It is fairly uncommon for a fund manager to obtain a loan from its own fund, largely because of the inherent conflicts of interest. Fund-to-manager loans can arise in a number of instances, however, either because circumstances demand or because a seemingly innocuous transaction can be implicitly categorized as a loan. It is thus vital for fund managers to be able to identify these situations and appropriately structure the loans – and all associated authorizations – to avoid violating the law. This two-part article series identifies the situations where it may be prudent for a manager to cause a fund to lend money or other assets to the manager, as well as appropriate considerations along the way. This first article describes several circumstances – including indirect instances – under which a fund may make, or be construed to have made, a loan to its manager. The second article
will address primary legal concerns in connection with loans from funds to advisers, including breaches of fiduciary duties and issues when a manager defaults on the loan. For coverage of SEC enforcement efforts against other forms of principal transactions, see “SEC Fines PE Sponsor, CEO and CFO for Improper Principal Transactions and Expense Allocations
” (Jun. 11, 2019); and “Recent SEC Settlement Reminds Fund Managers to Strictly Adhere to Disclosed Fee and Expense Calculation Methodologies and Fully Disclose Conflicts of Interest
” (Nov. 16, 2017).