W&I insurance has been prevalent in traditional M&A transactions for many years and its use as a risk allocation/mitigation tool is well established. On GP-led transactions, the use of W&I insurance is more nascent but is fast becoming an increasingly common feature of such transactions.
The value of W&I insurance from a liability perspective is obvious and is magnified in a GP-led continuation fund scenario where an existing fund managed by a GP gives warranties to a continuation fund managed by that same GP, often into which investors from the existing fund have reinvested alongside a secondary investor. W&I insurance is an effective solution to address liability exposure for the existing fund (and ultimately, its investors) and crucially, avoiding a circumstance where the continuation fund (managed by the same GP and often with overlapping investors) is required to make a breach of warranty claim against the existing fund.
W&I insurance has the added benefit of reducing both any holdback amounts from the purchase price (leading to earlier distributions for LPs) and the likelihood of a GP requiring an LP giveback to fund warranty claims from the continuation fund. Accordingly, it acts to smooth and increase the attraction of GP-led processes.
On concentrated or single asset deals which look more akin to M&A transactions, secondary investors may look for enhanced warranty protection by broadening out the traditional secondary fundamental set of warranties to also include operational warranties that would be typically found on an M&A transaction. W&I insurance is frequently being used to bridge misalignment between the greater level of warranty protection required by a secondary investor and the GP's desire to cap its liability.
Further, in single asset GP-led transactions where management of the underlying business are involved in the sale process (often, in circumstances where their MIP is being crystalised or re-cut) and giving warranties to the continuation fund, they will commonly look for W&I protection against recourse under the warranties, as they would if the sale were to a third-party managed fund.