31/10/2024
End of Fund Life
Published in November, 2024 Summary and implications Attention is often given to new funds but it is important to remember the full funds cycle, through the investment phase to the end of a fund’s term. As a number of funds across the real assets universe come towards their termination date in the next two years fund managers and investors will focus on what to do. There can be several considerations at the end of the life of a closed ended fund, which we discuss along with some of the common issues below. What is “end of term”? Investment funds may be closed-ended (with a fixed term and limited liquidity) or open-ended (with an indefinite term and the ability to redeem). They may also differ in structure, such as an English limited partnership or a Luxembourg SCSp. They may invest in a variety of assets, including real estate or private equity. But does “end of term” really mean “end of term”?Not necessarily. It is likely that as a closed ended fund nears the end of its term, the fund manager will already have started to realise assets for the general benefit of the fund and as part of its investment strategy. However, it is also not uncommon that the fund will also hold a number of remaining assets. As such, it is likely that the fund manager and investors will discuss the future strategy of the fund in the light of current market conditions. The manager then decides the best course of action taking into account the investors’ requirements and acting in the best interests of the fund. Also, some investors may wish to realise their investment and see the fund wound up whilst others may prefer to extend the term and remain invested for a longer period. Is it the right time to sell? Considerations when winding up a fund include market conditions, debt maturity and refinancing costs. For funds where the market conditions have changed dramatically during the life of the fund there can often be a divergence of objectives at the scheduled fund termination. Fund managers typically have a duty to achieve the best returns for the investors as a whole but must analyse how to achieve this in light of the fund’s term, or if it is to be extended, the needs of investors who wish to exit. Investors may also disagree with a fund manager's proposed investment strategy during any period of extension and it is important to maintain an open and productive dialogue with investors to seek a workable solution. What do the documents say? The fund documentation will usually set out the timescale for implementing fund exits or extensions. Most funds include a limited amount of flexibility to allow the fund manager to extend the term of the fund; this is particularly useful when market conditions are not favourable or when a particular asset is not ready for sale. The fund documents should outline when the fund will terminate and set out the extent to which it may be extended. Although less common, some funds may even envisage an investor vote at the end of the initial term to extend for five or more years - this is when investors have the opportunity to renegotiate fund terms with the fund manager and those not wanting to extend have an option to exit. In challenging market conditions, managers may look to creating continuation funds. In cases where a manager may be unable to sell a problematic or distressed asset, they may choose to sell those assets from the fund being wound up to a new vehicle. Investors in the existing fund may either cash out on the sale of the relevant asset or choose to roll over their interest by taking an equity stake in the continuation fund. This has a number of considerations where the manager acts both sell-side and buy-side, and it is common when some investors are exiting and others continuing for such transactions to be subject to investor consent and independent valuation. Extension If the fund manager is looking to extend the fund, it must be clear about the purpose of any extension and what is permitted under the fund documents. Generally, managers will look to extend the term of the fund either to effect an orderly disposal of the assets or to enable the fund manager to continue with the implementation of an asset management strategy. The fund documents will set out what the manager needs to do in order to extend the term; typically managers are entitled to an initial one year extension at their own discretion, while any further extension (usually limited to a further one or two years) usually requires the consent of an investor representative committee. Extensions of the term of a fund beyond what is permitted under the fund documents will usually involve an element of structural change. This can be a tricky tightrope for fund managers to walk in order to achieve the best solution for all parties. Done well, it can cement some strong relationships, even for future funds. Changes to funds that investors may seek when extending the fund beyond what is contractually permitted include the following:Fees and carried interest: fund managers' fees, including performance fees or carry, are usually reduced and may be rebased. Investment strategy and borrowing: tightened to be prescriptive on the level of debt and other investment matters including a strategy on sales and exit. Closed- to open-ended: some funds when extended may give liquidity windows going forward to allow redemptions. Key persons: investors like to have named individuals responsible for the extension of the fund. Fund managers have reported that the process of engaging with investors can be challenging, particularly when they are faced with a divergence of investor requirements. Early engagement can be key as well as transparency, dealing with conflicts and familiarity with the terms of the fund documents. Winding up the fund If the fund has finally terminated (including any extensions) then there are a number of remaining issues for the fund manager to deal with:Ongoing liabilities: there will always be a risk of ongoing liabilities and a full accounting of potential or contingent liabilities should be provided for. On the sale of its assets (especially if they have been sold in corporate wrappers) funds seek to avoid giving warranties beyond the life of the fund. This may mean insurance is required for the benefit of buyers of the fund assets. This is now common for a buyer to obtain but may in some cases be arranged by the fund as seller. Other unforeseen risks could be ring-fenced in a fully funded separate vehicle that is owned by the manager but has no recourse to the investors. This is considered a risky strategy from the point of view of the manager. Reporting: the fund manager will continue to need to comply with regulatory requirements including investor reporting and disclosure obligations, tax reporting and accounting requirements. Supporting Services: the fund manager may still need services to the extent applicable for residual assets being realised, including custodian , accounting and any administrative services. Distributions and carried interest: distributions are usually subject to clawback from investors,but limited in time and amount. Clawback will also be likely to trigger a recalculation of any carried interest and should be avoided if at all possible. SPVs: keeping asset holding structures in place has cost implications and managers should look to wind up the special purpose holding vehicles to avoid paying for continued maintenance. Regulation: winding up any fund vehicle will depend on the type of vehicle but specific rules may apply. For example, winding up a UK fund which is a collective investment scheme is likely to be a regulated activity under the Financial Services and Markets Act 2000; local rules should be checked in the relevant jurisdiction where the fund is located or managed. Orderly liquidation: managers are responsible for securing an orderly and compliant liquidation process, including filing all statutory returns, book closure and investor communication. Care should be taken to ensure all local rules are followed, including notary public certification and notification formalities; managers should consult with their legal professionals to ensure all obligations are covered. Conclusion When people embark on new projects the end is often the last thing on their minds, but without clear provisions on how investors can exit or how the fund is to be wound up, parties will be left confused and dissatisfied. Early engagement as funds approach their end is key, communicating a clear plan to investors in order to maximise the chances of getting consent for the managers’ proposed strategy. The information contained in this publication is for general purposes and guidance only and does not purport to constitute legal or professional advice.
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