Hedge funds have historically limited their participation in illiquid investments, preferring to match their investment horizon to the typical one-year lock-up periods that their investors agree to. However, many hedge funds have increasingly invested in illiquid assets in an effort to augment returns. For example, they have invested in private investments in public equity (PIPEs), acquiring large minority holdings in public companies. Their purchases of CDOs and CLOs (collateralized loan obligations) are also somewhat illiquid, since these fixed income securities are difficult to price and there is a limited secondary market during times of crisis. In addition, hedge funds have participated in loans, and invested in physical assets. Sometimes, investments that were intended to be held for less than one year have become long-term, illiquid assets when the assets depreciated and hedge funds decided to continue holding the assets until values recovered, rather than selling at a loss. It is estimated that more than 20% of total assets under management by hedge funds are illiquid, hard-to-price assets. This makes hedge fund asset valuation difficult, and has created a mismatch between hedge fund assets and liabilities, giving rise to significant problems when investors attempt to withdraw their cash at the end of lock-up periods.
Hedge funds generally focus their investment strategies on financial assets that are liquid and able to be readily priced based on reported prices in the market for those assets or by reference to comparable assets that have a discernible price. Since most of these assets can be valued and sold over a short period of time to generate cash, hedge funds permit investors to invest in or withdraw money from the fund at regular intervals and managers receive performance fees based on quarterly mark-to-market valuations. However, in order to match up maturities of assets and liabilities for each investment strategy, most hedge funds have the ability to prevent invested capital from being withdrawn during certain periods of time. They achieve this though “lock-up” and “gate” provisions that are included in investment agreements with their investors.
A lock-up provision provides that during an initial investment period of, typically, one to two years, an investor is not allowed to withdraw any money from the fund. Generally, the lock-up period is a function of the investment strategy that is being pursued. Sometimes, lock-up periods are modified for specific investors through the use of a side letter agreement. However, this can become problematic because of the resulting different effective lock-up periods that apply to different investors who invest at the same time in the same fund. Also, this can trigger “most favored nations” provisions in other investor agreements.
A gate is a restriction that limits the amount of withdrawals during a quarterly or semi- annual redemption period after the lock-up period expires. Typically gates are percentages of a fund’s capital that can be withdrawn on a scheduled redemption date. A gate of 10 to 20% is common. A gate provision allows the hedge fund to increase exposure to illiquid assets without facing a liquidity crisis. In addition, it offers some protection to investors that do not attempt to withdraw funds because if withdrawals are too high, assets might have to be sold by the hedge fund at disadvantageous prices, causing a potential reduction in investment returns for remaining investors. During 2008 and 2009, as many hedge fund investors attempted to withdraw money based on poor returns and concerns about the financial crisis, there was considerable frustration and some litigation directed at hedge fund gate provisions.
Hedge funds sometimes use a “side pocket” account to house comparatively illiquid or hard-to-value assets. Once an asset is designated for inclusion in a side pocket, new investors don’t participate in the returns from this asset. When existing investors withdraw money from the hedge fund, they remain as investors in the side pocket asset until it either is sold or becomes liquid through a monetization event such as an IPO. Management fees are typically charged on side pocket assets based on their cost, rather than a mark-to-market value of the asset. Incentive fees are charged based on realized proceeds when the asset is sold. Usually, there is no requirement to force the sale of side pocket investments by a specific date. Sometimes, investors accuse hedge funds of putting distressed assets that were intended to be sold during a one-year horizon into a side pocket account to avoid dragging down the returns of the overall fund. Investors are concerned about unexpected illiquidity arising from a side pocket and the potential for even greater losses if a distressed asset that has been placed there continues to decline in value. Fund managers sometimes use even more drastic options to limit withdrawals, such as suspending all redemption rights (but only in the most dire circumstances).