Divisive Mergers and Impact on Fund Financings

Private equity and other types of investment funds (“Funds”) often utilize financing to more quickly access funds for investments, working capital and other purposes. Such financing products include both facilities secured by a Fund’s investment assets or the net asset value of the equity in such assets (“NAV Facilities”) and subscription-backed credit facilities. Subscription-backed credit facilities, sometimes referred to as “capital call” or “capital commitment” facilities (each a “Subscription Facility” and together with NAV Facilities, “Facilities”), are secured by pledges of the contractual rights of the Fund to require its investors to pay in capital to the Fund from time to time, which rights arise from the Fund’s organizational documents. The ability of a Fund to utilize such Facilities and the extent to which the contemplated security for a particular Facility is feasible requires careful review and consideration of the Fund’s governing agreement, usually a limited partnership (“LP”) or limited liability company (“LLC”) agreement.