Agreement (“MA”) with each of their counterparties in order to benefit from the credit risk mitigation mechanism allowed by its netting provisions.
Although this might vary with the size and creditworthiness of each IF, it is often its counterparty to the MA, i.e. a broker/dealer, that will circulate the first draft of the Schedule to the MA.
It is not uncommon for the IF negotiator to amend thoroughly this first draft, especially when the counterparty is not aware of the specific features of MA negotiations with IF counterparties.
A recurrent issue in this context pertains to the drafting of the signature blocks, or to be more specific, the accurate identification of the IF entity that will execute the MA (“Signing Entity”).
An understanding of the legal structure of the IF counterparty is required to make the right decision.
This article refers to the 2002 version of the ISDA Master Agreement.
1. What are the risks if the ISDA Master Agreement signature blocks are not properly designed ?
Under Article 3 (a) (ii) of the MA, each party represents to the other party that it has the power and authority to execute, deliver and perform under the MA. The same clause encompasses the agreements connected to the MA, including collateral documentation. Article 3 (a) (iii) contains representations relating to the absence of violation or conflicts with a party’s legal obligations, constitutional documents or applicable courts and government agencies orders.
It is important to note that the above representations are deemed repeated each time a transaction governed by the ISDA MA is entered into, which virtually means that an actively trading counterparty should at all times be compliant with its representations.
If the representations are breached, an event of default is constituted under Article 5 (a) (iv) of the ISDA MA, which allows the non-defaulting counterparty to terminate all transactions governed by the MA.
Power to enter into the MA shall be distinguished from authority to enter into the MA. The former corresponds to the capacity of the Signing Entity at stake to enter into the ISDA MA whereas the latter relates to the natural person(s) executing the agreement on behalf of the said Entity.
It results from the above that an IF entering into an ISDA MA without being properly identified on the execution page and the front page of the contract is at the mercy of its counterparty, the latter being practically authorised to ter-minate the relationship anytime it wishes to do so.
Concretely, the IF will be exposed to an unnecessary risk of early termination each time it is out-of-the-money on a net basis.
2. Which fund entity shall be a party to the ISDA MA ?
Deciding which entity of a IF’s universe shall enter into the MA involves reviewing the IF structure and documentation. This article provides guidelines applicable to French, Luxembourg and Cayman Islands IFs, which guidelines can certainly be useful for other fund structures.
Categories of IFs. Luxembourg and French IFs usually take the form of either a corporate body (this is the case for a SICAV) or a common fund (fonds commun de placement or FCP). Cayman funds can either be companies, partnerships or trusts.
In the above jurisdictions, as in many others, only IFs structured as corporate vehicles have legal personality. All other types of funds therefore have to be represented by another entity having legal personality when entering into an agreement such as a MA.
This is explicitly mentioned in Article 14 (2) of the Luxembourg UCI law dated 17 December 2010 providing that “the management company acts in its own name while indicating that it is acting for and on behalf of the FCP”.
Proposed drafting. The drafting hereunder can be used for a Luxembourg FCP: [Name of Management Company] acting on behalf of and for [name of the FCP], a Luxembourg FCP governed by the [17 December 2010 Law on UCIs].
A similar drafting will have to be adopted when a SICAV is not self-managed and requires its management company to enter into the MA on its behalf.
When the IF is structured as an umbrella fund, an ISDA is commonly signed for each sub-fund, the netting provisions being limited in scope to each segregated sub-fund.
Additionally, an investment manager might have been appointed by the management company (or the IF itself if it is a self-managed SICAV) in respect of specific sub-funds.
Those elements are taken into account in the more elaborated drafting hereunder:
[Name of Investment Manager] acting as agent of [name of the Management Company], on behalf of and for the [name of the IF], a Luxembourg [FCP][SICAV] governed by the [17 December 2010 Law on UCIs] [in relation to the sub-funds listed in Annex I (each a “sub-fund”)].
When it comes to Cayman or Irish funds adopting a trust structure, the trustee should in principle be the Signing Entity.
A drafting different from the one proposed hereupon should be adopted in order to take into account the fact that (i) the unit trust itself does not have legal personality and (ii) contrary to management companies of French or Luxembourg IFs, no statute law explicitly authorises the trustee to act “on behalf of and for the fund”.
It is indeed impossible to act “on behalf” of an entity having no legal personality.
Therefore, the following drafting can be retained:
[Name of the Trustee], as trustee of [name of the IF]…
In the event that the trustee has delegated its investment management powers to another entity such as an investment manager or manager, this entity should be the Signing Entity, but the trustee should acknowledge the Master MA.
3. Consequences of the agency relationship created
As seen above, an agency relationship between the Signing Entity and the IF is created. Possibly several agencies are created between the several links of the delegation chain.
This has consequences, as the “No Agency” representation and warranty set forth in Section 3(g) of the MA should be opted out in Part 4 [(l)] of the Schedule in order to avoid a misrepresentation.
Hence, because the parties are not acting on a principal to principal basis, the well-functioning of close-out netting is likely to be affected, which risk should be addressed in the documentation.
An agency letter can therefore be addressed by the Signing Entity to the Counterparty of the IF providing a series of undertakings, representations and warranties mainly stipulating that the Signing Entity will enter into transactions under the MA only if the IF assets under its control are sufficient to ensure that the IF can perform its obligations under the Agreement. The said agency letter will be enclosed to the ISDA MA.
The agency risk might however be considered non material when:
(i) the agency between the management company and the IF is a statutory agency relationship such as for Luxembourg IFs; and/or when
(ii) Part 3(b) of the Schedule include the provision of copies of the investment management agreement and/or sub-investment management agreements to the counterparty, which provision should be covered by Section 3(d) Representation.
The contractual documentation of the management delegation chain should indeed contain provisions alleviating the agency risk at stake, thanks to clauses imposing the exercise of reasonable care and skill.