While not everyone may be familiar with (or lived through) Black Monday, the Savings & Loan Crisis, the Dot-Com Bubble or the Great Recession, it is impossible that anyone reading this note could be unaware of the COVID-19 pandemic and its impact on their social and economic lives. While I have lived through more of the above events than I care to admit, for business lawyers, times like this cause three words to invariably rise from simple words on the page to real topics of conversation, analysis and angst. Those three words are “Material Adverse Effect.” A full analysis of the concept, what it is (and perhaps, more importantly, what it is not), and how and when it can be successfully applied is well beyond the scope of this note. Nevertheless, an overview of the use of the MAE concept in acquisition and loan transactions, a discussion of recent developments and a brief roadmap for analysis hopefully is an achievable objective.
Sarah Elliott of National Australia Bank connects with Cadwalader’s Mike Mascia in this week’s podcast edition of Fund Finance Friday: Industry Conversations. In the podcast, Sarah gives an update of what National Australia Bank is seeing in the fund finance markets. She also discusses her recent LinkedIn post on the human tragedy surrounding us all from the COVID-19 virus, along with the great hope, resilience and leadership she sees emerging from the difficult circumstances.
Our team was supposed to have an offsite on Wednesday of this week. I was looking forward to going to the Wells Fargo PGA Championship Thursday with friends. My wife had concert tickets for tonight. And I had plans to take my dad and dad-in-law fishing today. Despite none of that happening, the last week of April was incredibly active for most all of us. Below is a short update on my recent observations from our markets along with some other gratuitous commentary as we enter May 2020.
PEI this week published an article looking into the Los Angeles City Employees’ Retirement System capital call liquidity management. Per the article, LACERS is doing great.
Previous FFF articles have discussed an increase in demand for GP and co-invest facilities over recent years. In light of current circumstances, some market participants are already predicting an increase in the popularity of these products, with GPs, managers and co-invest participants wanting to ensure they have an available source of liquidity to meet their obligations to provide capital to their funds. Anecdotally, and in line with these predictions, we have seen a healthy uptick in work around existing GPPS facilities (increases, additional borrower accessions) over recent months.
Cadwalader’s Mike Mascia connects with Richard Wheelahan, founding principal of fund finance debt advisory firm Fund Finance Partners, in this week’s podcast edition of Fund Finance Friday: Industry Conversations. In the podcast, Rich covers what his fund sponsor clients are seeing in the market, where the current demand for fund finance is the highest and what it is like being a principal in a start-up during challenging times.
The filing of a UCC-1 financing statement is necessary to perfect the lender’s security interest in the collateral supporting a credit facility. In normal times, the lender’s counsel will file the appropriate UCC-1s on the closing date of the transaction after confirming the form and content of each UCC-1 with the borrower and checking the information against the certified constituent documents of the filing debtor. These are not normal times, and Cadwalader has been monitoring our clients’ ability to file UCC-1s on a timely basis and without surprises.
Global corporate, capital markets, private equity and private wealth advisory firm Intertrust this week hosted a fund finance webinar titled “Accessing capital and liquidity from a fund finance perspective during the COVID-crisis.” The panel was moderated by Cliff Pearce, Intertrust’s Global Head of Capital Markets, and included James Rock-Perring, Intertrust’s Head of Fund Finance Advisory, Stephen Quinn, Managing Director at 17Capital, and Cadwalader’s Samantha Hutchinson and Mike Mascia.
This week the Institutional Limited Partners Association (ILPA) circulated a draft proposal around subscription facilities. Graham Bippart of Private Funds CFO published an extensive article on it yesterday titled “ILPA to recommend boosting disclosure of capital call credit line usage.”
The purpose of this article is to envisage whether the current COVID-19 pandemic can be considered as a force majeure in Luxembourg and the potential impact on Luxembourg fund finance transactions.