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2020 Fourth Edition Fund Finance 2020 Fourth Edition Contributing Editor: Michael C. Mascia GLOBAL LEGAL INSIGHTS – FUND FINANCE 2020, FOURTH EDITION Contributing Editor Michael C. Mascia, Cadwalader, Wickersham & Taft LLP Senior Editors Suzie Levy Rachel Williams Sub-editor Andrew Schofield Group Publisher Rory Smith Publisher Paul Regan Creative Director Fraser Allan We are extremely grateful for all contributions to this edition. Special thanks are reserved for Michael C. Mascia for all his assistance. Published by Global Legal Group Ltd. 59 Tanner Street, London SE1 3PL, United Kingdom Tel: +44 207 367 0720 / URL: www.glgroup.co.uk Copyright © 2020 Global Legal Group Ltd. All rights reserved No photocopying ISBN 978-1-83918-020-0 ISSN 2399-1887 This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. The information contained herein is accurate as of the date of publication. Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY January 2020 CONTENTS Preface Michael C. Mascia, Cadwalader, Wickersham & Taft LLP Introduction Jeff Johnston, Fund Finance Association General chapters Hybrid and asset-backed fund finance facilities Leon Stephenson, Reed Smith LLP 1 Subscription line lending: Due diligence by the numbers Bryan G. Petkanics, Anthony Pirraglia & John J. Oberdorf III, Loeb & Loeb LLP 14 Derivatives at fund level Peter Hughes, Vanessa Kalijnikoff Battaglia & Joseph Wren, Travers Smith LLP 25 Do subscription facilities purr – or do they roar? Jan Sysel, Jons Lehmann & Kathryn Cecil, Fried, Frank, Harris, Shriver & Jacobson LLP 37 Financing funds of one: A borrower’s field guide Mary Touchstone & Ashley Belton, Simpson Thacher & Bartlett LLP 47 Investor views of fund subscription lines Patricia Lynch & Patricia Teixeira, Ropes & Gray LLP 56 Enforcement: Analysis of lender remedies under U.S. law in subscription-secured credit facilities Ellen Gibson McGinnis, Erin England & Richard D. Anigian, Haynes and Boone, LLP 63 The secondaries market: The rise of GP-led and preferred equity solutions Samantha Hutchinson & Amrita Maini, Cadwalader, Wickersham & Taft LLP Ian Wiese, Investec Bank plc 85 1940 Act issues in fund finance transactions Marc Ponchione, Allen & Overy LLP 91 Considerations in providing NAV facilities to individuals Meyer C. Dworkin & Christopher W. Holt, Davis Polk & Wardwell LLP 99 The state of play on overcall limitations in the U.S. Michael C. Mascia & Wesley A. Misson, Cadwalader, Wickersham & Taft LLP 106 Comparing the European, U.S. and Asian fund finance markets Emma Russell & Emily Fuller, Haynes and Boone, LLP 113 Umbrella facilities: Pros and cons for a sponsor Richard Fletcher, Sarah Ward & John Donnelly, Macfarlanes LLP 123 Side letters: Pitfalls and perils for a financing Thomas Smith, Margaret O’Neill & John W. Rife III, Debevoise & Plimpton LLP 132 What next for regulation of fund finance as the EU plans CMU “2.0”? Michael Huertas, Dentons Europe LLP 142 Fund finance lending: A practical checklist James Heinicke, David Nelson & Daniel Richards, Ogier 157 Assessing lender risk in fund finance markets Robin Smith, Alistair Russell & Emma German, Carey Olsen Jersey LLP 169 Fund finance meets securitisation Nicola Wherity & Jessica Littlewood, Clifford Chance LLP 181 Room for market growth: Second liens and shared liens in subscription credit facilities Mark C. Dempsey, Anastasia N. Kaup & Ann Richardson Knox, Mayer Brown LLP 189 Regulatory registrations, filings and officer appointments to Cayman Islands funds: The questions for lenders Derek Stenson & Michael O’Connor, Conyers 196 Understanding true leverage at the fund level: A European market and sector approach Michel Jimenez Lunz & Iulia Gay, SJL Jimenez Lunz 203 Fund finance in Ireland and Luxembourg: A comparative analysis Jad Nader, NautaDutilh Avocats Luxembourg & Phil Cody, Arthur Cox 211 The fund finance market in Asia James Webb, Carey Olsen, Daniel Lindsey, Goodwin, Emma Wang, East West Bank 222 Fund finance facilities: A cradle-to-grave timeline Bronwen Jones, Winston Penhall & Kevin-Paul Deveau, Reed Smith LLP 231 Country chapters Australia Tom Highnam, Rita Pang & Luke Leybourne, Allens 241 Belgium Nora Wouters & Mathieu Raedts, Dentons Europe LLP 255 Bermuda Matthew Ebbs-Brewer & Sarita Ebbin, Appleby 265 Canada Michael Henriques, Michael Davies & Alexandra North, Dentons Canada LLP 273 Cayman Islands Simon Raftopoulos & Anna-Lise Wisdom, Appleby 280 England & Wales Samantha Hutchinson, Jeremy Cross & Nathan Parker, Cadwalader, Wickersham & Taft LLP 288 France Philippe Max, Guillaume Panuel & Meryll Aloro, Dentons Europe, AARPI 296 Guernsey Jeremy Berchem & Nicole Sorbie, Appleby (Guernsey) LLP 304 Hong Kong Fiona Cumming, Patrick Wong & Stephanie Rowland, Allen & Overy 312 Ireland Kevin Lynch, Kevin Murphy & David O’Shea, Arthur Cox 322 Italy Alessandro Fosco Fagotto, Edoardo Galeotti & Valerio Lemma, Dentons Europe Studio Legale Tributario 337 Jersey James Gaudin & Paul Worsnop, Appleby 344 Luxembourg Vassiliyan Zanev, Marc Meyers & Antoine Fortier Grethen, Loyens & Loeff Luxembourg S.à r.l. 349 Mauritius Malcolm Moller, Appleby 360 Netherlands Gianluca Kreuze, Sabine Schoute & Michaël Maters, Loyens & Loeff N.V. 369 Scotland Hamish Patrick, Rod MacLeod & Andrew Kinnes, Shepherd and Wedderburn LLP 377 Singapore Jean Woo, Cara Stevens & Shen Mei Bolton, Ashurst 383 Spain Jabier Badiola Bergara & Luis Máiz, Dentons Europe Abogados, S.L. Unipersonal 390 USA Jan Sysel, Ariel Zell & Flora Go, Fried, Frank, Harris, Shriver & Jacobson LLP 398 PREFACE e are pleased to present the fourth edition of Global Legal Insights – Fund Finance, now well-known in the market as Wthe “Pink Book”. Cadwalader, Wickersham & Taft LLP is pleased to serve as the contributing editor. The fund finance market has had quite the decade-long run. Many of our businesses and practices have expanded far beyond our initial visions. This growth has kept many of us very busy and created extensive opportunities, both for our firms and as individuals. Yet, very little complacency can be felt creeping into the market. Rather, the rate of innovation is accelerating and entrepreneurial thinking and new product development are at the forefront. We have tried to deliver this book with both aspects in mind: an appreciation of the market’s successful past, along with optimism about future innovations. In producing this edition, we have gathered the views and insights of the world’s leading fund finance legal practitioners. They were asked to focus on new substance and product evolutions – we want each edition of this book to deliver fresh insight. We are very pleased with the end product. My sincere thank you to all of the authors for their contributions to making this book a success. As with its predecessors, this book commences with 24 product- and market-oriented chapters. These chapters in many cases get to far greater depth than in prior editions. Then, 19 jurisdiction-specific updates follow. Our hope is that we have provided a comprehensive global update in a single volume. My sincere thanks to Rory Smith, Andrew Schofield and the rest of the terrific team at Global Legal Group Ltd. You supported the fund finance market long before we became the cool kids. We appreciate all of your work publishing this book. Next year will be the 5th edition of the Pink Book. Like all good things, this publication must evolve to stay relevant. Rory and I are working on several ideas in that regard. We would welcome your feedback on how we can make the Pink Book better. I can be reached at [email protected], and Rory can be reached at [email protected]. Michael C. Mascia Cadwalader, Wickersham & Taft LLP INTRODUCTION Dear Industry Colleagues, On behalf of the Board of Directors of the Fund Finance Association (the “FFA”), I would like to thank and applaud the Global Legal Group for their support and effort publishing this fourth edition of Global Legal Insights – Fund Finance. They have brought together the preeminent law firms across the globe, providing a virtual world-wide Fund Finance legal and market update in a single volume. The FA was pleased to contribute to the publication and hope you find the edition helpful and interesting. The invitation to participate in this publication was well received by the world’s leading law firms which validates the continued growth and interest in the subscription credit facility and related fund finance markets worldwide. We thank all of the contributors for their time and expertise. The FFA is a non-profit industry association supporting the fund finance markets. As part of our core mission, we strive to create educational events and information availability to market participants. This publication is well aligned with our mission. Our next event is the 10th Annual Global Fund Finance Symposium on February 12–14, 2020 at the Fontainebleau Hotel in Miami Beach. To celebrate this milestone anniversary as well as our industry’s collective growth and successes, the FFA wanted to “go big” in Miami. With that in mind, we are so excited to have announced that our keynote speakers will include both Hillary Rodham Clinton and Earvin “Magic” Johnson. To have Secretary Clinton speaking in February during the massive run-up to the Democratic party primary elections throughout the spring is just going to be sensational. And Magic will be joining us the week of the NBA All-Star game in Chicago. It is so exciting for our industry and a great reflection on how far we have come to be able to attract speakers of this magnitude. With these headline speakers, our expectation is that attendance at the Symposium will increase materially this year. In fact, we hope our keynote speakers can help attract leaders at the banks, law firms and funds, so that our collective leadership can see how dynamic of an industry we have all built.
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