FINANCIAL SERVICES Securities Laws
PENSION FUNDS DNB/AFM
INVESTMENT MANAGEMENT AGREEMENTS
- Currently assisting a number of alternative investment fund managers in preparing license applications and other types of registrations with the Dutch Authority for the Financial Markets under the new Dutch regulations implementing the European Alternative Investment Fund Manager Directive (AIFMD), and advising on various compliance aspects.
- Recently assisted one of the larger Dutch pension funds with the selection of a new custodian bank and the subsequent negotiation of a global custody agreement. Before the pension fund made a final decision to continue the negotiations with one of the participants in the beauty contest on an exclusive basis, each of the candidates had already agreed to certain key legal aspects, which enabled the pension fund to take into consideration the willingness of the custodian to accommodate its legal concerns upfront, thereby avoiding unpleasant surprises later on in the process. The final custody agreement is in many respects unlike other custody agreements seen in the market in terms of providing an excellent legal position to the pension fund, and can serve as a model for custody agreements of other institutional investors for the modern (post financial crisis) age.
- Produced a template (tailor-made) investment management agreement (IMA) for an industry-wide pension fund and subsequently negotiated this template in parallel with the pension fund's eight existing discretionary asset managers. After agreement with these eight managers was reached, the pension fund subsequently terminated the existing IMAs. The background of this process was a letter that the pension fund regulator (the Dutch Central Bank) had sent to the boards of Dutch pension funds in 2013, in which the regulator expressed its discontent with the IMAs that pension funds had entered into over the previous years. By using its own template IMA, the client is able to demonstrate that it remains fully 'in control' after outsourcing its investment management functions. Moreover, the process resulted not only in IMAs that provide a far better legal position to the pension fund (including liability) than the IMAs that are now terminated, but are also more than 90% consistent, whereas the previously existing IMAs were based on each of the eight manager's templates and therefore very different. Hugo Oppelaar led the team.
- Advised an international hedge fund management group on setting up five new funds, which invest in various asset classes globally. Hugo Oppelaar drafted the fund documents, which are governed by Dutch law, and reviewed the non-Dutch law agreements in close cooperation with the Manager's local counsels in the relevant jurisdictions.
- Assisted a pension fund in its negotiations relating to two discretionary investment management agreements (IMAs) with US asset managers. This pension fund manages approx. €4 billion of assets of approx. 850,000 pension plan participants.
- Advised a pension fund on an investment of €5 billion in the largest Dutch asset pooling structure consisting of 14 funds for joined account managed by APG, the largest asset manager in the Netherlands. Hugo Oppelaar advised, inter alia, on the investment management agreement, the fund documentation and a complex derivatives trading structure.
- Advised an industry-level pension fund on all legal aspects relating to a new investment services agreement (ISA) between this fund and BlackRock. The agreement added approx. €8 billion to BlackRock’s total assets under management. The Financieele Dagblad (the leading Dutch financial newspaper) brought the news about the deal prominently on its front page under the heading “Power is shifting in the world of the management of pension billions”. Hugo Oppelaar led the team.
- Assisted one of the largest ETF and hedge fund managers in Europe in setting up a 'fund of hedge funds' for the Dutch retail market. Hugo Oppelaar prepared all fund documentation and coordinated the registration of the fund with the AFM.
- Advised a fiduciary asset manager on the appointment of PGGM (the second largest Dutch pension fund asset manager) as its investment adviser with respect to portfolios of three different illiquid asset classes (i.e. non-listed indirect real estate, private equity and infrastructure). At the same time Hugo Oppelaar represented this fiduciary asset manager on an amendment of the existing fiduciary asset management agreement between the manager and a pension fund.