For the past few months, a working group of the LSTA’s Trade Practices and Forms Committee has been debating changes to the form of Collateral Annex. Sellers of loans on the secondary market use this form when their inability to obtain agent or borrower consent to a pending sale of loans requires them to close the sale on a participation basis. The purpose of the form is to collateralize any ongoing funding obligations the purchasers may have. The realities of transacting in a post-Lehman world have contributed to an increasingly vociferous call by buysiders for seller segregation, or third-party custody, of any cash collateral posted by purchasers under the Annex.
The Federal Reserve has now published the results of a survey that appears to support the buysiders’ position that market practice in this area is under pressure to change. The Fed’s Senior Credit Officer Opinion Survey on Dealer Financing Terms, released on March 29, 2012, includes the following special question:
“How has the intensity of efforts by your institution’s clients to negotiate arrangements for the custody by third parties of collateral and margin posted to your institution changed over the past six months?”