A subscription credit facility, also frequently referred to as a capital call facility (a “Subscription Facility”), is a loan made by a bank or other credit institution (a “Lender”) to a private equity fund (a “Fund”).1 What distinguishes a Subscription Facility from other secured lending arrangements is the collateral package, which is comprised not of the underlying investment assets of the Fund but, instead, of the unfunded capital commitments (“Capital Commitments”) of the limited partners of the Fund (the “Investors”) to make capital contributions (“Capital Contributions”) when called from time to time by the Fund’s general partner (the “General Partner”).
As the Subscription Facility market continues to grow and mature,2 Lenders willing to include the widest range of Investors within the borrowing availability (the “Borrowing Base”) may enjoy a competitive advantage against Lenders that have a relatively more narrow set of Investors they will advance against, all things being equal. One way to potentially expand the borrowing capacity under a Subscription Facility is for a Lender to advance against more of the governmental Investors in the Fund and, in particular, governmental Investors that are public retirement systems (each a “System”).3
Historically, full Borrowing Base credit (typically a 90% advance rate) is given to Investors that are Systems with (a) a senior unsecured debt rating (or its equivalent) of BBB+ or better by Standard & Poor’s Financial Services LLC or Baa1 or better by Moody’s Investors Service, Inc., and (b) a minimum funding ratio4 above a specified threshold (typically 90% if the Investor’s rating is BBB+/Baa1 (or equivalent) and no minimum for Investors with higher credit ratings). These rating and funding ratio criteria are often referred to as the “Applicable Requirement” in a Subscription Facility. Where it can be established that a state, county, municipality or other governmental subdivision is ultimately responsible for the obligations of a System, a Lender can reasonably look past the System’s own credit profile and, instead, to the credit rating and quality of the responsible governmental entity in determining if the Applicable Requirement has been satisfied, or whether the System Investor otherwise merits inclusion in the Borrowing Base, perhaps at a lower advance rate (typically 60–65% of the unfunded Capital Commitment). Thus, establishing a credit linkage between a System and a creditworthy responsible governmental entity may provide a way for a Lender to get comfortable advancing against the unfunded Capital Commitment of a System Investor that would otherwise not satisfy the Applicable Requirement on its own. Below we outline a few alternate approaches and factors that a Lender may use to assess whether an adequate credit linkage exists between a System and a responsible governmental entity.
Overview of Public Retirement Systems
Systems are created and administered under the laws of a state (the “Plan Sponsor”) to provide pension and other retirement benefits to employees of governmental units such as states, cities and counties. Systems typically hold substantial reserves available for investment in a diverse array of financial products and often rely on significant investment returns to supplement the participating employee and employer contributions used to fund retirement benefits for the System’s participants.
A System can be organized to provide benefits for employees of a single governmental unit or employees of multiple governmental units. A single-employer system is a System that provides benefits for employees of only one governmental entity, often the Plan Sponsor. Some common examples of a single-employer System are those that provide benefits to retired state judges or state legislators. In such a System, the relevant state would be the only employer of the individuals covered by the System. A multi-employer system is a System that covers the employees of more than one governmental entity.5 An example of a multiemployer System is a System that provides retirement benefits to a state’s public safety personnel. Such a System may cover employees of many different governmental entities, such as state university police departments, county sheriffs’ departments and city fire departments.
The retirement benefits offered by a System may be structured in a variety of ways. Here, we will focus on Systems that are organized as defined-benefits Systems, where the employees covered by the System will contribute a statutorily determined percentage of their income during the term of their employment in return for a defined level of benefits during their retirement. Many states have constitutional protections safeguarding the pension benefits accrued by public employees during their careers.6 These constitutional provisions can prevent Plan Sponsors from reducing the level of benefits promised to public workers, causing Plan Sponsors to focus on ways to increase the System’s assets rather than reduce pension liabilities to ensure the financial health of the System.
Credit Linkage to Plan Sponsors
By demonstrating that a creditworthy governmental entity is ultimately responsible for the funding obligations of a System, a credit linkage analysis provides valuable underwriting information and may facilitate inclusion of a System in the Borrowing Base. Because the statutory regimes used to govern Systems are varied and often complex, a credit linkage review calls for a thorough analysis by counsel of multiple sources of state and local law, including state constitutions, statutes, ordinances and case law, as well as statements and financial reports issued by both the Plan Sponsor and the System. There are a number of ways that a Lender can attempt to link the credit rating of a System and its Plan Sponsor, some of which are quite direct while others are more attenuated. It is important to note, however, that the degree of connectivity between a System and its Plan Sponsor required to establish a sufficient credit linkage to permit inclusion of a System Investor’s unfunded Capital Commitments in the Borrowing Base will differ based on the preferences of the relevant Lender. We will focus on two of the more popular methods used to demonstrate such a credit link in more detail below.
PLAN SPONSOR’S ASSUMPTION OF LIABILITY OF SYSTEM’S INVESTMENT OBLIGATIONS
Perhaps the most straightforward way to establish a credit linkage is to research and locate a source of law that expressly provides that the Plan Sponsor is responsible for the liabilities of the System. In the best case scenario, such a law would expressly designate all of the System’s liabilities as direct obligations of the Plan Sponsor. In such a situation, a Lender can take comfort that the rated Plan Sponsor is ultimately responsible for funding the investment-related obligations of the System. The laws in this area, however, are seldom so clear, and a careful legal analysis will need to be undertaken to assess the extent to which the Plan Sponsor actually assumes the System’s liabilities. For example, the laws may provide that the Plan Sponsor assumes operational and administrative liabilities of the System but be silent as to investment liabilities or benefit obligations. This type of limited assumption of liability would likely not include the assumption of the System’s obligation to fund Capital Contributions to a Fund. Thus, a Lender may not be comfortable advancing against a System Investor in reliance on such a limited assumption of liability and may need to undertake a different analysis to establish whether an adequate credit link exists to include such an Investor in the Borrowing Base.
PL AN SPONSOR’S RESPONSIBILITY FOR FUNDING THE SYSTEM
When clear statutory or case law evidence does not exist to establish credit linkage, another method that can be used involves conducting an analysis of the sources of the System’s assets to ascertain the extent to which the Plan Sponsor is responsible for providing funds to the System vis-à-vis other participating employers. If the System primarily receives its funding (i.e., its assets) from the Plan Sponsor, it may be reasonable for a Lender to consider the credit worthiness of the Plan Sponsor as a primary factor in deciding whether or not it will advance against a System Investor. The purpose of this funding analysis is to determine the percentage of a System’s assets that is coming from the Plan Sponsor in relation to other sources, thus illustrating for each entity its level of responsibility for funding a System’s liabilities.
A System is often funded primarily by the three following sources: (i) employee contributions deducted from each participating employee’s salary, (ii) employer contributions required to be made under the law and (iii) investment gains earned through investment of the System’s reserves.7 According to data gathered in 2010 by the US Census Bureau, from 1995–2010, 68 percent of public pension fund receipts came from investment earnings, 11 percent came from employee contributions and about 21 percent came from employer contributions.8 Employer contributions are the only System assets that are funded directly from the coffers of Plan Sponsors; as such, the key task in conducting a funding responsibility analysis is to review applicable laws to determine the required annual employer contributions for each participating employer.
Once the amount each participating employer is required to contribute annually to a System has been determined, the next step in a funding analysis is to establish the percentage of employer contributions coming into the System that has historically come from each participating employer (including the Plan Sponsor) by reviewing the System’s financial, actuarial and other information. This information will help a Lender assess the degree to which the Plan Sponsor has been responsible for providing funds to the System that, when extrapolated, may give the Lender enough comfort that the Plan Sponsor will provide adequate assets to the System to fund Capital Contributions going forward so as to enable the Lender to include the System Investor in the Borrowing Base.
With respect to a single-employer System, the sole employer (i.e., the Plan Sponsor) would be the only governmental unit responsible for providing funds to the System, making a credit linkage easier to establish. When analyzing a multi-employer system, however, it can become significantly more challenging to establish a credit linkage between the System and its Plan Sponsor.
In some cases, the Plan Sponsor of a multiemployer System assumes responsibility for funding the employer contributions of some or all of the other participating employers. For example, the Illinois Teachers’ Retirement System is a multi-employer System consisting of approximately 1,000 governmental units, where approximately 95 percent of the employer-provided funding for the Illinois Teachers’ Retirement System is the responsibility of the State of Illinois.9
More typically, with respect to multi-employer Systems, each governmental unit participating as an employer in the System is only responsible for making a required employer contribution for its own employees. In this scenario, a funding analysis requires locating and reviewing the financial, actuarial and other information related to the System to determine the extent to which the Plan Sponsor is responsible for funding the System relative to other participating employers in order to establish the extent to which the Plan Sponsor is supporting the System.
An additional layer of complexity is added when a Lender is considering advancing against a public pension fund that holds assets of multiple Systems. This situation can arise when a state that sponsors multiple Systems seeks out ways to reduce the administrative burden of operating multiple Systems by creating, for example, a common pension fund that collects, pools and invests moneys received from several different Systems (a “Common Fund”).10 When such a Common Fund is established to facilitate investment activities, the funds of each System may be invested jointly, while the gains and losses of the Common Fund are allocated among each System on a pro rata basis. In this scenario, again, a funding analysis calls for locating and reviewing the financial, actuarial and other information related to the Common Fund and each System participating in the Common Fund to determine the extent the Plan Sponsor is responsible for funding the assets of each System and, ultimately, the Common Fund relative to other participating employers.
In deciding whether to advance against a System, in addition to a credit linkage analysis, there are other potential factors that a Lender may wish to consider and discuss with its counsel. For example, a Plan Sponsor of a System may have enacted a statutory regime that helps ensure that sufficient funds will be made available to the System for it to meet its liabilities.11 In such a case, a Lender may become more confident in the overall creditworthiness of the System and may become comfortable advancing against a System (perhaps at a lower advance rate and/or with tight concentration limits) despite the lack of credit linkage to the Plan Sponsor.
Lenders should also be aware of a Plan Sponsor’s ability to adjust the accrued liabilities of the System. As mentioned above, in many instances, System benefits are protected by state constitutional provisions. Certain states, such as Arizona, Illinois, Michigan and New Jersey, have pending cases relating to recently enacted pension reforms touching on this issue. These cases may have implications for the ability of Plan Sponsors in those states to limit their benefit liabilities as a means of managing the fiscal health of a System. As such, Lenders participating in the Subscription Facility market will want to consult with counsel familiar with these issues as they look to advance funds against Capital Commitments made by Investors that are Systems. Finally, it is important to note that, when a Lender is advancing against a governmental entity, it should consider the extent to which the entity may be able to use sovereign immunity defenses to impede enforcement of its contractual obligations in federal and/or state court.12
As the Subscription Facility market becomes increasingly competitive, a Lender’s ability to provide Borrowing Base credit for a greater number of a Fund’s Investors is one way for a Lender to distinguish itself from its competition. By analyzing the legal regime and publicly available financial and other information about a System and its sources of funding, a Lender may be able to establish sufficient credit linkage between a System Investor and a more creditworthy Plan Sponsor, facilitating inclusion of such an Investor in the Borrowing Base.
1 For a more detailed description of the subscription facility market and features of the subscription credit facility product in general, please see Mayer Brown’s Fund Finance Markets Legal Update “Summer 2013 Market Review.” on page 19.
2 For a discussion of key competitive and other trends in the Subscription Facility market, please see Mayer Brown’s Fund Finance Markets Legal Update “Winter 2013 Market Review.” on page 59.
3 For the sake of simplicity, we use the term “System” as encompassing both the legal entity established to administer pension benefits and the related retirement/ pension fund that holds assets in trust to pay liabilities.
4 In a Subscription Facility, a governmental plan Investor’s “funding ratio” is typically defined as the percentage obtained by dividing (i) the actuarial present value of the assets of the Investor by (ii) the actuarial present value of the plan’s total benefit liabilities.
5 The Plan Sponsor of a System does not necessarily have to be an employer of employees covered by the System. For example the Public School Teachers’ Pension and Retirement Fund of Chicago was created and is governed under the laws of the State of Illinois, but does not cover employees of the State of Illinois. For illustrative purposes, this article focuses on Systems that have Plan Sponsors participating as employers in the System.
6 For example, Article 13, Section 5 of the Illinois Constitution provides that membership in a pension system of any governmental unit in the state is “an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”
7 See “Public Pension Funding 101: Key Terms and Concepts,” Benefits Magazine, April 2013, pages 28-33, page 30.
8 NRTA and National Institute on Retirement Security, NRTA Pension Education Toolkit, Pension Contribution Requirements, 2011, Page 2.
9 Official Statement for $750,000,000 State of Illinois General Obligation Bonds, Series of May 2014, dated April 25, 2014, Page 66.
10 The Common Pension Funds established by the State of New of Jersey Department of the Treasury, Division of Investments are examples of Common Funds. The Division of Investments uses the Common Pension Funds to invest and manage the collective assets of seven different Systems: the Police & Firemen’s Pension Fund, the Judicial Retirement System, the Police & Firemen’s Retirement System, the Prison Officers Pension Fund, the Public Employees’ Retirement System, the State Police Retirement System and the Teachers’ Pension and Annuity Fund.
11 The laws and regulations related to the funding of the Missouri Education Pension Trust (the “MEPT”) serve as an interesting example of such a regime. The State of Missouri has established the MEPT to invest the assets of the School Retirement System of Missouri and the Public Education Employee Retirement System of Missouri. The State of Missouri does not guarantee the liabilities of the MEPT or assume responsibility for making employer contributions on its behalf, yet in recent years the employer contributions have been very high and often exceed the annual required contribution (determined in accordance with Governmental Accounting Standards Board accounting standards). This high rate of contribution may be due to the fact that if any employer fails to transmit the full amount of its actuarially required employee and employer contributions to MEPT, that employer will be responsible for twice the amount owed, and MEPT is empowered to bring suit against the responsible party to collect the funds, thus incentivizing the participating employers to stay current on their contributions. See Mo. Rev. Stat. § 169.030.2, Mo. Code. Regs. Ann. tit. 16 §10-2.010(6), Mo. Rev. Stat. § 169.620 and Mo. Code. Regs. Ann. tit. 16 §10-6.020(6).
12 For a more thorough analysis on sovereign immunity concerns related to Subscription Facilities, see Mayer Brown’s November 2012 Legal Update “Sovereign Immunity Analysis In Subscription Credit Facilities.”