Canada: Private Equity @ Gowlings: January 24, 2012 - Volume 3, Number 1

Last Updated: January 26 2012
Article by Rob Blackstein, Myron B. Dzulynsky and David H. Kim

Edited by Alan James and Rob Blackstein

In this issue:

  • Representations and Warranties Insurance in M&A Transactions
  • The Use of Side Letters to Limited Partnership Agreements


REPRESENTATIONS AND WARRANTIES INSURANCE IN M&A TRANSACTIONS

By: David H. Kim and Myron Dzulynsky

Post-closing financial support of representations and warranties can be a point of contention between buyer and seller in any M&A transaction. However, it is particularly relevant in the context of transactions in which the sellers, including private equity funds, will have few tangible assets post-closing. While holdback or escrow mechanisms are traditionally used to provide comfort to buyers, a number of years ago several insurance providers introduced the concept of representations and warranties insurance ("Reps & Warranties Insurance") as an alternative to these traditional mechanisms. Reps & Warranties Insurance provides coverage for financial losses resulting from breaches of representations and warranties made by the seller in the purchase agreement. The insurance policy can be purchased by either the buyer or the seller. Buyer-side policies allow the buyer to recover financial losses directly from the insurer. Seller-side policies reimburse the seller for amounts paid or payable to the buyer for financial losses.

Reasons for using Reps & Warranties Insurance

Typical buyer and seller motivations for using Reps & Warranties Insurance include the following:

Buyer Motivations

  1. Additional protection beyond seller's indemnity cap and survival limitations in purchase agreement;
  2. Collectability risk of indemnity where seller has credit or other financial difficulties;
  3. Distinguish bid in auction process; and
  4. Avoid conflict with management sellers that will remain employed by the target post-closing.

Seller Motivations

  1. Eliminate or reduce need for escrow of portion of sale proceeds after closing;
  2. Lower indemnity obligation; and
  3. Mitigate joint and several liability for minority and passive sellers.

For private equity sellers, the escrow and indemnification obligations in a purchase agreement may limit the ability to wind down funds and return money to investors. The use of Reps & Warranties Insurance can lead to cleaner exits and improve IRR figures for private equity funds as money is returned sooner to investors absent escrow obligations (albeit at a cost). In addition, a clawback situation is avoided in the event that a claim is made against a fund after all or most of the fund's assets have been distributed to its limited partners.

Technical Specifications

  • Limits of $150 million to $200 million are readily available, with further capacity available if required.
  • The seller's policy is typically priced at 2.25 percent to 3.00 percent of the limit of insurance purchased. The buyer's policy is typically priced at 2.50 percent to 3.25 percent of the limit of insurance purchased.
  • Policies usually require an aggregate uninsured amount of 1 percent to 2 percent of the transaction value as the deductible.

Recent Trends

According to Marsh's FINPRO (Financial and Professional) Practice, the number of Reps & Warranties insurance policies underwritten in 2011 was more than double the amount underwritten in 2010, with up to 350 policies being placed this year globally by insurers. The reason for this marked increase can be attributed to the establishment of a track record of claims being paid out, which has increased confidence in the product. In the U.S., private equity firms seeking cleaner exits have significantly increased their use of this form of insurance.



THE USE OF SIDE LETTERS TO LIMITED PARTNERSHIP AGREEMENTS

By: Rob Blackstein and Myron Dzulynsky

A number of private equity funds and hedge funds are structured as limited partnerships that are  governed by the terms of a limited partnership agreement (an "LPA").  A recurring theme in private equity fund investing is the use of "side letters" between individual limited partners and the general partner of the fund. Side letters can range in scope from administrative matters to providing substantive rights to limited partners. Questions and issues inevitably arise as to the type of provisions that can be included in a side letter (which, in most cases only benefit the recipient of the side letter) as opposed to being incorporated into the limited partnership agreement itself (which generally benefit all limited partners of the fund).

As two commentators have noted in their paper when discussing the existing case law that addresses side letters, "there are almost no reported cases, and the cases that do exist are generally illustrative only by analogy. Even then, the results are, as the analysis of side letter terms should be, as well, extremely fact-specific."1 Indeed, as of the date of this article there is no Canadian case law on point that specifically interprets side letters issued to limited partners pursuant to the terms of a limited partnership agreement.

Notwithstanding the lack of any clear direction from Canadian courts on the subject, the major issues surrounding side letters can be classified into three general areas: (i) how the LPA treats the issuance of side letters, (ii) what provisions are appropriate to include in a side letter regardless of the express terms of the LPA, and (iii) disclosure of the side letter to limited partners.

Treatment of Side Letters under the LPA

In general, LPAs may (i) be silent on the ability of the general partner to issue side letters, (ii)  contain blanket provision that permits side letters to be issued, or (iii) contain an express provision that permits side letters to be issued but also governs certain aspects of side letters, including, among other things, the extent to which a side letter may be inconsistent with the terms of the LPA and whether other limited partners are entitled to the benefits of any particular side letter that may be issued from time to time.

Appropriate Provisions to Include in Side Letters

At present, there is very little guidance or authority on the types of provisions that can be included in side letters, and consequently the options appear to be almost limitless. While such flexibility and freedom permits general partners and limited partners to strike their own commercial deal, there are some practical concerns with an "anything goes" approach to side letters.  These practical concerns are grounded in questions of fiduciary duty and contractual interpretation in light of inconsistency between the LPA and a particular side letter.

A general partner in Canada is generally viewed as having fiduciary duties to the limited partners. Such duty would typically include an obligation for fair dealing with limited partners. To the extent that there is a side letter in favour of one or more limited partners, there is a question as to whether the general partner is dealing fairly with all limited partners. It is suggested that appropriate disclosure, and preferably specifically addressing side letters in an LPA, would significantly reduce any risks of any allegations by limited partners against the general partner that it breached its fiduciary duty in connection with the issuance of any side letter, subject to the following with respect to inconsistency between side letters and the terms of the LPA.

The relationship between the general partner and limited partners is generally governed by the LPA, which is a multilateral agreement between all partners. To the extent there is a bilateral agreement between the general partner and one or more particular limited partners which is inconsistent with the terms of the LPA, there is a question as to how any level of inconsistency would be interpreted by a Canadian court.  Not surprisingly, it is likely that any decision would be highly fact specific. However, it is suggested that there are levels of inconsistency which are more likely to be tolerable than others.

At one end of the spectrum, side letter requirements which do not affect other limited partners (other than in an immaterial manner), such as extra reporting requirements, are not likely to raise judicial concerns regardless of whether the LPA expressly addresses inconsistency between an LPA and side letters.  At the other end of the spectrum, side letter provisions which clearly and materially affect other limited partners should be carefully considered, even if the LPA provides express permission for inconsistency between the LPA and side letters. For example, an LPA  for an infrastructure fund may state that it is intended to invest broadly in North American infrastructure across various sectors. If the general partner of such infrastructure fund proceeded to issue a side letter requiring that the fund only invest in one narrow infrastructure sector in one country, such side letter would significantly alter the overall nature and character of the fund. In such circumstances, one could envision a Canadian court viewing such a provision differently than a provision that simply provides for extra reporting requirements. Numerous other types of terms lie in between the two ends of the spectrum, and it is suggested that each term proposed for inclusion in a side letter be considered in light of this spectrum.

Further considerations also arise in connection with how side letters are disclosed to limited partners, if at all (especially where side letter provisions may affect other limited partners) as well as broader considerations on the types of disclosure that may be made to limited partners, as further discussed in part below. General partners also need to weigh the effect of subsequent side letters on existing limited partners, especially if a subsequent side letter materially alters the nature of the fund, and therefore materially alters the basis on which the previous limited partners invested in the fund.  Such an analysis may take into account, among other things, the passage of time as between the  investment by the previous limited partners and those who are obtaining the benefit of such a side letter.

Disclosure

LPAs that permit side letters may regulate the "how and when" side letters are to be disclosed to other limited partners.  Not surprisingly, certain securities regulatory agencies and private equity/hedge fund industry groups and associations have developed general positions relating to the disclosure of the existence of side letters between limited partners. For example, the Task Force to Modernize Securities Legislation in Canada recommends that any regulatory regime applicable to hedge funds require "mandatory disclosure of any 'side letter' and other collateral agreements between the hedge fund and investors who receive special fee or liquidity arrangements."2

The Managed Funds Association (MFA), a U.S. industry body, recommends that hedge fund managers should disclose to investors side letters granted to preferred investors that have a "material impact" on other investors.3 The Asset Managers' Committee, a U.S. industry body, suggests that "in circumstances where side letters may adversely impact other investors in the fund, the Manager should make such disclosure as may be reasonably necessary to enable other investors to assess the possible impact of such side letters on their investments." Examples of side letters that may adversely impact other investors are: (a) enhanced control rights (over investment decisions or key personnel), (b) preferential liquidity/redemption rights (key personnel provisions and redemption "gate" waivers), (c) the availability of preferential fees, and (d) terms that materially alter the investment program disclosed in the fund's offering documents.4

In the United Kingdom, the Financial Services Authority published disclosure requirements that requires Managers to ensure that all investors are informed when a side letter is granted, although Managers are not required to disclose the nature of the side letters.5 In 2006, the Alternative Investment Management Association (the "AIMA"), a U.K. industry body, recommended that the existence of side letters containing "material terms" should be disclosed, as well as the nature of those terms (in other words, the topic of the side letter should be disclosed but not the actual content of the side letter). The AIMA defines "material term" as including any term that is reasonably expected to put other shareholders at a material disadvantage. Examples include grants of preferential exit rights and portfolio transparency rights.6

The European industry appears to be adopting a disclosure policy whereby the existence of material terms in side letters is made available to all investors.7

Conclusion

It remains to be seen how courts in Canada will treat and interpret such side letters in the context of LPAs. However, the use of side letters in private equity funds and hedge funds will likely continue as a feature of the industry for years to come as general partners and limited partners continue to shape their relationships through them.

Footnotes

1. Lahiri, Yasho and Reuben Kopel. "From Side Show to Center Stage: The (Sometimes Overstated) Perils of Side Letters." Bloomberg L.P., 2006 <http://www.bakerbotts.com/files/Publication/6f56c088-062b-4915-ac43-2880e58f8e55/Presentation/PublicationAttachment/edbb0ebb-f3bb-459f-834b-31af192595e1/yasholahiri_article_9-06.pdf>.

2. The Task Force to Modernize Securities Legislation in Canada. Canada Steps Up, October 2006 <www.tfmsl.ca/docs/T45758-Vol%201%20Chpt%206.pdf>.

3. Sklar, Ryan. "Hedges or Thickets: Protecting Investors from Hedge Fund Managers' Conflicts of Interest," 77 Fordham L. Rev. <http://law.fordham.edu/fordham-law-review/10276.htm>.

4. Asset Managers' Committee. "Best Practices for the Hedge Fund Industry, Report of the Asset Managers' Committee to the President's Working Group on Financial Markets, 15 January 2009 <www.amaicmte.org/Public/AMC%20Report%20-%20Final.pdf>.

5. Financial Services Authority. "Feedback Statement FS06/2, Hedge Funds: A discussion of risk and regulatory engagement." March 2006 <www.fsa.gov.uk/pubs/discussion/fs06_02.pdf>; Levensfeld Pearlstein, LLC. "Hedge Fund Side Letters." 10 July 2008 <http://www.lplegal.com/publications/articles/hedge-fund-side-letters>.

6. Levensfeld Pearlstein, LLC. "Hedge Fund Side Letters." 10 July 2008 <http://www.lplegal.com/publications/articles/hedge-fund-side-letters>.

7. Naik, Narayan. "Hedge Funds: Transparency and Conflict of Interest." Policy Department, Economic and Scientific Policy, European Parliament www.europarl.gr/ressource/static/files/projets_pdf/hedge_funds.pdf.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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