Adapting RWI to Secondary Transactions: Mechanics of the Insurance Policies and Obstacles Posed by Secondaries (Part One of Two)

In recent years, 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 been widely employed in secondary transactions, including GP‑led restructurings (or “structured secondary” transactions). In this first article in a two-part series, Ropes & Gray attorneys Isabel K.R. Dische, Adam Dobson and Steven M. Kaye provide an overview of RWI policies, several key factors behind the relatively slow adoption of RWI in secondary transactions (particularly, structured secondaries) and recent developments in the available scope of coverage that could make RWI more attractive. The second article will describe 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 in that context. See our two-part series “The Evolution and Future of GP‑Led Restructurings”: Transaction Structuring Trends and Conflicts of Interest Management (Jun. 2, 2020); and Key Considerations When Negotiating Fees, Expenses and RWI (Jun. 9, 2020).

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