IM Guidance Update

JULY 2013 | No. 2013-03

US Securities and Exchange Commission

 Division of Investment Management

Counterparty Risk Management Practices with Respect to Tri-Party 

Repurchase Agreements

T

he Financial Stability Oversight Council (“FSOC”), in its May 2013 Annual Report, 

highlighted certain potential financial stability risks in the tri-party repurchase 

agreement market (commonly known as the “tri-party repo market”) if concerns 

emerge regarding the financial condition of borrowers in this market, such as 

securities broker-dealers.1

 Money market funds have significant portfolio holdings of 

tri-party repos (approximately $591 billion at the end of 2012).2 Even though many 

money market funds may stop rolling over repo holdings of a counterparty that comes 

under financial pressure,3 it is possible that a money market fund could face the sudden 

default of a tri-party repo. Accordingly, as a matter of prudent risk management, money 

market funds and their investment advisers are encouraged to consider the legal and 

operational steps they may need to take if a repo counterparty fails and the repos it 

issued default.4 The staff notes that while many different kinds of mutual funds may 

hold tri-party repos (and thus this staff guidance note may be useful to mutual funds 

generally), the staff is addressing this communication largely to money market funds 

because these funds tend to have more significant portfolio holdings of tri-party repos 

than other types of mutual funds. 

There are a variety of ways in which a money market fund and its adviser may be able 

to prepare in advance for handling a default of a tri-party repo held in the fund’s portfolio. Such advance preparation could be part of broader efforts by the money market 

fund and its adviser to follow best practices in risk management and engage in appropriate advance planning to be prepared for the default of any type of portfolio security. 

For example, a fund’s adviser may:

s Review the master repurchase agreements and related documentation to consider any specified repo default procedures. If these procedures call for the fund 

or its adviser to provide any notifications, instructions, or other types of forms 

or information to agents or custodians, the fund may want to consider having 

templates of such notifications or other documents prepared in advance to the 

extent practicable.
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s Consider operational aspects of managing a repo default. For example, funds may 

want to evaluate whether the systems at the fund or its custodian are capable of 

appropriately holding, valuing, trading and accounting for the collateral underlying the fund’s repos. If they are not capable, funds may want to consider what 

systems changes or temporary measures could allow for such capabilities and 

what other operational impacts may flow from the fund holding the collateral, 

as opposed to the repo. 

s Consider, to the extent possible, whether there are potential legal considerations 

under the Investment Company Act or otherwise that the fund could consider 

in advance or will need to evaluate at the time of any repo default. For example, 

money market funds may want to consider whether they can hold certain types 

of repo collateral and remain in compliance with rule 2a-7 under the Investment 

Company Act of 1940.5 The funds also may want to identify any required notifications to the SEC as a result of a default.6 Funds also may want to determine 

whether the defaulted repo would be subject to any automatic stays under either 

the U.S. Bankruptcy Code or federal banking laws and regulations.7 In addition, 

if the default were subject to an automatic stay, the fund may want to consider 

the impact that such a stay might have on the fund. Finally, the fund may want 

to evaluate what notifications and information the adviser should provide to the 

fund’s board of directors regarding the default, and what disclosures, if any, the 

fund should provide to its shareholders.

A repo counterparty default could create adverse consequences for fund shareholders. 

The staff recognizes that it is not practical to expect money market funds to plan for 

every contingency that can arise from the default of a tri-party repo portfolio holding. 

Nevertheless, appropriate advance planning for portfolio defaults may help funds 

manage such adverse events more smoothly and lessen the chance that such a default 

has harmful effects that could have been ameliorated.

endnotes

1 2013 Annual Report of the Financial Stability Oversight Council, at pages 4, 12-13, 

133-134. See also Brian Begalle et al., The Risk of Fire Sales in the Tri-Party Repo 

Market, Federal Reserve Bank of New York Staff Report No. 616 (May 2013) 

(discussing concern that stress caused by a potential default of a tri-party repo 

counterparty can lead to either pre-default fire sales of assets by the counterparty 

or post-default fire sales of collateral by the tri-party repo investor and the related 

financial stability concerns). The tri-party repo market refers to the market for 

repurchase agreements in which a clearing bank acts as third-party agent to 
IM guIdAnCe uPdATe 3

provide collateral management services and to facilitate the exchange of cash 

against collateral between the two repo counterparties.

2 Based on Form N-MFP data. The tri-party repo market financed close to $2 trillion 

of securities at the end of 2012. See http://www.newyorkfed.org/banking/tpr_

infr_reform_data.html.

3 For example, see the Financial Crisis Inquiry Commission Report (Jan. 2011), 

at pages 284, 288, available at http://www.gpo.gov/fdsys/pkg/GPO-FCIC/pdf/

GPO-FCIC.pdf (discussing the unwillingness of several money market funds to 

roll over Bear Stearns repo shortly prior to Bear Stearns’ liquidity crisis and sale 

to JP Morgan Chase).

4 See, e.g., a checklist that the Investment Company Institute has prepared for 

funds holding repos in the event of a repo counterparty insolvency at http://www.

ici.org/policy/current_issues/11_mmf_repo_checklist.

5 For example, some collateral underlying repos in money market funds’ portfolios 

would not be “eligible securities” under rule 2a-7 that the money market fund 

could hold. In other cases, the money market fund holding the collateral may 

cause the fund to violate its obligations under rule 2a-7 relating to maturity, 

liquidity, or diversification. The staff notes that these risks apply to the default 

of any secured debt obligation held by a money market fund. 

6 Currently, under rule 2a-7(c)(7)(iii), a money market fund must promptly notify 

the Commission by electronic mail directed to the Director of the Division of 

Investment Management or the Director’s designee of any default or event of 

insolvency of any portfolio security, and the actions the money market fund 

intends to take in response to such event, where immediately before the default, 

the security represented 1⁄2 of 1% or more of the money market fund’s total assets. 

Under proposed changes to the Commission’s rules regulating money market 

funds, a money market fund would have to publicly report such defaults or events 

of insolvency on a new reporting form (Form N-CR) within one business day after 

the default or event of insolvency. See Money Market Fund Reform; Amendments 

to Form PF, Investment Company Act Release No. 30551 (June 5, 2013).

7. See, e.g., 11 U.S.C. §§ 362(a) (U.S. Bankruptcy Code automatic stay provision). But 

see also 11 U.S.C. § 362(b)(6), (b)(7), (b)(17) (containing certain exceptions from 

the automatic stay for certain financial contracts known as “qualified financial 

contracts” (QFCs)). Repurchase agreements (and reverse repurchase agreements) 

are QFCs and in general are not subject to the automatic stay. See 11 U.S.C. § 559. 
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QFCs are also defined under Title II of the Dodd-Frank Wall Street Reform and 

Consumer Protection Act (Dodd-Frank Act), Pub. L. No. 111-203, § 210(c)(8)(D)(i). 

Title II of the Dodd-Frank Act provides that a person who is a party to a QFC with 

a “covered financial company” (i.e., a financial company that has been placed into 

orderly liquidation under Title II of the Dodd-Frank Act) may not exercise any 

termination rights solely by reason of the appointment of the Federal Deposit 

Insurance Corporation (FDIC) as receiver for that company under Title II (i) until 

5:00PM on the business day following the date of the FDIC’s appointment; or (ii) 

after the person has received notice that the QFC has been transferred to another 

party. See Dodd-Frank Act, § 210(c)(10)(B)(i)(I)-(II).

The Investment Management Division works to:

s	 protect investors

s		 promote informed investment decisions and 

s		 facilitate appropriate innovation in investment products and services 

through regulating the asset management industry.

If you have any questions about this IM guidance update, please contact:

Chief Counsel’s Office/Public Inquiry

Phone: 202.551.6825

Email: IMOCC@sec.gov

This IM Guidance Update summarizes the Commission staff’s views regarding various 

requirements of the Investment Company Act of 1940 and/or the Investment Advisers Act 

of 1940. Future changes in laws or regulations may supersede some of the discussion or 

issues raised herein. This IM Guidance Update is not a rule, regulation or statement of the 

Commission, and the Commission has neither approved nor disapproved of 

this IM Guidance Update.