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XA Investments LLC (“XAI”) SUBSCRIPTION SERVICE TERMS AND CONDITIONS

These XAI Subscription Service Terms and Conditions (the “Terms”) together with the applicable subscription order form or invoice (the “Order Form”, collectively with the Terms, the “Agreement”), set forth the terms and conditions governing the access to and use of the Service by the licensee entity set forth in the Order Form (the “Licensee”). The term “Service” means certain compiled data, content, and information, documentation, and functionality provided by XAI to Licensee through a subscription service and further described in the Order Form. The term “Order Form” includes any electronic order form made available to Licensee by XAI for the Service.

BY EITHER EXECUTING AN ORDER FORM THAT REFERENCES these terms OR ELECTRONICALLY ACCEPTING THIS AGREEMENT BY CLICKING A BOX INDICATING ACCEPTANCE, LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT and REPRESENTS AND WARRANTS THAT (a) THEY ARE OF LEGAL AGE AND CAPACITY TO ENTER INTO A BINDING AGREEMENT; AND (b) IF LICENSEE IS A LEGAL ENTITY, THAT THEY HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE WITH THE TERMS OF THE AGREEMENT, LICENSEE MAY NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

  1. ACCESS RIGHTS. During the Term, and subject to and conditioned on Licensee's payment of the applicable license fee and compliance with these Terms, XAI hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable right to access and use the Service solely for Licensee’s internal business purposes (the “Permitted Use”). Access to the Service may be subject to registration of a username and password by Licensee and its end users through XAI’s online registration systems. Licensee shall protect and keep confidential such access credentials and ensure that its end users do not share any access credentials with any other user or any other third party. Licensee is responsible for all activity occurring under such access credentials of Licensee and its end users.
  2. USE RESTRICTIONS. Except as provided herein, Licensee shall only use the Service for the Permitted Use and shall not disclose, release, distribute, or deliver the Service, or any contents, materials, or portion thereof, to any third party. Should Licensee wish to do any of the foregoing, Licensee may contact XAI to seek written permission for such use (which permission shall not be unreasonably withheld or delayed). Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (a) copy, modify, or create derivative works of the Service, in whole or in part; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source of the underlying data or content or methods used to compile the Service, in whole or in part; (d) remove any proprietary notices included within the Service; or (e) use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. Licensee understands and agrees that any use of the Service outside the scope of the Permitted Use (or as otherwise prohibited under this Agreement), including but not limited to, any use requiring publication, distribution, or disclosure of any component of the Service by Licensee requires, in each case, the prior written consent of XAI and attribution to XAI.
  3. LICENSE FEES. Licensee shall pay XAI the fees set forth in the Order Form (“Subscription Fees”) in accordance with the Order Form. If Licensee fails to make any payment when due, in addition to all other remedies that may be available: XAI may charge interest on the past due amount at the highest rate permitted under applicable law; and/or suspend access to the Service until all past due amounts and interest thereon have been paid (without incurring any obligation or liability to Licensee or any other person by reason of such suspension).
  4. TERM; TERMINATION.

    1. Term. This Agreement will commence on the Effective Date as set forth in the Order Form and shall remain in force and effect and renew automatically as set forth in the Order Form the (“Term”) unless and until terminated by either party earlier in accordance with these Terms.
    2. Termination. Either party may terminate this Agreement by providing written notice of non-renewal to the other party at least thirty (30) days prior to the expiration of the Term. Either party may terminate this Agreement (including any Order Form), effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. In addition, XAI may terminate this Agreement, effective immediately upon written notice to Licensee, if Licensee breaches any of the following Sections: 2 (“Use Restrictions”), Section 5 (“Intellectual Property”), or Section 6 (“Confidentiality”).
    3. Effect of Termination. Upon termination or expiration of this Agreement, the license granted herein will also terminate, and Licensee shall (a) cease using the Service, (b) delete, destroy, or return all Confidential Information of XAI; and (c) certify such return or destruction upon request by XAI. Except where otherwise indicated in this Agreement, no expiration or termination will affect Licensee's obligation to pay all Subscription Fees that may have become due before such expiration or termination or entitle Licensee to any refund. Any rights, obligations, or required performance of the parties in this Agreement which, by their express terms or nature and context are intended to survive termination or expiration of this Agreement, will survive any such termination or expiration, including the rights and obligations set forth in this Section 4.3, Section 3 and Sections 5-9.
  5. INTELLECTUAL PROPERTY RIGHTS.

    1. Licensee acknowledges and agrees that, as between XAI and Licensee, XAI owns and shall own all right, title, and interest, including any and all intellectual property rights thereto, the Service and the Confidential Information, and all of their component data, information and materials (and all copies thereof made by Licensee or its end users hereunder). Licensee further acknowledges that: (a) the Service is an original compilation protected by United States copyright laws; (b) XAI has dedicated substantial resources to collect, manage, and compile the Service and its component data, information and materials; and (c) the Service constitutes trade secrets of XAI. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Service. XAI reserves all rights not expressly granted to Licensee in this Agreement.
    2. Except as otherwise set forth in this Section, Licensee is, and shall be, the sole and exclusive owner of all right, title, all documents, work product, and other materials that are delivered to Licensee hereunder or prepared by or on behalf of XAI in the course of performing custom services (“Custom Services”) as described in the Custom Service Scope of Work of the applicable Order Form (“Deliverables”). To the extent that any of the Deliverables do not constitute a "work made for hire" as such is defined in the U.S. Copyright Act, XAI hereby irrevocably assigns all right, title, and interest in and to the Deliverables, including all intellectual property rights therein, to Licensee. Deliverables shall not include the documents, data, know-how, methodologies, software, and other materials provided or used by XAI in connection with the Custom Services to the extent that such materials were developed or otherwise acquired before or outside the scope of the Custom Services under this Agreement (which shall constitute “XAI Background IP”). XAI hereby grants Licensee a limited, irrevocable license to any XAI Background IP to the extent incorporated in, combined with, or otherwise necessary for the use of the Deliverables.
  6. CONFIDENTIALITY. Licensee and XAI acknowledge that, in connection with the performance of this Agreement, they may each receive or be exposed to proprietary or confidential information of the other party (together with the data, information and materials that are provide as part of the Service, the “Confidential Information”). The restrictions of this Section will not apply when, and to the extent that, Confidential Information (a) is publicly known at the time of a proposed disclosure without a breach of these Terms, (b) is provided on a non-confidential basis by a third party that is not itself under any confidentiality obligation with respect to the Confidential Information, (c) is previously known by the receiving party free of any obligation to keep it confidential, or (d) is independently developed by the receiving party without use of or reference to the Confidential Information. The parties will maintain and protect the confidentiality of the Confidential Information and will not disclose the Confidential Information or use it for any purpose not expressly authorized hereunder. The parties shall use reasonable legal, organizational, physical, administrative, and technical measures and security procedures to safeguard and ensure the security of the Confidential Information and to protect it from unauthorized access, disclosure, duplication, use, modification, or loss.
  7. INDEMNIFICATION. Licensee will indemnify and hold harmless XAI and its agents from and against any and all losses, liabilities, damages and claims, and all related costs and expenses (including without limitation reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties), arising from or in connection with Licensee’s negligence, willful misconduct, or breach of any representation or warranty under this Agreement Licensee’s or its end users’ use of the Service. Licensee will pay or reimburse all costs that may be incurred by XAI in enforcing this indemnity, including (without limitation) attorneys’ fees.
  8. DISCLAIMERS; LIMITATION OF LIABILITY.THE SERVICE IS PROVIDED "AS IS" AND ON AN “AS AVAILABLE” BASIS. XAI HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. XAI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. XAI MAKES NO WARRANTY OF ANY KIND AND ASSUMED NO OBLIGATION TO ENSURE THAT THE SERVICE, OR ANY DATA, INFORMATION AND MATERIALS, OR RESULTS OF ITS USE, WILL MEET LICENSEE'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, UP-TO-DATE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. LICENSEE UNDERSTANDS THAT THE SERVICE (AND ALL DATA, INFORMATION AND MATERIALS PROVIDED IN CONNECTION WITH THE SERVICE) ARE BEING PROVIDED FOR INFORMATIONAL PURPOSES ONLY. LICENSEE AGREES THAT XAI IS NOT PROVIDING THE SERVICE OR ANY SUCH DATA, INFORMATION OR MATERIALS AS, AND NO COMPONENT OF THE SERVICE SHALL NOT CONSTITUTE ANY, LEGAL, TAX, INVESTMENT, FINANCIAL OR OTHER PROFESSIONAL OR NON-PROFESSIONAL ADVICE. ALL USE OF THE SERVICE, AND SUCH DATA, INFORMATION AND MATERIALS IS AT LICENSEE’S SOLE RISK. IN NO EVENT WILL XAI BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER XAI WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL XAI'S AGGREGATE LIABILITY HEREUNDER EXCEED THE TOTAL AMOUNTS PAID TO XAI UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  9. MISCELLANEOUS. XAI may update or otherwise modify these Terms from time to time at its sole discretion; provided, however, that XAI shall provide Licensee with advance notice of material changes. The current version of the Terms as published at www.xainvestments.com shall be effective and shall supersede any prior versions. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising herefrom will operate or be construed as a waiver thereof. If any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. This Agreement does not appoint either party the agent of the other party, or create a partnership, joint venture or similar relationship between the parties, and neither party will have the power to obligate or bind the other party in any manner whatsoever. This Agreement will be governed by and construed under the laws of the State of Illinois, without reference to or application of the conflicts of law principles the application of which would cause the substantive laws of another jurisdiction to apply. Any and all disputes between the parties that cannot be settled by mutual agreement will be resolved solely and exclusively in the state and federal courts with jurisdiction over Chicago, Illinois. Any notice required or permitted by this Agreement shall be transmitted by personal service by hand, or certified mail, return receipt requested, to the other party at the applicable address set forth in the Order Form. This Agreement may not be assigned by Licensee without the express written approval of XAI. Licensee shall not, directly or indirectly, export, re-export, or release the Service or any component thereof to, or make the Service accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.
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Sustainable Investments: New Markets and Structures for Raising Capital

August 21, 2023

Sustainable managers, particularly those focused on illiquid alternative strategies, often seek out sources of permanent or semi-permanent capital. There are new markets for raising capital and trends in product structure that alternative asset managers may wish to consider. While these opportunities are not always widely known, they are already being utilized by a number of US sustainable managers to raise capital. One is the interval fund market in the US. A second is the London-listed fund market in the UK.

Kimberly Flynn, Managing Director of Alternative Investments at XA Investments, explained, “There are many advantages to both the London-listed fund and US interval fund for sustainable strategies. We spend a lot of time talking to asset managers about the pros and cons of each of these fund structures. A number of funds have launched in the US interval market which invest in sustainable infrastructure, real assets, or impact strategies.”

XA Investments recently organized an event hosted by the London Stock Exchange Group (LSEG) at its New York Customer Center on July 25th, 2023, exploring these capital raising pathways for US sustainable managers. In an afternoon marked by extreme, violent storms battering New York – a sign of climate change? – Flynn was joined by panelists who have first-hand experience with these product structures and markets:

  • • Wendy Huang, Senior Business Development Manager, Primary Markets Americas at LSEG
  • • Kate Moore, Managing Director and Chief Operating Officer at TortoiseEcofin
  • • Bob Zimardo, Partner, Investor Relations and Operations at International Farming

Panelists agreed that investor demand for sustainable strategies is growing, and managers are finding new ways to offer these strategies to investors. Yet both a London listing and launching a US interval fund involve nuances and complexities, which managers need to consider, and which require specialized expertise.

The London-listed fund market

The US-listed closed-end fund market is dominated by traditional asset classes and large managers, and IPOs are controlled by a syndicate of four large wirehouse firms. The London Stock Exchange (LSE), in contrast, is “a vibrant and robust market for smaller and middle market companies. We don’t directly compete with the NYSE,” said Wendy Huang of LSEG. “Companies are able to go public on the LSE at an early stage of growth, typically with lower cost, and under a more flexible regulatory regime.”

The investor base differs between the two markets as well, with the investor base for UK closed-end funds being primarily institutional rather than retail, as it is in the US. Pre-IPO test marketing is also permitted in the UK. There are approximately 15 UK broker firms, and the target raise is smaller than that of a US-listed CEF. The appetite for sustainable strategies in the UK is well ahead of that in the US. “Over the last decade, the majority of new listings on the markets have been for alts, and nearly half of these involved sustainable strategies,” Huang said. LSEG itself is supportive of sustainable strategies and is spearheading numerous initiatives related to financing the climate transition, including its Green Economy Mark and the creation of the Voluntary Carbon Market.

Kate Moore, COO of TortoiseEcofin, discussed her experience launching two London-listed funds and several US-listed closed-end funds. The manager’s sustainable strategies are housed under the Ecofin brand, which is focused on three themes: climate, water, and social impact. Ecofin’s first London fund is focused on listed infrastructure, and the more recent 2020-launched fund is focused on middle market, private equity investments in U.S. renewable energy assets. It aims to enable decarbonization efforts required for the energy transition by investing in long-lived renewable assets, such as wind and solar projects.

“When you put alternative and sustainable investments together, it made sense to explore a London listing,” said Moore. She found that listing in London was less resource intensive than listing a fund in New York, requiring fewer people and meetings. Test marketing was useful too, providing helpful feedback prior to IPO.

Moore also found that the UK was further along the sustainability journey than the US. Placing private assets in a closed-end fund structure was well understood by the market, upfront expenses were lower in the UK, and growth in assets could take place via follow-on equity raises. And because the London market isn’t dominated by a consortium of brokers, “we had more of a say in our destiny in terms of choosing a broker to get to market,” Moore said.

TortoiseEcofin maintains a London office. “This is helpful to meet UK institutional demand but is not a requirement,” Moore explained. “A lot of investors ask about your commitment level. They want to know your firm is engaged and value facetime with portfolio managers.”

International Farming has also been exploring the London-listed fund opportunity. The firm is a specialist real asset manager focused on farmland and agribusiness, based in North Carolina and founded by a seventh-generation farming family. Bob Zimardo, Partner, Investor Relations and Operations at International Farming, said, “Farmland is a nearly $4 trillion industry which is only 1% institutionally owned. Farm families are aging out and the next generation isn’t as interested in farming. The opportunity is a massive natural turnover in land. We need the ability to partner with farmers to secure food responsibly for a growing population and do so in a sustainable manner. Our thesis is to bring our expertise to that strategy and provide that opportunity for the investment community.”

International Farming already offers private commingled funds but wanted to bring its investment strategies to a broader investment audience, Zimardo said, hence London. “Through conversations with XAI and other market participants we learned there was an opportunity to scale our farmland strategy. We are making an investment on the assumption of being a London market participant for the long term through an eventual IPO.”

Listing in London brings with it an entire set of required new partners from brokers to legal to public relations. Zimardo said, “We relied heavily on XAI with respect to selecting the best partners. We spent a lot of time on upfront due diligence when deciding whom we would partner with. Without an advisor we would have had zero chance with our existing resources.” (Both International Farming and TortoiseEcofin have used XAI’s consulting services.)

The US interval fund market

US interval funds are another promising pathway for sustainable managers to raise capital. The fund structure is well-suited to illiquid strategies which cannot be housed in mutual funds. The investor base tends to consist of RIAs, family offices, and smaller institutions. Investors receive liquidity via a quarterly tender, unlike listed closed-end funds, which are exchange traded.

Flynn noted that not only has the US interval fund market been growing rapidly, but also an increasing number of managers are offering sustainable, alternative strategies using the interval fund structure. “In the interval fund market in the US, the focus has traditionally been on credit or real estate strategies. For the first time, we are seeing a focus on sustainable or impact strategies. This is a growing market.”

Moore explained some of the differences from a manager’s perspective between US interval funds and listed funds. “Seed capital is always important, but even more so in an interval fund. The interval fund involves more operational complexities, the prospectus is more involved, and it requires an independent board.”

With the US-listed closed-end fund market largely closed for new IPOs, it may benefit sustainable managers to consider the interval fund pathway to raising permanent capital.

Decisions… decisions…

The New York and London IPO markets are driven by capital markets and will periodically close. In contrast, the interval fund market is always open. Flynn says, “It takes 6-9 months to launch a listed IPO and you have to plan ahead. You have to get it ready and wait for the right moment, whereas the interval fund market is evergreen in nature.”

Listing in London or launching a US interval fund are often unfamiliar pathways for US managers attempting to raise capital. The regulatory, product and market knowledge required is immense. It is therefore important that managers partner with a firm who has expertise in each market and who can further advise on the best structure for a specific strategy.

XA Investments, through its registered closed-end fund structuring and consulting practice, serves clients in engagements ranging from full product builds to marketing services. XAI provides full product launch services, including management of the fund development, regulatory and board approval, distribution planning and offering timetable. XAI has expertise in registered closed-end funds including U.S.-listed CEFs, interval funds, tender offer funds and London-listed funds.

Disclaimer

The information in this publication is provided as a summary of complicated topics for informational and educational purposes and does not constitute legal, tax, investment or other professional advice on any subject matter. Further, the information is not all-inclusive and should not be relied upon as such.

Illiquid investments are designed for long-term investors who can accept the special risks associated with such investments. Interval and tender offer closed-end funds are not intended to be used as trading vehicles. Unlike open-end mutual funds, which generally permit redemptions on a daily basis, interval and tender offer closed-end fund shares may not be redeemable at the time or in the amount an investor desires. Listed closed-end funds frequently trade at a discount to the fund’s net asset value. All investments involve risks, including loss of principal. Investors considering an allocation to alternatives should evaluate the associated risks, including greater complexity and higher fees relative to traditional investments. Investors should carefully weigh the diversification benefits, expected returns and volatility of alternatives relative to traditional investments. Investments in alternatives involve risks, including loss of principal. Performance data quoted represents past performance. Past performance does not guarantee future results. Current performance may be lower or higher than performance data quoted. Diversification does not eliminate the risk of experiencing investment losses. You should not use this publication as a substitute for your own judgment, and you should consult professional advisors before making any investment decisions.

This publication may contain “forward looking” information that is not purely historical in nature, including projections, forecasts, estimates of market returns, and proposed portfolio compositions. There is no guarantee that any forecasts will come to pass. This information does not constitute a solicitation of an offer to sell and buy any specific security offering. Such an offering is made by the applicable prospectus only. A prospectus should be read carefully by an investor before investing. Investors are advised to consider investment objectives, risks, charges and expenses carefully before investing. Financial advisors should determine if the risks associated with an investment are consistent with their client’s investment objectives.

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