简介
In the original Hedge Fund Agreements Line by Line, author Gregory J. Nowak took a standard operating agreement, broke it down step by step, and explained all parts of the venturefrom forming a company to liquidating assets and dissolving the partnership. This second edition is all new, re-written to deal with issues facing hedge funds in the current market environment, and takes into account the lessons learned from the market meltdown of 2008 to early 2009. It has an expanded valuation section that addresses FAS 157 and 157-4 issues, and a robust Designated Asset system that deals with side pockets and special assets in Master Feeder and single-strategy structures. The author has included a running commentary on the Model Operating Agreement of the ABC Fund, LLC, with a practitioners insights on why certain provisions are drafted the way they are. An indispensable tool for any hedge fund manager, this book offers a swift yet informative read on all legal aspects of forming and operating this investment vehicle.
目录
Foreward p. 11
Acknowledgements p. 13
Line-By-Line Analysis p. 15
Article 1 Definitions p. 17
1.1 Definitions p. 17
Article 2 Organization p. 36
2.1 Formation p. 36
2.2 Name p. 37
2.3 Principle Place of Business and Registered Office and Agent p. 37
2.4 Qualification in Other Jurisdictions p. 37
2.5 Term p. 38
2.6 Purpose p. 38
Article 3 Members p. 40
3.1 Names and Address p. 40
3.2 Limitation of Liability p. 40
3.3 Membership Interests p. 40
Article 4 Withdrawals p. 41
4.1 Withdrawal by Members p. 41
4.2 Cumpulsory Withdrawal p. 48
4.3 Consequences upon Withdrawal p. 48
4.4 Adjustment of Capital Accounts p. 50
4.5 Distribution upon Withdrawal p. 52
4.6 Member Manager p. 62
4.7 Costs of Withdrawal p. 64
4.8 Limitations on Withdrawal p. 64
4.9 Withdrawals Coinciding with the Dissolution of the Company p. 64
4.10 Suspension of Withdrawals p. 65
Article 5 Management p. 68
5.1 Management p. 68
5.2 Other Business Interests of the Member Manager p. 75
5.3 Binding Authority p. 77
5.4 Management Fee p. 77
5.5 Fees and Expenses p. 80
5.6 Agents and Consultants p. 84
5.7 Concurrent Status p. 84
5.8 Indemnification p. 85
5.9 Exculpation p. 86
5.10 The Investment Manager p. 87
5.11 Assets p. 88
5.12 Limitations on Powers of the Member Manager p. 89
5.13 Additional Rights of the Member Manager p. 90
5.14 Soft Dollar Arrangements p. 92
5.15 Good Faith Time and Attention of the Member Manager p. 96
5.16 Termination and Replacement of Member Manager p. 97
5.17 Advisers Act Assignment p. 98
Article 6 Capital Contributions p. 99
6.1 Initial Capital Contributions p. 99
6.2 Additional Contributions by the Member Manager p. 100
6.3 Additional Contributions by the Members p. 100
6.4 Determination of Capital p. 101
6.5 Form of Contribution p. 101
6.6 No Additional Contributions p. 101
6.7 Use of Capital p. 102
6.8 No Right to Specific Property p. 102
6.9 No Return of Capital Contributions or Interest p. 102
6.10 Grace Period for Contributions p. 102
6.11 Advances p. 102
Article 7 Allocations Of Gains and Losses; Distributions p. 103
7.1 Members' Accounts p. 103
7.2 Allocation of Net Profits and Net Losses; Performance Allocation p. 105
7.3 Tax Allocations p. 121
7.4 Special Allocations p. 122
7.5 Curative Allocations p. 127
7.6 Other Allocation Rules p. 128
7.7 Safe Harbor Election and Forfeiture Allocations p. 129
7.8 Distributions p. 131
7.9 Limitations on Distributions and Withdrawal Payments p. 133
7.10 Member Manager Tax Distributions p. 134
7.11 Interest on and Return of Capital Contributions p. 136
Article 8 Taxes p. 136
8.1 Elections p. 136
8.2 Tax Matters Partner p. 137
8.3 Tax Liability p. 137
8.4 Witholding Tax p. 138
8.5 Amendments for Tax Purposes p. 138
8.6 Prohibited Actions p. 138
Article 9 Transferability p. 139
9.1 Member Transfers p. 139
9.2 Transferee Not a Member: Substituted Members p. 141
9.3 Transfer of the Manger's Interest p. 142
9.4 Transferee's Agreement to be Bound p. 142
9.5 Opinions; Expenses; Other Conditions p. 142
9.6 Transferee's Capital Account p. 143
Article 10 Admission Of New Members p. 143
10.1 Issuance of Membership Interests; Admission of New Members p. 143
Article 11 Dissolution p. 148
11.1 Dissolution p. 148
11.2 Winding Up p. 151
11.3 Distributions upon Dissolution p. 151
11.4 Nonrecourse to Other Members p. 153
11.5 Distributions in Cash or in Kind p. 153
11.6 Certain Agreements to Continue p. 155
11.7 Use of Company Name After Winding Up p. 155
11.8 Termination p. 155
Article 12 Valuation Of Securities and Other Company Assets p. 156
12.1 Net Asset Value p. 156
12.2 Fair Value p. 158
12.3 Special Assets and the Use of Side Pockets p. 167
12.4 No Liability p. 171
12.5 Investment Manager's Determination in Binding p. 171
12.6 NAV Expressed in Dollars p. 171
12.7 Suspension p. 171
Article 13 General Provisions p. 172
13.1 Notices and Consents p. 172
13.2 Entire Agreement p. 173
13.3 Amendments; Other Actions of Member Manager p. 174
13.4 Reports to Members p. 176
13.5 Proprietary Information p. 177
13.6 Arbitration p. 177
13.7 Special Powers of Attorney p. 180
13.8 Insurance p. 182
13.9 Benefit Plans p. 183
13.10 Information Regarding Members and Accounts p. 184
13.11 Headings p. 185
13.12 Waiver p. 185
13.13 Severability p. 186
13.14 Binding p. 186
13.15 Counterparts p. 186
13.16 Governing Law p. 186
Appendix A p. 189
About The Author p. 199
Acknowledgements p. 13
Line-By-Line Analysis p. 15
Article 1 Definitions p. 17
1.1 Definitions p. 17
Article 2 Organization p. 36
2.1 Formation p. 36
2.2 Name p. 37
2.3 Principle Place of Business and Registered Office and Agent p. 37
2.4 Qualification in Other Jurisdictions p. 37
2.5 Term p. 38
2.6 Purpose p. 38
Article 3 Members p. 40
3.1 Names and Address p. 40
3.2 Limitation of Liability p. 40
3.3 Membership Interests p. 40
Article 4 Withdrawals p. 41
4.1 Withdrawal by Members p. 41
4.2 Cumpulsory Withdrawal p. 48
4.3 Consequences upon Withdrawal p. 48
4.4 Adjustment of Capital Accounts p. 50
4.5 Distribution upon Withdrawal p. 52
4.6 Member Manager p. 62
4.7 Costs of Withdrawal p. 64
4.8 Limitations on Withdrawal p. 64
4.9 Withdrawals Coinciding with the Dissolution of the Company p. 64
4.10 Suspension of Withdrawals p. 65
Article 5 Management p. 68
5.1 Management p. 68
5.2 Other Business Interests of the Member Manager p. 75
5.3 Binding Authority p. 77
5.4 Management Fee p. 77
5.5 Fees and Expenses p. 80
5.6 Agents and Consultants p. 84
5.7 Concurrent Status p. 84
5.8 Indemnification p. 85
5.9 Exculpation p. 86
5.10 The Investment Manager p. 87
5.11 Assets p. 88
5.12 Limitations on Powers of the Member Manager p. 89
5.13 Additional Rights of the Member Manager p. 90
5.14 Soft Dollar Arrangements p. 92
5.15 Good Faith Time and Attention of the Member Manager p. 96
5.16 Termination and Replacement of Member Manager p. 97
5.17 Advisers Act Assignment p. 98
Article 6 Capital Contributions p. 99
6.1 Initial Capital Contributions p. 99
6.2 Additional Contributions by the Member Manager p. 100
6.3 Additional Contributions by the Members p. 100
6.4 Determination of Capital p. 101
6.5 Form of Contribution p. 101
6.6 No Additional Contributions p. 101
6.7 Use of Capital p. 102
6.8 No Right to Specific Property p. 102
6.9 No Return of Capital Contributions or Interest p. 102
6.10 Grace Period for Contributions p. 102
6.11 Advances p. 102
Article 7 Allocations Of Gains and Losses; Distributions p. 103
7.1 Members' Accounts p. 103
7.2 Allocation of Net Profits and Net Losses; Performance Allocation p. 105
7.3 Tax Allocations p. 121
7.4 Special Allocations p. 122
7.5 Curative Allocations p. 127
7.6 Other Allocation Rules p. 128
7.7 Safe Harbor Election and Forfeiture Allocations p. 129
7.8 Distributions p. 131
7.9 Limitations on Distributions and Withdrawal Payments p. 133
7.10 Member Manager Tax Distributions p. 134
7.11 Interest on and Return of Capital Contributions p. 136
Article 8 Taxes p. 136
8.1 Elections p. 136
8.2 Tax Matters Partner p. 137
8.3 Tax Liability p. 137
8.4 Witholding Tax p. 138
8.5 Amendments for Tax Purposes p. 138
8.6 Prohibited Actions p. 138
Article 9 Transferability p. 139
9.1 Member Transfers p. 139
9.2 Transferee Not a Member: Substituted Members p. 141
9.3 Transfer of the Manger's Interest p. 142
9.4 Transferee's Agreement to be Bound p. 142
9.5 Opinions; Expenses; Other Conditions p. 142
9.6 Transferee's Capital Account p. 143
Article 10 Admission Of New Members p. 143
10.1 Issuance of Membership Interests; Admission of New Members p. 143
Article 11 Dissolution p. 148
11.1 Dissolution p. 148
11.2 Winding Up p. 151
11.3 Distributions upon Dissolution p. 151
11.4 Nonrecourse to Other Members p. 153
11.5 Distributions in Cash or in Kind p. 153
11.6 Certain Agreements to Continue p. 155
11.7 Use of Company Name After Winding Up p. 155
11.8 Termination p. 155
Article 12 Valuation Of Securities and Other Company Assets p. 156
12.1 Net Asset Value p. 156
12.2 Fair Value p. 158
12.3 Special Assets and the Use of Side Pockets p. 167
12.4 No Liability p. 171
12.5 Investment Manager's Determination in Binding p. 171
12.6 NAV Expressed in Dollars p. 171
12.7 Suspension p. 171
Article 13 General Provisions p. 172
13.1 Notices and Consents p. 172
13.2 Entire Agreement p. 173
13.3 Amendments; Other Actions of Member Manager p. 174
13.4 Reports to Members p. 176
13.5 Proprietary Information p. 177
13.6 Arbitration p. 177
13.7 Special Powers of Attorney p. 180
13.8 Insurance p. 182
13.9 Benefit Plans p. 183
13.10 Information Regarding Members and Accounts p. 184
13.11 Headings p. 185
13.12 Waiver p. 185
13.13 Severability p. 186
13.14 Binding p. 186
13.15 Counterparts p. 186
13.16 Governing Law p. 186
Appendix A p. 189
About The Author p. 199
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