Presenting a live 90-minute webinar with interactive Q&A Private Equity Real Estate Fund Formation: Capital Raising, Regulatory Issues and Negotiating Trends Capital Contributions, Allocation of Profits/Losses, Clawbacks, Return of Capital, Fees, Conflicts of Interest, and More WEDNESDAY, MAY 16, 2018 1pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Ricardo J. Hollingsworth, Partner, Katten Muchin Rosenman, New York Heather L. Preston, Partner, Kilpatrick Townsend & Stockton, Atlanta Walter S. Weinberg, Partner, Katten Muchin Rosenman, Chicago The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1.
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Private Equity Real Estate Fund Formation
6 Agenda Overview of Real Estate Funds Structuring Issues and Tax Considerations Select Fund Terms Other Select Issues Other Tax Issues
7 Overview of Real Estate Funds Investment Strategy Core Core Plus Value Added Opportunistic Real Estate Asset Classes Equity v. Debt Similarities to Other Private Equity Funds
8 Real Estate Fund Formation Issues Structures Structure typically driven by mix of investors, their tax preferences and the investment strategy of the Fund U.S. Taxable Investors Tax-Exempt Investors Generally Pension Plans, IRAs, Educational Endowments (Unrelated Business Taxable Income (UBTI); Debt-Financed Property; Fractions Rule) Super Tax Exempt Investors State Pension Plans Foreign Investors Generally (FIRPTA, ECI, FATCA) Sovereign Wealth Funds
9 Real Estate Fund Formation Issues Structures Limited Partnership Sponsor GP U.S.Taxable; Super Tax Exempt Investors; Tax Exempt Investors* Investment Manager Carried Interest Management Fee Fund LP Property LLC Property LLC *Qualified Organizations can invest directly if Fund LP is fractions rule compliant
10 Real Estate Fund Formation Issues Structures LP with Corporate Blocker Sponsor GP U.S. Taxable; Super Tax Exempt; U.S. Tax Exempt U.S. Tax Exempt* Investment Manager Carried Interest US Corporate Blocker Management Fee Fund LP Property LLC Property LLC *Use of blocker by tax exempt will depend on whether LLC is fractions rule compliant.
11 Real Estate Fund Formation Issues Structures Series LLC/ Corporate Blocker Sponsor Manager, LLC US Taxable and Super Tax Exempt Debt Foreign; U.S. Tax Exempt* Foreign; U.S. Tax Exempt Debt Investment Manager Carried Interest US Corporate Blocker (Series 1) US Corporate Blocker (Series 2) Management Fee Series LLC Property LLC (Series 1) Property LLC (Series 2) *Use of blocker by tax exempt will depend on whether LLC is fractions rule compliant.
12 Real Estate Fund Formation Issues Structures Private REIT Sponsor GP LP Investors Investment Manager Carried Interest Fund LP 110 Preferred Investors Subsidiary REIT
13 Real Estate Fund Formation Issues Structures Private REIT Requirements 100 shareholders Ownership limitations 5 or fewer rule Annual Income Tests & Quarterly Asset Tests Required Annual Distributions Domestically Controlled REIT U.S. investors must own, directly or indirectly more than 50% of the value of all of the REIT shares Pension-Held REIT REIT that would not have qualified as a REIT if it is predominantly held by qualified trusts (more than 25% by a single qualified trust; or more than 50% owned by 1 or more qualified trusts owning more than 10% of value) Re-characterizes a portion of the income from an unrelated trade or business resulting in UBTI for pension funds owning more than 10% of the value of the REIT
14 Real Estate Fund Formation Issues Structures Investor Preferences Investor Type Rental Real Estate Fractions Rule Compliant (all passive) Taxable U.S. Investors Super Tax-Exempt State Government Plans Tax Exempt Qualified Organizations Tax Exempt IRAs; Other Charitable Rental Real Estate Non- Fractions Rule Compliant Operating Real Estate Business (Assisted Living Hotels) Dealer Property LP LP LP LP LP LP LP LP LP Blocker/REIT Blocker/REIT (w/trs) Blocker/REIT Blocker/REIT Blocker/REIT (w/trs) Blocker Blocker Foreign Blocker/REIT Blocker/REIT Blocker/REIT (w/trs) Blocker Sovereign Wealth Funds Blocker/REIT Blocker/REIT Blocker/REIT (w/trs) Blocker
15 Select Terms Fundraising Fund Cap Minimum Commitment prior to first closing Ensures viability of the Fund 12-18 months following first closing Extensions (LP Consent/Advisory Committee) Organizational Costs Cap Placement Fees, generally, excluded or paid only by LPs whose investments are subject to placement fees
Select Terms Investment Restrictions Portfolio Diversification Limits on % of Commitments invested in one asset Geographic Strategy Usually formulated as % commitments that may be invested in non- core assets Development deals No Blind Pool Investments May be waived with consent of LPs or Advisory Committee 16
17 Select Terms ECONOMICS Management Fee Carried Interest
18 Select Terms Management Fee Is it included in the LP s Commitment? 1-2% of Commitments Step Down to Invested Capital Typically, the management fee percentage remains the same, but the amount on which the management fee is computed changes When does the step-down occur? End of the Investment Period Time period (3-4 years from final closing); Earlier of expiration of time period and % of commitments called for investments and Fund expenses and reserved for follow-ons (65%-80%)
19 Select Terms Management Fee (continued) If a successor fund may be formed prior to the end of investment period, Sponsor is operating two funds collecting management fees on commitments. Earlier of Expiration of Investment Period or Successor Fund beginning to accrue Management Fees Invested Capital Are contributions for management fee and/or non-investment related Fund expenses included Is Leverage Included (Recourse to the Fund) Adjustments (written off/written down)
20 Select Terms Management Fee (continued) Management Fee Offset 100% Broken Deal and similar fees Excludes fees received by Affiliates of GP for providing development, leasing, construction and similar services Fees Received by Whom GP; Management Company; Employees Rollover, including upon winding up UBTI Concern
21 Select Terms Carried Interest Full Return or Investment-by-Investment Full Return Typically a Hurdle (6-9%); (True Preferred Return RE Funds do exist) Over What Time Frame Due date of capital call Due date of capital call if used for non-investment related Fund expenses and date invested if used to make an investment Which contributions are subject to the Hurdle All contributions or contributions used for investments
22 Select Terms Carried Interest (continued) GP Clawback Two-pronged clawbacks are standard After-tax based on an assumed tax rate Guarantee If no guarantee, an undertaking to cause the operating agreement of the GP to require recipients of the carry to severally agree to return pro rata portion Interim Clawback reduces need for guarantee
23 Select Terms Other Provisions Key Man Key Man Trigger (Who is covered. What is the devotion of time covenant (both amount and scope) What happens: Investment Period Suspension No capital calls for new investment Capital calls for in process investments, Fund expenses and liabilities (including borrowings), follow-ons (subject to a cap), investments requiring staggered contributions Who can approve qualified replacements (Advisory Committee or LPs)
24 Select Terms Other Provisions (continued) Duration of the suspension period (90-180 days) What happens at the end of the suspension period Automatic termination of investment period or resumption of investment period if LPs do not vote to terminate investment period prior thereto Tolling
25 Select Terms Other Provisions (continued) Deal Allocation Non-Tax Regulatory Issues affecting LPs BHC; ERISA; Public Pension Plans Ownership of the GP Indemnification and Exculpation Advisory Committee
26 Select Issues Investment Advisers Act Dodd-Frank Act Impact on Sponsors of Private Funds Definition of Investment Adviser under IAA Sponsors of private funds other than real estate funds generally fall under definition Significance of regulatory assets under management IAA Section 203(m)/Item 5.F of Form ADV (and Instructions) Generally a fund or account in a securities portfolio only if at lease 50% of its value is attributable to securities Exempt Reporting Adviser RAUM Less Than $150 Million Obligations of ERAs
27 Select Issues Investment Advisers Act (continued) Real Estate Fund Possible Alternative Investing in securities? Fee simple interests Subsidiary entities Joint ventures Interplay with exemption under Investment Company Act State registration issues To register or not?
28 Select Issues Investment Company Act Definition of investment company under ICA A private fund generally cannot operate within the strict restrictions imposed on an investment company registered under the ICA Exemption from registration under ICA for private equity fund is needed Common Exemptions - Section 3(c)(1) / Section 3(c)(7)
29 Select Issues Investment Company Act (continued) Section 3(c)(1) No public offering Less than 100 beneficial owners Knowledgeable employees Look-through rule
30 Select Issues Investment Company Act (continued) Section 3(c)(7) Qualified purchasers Natural persons/family companies - $5 million in investments Trust not formed for purpose of investment if trustee and settlor are qualified purchasers - $5 million in investments Any other person with at least $25 million in investments
31 Select Issues Investment Company Act (continued) Private Fund exemption All assets of a private fund are treated as a securities portfolio Section 3(c)(5)(C) real estate exemption Is real estate fund an investment company within meaning of ICA? Disclosure in Private Placement Memorandum
32 Select Issues Indebtedness Like other private equity funds, limitations on Fund indebtedness Subscription line indebtedness Unlike other private equity funds, limitations on portfolio indebtedness Property by property Aggregate property portfolio Incurrence test Treatment of guarantees recourse v. non-recourse Treatment of refinancings cost v. fair value Debt risk factors
33 Select Issues Conflicts of Interest Warehoused Investments Investment acquired by an affiliate of the Sponsor prior to the first closing of a Fund with the intention of being a Fund Investment The Fund purchases the Investment at acquisition cost plus interest Affiliated Transactions Affiliates of the Sponsor may provide property management, leasing, construction, design and similar services to investments of the Fund Compensation for such services are excluded from the management fee offset
34 Select Issues Conflicts of Interest (continued) How to price affiliated services Fee Schedule Arm s-length pricing as determined by the GP Cost-plus Rates approved by the Advisory Committee What if the affiliated service provider is a portfolio company of another fund managed by the Sponsor or an affiliate?
35 Select Issues Conflicts of Interest (continued) Employees of operating company affiliates providing services to a Fund investment may receive incentive and other performance-based compensation An expense of the Investment and not subject to management fee offset Disclosure of the Advisory Committee or LPs at least annually Cross-Fund ownership of an Investment
36 Tax Cuts and Jobs Act Interest Expense Deductibility Limitations New Section 163(j) limits U.S. business interest expense deductions to the sum of (i) business interest income and (ii) 30% of Adjusted Taxable Income Adjusted Taxable Income EBITDA for years beginning before January 1, 2022 EBIT for tax years beginning on or after January 1, 2022 Complexities in applying new rules to passthrough entities and additional reporting obligations.
37 Tax Cuts and Jobs Act Interest Expense Deductibility Limitations Electing Real Property Trade or Business may elect out of application of Section 163(j) and interest expense deductibility rules Real Property Trade or Business any real property development, redevelopment, construction, reconstruction, acquisition, conversion, rental, operation, management, leasing, or brokerage trade or business. Electing taxpayer required to depreciate real estate assets using a slower depreciation system Residential Real Estate 30 years versus 27.5 years Non-Residential Real Estate 40 years versus 39 years
38 Tax Cuts & Jobs Act Qualified Business Income Deduction Individual taxpayer allowed a deduction equal to 20% of their domestic qualified business income (QBI) from passthrough businesses (partnerships, S corporation, trust or estate) REIT ordinary dividends qualify for 20% deduction without regard to income and wage limitations Deduction is generally limited to the greater of: 50% of taxpayer s W-2 wages that are allocable to the QBI The sum of: 25% of taxpayer s W-2 wages, and 2.5% of the original purchase price of all qualified property (tangible depreciable property, including real property)
39 Tax Cuts & Jobs Act Carried Interest New Section 1061 requires that gain from the sale of assets held by an investment fund (including a real estate fund) for more than 3-years qualifies for long-term capital gain 3-year holding period requirement applies only to holders of applicable partnership interests applicable partnership interest is any profits interest issued to a service provider in any applicable trade or business applicable trade or business is any trade or business activity that consists in whole or in part, of (i) raising or returning capital and (ii) either (A) investing in or disposing of real estate held for rental or investment or (B) developing real estate held for rental or investment
40 Tax Cuts & Jobs Act Carried Interest 3-year holding period may apply to sales of applicable partnerships within three years of their issuance, but it is unclear Any transfer of an applicable partnership interest to certain persons triggers short-term capital gain to the extent such gain is attributable to assets held not more than 3-years. Applies to transfers: to a family member of the transferor; or a person who has performed services in any applicable trade or business for which the transferor performed a service within the current calendar yea or preceding 3 calendar years
41 Select Issues Miscellaneous CFIUS Authority of Limited Partner Advisory Committee
42 Thank You Ricardo J. Hollingsworth Katten Muchin Rosenman ricardo.hollingsworth@kattenlaw.com Heather L. Preston Kilpatrick Townsend & Stockton hpreston@kilpatricktownsend.com Walter S. Weinberg Katten Muchin Rosenman walter.weinberg@kattenlaw.com