Competition among prime brokers for hedge funds' business has heated up significantly as the industry has expanded, particularly as the larger and more sophisticated funds have established multiple prime brokerage arrangements for different products to capitalize on pricing discrepancies.
One of the most important consequences of this increased competition has been the increased availability of margin lock-ups to hedge funds from prime brokers. Hedge funds should take advantage of these types of facilities and negotiate contractual terms that protect them from being closed out in times of market turmoil.
Margin lock-ups "lock in" the prime broker's margin and collateral requirements for a specified period of time (between 30 to 120 days depending on the size and creditworthiness of the hedge fund client and the volatility and diversity of its trading strategy). The lock-up prevents the prime broker from altering pre-agreed margin requirements or margin lending financing rates, or demanding repayment of margin or securities loans or any other debit balance.
As one would expect, a default under the base prime brokerage documentation will also cause the margin lock-up to terminate. However, because margin lock-ups increase prime brokers' exposure, prime brokers often seek to impose additional margin lock-up 'termination events', such as net asset value decline triggers, a removal of key persons and a change of managing entity.
In the US, some prime brokers have controversially attempted to impose a lock-up termination event for the indictment or conviction of any officer of the relevant fund or its investment manager for any felony in connection with their management activities.
Hedge fund managers have strongly resisted the introduction of this provision because they are concerned that they could undeservedly fall within the ambit of a broad attack on hedge fund industry practices by State prosecutors such as the New York State Attorney General Elliot Spitzer.
Prime brokers also seek to build in bespoke issuer and sector concentration and liquidity requirements, the breach of which will cause the margin lock-up to terminate. These vary from fund to fund based on the relevant fund's trading strategy. The fund should seek to ensure that if there is a breach of these requirements, the lock-up only terminates with respect to the non-compliant positions that caused the breach, rather than in its entirety. Any increase to the margin requirement percentages applicable to such non-compliant positions should be capped at 50% of the current market value of such positions. If a prime broker seeks to impose concentration and liquidity requirements that relate to the positions of more than one fund managed by a single hedge fund advisor, the advisor should be wary of the potential issues relating to its fiduciary responsibility to the investors of each individual fund which may result.
It is critical when reviewing any margin lock-up documentation not to negotiate the document in a vacuum. One obvious but often ignored point is that the lock-up annex should be reviewed inconjunction with the base documentation to which it relates which may have been negotiated at a time when the relevant hedge fund was a substantially weaker credit. More often than not, such a review will reveal provisions in the base documentation that are fundamentally inconsistent with, or would allow the prime broker otherwise to circumvent, the objectives of the margin lock-up. Issues to look out for include the:
Most hedge funds focus on lowering the agreed fee rates of their prime brokers and have not spent enough time reviewing the hidden costs of prime brokerage such as discrepancies in collateral price quotations. Indeed, the lack of transparency about the hidden costs of their services and the inequitable treatment by certain prime brokers of different clients have led some industry observers to predict a client lawsuit against one of the major prime brokers.
The SEC has indicated that it will continue to use its authority to examine the procedures of broker-dealers, and the increased involvement of institutional fund managers and pension funds in the hedge fund industry may result in increased scrutiny of prime brokerage costs, all of which should have a positive effect on the industry.
More sophisticated hedge fund managers are increasingly interested in achieving working capital efficiencies by ensuring appropriate market pricing for margin financing and securities borrowing and identifying opportunities to optimize their collateral. With this in mind, many have hired agency collateral trading managers such as S3 Partners who interface between their hedge fund clients and prime brokers, taking advantage of the anonymity of their clients when gathering information and capitalizing on the fact that certain assets are worth more to prime brokers than others in the financing markets at different times.
Margin lock-ups should be a key tool in helping hedge funds to achieve the working capital efficiencies they need to maximize returns to their investors. Remember, if you don't ask for a margin lock-up you won't get one.