Despite PE deals and strategies evolving beyond the traditional LBOs of yore, the industry has retained a steadfast commitment to certain stringent concepts in fund agreements. They include the actions GPs are allowed to undertake and how management fees are calculated in the time after the commitment period and until the end of the fund’s regular term (Phase II). As a result, managers are hamstrung in their deployment of cash during Phase II, and there is rampant ambiguity in management fee calculations that is drawing increased scrutiny from LPs and the SEC. In a guest article, Vinson & Elkins partner Robert Seber
addresses several issues that can arise under existing fund agreements and that sponsors should consider at the formation stage to avoid a midlife crisis upon entering Phase II. Among other concerns, the article explores a fund’s ability to make investments after the commitment period; the base for calculating the management fee after the commitment period when a portion of fund capital is intentionally reserved for investments; and the treatment of write-offs and write-downs of invested capital. For more on negotiating fund terms, see “Inflection Points in Negotiating PE Fund Core Economic Terms and Structuring GP‑Entity Carry Allocations to Incentivize Employees
” (Aug. 4, 2020); and “Can a Fund Manager Use a Force Majeure Provision to Extend a Fund’s Investment Period During the Coronavirus Pandemic?
” (Jul. 21, 2020).