Can a Fund Manager Use a Force Majeure Provision to Extend a Fund’s Investment Period During the Coronavirus Pandemic?

There is no evidence that the governing documents of any private fund launched before the pandemic specifically address the effect of a global healthcare crisis on the contractual rights and obligations of the fund’s manager. That ambiguity has raised the question of whether a manager of an existing private fund can unilaterally extend a fund’s investment period based on the unanticipated effect of the coronavirus pandemic. In a guest article, Hirschler partner S. Brian Farmer evaluates different formulations of force majeure clauses in fund governing documents and what quantum of rights they afford fund managers to unilaterally extend a fund’s investment period to take advantage of opportunities during the pandemic. By extension, the article also offers guidance on drafting force majeure clauses in the future to afford fund managers maximum flexibility in the event of another global pandemic or other comparable crisis. See “Why Investors Should Revisit PE Fund Agreement Terms in the Wake of the Coronavirus” (May 19, 2020); and “When Do Force Majeure Clauses Excuse Performance?” (Apr. 21, 2020).

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