Private Fund Side Letters: Negotiating and Drafting Key Terms, Financing and Other Concerns

A live 90-minute premium CLE webinar with interactive Q&A


Wednesday, October 30, 2019

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, October 4, 2019

or call 1-800-926-7926

This CLE webinar will discuss the documentation of side letters between private fund managers and investment partners who need or demand terms which may vary from the underlying partnership agreement. The panel will examine most favored nation clauses, transfer rights, excusal rights, special reporting provisions, and other terms common to these arrangements. The panel will also discuss the potential administrative and legal ramifications associated with side letters which fund sponsors must consider before entering into side letters.

Description

Private fund side letters grant special rights and privileges that modify the terms of a fund's partnership agreement. They have become increasingly common in the fund formation process, often provided to seed or strategic investors, employees, friends, and family; to accommodate last-minute requests on the eve of the initial closing; or to address the needs of limited partners participating in subsequent closings without amending the partnership agreement.

Many prospective limited partners will negotiate most favored nation (MFN) provisions that permit the election of any benefits granted to other limited partners. MFN rights can significantly extend the fund's obligations. Fund managers and their counsel must determine whether an investor's terms are captured by MFN provisions when negotiating a side letter.

Other standard provisions may include transfer rights, excusal rights, limitations on fees, redemption rights, notice of redemptions by other investors, additional reps and warranties, additional due diligence or inspection rights, and enhanced reporting obligations. Care should be taken to ensure that such provisions are commercially appropriate and operationally practical for the fund and its manager. Counsel must consider side letters in the context of any credit facilities or co-investment arrangements.

Listen as our authoritative panel discusses the provisions typically found in private fund side letters, the motivations behind limited partner requests for side letters, and the potential legal and administrative issues they present for fund managers.

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Outline

  1. Introduction to side letters and circumstances under which they arise
  2. Common terms
    1. Most favored nation
    2. Transfers
    3. Excusal rights
    4. Enhanced reporting
    5. Other
  3. Factors to consider in a negotiation
    1. Co-investments
    2. Credit facilities
    3. Regulatory concerns
    4. Impact on fund management: need for consistency

Benefits

The panel will review these and other critical issues:

  • When are side letters typically requested in a fund-raise, and why are they often preferable to an amendment of the partnership agreement?
  • How do MFN rights impact the ability of the fund manager to negotiate side letters?
  • What are the most common points of contention concerning transfer rights? Excusal rights? Increased reporting obligations?
  • Why is an understanding of any existing or future fund financing arrangements necessary when entering into side letters?

Faculty

Posthuma, Matthew
Matthew (Matt) Posthuma

Partner
Ropes & Gray

Mr. Posthuma is a partner in Ropes & Gray’s private investment funds group in Chicago who focuses on the...  |  Read More

Additional faculty
to be announced.

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