Search Our Website
cancel
Table of Contents
< collapse table
show table of contents >
show table of contents >

What Is Rep And Warranty Insurance

To buy, reword midterm, or trigger Rep and Warranty Insurance (RWI): contact us. We are Google's # 1 Liability Risk Manager worldwide and can contractually guarantee results including net cost for tailored protection that we structure independently of any insurance broker, company, lobbyist, for best value to both Buyer and Seller.

rep and warranty insurance cost
Rep and Warranty insurance (RWI) must be structured independently of brokers, insurers, lobbyists, for best value to Buyer and Seller including impacts on liquidity, valuation, protection, and cost. Rep and Warranty Insurance cost changes based on deal dynamics and underwriting cycles.

What Is Reps And Warranties Insurance

Rep and Warranty Insurance is a form of contract insurance that serves as a hedge to a specific type of liability risk, namely protecting one party in case of a breach by another party of one or more representations and warranties outlined within the contract or agreement between them and which results in a financial loss. It is also known as R&W insurance or transactional liability insurance. The large majority of times, reps and warranties insurance is used on Purchase and Sale Agreements or similar agreements involving a Buyer and a Seller. The term M&A insurance is typically used interchangeably with reps and warranties insurance since the latter is most often used within transactions involving mergers or acquisitions (in fact various people search online for ‘rep and warranty insurance m&a’). Nevertheless, the technical usage of transactional liability insurance can extend beyond M&A transactions (ex. credit agreements, supplier agreements, etc.) so long as there is an agreement in place in which there are representations and warranties made by one party to another.

Disclaimer

This content is independent of any content coming from insurance brokers or insurers or law firms. Commercial insurance is rarely taught in schools, and when it is it’s mostly done through the lens of brokers or insurers. There are many misconceptions around Rep and Warranty Insurance, just like many topics in commercial insurance, due to bad habits acquired through the over reliance on insurance brokers or insurers or information providers who are lobbied by them. It is also important to note that insurance has both an operational aspect and a legal aspect, on which we put weights of 95% and 5% respectively in terms of importance to protecting a business and its investors (the point is that going to court to enforce coverage defeats the purpose of buying insurance, so you want to make sure that whatever insurance you buy protects your business right and pays out fast on large losses).

construct of rep and warranty insurance
Most Business and Investors miscalculate the construct of rep and warranty insurance.

Rep and Warranty Insurance Market Updates (H1 2022)

As M&A activity slowed down considerably across North America, Europe and much of Developed Asia in Q1 and Q2 of 2022, so has demand for Rep and Warranty Insurance. This is likely to result in better premium structures for either Buyer or Seller during this year and potentially beyond. However, the M&A risk landscape is heightened to arguably near record levels, which could result in a larger set of claims this year and beyond. The successful payout of the rep and warranty insurance would depend on whether or not the Buyer or Seller were able to structure their policy to cover their relevant deal risks, as well as their ability to trigger their policy correctly in the event of a loss.

Reps And Warranties Insurance Canada

We are leaders in the Canadian market for the procurement of Rep and Warranty Insurance (RWI). Independently of brokers, insurers, or insurance lobbyists, we reword the RWI for best value to Buyer and Seller by boosting the insurance payout ratio, covering relevant deal risks, and reducing net cost which we contractually guarantee. At the advanced level, the reworded RWI can influence valuations and terms of the deal. Our team has ample experience in the Canadian market including RWI for cross border deals. We are expert RWI negotiators with insurance brokers, insurers, and legal and financial advisors. Contact us for more information.

Cost Of Rep And Warranty Insurance

As per the image above, the overall reps and warranties insurance cost is made up of the insurer's premium, the broker's commission, and counsel's underwriting fee. 1 to 1.5% of the limit of insurance is typically the rep and warranty insurance premium that can be negotiated on average across global jurisdictions. Jurisdictions with independent and active legal systems such as the US and Canada will be more expensive. Premium started off at 3%-4% in the early days of Rep and Warranty Insurance, however dropped over the years as more and more insurers entered the R&W insurance market, however it is subject to a minimum premium which varies from one insurer to another and depending on the jurisdiction. A minimum premium range of $50,000-$100,000 could be attained for a plain vanilla transaction in specific jurisdictions. In some jurisdictions, minimum premiums could be as high as $150,000-$200,000. Many international brokers charge a consulting fee of 50-75bps of the limit of insurance, in addition to their commissions earned on the insurance and in addition to the rep and warranty insurance premium, which can be negotiated or even waived depending on the transaction. Other brokers charge a minimum commission of $50,000. It is important to negotiate the broker's commission beforehand. Counsel's underwriting fee typically ranges between $40,000-$55,000, and that is typically non-negotiable.

Pros And Cons Of Rep And Warranty Insurance

Pros to the Buyer of R&W insurance include protection from a Seller’s breach of warranties, and Pros to the Seller of the insurance include liquidity upon sale especially if escrow capital is tied to the transaction at hand. Cons include cost for both the Buyer and Seller and the probability that the insurance does not pay out as intended. It is important to note however that the pros and cons of rep and warranty insurance largely depend on the nature of the transaction, and a detailed cost/benefit analysis must be done accordingly. More information is available.

It is important to identify and measure the relationship between rep and warranty insurance and the following for a more accurate cost/benefit analysis:

  • Purchase Price Adjustments;
  • Seller's representations and terms of Seller's escrow;
  • Buyer profile (ex. venture capital funds vs. private equity funds vs. corporate transactions, etc.);
  • Structure and evolution of the draft versions of the acquisition agreement including disclosure schedule;
  • Initial non binding indications including potential deal specific exclusions;
  • The underwriting process at the time procurement for RWI is made;
  • Access and transparency of data room;
  • Other.

Rep And Warranty Insurance Claims

There are not many claims, as a percentage of written policies, on rep and warranty insurance when it is sold by brokers without it being reworded by independent risk experts, and in some jurisdictions there are none, in spite of numerous theoretical loss scenarios being presented by insurance brokers to businesses. This makes the insurance highly profitable to insurers the way it is mostly sold through brokers, and contrary to the expectations of many. In fact, numerous law firms, private equity firms, and other buyers of rep and warranty insurance are at an information disadvantage when buying the insurance through brokers.

With that said the following are some observations from R&W claims data worldwide:

  • More than half of the claims occur within the first year of the policy;
  • The frequency of claims on mid-sized deals is much higher than large-sized deals;
  • Around a third of the claims in Europe are tied to tax matters;
  • Cyber claims have been trending higher year over year;
  • Accounting issues remain the largest source of large claims.

Rep And Warranty Insurance Providers 

Providers of R&W insurance include insurance brokers (such as Marsh, Aon, Willis, Lockton, etc.) and/or insurance companies (such as AIG, Everest, QBE, Chubb, Liberty, etc.). There are now numerous insurance brokers or insurers around the world acting as providers of this insurance. There are also advisors independent of brokers and insurers, just like ourselves, who negotiate with brokers to reword and trigger the rep and warrany insurance contract for best value to the insured.

Rep And Warranty Insurance Public Deals

R&W insurance on public deals can be done, however it is rare because of the fact that public deals are typically associated with more transparency and an easier and more accurate due diligence process. From a technical standpoint, rep and warranty insurance for public deals is encouraged especially for those companies whose growth is derived primarily from M&A.

Accounting For Rep And Warranty Insurance

Accounting for R&W insurance should be done based on the term of the insurance. In most instances, the term of such transactional liability insurance is for 3-6 years, which enables the amortization of the cost of rep and warranty insurance over the term of the insurance accordingly.

Retention In Rep And Warranty Insurance

This is negotiable depending on the nature of the transaction despite many sources outlining that a retention of 0.75% to 2% of the transaction value is applicable.

Misconceptions About Rep And Warranty Insurance

·     R&W insurance should be underwritten by lawyers (refer to Preamble);

·     RWI makes sense on most private transactions;

·     Insurance brokers will provide cost effective R&W insurance;

·     R&W insurance policies include standard terms and conditions that cannot be changed;

·     The coverage amount, or rep and warranty insurance limit, is typically and should be equal to 10% of a transaction’s price or valuation;

·     RWI is a high risk and unprofitable line of business to insurers;

·     Procurement of M&A insurance should be left solely to the financial sponsors;

·     It is best to use brokers and insurers from the Buyer's jurisdiction to offer rep and warranty insurance;

·     Various other misconceptions related to operational and insurance specific matters, contact us for more information.

Tax Treatment Of Rep And Warranty Insurance

The tax treatment of R&W Insurance should largely be the same as other types of commercial insurance in general while incorporating the dynamics of multiple insureds, and largely depends on the jurisdiction. That said, while cross border M&A transactions involve an added layer of complexity respecting the tax treatment of rep and warranty insurance (RWI), they also provide various tax loopholes to minimize the tax bill on RWI. It is best you consult an expert accountant on these matters.

Rep And Warranty Insurance At Signing Or Closing 

It is recommended that the procurement process of transactional liability insurance be initiated before a Letter of Intent (LOI) or Term Sheet is issued. The main reason being that the insurance should be reworded operationally by a risk expert, independently of insurance brokers or insurers, which is part of the risk due diligence process of the transaction. While R&W insurance can be procured even after a transaction is closed, that would create gaps in coverage and potentially produce higher premiums overall.

Rep And Warranty Insurance Asset Purchase

R&W Insurance can be used for asset purchases (aside from being used for stock purchases and other types of transactions).

Rep And Warranty Insurance Minority Investment 

R&W Insurance can be used for minority investments. Simply put, as long as there are representations and/or warranties made by one party to a transaction, then such transaction is technically insurable through rep and warranty insurance or transactional liability insurance.

Rep And Warranty Insurance vs Escrow

R&W Insurance is, to a fair extent, a substitute to escrow agreements. However, a detailed risk due diligence is required to identify the extent to which R&W insurance or transactional liability insurance can fully replace escrow agreements while releasing escrow capital. Just like any type of commercial insurance, R&W insurance entails Insurance Basis Risk (the risk that the insurance does not perform as intended). That said, the input of legal experts is also required in this matter to cover the non-operational legal issues tied to escrow.

Rep And Warranty Insurance Fundamental Reps 

R&W Insurance typically provides coverage on fundamental reps for up to 6 years (as opposed to 3 years for non-fundamental reps).

Frequently Asked Questions (FAQ)

How Does Rep And Warranty Insurance Work? 

First, terms of a R&W Insurance should be drafted upon setting eye on a specific transaction preferably before an LOI is issued as part of the risk due diligence process. As the transaction progresses, a risk expert would negotiate with insurance brokers the desired terms of rep and warranty insurance. Upon a bindable quote being delivered by the insurance broker, insurance terms can be incorporated into the deal process including waiving the need for escrow capital if applicable, and with related amendments to the Purchase Sale Agreement or M&A agreement. Please note that this process could even impact valuations depending on the transaction. Once terms are finalized and the transaction agreement is signed, the insurance can be brought into force. When a loss happens that is insurable by the rep and warranty insurance, the risk expert would trigger the insurance for effective payout (the broker is largely absent from the claims process).

Who Pays For Rep And Warranty Insurance?

It is the Buyer in an M&A transaction who pays for the rep and warranty insurance premium most of the time. However, there are various instances when the premium is either shared between Buyer and Seller, or when the Seller picks up the bill. Technically, any party who has a vested interest in the transactional liability insurance can pay for its premium, this could include advisors.

What Does Rep And Warranty Insurance Cover?

R&W Insurance covers breaches in representations and warranties made within a Purchase Sale Agreement or M&A agreement or other transactional agreement. The insurance can also be reworded to cover core operational risk of the transaction at hand.

Who Buys Rep And Warranty Insurance?

Buyers of R&W Insurance include one or more parties to an M&A transaction (Buyer and/or Seller) or to a financial transaction involving representations and warranties, escrow capital, and/or transactional risk that can be hedged.

How Much Does Rep And Warranty Insurance Cost? 

The cost of rep and warranty insurance is between 1% and 1.5% of the amount of insurance sought, which can be negotiable. For example, if $10,000,000 in insurance protection is sought, then the rep and warranty insurance premium will be around $100,000-$150,000. Please refer to the section above ‘Cost Of Rep And Warranty Insurance’.

Popular Searches Online

Rep And Warranty Insurance M&A 

It is now more and more common to see M&A transactions include R&W insurance, which has been more recently driven by Sellers who are looking to relieve themselves from liability post-close while releasing any capital tied to escrow. Every M&A transaction would have its own R&W insurance policy terms as the latter would include deal specific items (example: excluding liability emanating from a Buyer's use of unaudited financials to perform financial due diligence on a Seller for a specific M&A).

R&W Insurance Policy

It consists of different sections as is the norm with any commercial insurance policy such as an Insuring Agreement, Definitions, Exclusions, and other sections. However the R&W insurance policy is found to be more legally friendly than other forms of commercial insurance policies. It is important to review the R&W insurance policy word by word and negotiate the terms within to make for better insurance which could impact the terms within the corresponding Sale Purchase Agreement.

R&W Insurance Brokers

Any licensed insurance broker with agreements with R&W insurance providers can technically be the legal broker for a deal's R&W insurance. This includes local, regional, and international brokers.

Rep And Warranty Insurance Providers

In addition to the answer provided in the paragraph above, there are numerous insurance companies that underwrite rep and warranty insurance, including but not limited to Chubb, Liberty, AIG, and various Lloyd's syndicates. Contact us if you are looking to procure rep and warranty insurance, we are risk advisors independent of any rep and warranty insurance broker or provider, we make brokers compete for your business and reword the fine print of the rep and warranty insurance for best value to you, which we contractually guarantee.

Rep and Warranty Insurance Primer

While this article is meant to provide the audience with many of the things they need to know about rep and warranty insurance, the following articles and case studies can also serve as proxies and complements to a rep and warranty insurance primer:

Tagged under: