Can a PE firm lend itself money?
For instance, can Bain credit lend its buyout practice or its hedge fund money as a loan/bond or as margin. Also, how does this compare to PE firms that have a stake in insurance companies which provide them with capital? I imagine the former is illegal and a similar situation to banking corporations e.g. chase can’t fund JPM real estate acquisitions? Honest this thought just came to me and I’m genuinely curious. If you think these are ‘stupid’ questions, just point me to the source and I’ll read up on it further.
I'd imagine depends on fund docs. At my firm, my general understanding is that it's allowed if there's a third party in the deal as an independent arbiter of value. Assuming my firm is Bain from your example: Bain Capital Credit can lend to Bain Capital PE, if Bain Capital PE owns 49% of the deal and TPG owns 51% of the equity. Similarly, Bain Capital Credit can lend to an entity 100% owned by Bain Capital PE, if Ares is a co-lender that has 51% of the loan.
I think this is true with the caveat that each fund still has to act in their own best interests (which may be stating the obvious). If Bain PE decides the equity is going to be worthless and tries to help Bain Capital save the debt, then they'll have fiduciary issues. If Bain Capital tries to influence what Bain PE does, then they'll likely have lender liability issues. Just because you're under the same firm umbrella does not mean you can play on the same team.
Definitely not a stupid question as it's difficult to think the scenario all the way through unless you've taken a company through any sort of distress and seen what options/remedies equity & debt holders have and what their obligations are.
As pointed out in the comment above it depends on the fund's docs because while moving assets between subsidiaries/parent is perfectly legal, some shareholders may prefer to keep a more rigid separation of the firm's assets to avoid one company's financial health drowning another one (= aka diversification/risk mgt).
As a rule of thumb, as long as they're separate structures and there are no debt constraints or no intention of defrauding shareholders (LPs) they can do it. Otherwise, it doesn't make sense to lend "oneself" because your debt and equity remain the same and by law, it becomes instantly extinguished (legal term: confusion). Owning 100% of a subsidiary that lends to you doesn't mean lending to oneself because it has a different capital structure than yours. Read about Caesars Entertainment's restructuring to see an interesting case of moving assets from subsidiaries to the parent and vice versa.
Moreover, those transactions aren't illegal if (i) there is a real business interest (including not finding other funds) and (ii) there is no intention of defrauding creditors or shareholders (bad faith). For example, in bankruptcy law there tends to be a paragraph adhering to the principle of fiduciary duty which states that whenever managers lend before a bankruptcy (the period is analyzed case by case) then this loan could be considered fraud because managers were aware of a high risk of insolvency and they still decided to put the interest of other parties - or even theirs by moving the capital through their network - above the interest of the firm (i.e., shareholders). The % of ownership is irrelevant in determining fraud because even the interest of a shareholder w/ a 2% stake is protected by law. Even if you forgot what I said on my first 2 paragraphs you would deduct from this paragraph that as long as there is no high risk of insolvency in the near or medium term, then managers can lend money to other parties - including subsidiaries - (or even to themselves).
https://www.ft.com/content/a0ed27c6-a2d4-11e7-b797-b61809486fe2.
Here's a link to an article about the Caesar debacle if anyone else is interested
They can, but it opens up a lot of Agency issues and potential conflicts of interest, especially when mixing equity and debt since they sit on opposite sides of the table, especially in Restructuring.
It's generally not good to play kickckball in a minefield.
BX has done this numerous times where it'll loan through GSO and take equity in BXG, BCP or some other strategy. I hate it but most of their deals have other investors in them which makes it appear less slimy.
Interesting discussion and been wondering about this in context of private debt financing their own LBOs
I remember reading about some regulation in Germany and Austria where if a shareholder owning >10% of the company decided to lend to that company; regardless of loan seniority, they’d be subordinated to other lenders in that tranche (or say subordinated to lenders they’d otherwise be pari passu to)
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