Mechanics of Adapting RWI to Secondary Transactions and Obstacles to Navigate

The use of representation and warranty insurance (RWI) has increased significantly in PE M&A transactions as a substitute for, or supplement to, traditional seller indemnities. Despite its growth in PE M&A transactions, however, RWI has not yet become widely employed in secondary transactions, including GP‑led restructurings (or “structured secondary” transactions). When properly tailored, however, it can be a powerful tool for reducing risk and expediting closings, both of which are particularly valuable in an economic recession. The first guest article in a two-part series by Ropes & Gray attorneys Isabel K.R. Dische, Adam Dobson and Steven M. Kaye provides an overview of RWI policies, several key factors behind the relatively slow adoption of RWI in secondary transactions and recent developments in the available scope of coverage that could make RWI more attractive. The second guest article by Peter de Boisblanc, former vice president of transactional risk at HUB International, describes how RWI products have been modified from their use in classic M&A transactions to suit GP‑led restructurings, as well as some of the pressure points in negotiations. See our two-part series on RWI in the secondary market: “Financial Impact on Transactions and the Process of Obtaining Insurance” (Feb. 11, 2020); and “Pricing, Scope of Coverage and Key Policy Exclusions” (Feb. 18, 2020).

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