A deck that names an asset has made a promise the structure must keep.

The first asset is the reason the fund can be raised, and the temptation to name it is strong. A named building, a named company, a photograph, a location and a rendering persuade a register in a way that "a logistics portfolio in three Gulf states, entitled land only" does not. A placement team that has watched a sovereign's committee lean forward at a photograph knows what the name is worth. Naming it has three consequences, each of which binds in a different document, and each of which is cheaper to read before the deck is drafted than after it has been shown to forty institutions in three states. The name converts the asset from a pipeline the manager hopes to buy into a representation the register relies on, and a representation is a promise the structure must then keep or answer for.

This note sets out the three consequences, in the placement regimes, in the seller's documents and in the constitution; what the intermediaries in each state do with a named asset; the confidentiality regimes of sellers, families and state bodies; the gap between the deck and the policy and who falls into it; the form that holds, which describes the seed by state; the data room and the consent to named disclosure; the rendering and the photograph; a comparison; a worked deck as a type; cases; what each party holds; the sequence; questions; terms; and what to read.

In the placement regimes

A statement about an asset in a memorandum or a presentation is a statement the placement regime reads as part of the offer, and every regime on the register reads it. The Kingdom's distributor files the offering documents with the regulator and conducts its own diligence on their accuracy, because the distributor is the offeror and the documents are its. Qatar's bank holds the full prospectus and takes a subscriber acknowledgement against it. Kuwait's licensed person files the marketing materials with its application. The centres' financial promotion rules require communications to be clear, fair and not misleading, with the misleading part tested against what a professional client would take the statement to mean.

If the asset is under option rather than held, the statement is true only with the option's conditions attached: its period and expiry, its price formula, its conditions precedent, the consents it depends on, the seller's consent to the naming, and the funding of the exercise. A deck that shows the asset as the fund's first acquisition and omits the conditions has misdescribed the offer in every state it was shown, and the misdescription is the distributor's, the licensed person's and the bank's as well as the manager's, which is why each of them will ask for the conditions before filing. The manager who did not want the conditions in the deck discovers that the intermediaries want them in the file, and that the file is what each regulator reads.

In the seller's documents

An option, an exclusivity or a contribution agreement carries a confidentiality clause, and the seller's consent to being named to a register is a separate matter from its consent to the option. The clause says what may be said about the asset, to whom and when, and it usually says nothing may be said to anybody but the buyer's advisers and financiers until completion. A landowner, a family or a company that learns its asset was shown to forty institutions without its consent has a breach to complain of and a reason to withdraw, and the withdrawal surfaces at the first close as a seed that is no longer there.

State counterparties are particular about this. A plot inside a masterplan, a concession, a usufruct from a state body each carries a confidentiality and a consent regime of its own, sometimes statutory, and a foreign platform's deck circulating in three countries with the state body's asset on the cover is read by the state body as a breach of the relationship rather than only of the clause. The relationship through which the asset reached the manager is the thing the firm holds, and a deck that breaches it has spent it.

In the constitution

A fund raised on a named asset has an investment policy whose first entry is that asset, whether or not the constitution says so, because the register subscribed to it. If the constitution carries a general policy and the asset falls away, the manager holds capital raised for one thing and a document permitting another. The investors' committee has a view; the side letters may have a view; and a holder that subscribed on the deck has an argument that its subscription was induced by a representation the constitution did not carry, which in the centres is an argument a court hears and in the onshore states is an argument the intermediary's regulator hears.

The gap between the deck and the policy is where the manager falls. A deck that promises and a constitution that permits are two documents that describe two funds, and the register holds the first while the manager runs the second.

What the intermediaries do with a named asset

The Saudi distributor asks for the instrument under which the asset is held or optioned, the seller's consent to the naming, and the conditions, and files them or declines to file the deck. The Kuwaiti licensed person reads the marketing materials against module eight's rules on statements about performance and prospects and asks for the conditions. The Qatari bank's compliance function reads the named asset as a representation the bank is making to its clients without responsibility for results, and asks the manager to warrant it. Each intermediary's question is the same: is this true, and can we file it.

The confidentiality regimes

A family's confidentiality is a clause and a relationship; the clause is in the heads of terms and the relationship is in the firm's hands. A company's is a clause with a board behind it and often a listing rule, where the company is listed, that governs what may be disclosed about a disposal. A state body's is a regime: procurement rules, the masterplan's own confidentiality terms, and in some states a law on the disclosure of state contracts. A seller in a regulated sector adds its regulator's view of disclosure before approval. Each is read before the deck is drafted, and the consent to named disclosure, where it can be obtained, is obtained in writing for a stated audience of classified persons and a stated form of words.

Why the name persuades, and why that is the problem

A name does three things to a register that a description does not. It lets the register's own advisers diligence the asset directly, which reassures a committee that would otherwise be underwriting the manager's judgement. It makes the return tangible: a building with a tenant, a parcel with a consent, a company with revenue. And it signals that the manager has access the register could not obtain itself, which is the manager's proposition. Each of those is why the name is wanted, and each is why the name is a representation: the register's diligence is diligence on a statement, the tangible return is a forecast on a statement, and the access is a claim about a relationship the seller has not consented to the register knowing about.

The persuasion is also the liability. A register that subscribed because of the name, and can show it did, has subscribed on a representation, and a representation that was not true in the form made, because the conditions were omitted, the consent was absent or the seller withdrew, is the basis of a claim in the centres and a finding onshore. The manager's interest is in a register persuaded by the policy, the seed's state and its own record, because those are things the manager controls and can keep true.

The intermediaries' diligence on the seed

Each intermediary's diligence on the offering documents includes the statements about the seed, and the diligence is specific. The distributor asks for the instrument, reads its conditions and its expiry against the offer period, reads the seller's consent clause, and asks whether the fund has the capital to exercise; a distributor that files a deck naming an asset the fund cannot buy has filed a misdescribed offer in its own name. The licensed person reads the marketing materials for statements about prospects and asks for the basis of each; a rendering is a statement about prospects. The bank's compliance function reads the named asset as a representation the bank is repeating to its clients and asks for a warranty from the manager, which the manager's own counsel will not let it give in terms the bank wants. Each intermediary's questions are the questions the regulator would ask, and a manager who has answered them in the structure paper answers them in a day.

The seller's advisers and the consent

A seller's consent to named disclosure is negotiated with the seller's advisers, and the advisers' concerns are predictable. They want the audience defined: classified persons, under a confidentiality undertaking, in a data room with access logged. They want the form of words defined: the asset's description, the instrument's state, and nothing about the seller's reasons for selling or the price basis. They want a right to withdraw consent on notice, and a period after withdrawal within which the disclosure is removed. They want the manager's confirmation that the disclosure will not be made in any onshore state in a form that state's rules treat as public. And for a state body, they want the consent to run through the body's own approval process, which has its own clock. A consent obtained on those terms is a consent that survives, and a deck shown before it is obtained is a disclosure the seller never agreed to.

Where it surfaces

At the distributor's diligence, when the instrument behind the named asset is asked for and its conditions do not match the deck.

At the seller's withdrawal, when the seller learns of the deck from a third party.

At the first close, when the seed is not in the vehicle and the register subscribed to it.

At the committee, when a holder produces the deck and reads the name against the constitution's general policy.

At the successor fund, when the same seller is asked for a second asset and remembers the first deck.

The cost of getting it wrong

A deck that misdescribed the seed costs the placement in every state it was filed, with the intermediaries' own exposure added to the manager's. A deck that breached the seller's clause costs the seed and the relationship, and the relationship was the access the platform was built on. A deck that promised what the policy does not carry costs a claim from every holder that can show reliance, and the claim is the difference between the fund they were promised and the fund they hold. The form that holds costs a harder first meeting and a longer second one. The structure paper carries the comparison, and a manager who has read it describes the seed by state.

The form that holds

The form that holds names the asset class, the market and the programme, and describes the seed by its state: under option, conditional, contributed, with the conditions and the dates. It names the asset itself only where the seller has consented in writing to that naming, to that audience, and where the statement in the deck is the statement in the option. It carries the same description in the memorandum, the presentation and the constitution's policy, so that what the register subscribed to and what the fund may do are the same thing. It states the funding of the exercise and the consequence of non-completion. That is less persuasive than a photograph and a name. It is what can be placed in every state on the register and what survives the seller's change of mind.

The data room and named disclosure

Where a seller consents to named disclosure, the disclosure is made in the data room rather than in the deck, to classified persons who have signed the fund's confidentiality undertaking, with the option's instrument beside the name. The deck describes the seed by state; the data room names it; the subscription documents describe it by state. The difference is that the data room's audience is known, classified and bound, and the deck's is whoever was in the room and whoever they forwarded it to. A seller's consent to named disclosure in a data room is easier to obtain than consent to a deck, because the seller's advisers understand the difference.

The rendering and the photograph

A rendering of a scheme not yet consented is a statement about the consent. A photograph of a parcel with a name is a statement about the holding. A map with a pin is a statement about the location that a competitor reads as well as a register. Each is tested under the promotion rules as a communication, and each is tested under the seller's clause as a disclosure. The form that holds uses the plate and the typology rather than the rendering and the name, and saves the rendering for the data room with the consent beside it.

By description · by consequence	Named and shown as held	Named with conditions	Described by state	Named in the data room only
Placement regimes	Misdescribed in every state	Accurate if complete	Accurate	Accurate; the deck describes by state
Seller's clause	Breached unless consented	Breached unless consented	Not engaged	Consented, to a bound audience
Constitution's policy	The deck promises what the policy may not carry	The policy must carry the seed	Aligned	Aligned
Register's position	Induced by a representation	Induced on stated conditions	Subscribed to a policy	Subscribed to a policy, informed on the seed
Persuasion	Highest	High	Lower	High, for the bound audience

A timeline, as a type

Month one: the option is signed with a confidentiality clause; the seller's advisers are asked for consent to named disclosure in a data room to classified persons, and the seller's board considers it. Month two: the deck is drafted describing the seed by state, read by counsel against the option, the clause and the policy, and filed with the intermediaries without a question. Month three: the seller's consent arrives, on the advisers' terms; the data room opens to classified persons under the undertaking, with the option beside the name. Month four: the approaches, in each state through its route; the deck shown; the data room accessed by eleven institutions whose access is logged. Month six: first close; the option exercised. Month eight: a competitor obtains the deck and learns the typology and the market. Year two: the successor fund; the same family offers a second parcel, because the first disclosure was made on the terms it agreed.

The constitution's policy, drafted to the seed

The policy that holds names the typology, the markets, the state of entitlement at entry and the programme, and carries a seed schedule as an annex: each seed asset described by state, with its instrument, its conditions, its expiry and its funding. The schedule is updated at each close and the register sees the update. The election is in the policy: if a scheduled seed is not acquired by its date, the committee is convened and the holders may elect to withdraw undrawn commitments by a stated majority, subject to the lender's consent where a facility exists. The policy also says what happens to a seed that completes late or on amended terms: the committee approves the amendment or the election is available. A policy drafted that way carries the deck's promise in the form the deck should have made it.

The structure paper's page

The structure paper carries a page listing every statement about the seed in every document: the deck, the memorandum, the subscription agreement, the constitution's policy and schedule, the data room index, the intermediaries' filings. Beside each statement is the instrument that supports it, the seller's consent where the statement names, and the placement regime's reading of it. A statement with no instrument beside it is struck. A name with no consent beside it is replaced by the state. The page is signed by counsel and by the placement team's head, and it is what the intermediaries' diligence, the committee's first meeting and a regulator's inquiry are each answered from.

Reading the rule for a continuation or a secondary

The same discipline governs a continuation vehicle's materials and a secondary sale's. A continuation's rolling holders are shown the asset they already hold, and the seller's clause is the old fund's own confidentiality provisions with its counterparties; a continuation deck that discloses a portfolio company's terms to a lead investor without the company's consent has breached them. A secondary sale's buyer is shown the fund's portfolio under the fund's confidentiality provisions, with the manager's consent, and a seller of units who sends a buyer the fund's asset schedule without it has disclosed what the constitution kept confidential. The deck's rule is the fund's rule at every stage of its life: describe by state, name by consent, align the description with the document that governs.

A deck, as a type

A manager raising a land platform holds an option over an entitled urban parcel in a Gulf capital, from a family, with an expiry in twelve months and conditions on the registry's recording and the platform's first close. The deck describes "an entitled urban parcel in a Gulf capital, under a registered option to a stated date, exercisable from first close, funded from first close and a facility of a stated size; if the option is not exercised by the date, the policy continues on the pipeline and the holders may elect to withdraw undrawn commitments." The memorandum says the same. The constitution's policy names the typology and the market and carries the election. The family consents in writing to named disclosure in the data room to classified persons under the fund's confidentiality undertaking, with the option beside the name. The distributor, the licensed person and the bank file the deck without a question about the seed. The family withdraws for its own reasons in month nine; the documents described a state, not a name; the policy survives and the election is not triggered because a second parcel under option completes.

Four cases, as types

A deck names a waterfront parcel held on a usufruct from a state body, with a rendering of the scheme. The state body learns of the deck from an institution that was shown it, reads the rendering as a statement about a consent it has not given and the name as a breach of its confidentiality regime, and declines to grant the usufruct. The platform's seed is gone and its first investors are in, having subscribed to a rendering.

A deck names an operating company under exclusivity as "the platform's first acquisition". The exclusivity lapses. A holder that subscribed on the deck declines to fund its second call on the footing that the fund it subscribed to does not exist, and the constitution's general policy is no answer to a representation the holder can produce in the deck it was shown.

A deck describes the seed by state and the data room names it with the seller's consent. A competitor obtains the deck, learns nothing it can use, and the seller's relationship with the manager survives the raise.

A deck describes "an entitled urban parcel in a Gulf capital, under a registered option to a date, exercisable from first close", and names it only in the data room after the seller's written consent to named disclosure to classified investors. The seller withdraws for its own reasons; the fund's documents described a state, not a name, and the policy survives with the register's election available and not used.

What each party holds

The manager holds the description of the seed in every document, the seller's consent where named disclosure is made, the data room's audience and the alignment of the deck with the policy.

The seller holds the confidentiality clause, the consent it gives or withholds, and its relationship with the firm.

The intermediaries hold the diligence on the deck's accuracy in each state and the filing.

Counsel holds the reading of the promotion rules, the seller's clause and the constitution's policy against the deck.

The register holds the deck it was shown and the policy it subscribed to, and a claim where the two differ.

The sequence

1. Every asset statement in the deck is read against the option's terms, the seller's clause and the constitution's policy before the deck is shown.
2. The seed is described by state in every document, with the conditions, the funding and the consequence of non-completion.
3. The seller's written consent to named disclosure is obtained for a stated audience and form, or the asset is not named.
4. Named disclosure is made in the data room to classified, bound persons, with the instrument beside the name.
5. The memorandum, the presentation and the constitution's policy are aligned to one description.
6. The seller's consent and the intermediaries' diligence are kept in the placement file.

Questions a manager asks

Will a register subscribe without a name. A register of institutions subscribes to a policy, a seed described by state and a manager it trusts; one that will subscribe only to a name has described a different transaction, a club deal on that asset, and the structure is drawn to that instead.

Can the name be given orally in a meeting. An oral statement is a statement under every regime and a disclosure under the seller's clause, and a meeting is a room whose composition the manager controls or does not.

What if the seller wants to be named. Then the consent is in writing, for a stated audience and form, and the deck still describes the seed by state with the name in the data room.

Does describing by state weaken the placement. It lengthens the conversation and shortens the dispute. The intermediaries file it without a question; the register reads the state and asks about the conditions, which is the conversation the manager wants.

What about a rendering. A rendering is a statement about a consent; it belongs in the data room beside the consent position, or nowhere.

Who checks the alignment of the deck and the policy. Counsel, with the structure paper's page listing each statement about the seed in each document and the instrument behind it.

Terms used

Seed: the first asset a fund is raised around, in one of six states of access.

Representation: a statement of fact the register relies on in subscribing, which the placement regimes and the courts read.

Named disclosure: disclosure of the asset's identity, made with the seller's consent to a stated audience.

Data room: the controlled repository to which classified, bound persons are admitted.

State of the seed: relationship, heads of terms, option, exclusivity, conditional contract or contribution.

Election: the register's right under the constitution to withdraw undrawn commitments if the seed does not complete by a date.

What to read

The option, exclusivity or contribution agreement's confidentiality and consent provisions; each placement regime's accuracy and diligence requirements and the intermediaries' filing obligations; the centres' financial promotion rules on clear, fair and not misleading communications; the constitution's investment policy and any election. On this site, the marketing room under Jurisdictions, the access room on the Land door and the worked structure on seed terms.