Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner or other Person holding an Interest or portion of an Interest will have the right to withdraw or tender an Interest or portion of an Interest to the Partnership for repurchase. The Directors may, from time to time, in their complete and exclusive discretion and on terms and conditions as they may determine, cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, unless the Partnership has been advised by its legal counsel that more frequent offers would not cause any adverse tax consequences to the Partnership or the Partners. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tenders, the Directors will consider the following factors, among others: (1) whether any Partners have requested to tender Interests or portions of Interests; (2) the liquidity of the Partnership's assets (including fees and costs associated with withdrawing from Advisor Funds); (3) the investment plans and working capital and reserve requirements of the Partnership; (4) the relative economies of scale with respect to the size of the Partnership; (5) the history of the Partnership in repurchasing Interests or portions of Interests; (6) the availability of information as to the value of the Partnership's interests in the Advisor Funds and Advisor Accounts; (7) existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs; (8) the anticipated tax consequences to the Partnership of any proposed repurchases of Interests or portions of Interests; and (9) the recommendations of the General Partner. The Directors will cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders only on terms fair to the Partnership and to all Partners and Persons holding Interests or portions of Interests acquired from Partners.
Appears in 4 contracts
Samples: Limited Partnership Agreement (Hatteras Multi-Strategy TEI Fund, L.P.), Limited Partnership Agreement (Hatteras Multi-Strategy TEI Institutional Fund, L.P.), Limited Partnership Agreement (Hatteras Multi-Strategy Fund I, L.P.)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner or other Person holding an Interest or portion of an Interest will have the right to withdraw or tender an Interest or portion of an Interest to the Partnership for repurchase. The Directors may, from time to time, in their complete and exclusive discretion and on terms and conditions as they may determine, cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, Year unless the Partnership it has been advised by its legal counsel to the Partnership to the effect that more frequent offers would not cause any adverse tax consequences to the Partnership or the Partners. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tenders, the Directors will consider the following factors, among others:
(1) whether any Partners have requested to tender Interests or portions of Interests;
(2) the liquidity of the Partnership's assets (including fees and costs associated with withdrawing from Advisor FundsInvestment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve requirements of the Partnership;
(4) the relative economies of scale with respect to the size of the Partnership;
(5) the history of the Partnership in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the Partnership's interests in the Advisor Funds and Advisor AccountsInvestment Fund;
(7) existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the anticipated tax consequences to the Partnership of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General PartnerPartner and/or the Adviser. The Directors will cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders only on terms fair to the Partnership and to all Partners and Persons holding Interests or portions of Interests acquired from Partners.
(b) Except as provided in Section 4.5(c) of this Agreement, a General Partner may tender its Interest or portion of an Interest under Section 4.5(a) of this Agreement only if and to the extent that (1) the repurchase would not cause the value of the Capital Account of the General Partner to be less than the value required to be maintained under Section 5.1(c) of this Agreement or (2) in the view of legal counsel to the Partnership, the repurchase would not jeopardize the classification of the Partnership as a partnership for U.S. Federal income tax purposes.
(c) If a General Partner ceases to serve in that capacity under Section 4.1 of this Agreement (other than pursuant to Section 4.1(d)) and the business of the Partnership is continued in accordance with Section 6.1(a)(2)(B) of this Agreement, the former General Partner (or its trustee or other legal representative) may, by written notice to the Directors within 60 days of the action resulting in the continuation of the Partnership under Section 6.1(a)(2)(B), tender to the Partnership all or any portion of its Interest. Within 30 days after the receipt of notice, the Directors will cause the Interest or portion of an Interest to be repurchased by the Partnership for cash in an amount equal to the balance of the former General Partner's Capital Account or applicable portion of the Capital Account. If the former General Partner does not tender to the Partnership all of its Interest as permitted by this Section 4.5(c), the Interest will automatically convert to and will be treated in all respects as the Interest of a Limited Partner. If the General Partner ceases to serve in this capacity under Section 4.1 of this Agreement (other than pursuant to Section 4.1(d)) and the Partnership is not continued under Section 6.1(a)(2)(B) of this Agreement, the liquidation and distribution provisions of Article VI of this Agreement will apply to the General Partner's Interest.
(d) The General Partner may cause the Partnership to repurchase an Interest or portion of an Interest of a Limited Partner or any Person acquiring an Interest from or through a Limited Partner, on terms fair to the Partnership and to the Limited Partner or Person acquiring an Interest from or though such Limited Partner, in the event that the General Partner, in its sole discretion, determines or has reason to believe that:
(1) the Interest or portion of an Interest has been Transferred in violation of Section 4.4 of this Agreement, or the Interest or portion of an Interest has vested in any Person other than by operation of law as the result of the death, dissolution, bankruptcy, insolvency or adjudicated incompetence of the Limited Partner;
(2) ownership of the Interest or portion of an Interest by a Partner or other Person is likely to (A) cause the Partnership to be in violation of, or (B) (x) require registration of any Interest or portion of any Interest under, or (y) subject the Partnership to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest or portion of an Interest may be harmful or injurious to the business or reputation of the Partnership, the Directors, the General Partner or the Adviser or any of their Affiliates, or may subject the Partnership or any of the Partners to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Partner or other Person in connection with the acquisition of the Interest or portion of an Interest was not true when made or has ceased to be true;
(5) with respect to a Limited Partner subject to special regulatory or compliance requirements, such as those imposed by ERISA, the Bank Holding Company Act or certain Federal Communication Commission regulations (collectively, "Special Laws or Regulations"), such Limited Partner will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest or portion of an Interest; or
(6) it would be in the best interests of the Partnership, as determined by the General Partner or the Directors, for the Partnership to repurchase the Interest or portion of an Interest.
(e) Repurchases of Interests or portions of Interests by the Partnership will be payable promptly after the date of each repurchase or, in the case of an offer by the Partnership to repurchase Interests or portions of Interests, promptly after the expiration date of the repurchase offer in accordance with the terms of the repurchase offer. Payment of the purchase price for an Interest or portion of an Interest will consist of: (1) cash or a promissory note, which will be non-transferable and need not bear interest, in an amount equal to the percentage, as may be determined by the Directors, of the estimated unaudited net asset value of the Interest or portion of an Interest repurchased by the Partnership determined as of the date of the repurchase (the "Initial Payment"); and (2) if determined to be appropriate by the Directors or if the Initial Payment is less than 100% of the estimated unaudited net asset value, a promissory note, which may or may not be incorporated into the note applicable to the Initial Payment, entitling its holder to a contingent payment (the "Post-Audit Payment") equal to the excess, if any, of (A) the net asset value of the Interest or portion of an Interest repurchased by the Partnership as of the date of the repurchase, determined based on the audited financial statements of the Partnership for the Fiscal Year in which the repurchase was effective, over (B) the Initial Payment. Any obligation under such a promissory note with respect to the Initial Payment will be due and payable not more than 30 days after the date of repurchase or, if the Partnership has requested withdrawal of its capital from any Investment Funds in funding the repurchase of Interests, ten Business Days after the Partnership has received at least 90% of the aggregate amount withdrawn by the Partnership from the Investment Funds. Any obligation under such a promissory note with respect to the Post-Audit Payment will be due and payable promptly following the preparation of the applicable audited financial statements. Notwithstanding anything to the contrary in this Section 4.5(e), the Directors, in their discretion, may cause the Partnership to pay all or any portion of the repurchase price in Securities in kind (or any combination of Securities in kind and cash) having a value, determined as of the date of repurchase, equal to the amount to be repurchased. All repurchases of Interests or portions of Interest will be subject to any and all conditions as the Directors may impose in their sole discretion. The General Partner may, in its discretion, cause the Partnership to repurchase a Limited Partner's entire Interest, if the Limited Partner's Capital Account balance in the Partnership, as a result of repurchase or Transfer requests by the Limited Partner, is less than $250,000 or such other minimum amount established by the General Partner from time to time in its sole discretion. Subject to the procedures of this Section 4.5(e), the amount due to any Partner whose Interest or portion of an Interest is repurchased will be equal to the value of the Partner's Capital Account or portion of such Capital Account, as of the effective date of repurchase, after giving effect to all allocations to be made to the Partner's Capital Account as of that date. If a Limited Partner's entire Interest is repurchased, that Limited Partner will cease to be a Limited Partner.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Morgan Stanley Institutional Fund of Hedge Funds Lp), Limited Partnership Agreement (Morgan Stanley Institutional Fund of Hedge Funds Lp)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner or other Person holding an Interest or portion of an Interest will have the right to withdraw or tender an Interest or portion of an Interest to the Partnership for repurchase. The Directors may, from time to time, in their complete and exclusive discretion and on terms and conditions as they may determine, cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, unless the Partnership has been advised by its legal counsel that more frequent offers would not cause any adverse tax consequences to the Partnership or the Partners. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tenders, the Directors will consider the following factors, among others:
(1) whether any Partners have requested to tender Interests or portions of Interests;
(2) the liquidity of the Partnership's assets (including fees and costs associated with withdrawing from Advisor Funds);
(3) the investment plans and working capital and reserve requirements of the Partnership;
(4) the relative economies of scale with respect to the size of the Partnership;
(5) the history of the Partnership in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the Partnership's interests in the Advisor Funds and Advisor Accounts;
(7) existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the anticipated tax consequences to the Partnership of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General PartnerPartner and/or the Investment Manager. The Directors will cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders only on terms fair to the Partnership and to all Partners and Persons holding Interests or portions of Interests acquired from Partners.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Hatteras Multi-Strategy Fund I, L.P.), Limited Partnership Agreement (Hatteras Multi-Strategy Fund II, L.P.)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner No Member or other Person holding an Interest or portion of an Interest acquired from a Member will have the right to withdraw require the Fund to redeem or tender an Interest or portion of an Interest to otherwise repurchase the Partnership for repurchase. Interest.
(b) The Directors may, Fund may from time to timetime repurchase Interests from Members in accordance with written tenders by Members at those times, in their complete and exclusive discretion those amounts, and on terms and conditions as they the Board of Directors may determine, cause the Partnership determine in its sole discretion. The Fund will not offer to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, unless the Partnership Fund has been advised by its legal counsel to the Fund to the effect that more frequent offers would not cause any adverse tax consequences to the Partnership Fund or the PartnersMembers. The Investment Manager and the Managing Member expect that they will recommend to the Board of Directors that the Fund offer to repurchase Interests from Members approximately six months after the Initial Closing Date (or, if such date is not the last day of a calendar quarter, the last day of that calendar quarter), and, after that date, quarterly, effective as of the last day of March, June, September and December. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tendersaccept such a recommendation, the Board of Directors will consider the following factors, among others:
(1) whether any Partners Members have requested to tender Interests or portions of Intereststo the Fund;
(2) the liquidity of the PartnershipFund's assets (including fees and costs associated with withdrawing from Advisor FundsInvestment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve requirements of the PartnershipFund;
(4) the relative economies of scale of the tenders with respect to the size of the PartnershipFund;
(5) the history of the Partnership Fund in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the PartnershipFund's interests in the Advisor Funds and Advisor AccountsInvestment Funds;
(7) the existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the any anticipated tax consequences to the Partnership Fund of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General Partner. Managing Member and/or the Investment Manager.
(c) The Directors Fund will cause the Partnership to repurchase Interests or portions of Interests from Members at net asset value in accordance with written tenders only on terms and conditions that the Board of Directors determines to be fair to the Partnership Fund and to all Partners and Members or Persons holding Interests acquired from Members. The net asset value of a Member's Interest will be calculated in accordance with the Fund's procedures as of the relevant Repurchase Date, after giving effect to all allocations that are made as of that date (including any Performance Allocation to the Special Member in respect of the Interest (or portions portion of the Interest) being repurchased). When the Board of Directors determines that the Fund will repurchase Interests, notice will be provided to Members, specifying the date on which repurchase requests must be received by the Fund (the "Notice Due Date"), describing the terms of the offer, containing information Members should consider in deciding whether to participate in the repurchase opportunity and containing information on how to participate. The Notice Due Date will be a date set by the Board of Directors occurring no sooner than 20 Business Days after the commencement of the repurchase offer and such date may be extended by the Board of Directors in its absolute discretion. Members deciding whether to tender their Interests during the period that a repurchase offer is open may obtain the most recently calculated net asset value of their Interests by contacting the Investment Manager during the period.
(d) The Fund expects to employ the following repurchase procedures, which procedures may be deviated from, varied or amended by the Board of Directors in their sole discretion upon notice to the Members:
(1) A Member choosing to tender an Interest for repurchase must do so by the Notice Due Date, which generally will be the 25th calendar day of the second month prior to the month in which the Repurchase Date falls (or, if such date is not a Business Day, the preceding Business Day).
(2) Promptly after the Notice Due Date, the Fund will give to each Member whose Interest has been accepted for repurchase a promissory note (the "Promissory Note") entitling the Member to be paid an amount equal to the net asset value, as of the Repurchase Date, of the repurchased Interest. The determination of the value of Interests acquired as of the Repurchase Date is subject to adjustment based upon the results of the next annual audit of the Fund's financial statements.
(3) The Promissory Note, which will be non-interest-bearing and non-transferable, is expected to contain terms providing for payment at two separate times.
(4) The initial payment in respect of the Promissory Note (the "Initial Payment") will be in an amount equal to at least 95% of the net asset value of the repurchased Interest as of the Repurchase Date less any Repurchase Fee due to the Fund in connection with the repurchase. The Initial Payment will be made on or before the later of (i) 30 days after the Repurchase Date, or (ii) if the Fund has requested withdrawals of its capital from Partnersany Investment Funds in order to fund the repurchase of Interests, ten Business Days after the Fund has received at least 95% of the aggregate amount withdrawn by the Fund from the Investment Funds.
(5) The second and final payment in respect of the Promissory Note (the "Post-Audit Payment") is expected to be in an amount equal to the excess, if any, of (i) the net asset value of the repurchased Interest as of the Repurchase Date and based upon the results of the annual audit of the Fund's financial statements for the year in which the Repurchase Date occurs, less any Repurchase Fee due to the Fund in connection with the repurchase, over (ii) the Initial Payment. The Managing Member anticipates that the annual audit of the Fund's financial statements will be completed within 60 days after the end of each Fiscal Year of the Fund and that the Post-Audit Payment will be made promptly after the completion of the audit.
(e) In the event that the Managing Member, the Special Member, the Investment Manager or any of their respective Affiliates holds an Interest in his, her or its capacity as a Member, the Interest may be tendered for repurchase in connection with any repurchase offer made by the Fund.
(f) If the Managing Member ceases to serve in that capacity under Section 4.1 of this Agreement (other than under Section 4.1(c) of this Agreement), the Board of Directors may, by written notice to the former Managing Member (or its trustee or other legal representative) within 60 days of the former Managing Member ceasing to serve as managing member of the Fund, require the former Managing Member to tender to the Fund its entire Interest on a date set out in the notice. On such date, the Board of Directors will cause the Interest to be repurchased by the Fund for cash at a valuation determined by the Board of Directors in accordance with Section 4.5(c) of this Agreement, and the former Managing Member will thereupon cease to be a Member.
(g) The Fund may repurchase an Interest of a Member or any Person acquiring an Interest from or through a Member without consent or other action by the Member or other Person if the Managing Member in its sole discretion determines that:
(1) the Interest has been Transferred or has vested in any Person other than with the consent of the Managing Member or by operation of law as the result of the death, divorce, bankruptcy, insolvency, adjudicated incompetence or dissolution of the Member;
(2) ownership of the Interest by a Member or other Person is likely to cause the Fund to be in violation of, or require registration of any Interest under, or subject the Fund to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest may be harmful or injurious to the business or reputation of the Fund, the Board of Directors, the Managing Member, the Special Member, the Investment Manager or any of their Affiliates, or may subject the Fund or any of the Members to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Member or other Person in connection with the acquisition of the Interest was not true when made or has ceased to be true;
(5) with respect to a Member subject to special regulatory or compliance requirements, such as those imposed by Employee Retirement Income Security Act of 1974, the Bank Holding Company Act of 1956 or certain Federal Communication Commission regulations (collectively, "Special Laws or Regulations"), such Member will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest; or
(6) it would be in the best interests of the Fund for the Fund to repurchase the Interest.
(h) A Member (other than the Managing Member or the Special Member) tendering for repurchase only a portion of the Member's Interest will be required to maintain a Capital Account balance of at least $50,000 after giving effect to the repurchase. If a Member (other than the Managing Member or the Special Member) tenders an amount that would cause the Member's Capital Account balance to fall below the required minimum, the Managing Member shall have the right to either (1) reduce the amount to be repurchased from the Member so that the required minimum balance is maintained or (2) repurchase the remainder of the Member's Interest in the Fund. The Managing Member may, in its sole discretion, cause the Fund to repurchase the entire Interest held by a Member (other than the Managing Member or Special Member) if the Member's Capital Account balance in the Fund, as a result of repurchase or Transfer by the Member, is less than $50,000. If the entire Interest of a Member (other than the Managing Member or Special Member) is repurchased, that Member will cease to be a Member.
(i) Repurchases of Interests from Members by the Fund may be paid, in the discretion of the Managing Member, in cash, or by the distribution of Securities in-kind or partly in cash and partly in-kind. The Fund, however, expects not to distribute Securities in-kind, except in the unlikely event that making a cash payment would result in a material adverse effect on the Fund or on Members not tendering Interests for repurchase. Any Securities distributed will be valued in accordance with this Agreement and will be distributed to all tendering Members on a proportional basis.
(j) The Fund may suspend or postpone a repurchase offer in certain limited circumstances, and only by a vote of a majority of the Board of Directors, including a majority of the Independent Directors. These circumstances include the following:
(1) for any period during which circumstances exist as a result of which it is not reasonably practicable for the Fund to dispose of Securities it owns or to determine the value of the Fund's net assets;
(2) for any other periods that the SEC permits by order for the protection of Members; or
(3) other unusual circumstances as the Board of Directors in its discretion deems advisable to the Fund and its Members.
(k) A fee (a "Repurchase Fee") will be charged by the Fund on any repurchase of an Interest from a Member at any time prior to the day immediately preceding the one-year anniversary of the Member's purchase of the Interest. Partial Interests will be repurchased on a "first in - first out" basis (in other words, the portion of the Interest repurchased will be deemed to have been taken from the earliest Capital Contribution made by such Member (adjusted for subsequent appreciation and depreciation) until that Capital Contribution is decreased to zero, and then from each subsequent Capital Contribution made by such Member (as adjusted) until such Capital Contribution is decreased to zero). Other than any Repurchase Fee, the Fund will not impose any charges in connection with repurchases of Interests. At the Managing Member's discretion, no Repurchase Fee will be charged by the Fund in connection with any repurchase of a Member's Interest under Section 4.5(g).
(l) A repurchase of a Member's Interest under Sections 4.5(g) or (h) shall be on terms and conditions as the Managing Member may determine in its sole discretion, provided that (1) valuation of the Interest shall be determined in accordance with Section 4.5(c), and (2) payment for the Interest shall be made no later than as provided under the Fund's then-current tender offer procedures.
(m) Notwithstanding any provision to the contrary contained in this Agreement, the Fund and the Managing Member on behalf of the Fund will not repurchase any Interest or make a distribution to any Member on account of the Member's Interest, if such repurchase or distribution would violate the Delaware Act or other applicable law.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Jp Morgan Multi-Strategy Fund LLC)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner or other Person holding an Interest or portion of an Interest will have the right to withdraw or tender an Interest or portion of an Interest to the Partnership for redemption or repurchase. The Directors may, from time to time, in their complete and exclusive discretion and on terms and conditions as they may determine, cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, unless the Partnership has been advised by its legal counsel that more frequent offers would not cause any adverse tax consequences to the Partnership or the Partners. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tenders, the Directors will consider the following factors, among others:
(1) whether any Partners have requested to tender Interests or portions of Interests;
(2) the liquidity of the Partnership's assets (including fees and costs associated with withdrawing from Advisor Funds);
(3) the investment plans and working capital and reserve requirements of the Partnership;
(4) the relative economies of scale with respect to the size of the Partnership;
(5) the history of the Partnership in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the Partnership's interests in the Advisor Funds and Advisor Accounts;
(7) existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the anticipated tax consequences to the Partnership of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General PartnerPartner and/or the Investment Manager. The Directors will cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders only on terms fair to the Partnership and to all Partners and Persons holding Interests or portions of Interests acquired from Partners.
(b) Each repurchase offer will be limited to the repurchase of approximately 5% of the Interests (but in no event to exceed the repurchase of more than 20% of the Interests per quarter). Interests are expected to be repurchased at their net asset value determined as of approximately June 30, September 30, December 31 and March 31, as applicable (each such date, a "Valuation Date"). Partners tendering Interests for repurchase shall provide written notice of their intent to so tender by a date to be specified by the General Partner, which date shall be approximately 65 days (but in no event less than 60 days) prior to the date of repurchase by the Partnership. Partners tendering their Interests may not have all such Interests accepted for repurchase by the Partnership. The Partnership may elect to repurchase less than the full amount a Partner requests to be repurchased. If a repurchase offer is oversubscribed, the Partnership will repurchase only a pro rata portion of the amount tendered by each Partner. The minimum value of a repurchase is $50,000, subject to the discretion of the General Partner to allow otherwise.
(c) The General Partner may permit repurchases at such other times and on such other terms as it may determine in its sole and absolute discretion, varying the requirements set forth in this Section 4.5; provided that such non-conforming repurchases may be subject to a penalty of up to 5% of the amount requested to be repurchased (to be netted against withdrawal proceeds).
(d) The Directors may under certain circumstances elect to postpone, suspend or terminate an offer to repurchase Interests.
(e) Except as provided in SECTION 4.5(F) of this Agreement, a General Partner may tender its Interest or portion of an Interest under SECTION 4.5(A) of this Agreement only if and to the extent that, in the view of legal counsel to the Partnership, the repurchase would not jeopardize the classification of the Partnership as a partnership for U.S. federal income tax purposes.
(f) If a General Partner ceases to serve in that capacity under SECTION 4.1 of this Agreement (other than pursuant to SECTION 4.1(D)) and the business of the Partnership is continued in accordance with SECTION 6.1(A)(2)(B) of this Agreement, the former General Partner (or its trustee or other legal representative) may, by written notice to the Directors within 60 days of the action resulting in the continuation of the Partnership under SECTION 6.1(A)(2)(B), tender to the Partnership all or any portion of its Interest. Within 30 days after the receipt of notice, the Directors will cause the Interest or portion of an Interest to be repurchased by the Partnership for cash in an amount equal to the balance of the former General Partner's Capital Account or applicable portion of the Capital Account. If the former General Partner does not tender to the Partnership all of its Interest as permitted by this SECTION 4.5(F), the Interest will automatically convert to and will be treated in all respects as the Interest of a Limited Partner. If the General Partner ceases to serve in this capacity under SECTION 4.1 of this Agreement (other than pursuant to SECTION 4.1(D)) and the Partnership is not continued under SECTION 6.1(A)(2)(B) of this Agreement, the liquidation and distribution provisions of ARTICLE VI of this Agreement will apply to the General Partner's Interest.
(g) The General Partner may cause the Partnership to repurchase an Interest or portion of an Interest of a Limited Partner or any Person acquiring an Interest from or through a Limited Partner, on terms fair to the Partnership and to the Limited Partner or Person acquiring an Interest from or through such Limited Partner, in the event that the General Partner, in its sole discretion, determines or has reason to believe that:
(1) the Interest or portion of an Interest has been Transferred in violation of SECTION 4.4 of this Agreement, or the Interest or portion of an Interest has vested in any Person other than by operation of law as the result of the death, dissolution, bankruptcy, insolvency or adjudicated incompetence of the Limited Partner;
(2) ownership of the Interest or portion of an Interest by a Partner or other Person is likely to (A) cause the Partnership to be in violation of, or (B) (x) require registration of any Interest or portion of any Interest under, or (y) subject the Partnership to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest or portion of an Interest may be harmful or injurious to the business or reputation of the Partnership, the Directors, the General Partner or the Investment Manager or any of their Affiliates, or may subject the Partnership or any of the Partners to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Partner or other Person in connection with the acquisition of the Interest or portion of an Interest was not true when made or has ceased to be true;
(5) with respect to a Limited Partner subject to special regulatory or compliance requirements, such as those imposed by the Bank Holding Company Act or certain Federal Communication Commission regulations (collectively, "SPECIAL LAWS OR REGULATIONS"), such Limited Partner will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest or portion of an Interest; or
(6) it would be in the best interests of the Partnership, as determined by the General Partner or the Directors, for the Partnership to repurchase the Interest or portion of an Interest.
(h) Payments for accepted repurchases of Interests of less than 90% of a Partner's Capital Account generally will be paid approximately 90 days after the Valuation Date (after adjusting for fees, expenses, reserves or other allocations or repurchase) and will be subject to adjustment within 45 days after completion of the annual audit of the Partnership for the applicable Fiscal Year. Such annual audit may be delayed in the event that information necessary to complete the annual audit is not received on a timely basis from the Advisors. Payments for accepted repurchases of interests for 90% or more of a Partner's Capital Account may be paid in two installments. Payment of an amount equal to at least 90% of the interests repurchased (after adjusting for fees, expenses, reserves or other allocations or repurchase) generally will be made approximately 90 days after the Valuation Date. Final settlement of payments in connection with the repurchased Interests generally will be made within 45 days after completion of the annual audit of the Partnership for the applicable Fiscal Year if sufficient information is received on a timely basis from the Advisors. Payments in connection with repurchased interests may be delayed if such information is delayed. Notwithstanding anything to the contrary in this SECTION 4.5(H), the Directors, in their discretion, may cause the Partnership to pay all or any portion of the repurchase price in Securities (or any combination of Securities and cash) having a value, determined as of the date of repurchase, equal to the amount to be repurchased. All repurchases of Interests or portions of Interest will be subject to any and all conditions as the Directors may impose in their sole discretion. The General Partner may, in its discretion, cause the Partnership to repurchase a Limited Partner's entire Interest, if the Limited Partner's Capital Account balance in the Partnership, as a result of repurchase or Transfer requests by the Limited Partner, is less than a minimum amount that may be established by the General Partner from time to time in its sole discretion. Subject to the procedures of this SECTION 4.5(H), the amount due to any Partner whose Interest or portion of an Interest is repurchased will be equal to the value of the Partner's Capital Account or portion of such Capital Account, as of the applicable Valuation Date, after giving effect to all allocations to be made to the Partner's Capital Account as of that date. If a Limited Partner's entire Interest is repurchased, that Limited Partner will cease to be a Limited Partner.
Appears in 1 contract
Samples: Limited Partnership Agreement (Hatteras Master Fund, L.P.)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner or other Person holding an Interest or portion of an Interest will have the right to withdraw or tender an Interest or portion of an Interest to the Partnership for repurchase. The Directors may, from time to time, in their complete and exclusive discretion and on terms and conditions as they may determine, cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, Year unless the Partnership it has been advised by its legal counsel to the Partnership to the effect that more frequent offers would not cause any adverse tax consequences to the Partnership or the Partners. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tenders, the Directors will consider the following factors, among others:
(1) whether any Partners have requested to tender Interests or portions of Interests;
(2) the liquidity of the Partnership's ’s assets (including fees and costs associated with withdrawing from Advisor FundsInvestment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve requirements of the Partnership;
(4) the relative economies of scale with respect to the size of the Partnership;
(5) the history of the Partnership in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the Partnership's ’s interests in the Advisor Funds and Advisor AccountsInvestment Fund;
(7) existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the anticipated tax consequences to the Partnership of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General PartnerPartner and/or the Adviser. The Directors will cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders only on terms fair to the Partnership and to all Partners and Persons holding Interests or portions of Interests acquired from Partners.
(b) Except as provided in Section 4.5(c) of this Agreement, a General Partner may tender its Interest or portion of an Interest under Section 4.5(a) of this Agreement only if and to the extent that (1) the repurchase would not cause the value of the Capital Account of the General Partner to be less than the value required to be maintained under Section 5.1(c) of this Agreement or (2) in the view of legal counsel to the Partnership, the repurchase would not jeopardize the classification of the Partnership as a partnership for U.S. Federal income tax purposes.
(c) If a General Partner ceases to serve in that capacity under Section 4.1 of this Agreement (other than pursuant to Section 4.1(d)) and the business of the Partnership is continued in accordance with Section 6.1(a)(2)(B) of this Agreement, the former General Partner (or its trustee or other legal representative) may, by written notice to the Directors within 60 days of the action resulting in the continuation of the Partnership under Section 6.1(a)(2)(B), tender to the Partnership all or any portion of its Interest. Within 30 days after the receipt of notice, the Directors will cause the Interest or portion of an Interest to be repurchased by the Partnership for cash in an amount equal to the balance of the former General Partner’s Capital Account or applicable portion of the Capital Account. If the former General Partner does not tender to the Partnership all of its Interest as permitted by this Section 4.5(c), the Interest will automatically convert to and will be treated in all respects as the Interest of a Limited Partner. If the General Partner ceases to serve in this capacity under Section 4.1 of this Agreement (other than pursuant to Section 4.1(d)) and the Partnership is not continued under Section 6.1(a)(2)(B) of this Agreement, the liquidation and distribution provisions of Article VI of this Agreement will apply to the General Partner’s Interest.
(d) The General Partner may cause the Partnership to repurchase an Interest or portion of an Interest of a Limited Partner or any Person acquiring an Interest from or through a Limited Partner, on terms fair to the Partnership and to the Limited Partner or Person acquiring an Interest from or though such Limited Partner, in the event that the General Partner, in its sole discretion, determines or has reason to believe that:
(1) the Interest or portion of an Interest has been Transferred in violation of Section 4.4 of this Agreement, or the Interest or portion of an Interest has vested in any Person other than by operation of law as the result of the death, dissolution, bankruptcy, insolvency or adjudicated incompetence of the Limited Partner;
(2) ownership of the Interest or portion of an Interest by a Partner or other Person is likely to (A) cause the Partnership to be in violation of, or (B) (x) require registration of any Interest or portion of any Interest under, or (y) subject the Partnership to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest or portion of an Interest may be harmful or injurious to the business or reputation of the Partnership, the Directors, the General Partner or the Adviser or any of their Affiliates, or may subject the Partnership or any of the Partners to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Partner or other Person in connection with the acquisition of the Interest or portion of an Interest was not true when made or has ceased to be true;
(5) with respect to a Limited Partner subject to special regulatory or compliance requirements, such as those imposed by ERISA, the Bank Holding Company Act or certain Federal Communication Commission regulations (collectively, “Special Laws or Regulations”), such Limited Partner will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest or portion of an Interest; or
(6) it would be in the best interests of the Partnership, as determined by the General Partner or the Directors, for the Partnership to repurchase the Interest or portion of an Interest.
(e) Repurchases of Interests or portions of Interests by the Partnership will be payable promptly after the date of each repurchase or, in the case of an offer by the Partnership to repurchase Interests or portions of Interests, promptly after the expiration date of the repurchase offer in accordance with the terms of the repurchase offer. Payment of the purchase price for an Interest or portion of an Interest will consist of: (1) cash or a promissory note, which will be non-transferable and need not bear interest, in an amount equal to the percentage, as may be determined by the Directors, of the estimated unaudited net asset value of the Interest or portion of an Interest repurchased by the Partnership determined as of the date of the repurchase (the “Initial Payment”); and (2) if determined to be appropriate by the Directors or if the Initial Payment is less than 100% of the estimated unaudited net asset value, a promissory note, which may or may not be incorporated into the note applicable to the Initial Payment, entitling its holder to a contingent payment (the “Post-Audit Payment”) equal to the excess, if any, of (A) the net asset value of the Interest or portion of an Interest repurchased by the Partnership as of the date of the repurchase, determined based on the audited financial statements of the Partnership for the Fiscal Year in which the repurchase was effective, over (B) the Initial Payment. Any obligation under such a promissory note with respect to the Initial Payment will be due and payable not more than 30 days after the date of repurchase or, if the Partnership has requested withdrawal of its capital from any Investment Funds in funding the repurchase of Interests, ten Business Days after the Partnership has received at least 90% of the aggregate amount withdrawn by the Partnership from the Investment Funds. Any obligation under such a promissory note with respect to the Post-Audit Payment will be due and payable promptly following the preparation of the applicable audited financial statements. Notwithstanding anything to the contrary in this Section 4.5(e), the Directors, in their discretion, may cause the Partnership to pay all or any portion of the repurchase price in Securities in kind (or any combination of Securities in kind and cash) having a value, determined as of the date of repurchase, equal to the amount to be repurchased. All repurchases of Interests or portions of Interest will be subject to any and all conditions as the Directors may impose in their sole discretion. The General Partner may, in its discretion, cause the Partnership to repurchase a Limited Partner’s entire Interest, if the Limited Partner’s Capital Account balance in the Partnership, as a result of repurchase or Transfer requests by the Limited Partner, is less than $25,000,000 or such other minimum amount established by the General Partner from time to time in its sole discretion. Subject to the procedures of this Section 4.5(e), the amount due to any Partner whose Interest or portion of an Interest is repurchased will be equal to the value of the Partner’s Capital Account or portion of such Capital Account, as of the effective date of repurchase, after giving effect to all allocations to be made to the Partner’s Capital Account as of that date. If a Limited Partner’s entire Interest is repurchased, that Limited Partner will cease to be a Limited Partner.
Appears in 1 contract
Samples: Limited Partnership Agreement (Morgan Stanley Institutional Fund of Hedge Funds II LP)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner No Member or other Person holding an Interest or portion of an Interest acquired from a Member will have the right to withdraw require the Fund to redeem or tender an Interest or portion of an Interest to otherwise repurchase the Partnership for repurchase. Interest.
(b) The Directors may, Fund may from time to timetime repurchase Interests from Members in accordance with written tenders by Members at those times, in their complete and exclusive discretion those amounts, and on terms and conditions as they the Board of Directors may determine, cause the Partnership determine in its sole discretion. The Fund will not offer to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, unless the Partnership Fund has been advised by its legal counsel to the Fund to the effect that more frequent offers would not cause any adverse tax consequences to the Partnership Fund or the PartnersMembers. The Investment Manager and the Managing Member expect that they will recommend to the Board of Directors that the Fund offer to repurchase Interests from Members approximately six months after the Initial Closing Date (or, if such date is not the last day of a calendar quarter, the last day of that calendar quarter), and, after that date, quarterly, effective as of the last day of March, June, September and December. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tendersaccept such a recommendation, the Board of Directors will consider the following factors, among others:
(1) whether any Partners Members have requested to tender Interests or portions of Intereststo the Fund;
(2) the liquidity of the PartnershipFund's assets (including fees and costs associated with withdrawing from Advisor FundsInvestment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve requirements of the PartnershipFund;
(4) the relative economies of scale of the tenders with respect to the size of the PartnershipFund;
(5) the history of the Partnership Fund in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the PartnershipFund's interests in the Advisor Funds and Advisor AccountsInvestment Funds;
(7) the existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the any anticipated tax consequences to the Partnership Fund of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General Partner. Managing Member and/or the Investment Manager.
(c) The Directors Fund will cause the Partnership to repurchase Interests or portions of Interests from Members at net asset value in accordance with written tenders only on terms and conditions that the Board of Directors determines to be fair to the Partnership Fund and to all Partners and Members or Persons holding Interests acquired from Members. The net asset value of a Member's Interest will be calculated in accordance with the Fund's procedures as of the relevant Repurchase Date, after giving effect to all allocations that are made as of that date (including any Incentive Allocation to the Special Member in respect of the Interest (or portions portion of the Interest) being repurchased). When the Board of Directors determines that the Fund will repurchase Interests, notice will be provided to Members, specifying the date on which repurchase requests must be received by the Fund (the "Notice Due Date"), describing the terms of the offer, containing information Members should consider in deciding whether to participate in the repurchase opportunity and containing information on how to participate. The Notice Due Date will be a date set by the Board of Directors occurring no sooner than 20 Business Days after the commencement of the repurchase offer and such date may be extended by the Board of Directors in its absolute discretion. Members deciding whether to tender their Interests during the period that a repurchase offer is open may obtain the most recently calculated net asset value of their Interests by contacting the Investment Manager during the period.
(d) The Fund expects to employ the following repurchase procedures, which procedures may be deviated from, varied or amended by the Board of Directors in their sole discretion upon notice to the Members:
(1) A Member choosing to tender an Interest for repurchase must do so by the Notice Due Date, which generally will be the 25th calendar day of the second month prior to the month in which the Repurchase Date falls (or, if such date is not a Business Day, the preceding Business Day).
(2) Promptly after the Notice Due Date, the Fund will give to each Member whose Interest has been accepted for repurchase a promissory note (the "Promissory Note") entitling the Member to be paid an amount equal to the net asset value, as of the Repurchase Date, of the repurchased Interest. The determination of the value of Interests acquired as of the Repurchase Date is subject to adjustment based upon the results of the next annual audit of the Fund's financial statements.
(3) The Promissory Note, which will be non-interest-bearing and non-transferable, is expected to contain terms providing for payment at two separate times.
(4) The initial payment in respect of the Promissory Note (the "Initial Payment") will be in an amount equal to at least 95% of the net asset value of the repurchased Interest as of the Repurchase Date less any Repurchase Fee due to the Fund in connection with the repurchase. The Initial Payment will be made on or before the later of (i) 30 days after the Repurchase Date, or (ii) if the Fund has requested withdrawals of its capital from Partnersany Investment Funds in order to fund the repurchase of Interests, ten Business Days after the Fund has received at least 95% of the aggregate amount withdrawn by the Fund from the Investment Funds.
(5) The second and final payment in respect of the Promissory Note (the "Post-Audit Payment") is expected to be in an amount equal to the excess, if any, of (i) the net asset value of the repurchased Interest as of the Repurchase Date and based upon the results of the annual audit of the Fund's financial statements for the year in which the Repurchase Date occurs, less any Repurchase Fee due to the Fund in connection with the repurchase, over (ii) the Initial Payment. The Managing Member anticipates that the annual audit of the Fund's financial statements will be completed within 60 days after the end of each Fiscal Year of the Fund and that the Post-Audit Payment will be made promptly after the completion of the audit.
(e) In the event that the Managing Member, the Special Member, the Investment Manager or any of their respective Affiliates holds an Interest in his, her or its capacity as a Member, the Interest may be tendered for repurchase in connection with any repurchase offer made by the Fund.
(f) If the Managing Member ceases to serve in that capacity under Section 4.1 of this Agreement (other than under Section 4.1(c) of this Agreement), the Board of Directors may, by written notice to the former Managing Member (or its trustee or other legal representative) within 60 days of the former Managing Member ceasing to serve as managing member of the Fund, require the former Managing Member to tender to the Fund its entire Interest on a date set out in the notice. On such date, the Board of Directors will cause the Interest to be repurchased by the Fund for cash at a valuation determined by the Board of Directors in accordance with Section 4.5(c) of this Agreement, and the former Managing Member will thereupon cease to be a Member.
(g) The Fund may repurchase an Interest of a Member or any Person acquiring an Interest from or through a Member without consent or other action by the Member or other Person if the Managing Member in its sole discretion determines that:
(1) the Interest has been Transferred or has vested in any Person other than with the consent of the Managing Member or by operation of law as the result of the death, divorce, bankruptcy, insolvency, adjudicated incompetence or dissolution of the Member;
(2) ownership of the Interest by a Member or other Person is likely to cause the Fund to be in violation of, or require registration of any Interest under, or subject the Fund to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest may be harmful or injurious to the business or reputation of the Fund, the Board of Directors, the Managing Member, the Special Member, the Investment Manager or any of their Affiliates, or may subject the Fund or any of the Members to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Member or other Person in connection with the acquisition of the Interest was not true when made or has ceased to be true;
(5) with respect to a Member subject to special regulatory or compliance requirements, such as those imposed by Employee Retirement Income Security Act of 1974, the Bank Holding Company Act of 1956 or certain Federal Communication Commission regulations (collectively, "Special Laws or Regulations"), such Member will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest; or
(6) it would be in the best interests of the Fund for the Fund to repurchase the Interest.
(h) A Member (other than the Managing Member or the Special Member) tendering for repurchase only a portion of the Member's Interest will be required to maintain a Capital Account balance of at least $50,000 after giving effect to the repurchase. If a Member (other than the Managing Member or the Special Member) tenders an amount that would cause the Member's Capital Account balance to fall below the required minimum, the Managing Member shall have the right to either (1) reduce the amount to be repurchased from the Member so that the required minimum balance is maintained or (2) repurchase the remainder of the Member's Interest in the Fund. The Managing Member may, in its sole discretion, cause the Fund to repurchase the entire Interest held by a Member (other than the Managing Member or Special Member) if the Member's Capital Account balance in the Fund, as a result of repurchase or Transfer by the Member, is less than $50,000. If the entire Interest of a Member (other than the Managing Member or Special Member) is repurchased, that Member will cease to be a Member.
(i) Repurchases of Interests from Members by the Fund may be paid, in the discretion of the Managing Member, in cash, or by the distribution of Securities in-kind or partly in cash and partly in-kind. The Fund, however, expects not to distribute Securities in-kind, except in the unlikely event that making a cash payment would result in a material adverse effect on the Fund or on Members not tendering Interests for repurchase. Any Securities distributed will be valued in accordance with this Agreement and will be distributed to all tendering Members on a proportional basis.
(j) The Fund may suspend or postpone a repurchase offer in certain limited circumstances, and only by a vote of a majority of the Board of Directors, including a majority of the Independent Directors. These circumstances include the following:
(1) for any period during which circumstances exist as a result of which it is not reasonably practicable for the Fund to dispose of Securities it owns or to determine the value of the Fund's net assets;
(2) for any other periods that the SEC permits by order for the protection of Members; or
(3) other unusual circumstances as the Board of Directors in its discretion deems advisable to the Fund and its Members.
(k) A fee (a "Repurchase Fee") will be charged by the Fund on any repurchase of an Interest from a Member at any time prior to the day immediately preceding the one-year anniversary of the Member's purchase of the Interest. Partial Interests will be repurchased on a "first in - first out" basis (in other words, the portion of the Interest repurchased will be deemed to have been taken from the earliest Capital Contribution made by such Member (adjusted for subsequent appreciation and depreciation) until that Capital Contribution is decreased to zero, and then from each subsequent Capital Contribution made by such Member (as adjusted) until such Capital Contribution is decreased to zero). Other than any Repurchase Fee, the Fund will not impose any charges in connection with repurchases of Interests. At the Managing Member's discretion, no Repurchase Fee will be charged by the Fund in connection with any repurchase of a Member's Interest under Section 4.5(g).
(1) A repurchase of a Member's Interest under Sections 4.5(g) or (h) shall be on terms and conditions as the Managing Member may determine in its sole discretion, provided that (1) valuation of the Interest shall be determined in accordance with Section 4.5(c), and (2) payment for the Interest shall be made no later than as provided under the Fund's then-current tender offer procedures.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Jp Morgan Multi-Strategy Fund LLC)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner or other Person holding an Interest or portion of an Interest will have the right to withdraw or tender an Interest or portion of an Interest to the Partnership for repurchase. The Directors may, from time to time, in their complete and exclusive discretion and on terms and conditions as they may determine, cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, unless the Partnership has been advised by its legal counsel that more frequent offers would not cause any adverse tax consequences to the Partnership or the Partners. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tenders, the Directors will consider the following factors, among others:
(1) whether any Partners have requested to tender Interests or portions of Interests;
(2) the liquidity of the Partnership's assets (including fees and costs associated with withdrawing from Advisor Funds);
(3) the investment plans and working capital and reserve requirements of the Partnership;
(4) the relative economies of scale with respect to the size of the Partnership;
(5) the history of the Partnership in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the Partnership's interests in the Advisor Funds and Advisor Accounts;
(7) existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the anticipated tax consequences to the Partnership of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General Partner. The Directors will cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders only on terms fair to the Partnership and to all Partners and Persons holding Interests or portions of Interests acquired from Partners.
(b) Upon the commencement of an offer to repurchase Interests, the Partnership will send an advance notification of the offer (the "NOTICE") to the Partners via their financial intermediaries. The Notice will specify, among other things:
(1) the percentage of Interests that the Partnership is offering to repurchase;
(2) the date on which a Partner's repurchase request is due;
(3) the Valuation Date (as defined in Section 4.5(d) below) applicable to the repurchase offer;
(4) the date the proceeds from their Interest sales shall be due to the Partners; and
(5) the value of the Interests as of the date of the Notice.
(c) Each repurchase offer will be limited to the repurchase of approximately 5% of the Interests (but in no event to exceed the repurchase of more than 20% of the Interests per quarter). A Partner may participate in a repurchase offer only if he, she or it has been a Partner for 12 consecutive months prior to such offer. The General Partner may, in its sole discretion, permit repurchases that do not comply with the requirements set forth in this Section 4.5(c) (other than the requirement that the Partnership will not repurchase more than 20% of the Interests per quarter); provided that such non-conforming repurchases may be subject to a penalty of up to 5% of the amount requested to be repurchased (to be netted against withdrawal proceeds). The minimum value of a repurchase is $50,000, subject to the discretion of the General Partner to allow otherwise. Partners whose Interest, or a portion thereof, is repurchased by the Partnership will not be entitled to a return of any amount of sales charge that was charged pursuant to Section 3.11(d) in connection with the Partner's purchase of the Interest.
(d) Interests are expected to be repurchased at their net asset value determined as of approximately June 30, September 30, December 31 and March 31, as applicable (each such date, a "VALUATION DATE"). Partners tendering Interests for repurchase shall provide written notice of their intent to so tender by the date specified in the Notice, which date shall be approximately 65 days (but in no event less than 60 days) prior to the date of repurchase by the Partnership. Partners tendering their Interests may not have all such Interests accepted for repurchase by the Partnership. The Partnership may elect to repurchase less than the full amount a Partner requests to be repurchased. If a repurchase offer is oversubscribed, the Partnership will repurchase only a pro rata portion of the amount tendered by each Partner.
(e) The Directors may under certain circumstances elect to postpone, suspend or terminate an offer to repurchase Interests.
(f) A Limited Partner tendering a portion of its Interests for repurchase will be required to maintain a minimum capital account balance of $100,000. The Partnership may reduce the portion of Interests to be purchased from a Limited Partner to maintain the required minimum balance. Such minimum balance requirement may be waived by the General Partner in its sole discretion, subject to applicable federal securities laws. Additionally, the General Partner may, in its discretion, cause the Partnership to repurchase a Limited Partner's entire Interest if the Limited Partner's Capital Account balance in the Partnership, as a result of repurchase or Transfer requests by the Limited Partner, is less than $100,000 or such other minimum amount established by the General Partner from time to time in its sole discretion.
(g) Except as provided in SECTION 4.5(H) of this Agreement, a General Partner may tender its Interest or portion of an Interest under SECTION 4.5(A) of this Agreement only if and to the extent that (1) the repurchase would not cause the value of the Capital Account of the General Partner to be less than the value required to be maintained under SECTION 5.1(I) of this Agreement and (2) in the view of legal counsel to the Partnership, the repurchase would not jeopardize the classification of the Partnership as a partnership for U.S. federal income tax purposes.
(h) If a General Partner ceases to serve in that capacity under SECTION 4.1 of this Agreement (other than pursuant to SECTION 4.1(I)) and the business of the Partnership is continued in accordance with SECTION 6.1(A)(2)(B) of this Agreement, the former General Partner (or its trustee or other legal representative) may, by written notice to the Directors within 60 days of the action resulting in the continuation of the Partnership under SECTION 6.1(A)(2)(B), tender to the Partnership all or any portion of its Interest. Within 30 days after the receipt of notice, the Directors will cause the Interest or portion of an Interest to be repurchased by the Partnership for cash in an amount equal to the balance of the former General Partner's Capital Account or applicable portion of the Capital Account. If the former General Partner does not tender to the Partnership all of its Interest as permitted by this SECTION 4.5(H), the Interest will automatically convert to and will be treated in all respects as the Interest of a Limited Partner. If the General Partner ceases to serve in this capacity under Section 4.1 of this Agreement (other than pursuant to SECTION 4.1(I)) and the Partnership is not continued under SECTION 6.1(A)(2)(B) of this Agreement, the liquidation and distribution provisions of ARTICLE VI of this Agreement will apply to the General Partner's Interest.
(i) The General Partner may cause the Partnership to repurchase an Interest or portion of an Interest of a Limited Partner or any Person acquiring an Interest from or through a Limited Partner, on terms fair to the Partnership and to the Limited Partner or Person acquiring an Interest from or through such Limited Partner, in the event that the General Partner, in its sole discretion, determines or has reason to believe that:
(1) the Interest or portion of an Interest has been Transferred in violation of SECTION 4.4 of this Agreement, or the Interest or portion of an Interest has vested in any Person other than by operation of law as the result of the death, dissolution, bankruptcy, insolvency or adjudicated incompetence of the Limited Partner;
(2) ownership of the Interest or portion of an Interest by a Partner or other Person is likely to (A) cause the Partnership to be in violation of, or (B) (x) require registration of any Interest or portion of any Interest under, or (y) subject the Partnership to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest or portion of an Interest may be harmful or injurious to the business or reputation of the Partnership, the Directors, the General Partner or any of their Affiliates, or may subject the Partnership or any of the Partners to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Partner or other Person in connection with the acquisition of the Interest or portion of an Interest was not true when made or has ceased to be true;
(5) with respect to a Limited Partner subject to special regulatory or compliance requirements, such as those imposed by the Bank Holding Company Act or certain Federal Communication Commission regulations (collectively, "SPECIAL LAWS OR REGULATIONS"), such Limited Partner will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest or portion of an Interest; or
(6) it would be in the best interests of the Partnership, as determined by the General Partner or the Directors, for the Partnership to repurchase the Interest or portion of an Interest.
(j) Payments for accepted repurchases of Interests of less than 90% of a Partner's Capital Account generally will be paid approximately 90 days after the Valuation Date (after adjusting for fees, expenses, reserves or other allocations or repurchase) and will be subject to adjustment within 45 days after completion of the annual audit of the Partnership for the applicable Fiscal Year. Such annual audit may be delayed in the event that information necessary to complete the annual audit is not received on a timely basis from the Master Partnership or the Advisors. Payments for accepted repurchases of interests for 90% or more of a Partner's Capital Account may be paid in two installments. Payment of an amount equal to at least 90% of the interests repurchased (after adjusting for fees, expenses, reserves or other allocations or repurchase) generally will be made approximately 90 days after the Valuation Date. Final settlement of payments in connection with the repurchased Interests generally will be made within 45 days after completion of the annual audit of the Partnership for the applicable Fiscal Year. Payments in connection with repurchased interests may be delayed if such information is delayed. Notwithstanding anything to the contrary in this SECTION 4.5(J), the Directors, in their discretion, may cause the Partnership to pay all or any portion of the repurchase price in Securities (or any combination of Securities and cash) having a value, determined as of the date of repurchase, equal to the amount to be repurchased. All repurchases of Interests or portions of Interest will be subject to any and all conditions as the Directors may impose in their sole discretion. The General Partner may, in its discretion, cause the Partnership to repurchase a Limited Partner's entire Interest, if the Limited Partner's Capital Account balance in the Partnership, as a result of repurchase or Transfer requests by the Limited Partner, is less than a minimum amount that may be established by the General Partner from time to time in its sole discretion. Subject to the procedures of this SECTION 4.5(J), the amount due to any Partner whose Interest or portion of an Interest is repurchased will be equal to the value of the Partner's Capital Account or portion of such Capital Account, as of the applicable Valuation Date, after giving effect to all allocations to be made to the Partner's Capital Account as of that date. If a Limited Partner's entire Interest is repurchased, that Limited Partner will cease to be a Limited Partner.
Appears in 1 contract
Samples: Limited Partnership Agreement (Hatteras Multi-Strategy Fund I, L.P.)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner or other Person holding an Interest or portion of an Interest will have the right to withdraw or tender an Interest or portion of an Interest to the Partnership for redemption or repurchase. The Directors may, from time to time, in their complete and exclusive discretion and on terms and conditions as they may determine, cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, unless the Partnership has been advised by its legal counsel that more frequent offers would not cause any adverse tax consequences to the Partnership or the Partners. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tenders, the Directors will consider the following factors, among others:
(1) whether any Partners have requested to tender Interests or portions of Interests;
(2) the liquidity of the Partnership's ’s assets (including fees and costs associated with withdrawing from Advisor Funds);
(3) the investment plans and working capital and reserve requirements of the Partnership;
(4) the relative economies of scale with respect to the size of the Partnership;
(5) the history of the Partnership in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the Partnership's ’s interests in the Advisor Funds and Advisor Accounts;
(7) existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the anticipated tax consequences to the Partnership of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General PartnerPartner and/or the Investment Manager. The Directors will cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders only on terms fair to the Partnership and to all Partners and Persons holding Interests or portions of Interests acquired from Partners.
Appears in 1 contract
Samples: Limited Partnership Agreement (Hatteras Master Fund, L.P.)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner No Member or other Person holding an Interest or portion of an Interest acquired from a Member will have the right to withdraw require the Fund to redeem or tender an Interest or portion of an Interest to otherwise repurchase the Partnership for repurchase. Interest.
(b) The Directors may, Fund may from time to timetime repurchase Interests from Members in accordance with written tenders by Members at those times, in their complete and exclusive discretion those amounts, and on terms and conditions as they the Board of Directors may determine, cause the Partnership determine in its sole discretion. The Fund will not offer to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, unless the Partnership Fund has been advised by its legal counsel to the Fund to the effect that more frequent offers would not cause any adverse tax consequences to the Partnership Fund or the PartnersMembers. The Investment Manager and the Managing Member expect that they will recommend to the Board of Directors that the Fund offer to repurchase Interests from Members approximately six months after the Initial Closing Date (or, if such date is not the last day of a calendar quarter, the last day of that calendar quarter), and, after that date, quarterly, effective as of the last day of March, June, September and December. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tendersaccept such a recommendation, the Board of Directors will consider the following factors, among others:
(1) whether any Partners Members have requested to tender Interests or portions of Intereststo the Fund;
(2) the liquidity of the PartnershipFund's assets (including fees and costs associated with withdrawing from Advisor FundsInvestment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve requirements of the PartnershipFund;
(4) the relative economies of scale of the tenders with respect to the size of the PartnershipFund;
(5) the history of the Partnership Fund in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the PartnershipFund's interests in the Advisor Funds and Advisor AccountsInvestment Funds;
(7) the existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the any anticipated tax consequences to the Partnership Fund of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General Partner. Managing Member and/or the Investment Manager.
(c) The Directors Fund will cause the Partnership to repurchase Interests or portions of Interests from Members at net asset value in accordance with written tenders only on terms and conditions that the Board of Directors determines to be fair to the Partnership Fund and to all Partners and Members or Persons holding Interests acquired from Members. The net asset value of a Member's Interest will be calculated in accordance with the Fund's procedures as of the relevant Repurchase Date, after giving effect to all allocations that are made as of that date (including any Incentive Allocation to the Special Member in respect of the Interest (or portions portion of the Interest) being repurchased). When the Board of Directors determines that the Fund will repurchase Interests, notice will be provided to Members, specifying the date on which repurchase requests must be received by the Fund (the "Notice Due Date"), describing the terms of the offer, containing information Members should consider in deciding whether to participate in the repurchase opportunity and containing information on how to participate. The Notice Due Date will be a date set by the Board of Directors occurring no sooner than 20 Business Days after the commencement of the repurchase offer and such date may be extended by the Board of Directors in its absolute discretion. Members deciding whether to tender their Interests during the period that a repurchase offer is open may obtain the most recently calculated net asset value of their Interests by contacting the Investment Manager during the period.
(d) The Fund expects to employ the following repurchase procedures, which procedures may be deviated from, varied or amended by the Board of Directors in their sole discretion upon notice to the Members:
(1) A Member choosing to tender an Interest for repurchase must do so by the Notice Due Date, which generally will be the 25th calendar day of the second month prior to the month in which the Repurchase Date falls (or, if such date is not a Business Day, the preceding Business Day).
(2) Promptly after the Notice Due Date, the Fund will give to each Member whose Interest has been accepted for repurchase a promissory note (the "Promissory Note") entitling the Member to be paid an amount equal to the net asset value, as of the Repurchase Date, of the repurchased Interest. The determination of the value of Interests acquired as of the Repurchase Date is subject to adjustment based upon the results of the next annual audit of the Fund's financial statements.
(3) The Promissory Note, which will be non-interest-bearing and non-transferable, is expected to contain terms providing for payment at two separate times.
(4) The initial payment in respect of the Promissory Note (the "Initial Payment") will be in an amount equal to at least 95% of the net asset value of the repurchased Interest as of the Repurchase Date less any Repurchase Fee due to the Fund in connection with the repurchase. The Initial Payment will be made on or before the later of (i) 30 days after the Repurchase Date, or (ii) if the Fund has requested withdrawals of its capital from Partnersany Investment Funds in order to fund the repurchase of Interests, ten Business Days after the Fund has received at least 95% of the aggregate amount withdrawn by the Fund from the Investment Funds.
(5) The second and final payment in respect of the Promissory Note (the "Post-Audit Payment") is expected to be in an amount equal to the excess, if any, of (i) the net asset value of the repurchased Interest as of the Repurchase Date and based upon the results of the annual audit of the Fund's financial statements for the year in which the Repurchase Date occurs, less any Repurchase Fee due to the Fund in connection with the repurchase, over (ii) the Initial Payment. The Managing Member anticipates that the annual audit of the Fund's financial statements will be completed within 60 days after the end of each Fiscal Year of the Fund and that the Post-Audit Payment will be made promptly after the completion of the audit.
(e) In the event that the Managing Member, the Special Member, the Investment Manager or any of their respective Affiliates holds an Interest in his, her or its capacity as a Member, the Interest may be tendered for repurchase in connection with any repurchase offer made by the Fund.
(f) If the Managing Member ceases to serve in that capacity under Section 4.1 of this Agreement (other than under Section 4.1(c) of this Agreement), the Board of Directors may, by written notice to the former Managing Member (or its trustee or other legal representative) within 60 days of the former Managing Member ceasing to serve as managing member of the Fund, require the former Managing Member to tender to the Fund its entire Interest on a date set out in the notice. On such date, the Board of Directors will cause the Interest to be repurchased by the Fund for cash at a valuation determined by the Board of Directors in accordance with Section 4.5(c) of this Agreement, and the former Managing Member will thereupon cease to be a Member.
(g) The Fund may repurchase an Interest of a Member or any Person acquiring an Interest from or through a Member without consent or other action by the Member or other Person if the Managing Member in its sole discretion determines that:
(1) the Interest has been Transferred or has vested in any Person other than with the consent of the Managing Member or by operation of law as the result of the death, divorce, bankruptcy, insolvency, adjudicated incompetence or dissolution of the Member;
(2) ownership of the Interest by a Member or other Person is likely to cause the Fund to be in violation of, or require registration of any Interest under, or subject the Fund to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest may be harmful or injurious to the business or reputation of the Fund, the Board of Directors, the Managing Member, the Special Member, the Investment Manager or any of their Affiliates, or may subject the Fund or any of the Members to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Member or other Person in connection with the acquisition of the Interest was not true when made or has ceased to be true;
(5) with respect to a Member subject to special regulatory or compliance requirements, such as those imposed by Employee Retirement Income Security Act of 1974, the Bank Holding Company Act of 1956 or certain Federal Communication Commission regulations (collectively, "Special Laws or Regulations"), such Member will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest; or
(6) it would be in the best interests of the Fund for the Fund to repurchase the Interest.
(h) A Member (other than the Managing Member or the Special Member) tendering for repurchase only a portion of the Member's Interest will be required to maintain a Capital Account balance of at least $50,000 after giving effect to the repurchase. If a Member (other than the Managing Member or the Special Member) tenders an amount that would cause the Member's Capital Account balance to fall below the required minimum, the Managing Member shall have the right to either (1) reduce the amount to be repurchased from the Member so that the required minimum balance is maintained or (2) repurchase the remainder of the Member's Interest in the Fund. The Managing Member may, in its sole discretion, cause the Fund to repurchase the entire Interest held by a Member (other than the Managing Member or Special Member) if the Member's Capital Account balance in the Fund, as a result of repurchase or Transfer by the Member, is less than $50,000. If the entire Interest of a Member (other than the Managing Member or Special Member) is repurchased, that Member will cease to be a Member.
(i) Repurchases of Interests from Members by the Fund may be paid, in the discretion of the Managing Member, in cash, or by the distribution of Securities in-kind or partly in cash and partly in-kind. The Fund, however, expects not to distribute Securities in-kind, except in the unlikely event that making a cash payment would result in a material adverse effect on the Fund or on Members not tendering Interests for repurchase. Any Securities distributed will be valued in accordance with this Agreement and will be distributed to all tendering Members on a proportional basis.
(j) The Fund may suspend or postpone a repurchase offer in certain limited circumstances, and only by a vote of a majority of the Board of Directors, including a majority of the Independent Directors. These circumstances include the following:
(1) for any period during which circumstances exist as a result of which it is not reasonably practicable for the Fund to dispose of Securities it owns or to determine the value of the Fund's net assets;
(2) for any other periods that the SEC permits by order for the protection of Members; or
(3) other unusual circumstances as the Board of Directors in its discretion deems advisable to the Fund and its Members.
(k) A fee (a "Repurchase Fee") will be charged by the Fund on any repurchase of an Interest from a Member at any time prior to the day immediately preceding the one-year anniversary of the Member's purchase of the Interest. Partial Interests will be repurchased on a "first in - first out" basis (in other words, the portion of the Interest repurchased will be deemed to have been taken from the earliest Capital Contribution made by such Member (adjusted for subsequent appreciation and depreciation) until that Capital Contribution is decreased to zero, and then from each subsequent Capital Contribution made by such Member (as adjusted) until such Capital Contribution is decreased to zero). Other than any Repurchase Fee, the Fund will not impose any charges in connection with repurchases of Interests. At the Managing Member's discretion, no Repurchase Fee will be charged by the Fund in connection with any repurchase of a Member's Interest under Section 4.5(g).
(l) A repurchase of a Member's Interest under Sections 4.5(g) or (h) shall be on terms and conditions as the Managing Member may determine in its sole discretion, provided that (1) valuation of the Interest shall be determined in accordance with Section 4.5(c), and (2) payment for the Interest shall be made no later than as provided under the Fund's then-current tender offer procedures.
(m) Notwithstanding any provision to the contrary contained in this Agreement, the Fund and the Managing Member on behalf of the Fund will not repurchase any Interest or make a distribution to any Member on account of the Member's Interest, if such repurchase or distribution would violate the Delaware Act or other applicable law.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Jp Morgan Multi-Strategy Fund LLC)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner or other Person person holding an Interest or portion of an Interest will thereof shall have the right to withdraw or tender an Interest or portion of an Interest to the Partnership for repurchaserepurchase that Interest or portion thereof. The Directors may, Individual General Partners may from time to time, in their complete and exclusive discretion and on such terms and conditions as they may determine, cause the Partnership to repurchase Interests or portions of Interests in accordance with thereof pursuant to written -21- 26 tenders. The However, the Partnership will shall not offer, however, offer to repurchase Interests or portions of Interests on more than four two occasions during any one Fiscal Year, Year unless it has received an opinion of counsel to the Partnership has been advised by its legal counsel effect that such more frequent offers would not cause any adverse tax consequences to the Partnership or the Limited Partners. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, thereof pursuant to written tenders, the Directors will Individual General Partners shall consider the recommendation of the Adviser, and shall also consider the following factors, among others:
(1) whether any Partners have requested to tender Interests or portions of Intereststhereof to the Partnership;
(2) the liquidity of the Partnership's assets (including fees and costs associated with withdrawing from Advisor Funds)assets;
(3) the investment plans and working capital and reserve requirements of the Partnership;
(4) the relative economies of scale with respect to the size of the Partnership;
(5) the history of the Partnership in repurchasing Interests or portions of Intereststhereof;
(6) the availability of information as to the value economic condition of the Partnership's interests in the Advisor Funds and Advisor Accounts;securities markets; and
(7) existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the anticipated tax consequences to the Partnership of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General Partnerthereof. The Directors will Individual General Partners shall cause the Partnership to repurchase Interests or portions of Interests in accordance with thereof pursuant to written tenders only on terms fair to the Partnership and to all Partners and Persons or one or more classes of Partners (including persons holding Interests or portions of Interests acquired from Partners), as applicable.
(b) A Limited Partner who tenders for repurchase only a portion of such Limited Partner's Interest shall be required to maintain a Capital Account balance equal to the greater of (i) $150,000, net of the Incentive Allocation, if any, that would be debited against such Capital Account if the date of repurchase of such Interest or portion thereof were a date on which an Incentive Allocation would otherwise be made (the "Tentative Incentive Allocation") or (ii) the amount of the Tentative Incentive Allocation.
(c) The Adviser may tender its Interest or a portion thereof as a Limited Partner or Special Advisory Limited Partner of the Partnership under Section 4.7(a) hereof.
(d) If the Adviser's status as Special Advisory Limited Partner is terminated pursuant to Section 4.1 hereof, it (or its trustee or other legal representative) may, by written notice to the Individual General Partners within 60 days of the effective date of such termination, tender to the Partnership for repurchase all or any portion of its Special Advisory Account. Not later than thirty (30) days after the receipt of such notice, the Individual General Partners shall cause such tendered portion of the Special Advisory Account to be repurchased by the Partnership for cash.
(1) such an Interest or portion thereof has been transferred in violation of Section 4.5 hereof, or such an Interest or portion thereof has vested in any person by operation of law as the result of the death, dissolution, bankruptcy or incompetency of a Partner;
(2) ownership of such an Interest by a Partner or other person will cause the Partnership to be in violation of, or require registration of any Interest or portion thereof under, or subject the Partnership to additional registration or regulation under, the securities laws of the United States or any other relevant jurisdiction;
(3) continued ownership of such an Interest may be harmful or injurious to the business or reputation of the Partnership, the Individual General Partners or the Adviser, or may subject the Partnership or any of the Partners to an undue risk of adverse tax or other fiscal consequences;
(4) any of the representations and warranties made by a Partner in connection with the acquisition of an Interest or portion thereof was not true when made or has ceased to be true; or
(5) it would be in the best interests of the Partnership, as determined by the Individual General Partners in their absolute discretion, for the Partnership to repurchase such an Interest or portion thereof.
Appears in 1 contract
Samples: Limited Partnership Agreement (Wynstone Partners Lp)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner or other Person holding an Interest or portion of an Interest will have the right to withdraw or tender an Interest or portion of an Interest to the Partnership for redemption or repurchase. The Directors may, from time to time, in their complete and exclusive discretion and on terms and conditions as they may determine, cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, unless the Partnership has been advised by its legal counsel that more frequent offers would not cause any adverse tax consequences to the Partnership or the Partners. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tenders, the Directors will consider the following factors, among others:
(1) whether any Partners have requested to tender Interests or portions of Interests;
(2) the liquidity of the Partnership's ’s assets (including fees and costs associated with withdrawing from Advisor FundsInvestment Funds and/or disposing of assets managed by Sub-advisers);
(3) the investment plans and working capital and reserve requirements of the Partnership;
(4) the relative economies of scale with respect to the size of the Partnership;
(5) the history of the Partnership in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the Partnership's ’s interests in the Advisor Funds and Advisor AccountsInvestment Funds;
(7) existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the anticipated tax consequences to the Partnership of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General PartnerPartner and/or the Adviser. The Directors will cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders only on terms fair to the Partnership and to all Partners and Persons holding Interests or portions of Interests acquired from Partners.
(b) Except as provided in Section 4.5(c) of this Agreement, a General Partner may tender its Interest or portion of an Interest under Section 4.5(a) of this Agreement only if and to the extent that (1) the repurchase would not cause the value of the Capital Account of the General Partner to be less than the value required to be maintained under Section 5.1(c) of this Agreement or (2) in the view of legal counsel to the Partnership, the repurchase would not jeopardize the classification of the Partnership as a Partnership for U.S. Federal income tax purposes.
(c) If a General Partner ceases to serve in that capacity under Section 4.1 of this Agreement (other than pursuant to Section 4.1(d)) and the business of the Partnership is continued in accordance with Section 6.1(a)(2)(B) of this Agreement, the former General Partner (or its trustee or other legal representative) may, by written notice to the Directors within 60 days of the action resulting in the continuation of the Partnership under Section 6.1(a)(2)(B), tender to the Partnership all or any portion of its Interest. Within 30 days after the receipt of notice, the Directors will cause the Interest or portion of an Interest to be repurchased by the Partnership for cash in an amount equal to the balance of the former General Partner’s Capital Account or applicable portion of the Capital Account. If the former General Partner does not tender to the Partnership all of its Interest as permitted by this Section 4.5(c), the Interest will automatically convert to and will be treated in all respects as the Interest of a Limited Partner. If the General Partner ceases to serve in this capacity under Section 4.1 of this Agreement (other than pursuant to Section 4.1(d)) and the Partnership is not continued under Section 6.1(a)(2)(B) of this Agreement, the liquidation and distribution provisions of Article VI of this Agreement will apply to the General Partner’s Interest.
(d) The General Partner may cause the Partnership to repurchase an Interest or portion of an Interest of a Limited Partner or any Person acquiring an Interest from or through a Limited Partner, on terms fair to the Partnership and to the Limited Partner or Person acquiring an Interest from or through such Limited Partner, in the event that the General Partner, in its sole discretion, determines or has reason to believe that:
(1) the Interest or portion of an Interest has been Transferred in violation of Section 4.4 of this Agreement, or the Interest or portion of an Interest has vested in any Person other than by operation of law as the result of the death, dissolution, bankruptcy, insolvency or adjudicated incompetence of the Limited Partner;
(2) ownership of the Interest or portion of an Interest by a Partner or other Person is likely to (A) cause the Partnership to be in violation of, or (B) (x) require registration of any Interest or portion of any Interest under, or (y) subject the Partnership to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest or portion of an Interest may be harmful or injurious to the business or reputation of the Partnership, the Directors, the General Partner or the Adviser or any of their Affiliates, or may subject the Partnership or any of the Partners to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Partner or other Person in connection with the acquisition of the Interest or portion of an Interest was not true when made or has ceased to be true;
(5) with respect to a Limited Partner subject to special regulatory or compliance requirements, such as those imposed by ERISA, the Bank Holding Company Act or certain Federal Communication Commission regulations (collectively, “Special Laws or Regulations”), such Limited Partner will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest or portion of an Interest; or
(6) it would be in the best interests of the Partnership, as determined by the General Partner or the Directors, for the Partnership to repurchase the Interest or portion of an Interest.
(e) Repurchases of Interests or portions of Interests by the Partnership will be payable promptly after the date of each repurchase or, in the case of an offer by the Partnership to repurchase Interests or portions of Interests, promptly after the expiration date of the repurchase offer in accordance with the terms of the repurchase offer. Payment of the purchase price for an Interest or portion of an Interest will consist of: (1) cash or a promissory note, which will be non-transferable and need not bear interest, in an amount equal to the percentage, as may be determined by the Directors, of the estimated unaudited net asset value of the Interest or portion of an Interest repurchased by the Partnership determined as of the ate of the repurchase (the “Initial Payment”); and (2) if determined to be appropriate by the Directors or if the Initial Payment is less than 100% of the estimated unaudited net asset value, a promissory note, which may or may not be incorporated into the note applicable to the Initial Payment entitling its holder to a contingent payment (the “Post-Audit Payment”) equal to the excess, if any, of (A) the net asset value of the Interest or portion of any Interest repurchased by the Partnership as of the date of the repurchase, determined based on the audited financial statements of the Partnership for the Fiscal year in which the repurchase was effective, over (B) the Initial Payment. Any obligation under such a promissory note with respect to the Initial Payment will be due and payable not more than 30 days after the date of repurchase or, if the Partnership has requested withdrawal of its capital from any Investment Funds in funding the repurchase of Interests, ten Business Days after the Partnership has received at least 90% of the aggregate amount withdrawn by the Partnership from the Investment Funds. Any obligation under such a promissory note with respect to the Post-Audit Payment will be due and payable promptly following the preparation of the applicable audited financial statements. Notwithstanding anything to the contrary in this Section 4.5(e), the Directors, in their discretion, may cause the Partnership to pay all or any portion of the repurchase price in Securities (or any combination of Securities and cash) having a value, determined as of the date of repurchase, equal to the amount to be repurchased. All repurchases of Interests or portions of Interest will be subject to any and all conditions as the Directors may impose in their sole discretion. The General Partner may, in its discretion, cause the Partnership to repurchase a Limited Partner’s entire Interest, if the Limited Partner’s Capital Account balance in the Partnership, as a result of repurchase or Transfer requests by the Limited Partner, is less than $100,000 or such other minimum amount established by the General Partner from time to time in its sole discretion. Subject to the procedures of this Section 4.5(e), the amount due to any Partner whose Interest or portion of an Interest is repurchased will be equal to the value of the Partner’s Capital Account or portion of such Capital Account, as of the effective date of repurchase, after giving effect to all allocation to be made to the Partner’s Capital Account as of that date. If a Limited Partner’s entire Interest is repurchase, that Limited Partner will cease to be a Limited Partner.
Appears in 1 contract
Samples: Limited Partnership Agreement (Endowment Master Fund L P)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner or other Person holding an Interest or portion of an Interest will have the right to withdraw or tender an Interest or portion of an Interest to the Partnership for redemption or repurchase. The Directors may, from time to time, in their complete and exclusive discretion and on terms and conditions as they may determine, cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, unless the Partnership has been advised by its legal counsel that more frequent offers would not cause any adverse tax consequences to the Partnership or the Partners. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tenders, the Directors will consider the following factors, among others:
(1) whether any Partners have requested to tender Interests or portions of Interests;
(2) the liquidity of the Partnership's assets (including fees and costs associated with withdrawing from Advisor FundsInvestment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve requirements of the Partnership;
(4) the relative economies of scale with respect to the size of the Partnership;
(5) the history of the Partnership in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the Partnership's interests in the Advisor Funds and Advisor AccountsInvestment Funds;
(7) existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the anticipated tax consequences to the Partnership of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General PartnerPartner and/or the Adviser. The Directors will cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders only on terms fair to the Partnership and to all Partners and Persons holding Interests or portions of Interests acquired from Partners.
(b) Except as provided in Section 4.5(c) of this Agreement, a General Partner may tender its Interest or portion of an Interest under Section 4.5(a) of this Agreement only if and to the extent that (1) the repurchase would not cause the value of the Capital Account of the General Partner to be less than the value required to be maintained under Section 5.1(c) of this Agreement or (2) in the view of legal counsel to the Partnership, the repurchase would not jeopardize the classification of the Partnership as a Partnership for U.S. Federal income tax purposes.
(c) If a General Partner ceases to serve in that capacity under Section 4.1 of this Agreement (other than pursuant to Section 4.1(d)) and the business of the Partnership is continued in accordance with Section 6.1(a)(2)(B) of this Agreement, the former General Partner (or its trustee or other legal representative) may, by written notice to the Directors within 60 days of the action resulting in the continuation of the Partnership under Section 6.1(a)(2)(B), tender to the Partnership all or any portion of its Interest. Within 30 days after the receipt of notice, the Directors will cause the Interest or portion of an Interest to be repurchased by the Partnership for cash in an amount equal to the balance of the former General Partner's Capital Account or applicable portion of the Capital Account. If the former General Partner does not tender to the Partnership all of its Interest as permitted by this Section 4.5(c), the Interest will automatically convert to and will be treated in all respects as the Interest of a Limited Partner. If the General Partner ceases to serve in this capacity under Section 4.1 of this Agreement (other than pursuant to Section 4.1(d)) and the Partnership is not continued under Section 6.1(a)(2)(B) of this Agreement, the liquidation and distribution provisions of Article VI of this Agreement will apply to the General Partner's Interest.
(d) The General Partner may cause the Partnership to repurchase an Interest or portion of an Interest of a Limited Partner or any Person acquiring an Interest from or through a Limited Partner, on terms fair to the Partnership and to the Limited Partner or Person acquiring an Interest from or through such Limited Partner, in the event that the General Partner, in its sole discretion, determines or has reason to believe that:
(1) the Interest or portion of an Interest has been Transferred in violation of Section 4.4 of this Agreement, or the Interest or portion of an Interest has vested in any Person other than by operation of law as the result of the death, dissolution, bankruptcy, insolvency or adjudicated incompetence of the Limited Partner;
(2) ownership of the Interest or portion of an Interest by a Partner or other Person is likely to (A) cause the Partnership to be in violation of, or (B) (x) require registration of any Interest or portion of any Interest under, or (y) subject the Partnership to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest or portion of an Interest may be harmful or injurious to the business or reputation of the Partnership, the Directors, the General Partner or the Adviser or any of their Affiliates, or may subject the Partnership or any of the Partners to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Partner or other Person in connection with the acquisition of the Interest or portion of an Interest was not true when made or has ceased to be true;
(5) with respect to a Limited Partner subject to special regulatory or compliance requirements, such as those imposed by ERISA, the Bank Holding Company Act or certain Federal Communication Commission regulations (collectively, "Special Laws or Regulations"), such Limited Partner will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest or portion of an Interest; or
(6) it would be in the best interests of the Partnership, as determined by the General Partner or the Directors, for the Partnership to repurchase the Interest or portion of an Interest.
(e) Repurchases of Interests or portions of Interests by the Partnership will be payable promptly after the date of each repurchase or, in the case of an offer by the Partnership to repurchase Interests or portions of Interests, promptly after the expiration date of the repurchase offer in accordance with the terms of the repurchase offer. Payment of the purchase price for an Interest or portion of an Interest will consist of: (1) cash or a promissory note, which will be non-transferable and need not bear interest, in an amount equal to the percentage, as may be determined by the Directors, of the estimated unaudited net asset value of the Interest or portion of an Interest repurchased by the Partnership determined as of the date of the repurchase (the "Initial Payment"); and (2) if determined to be appropriate by the Directors or if the Initial Payment is less than 100% of the estimated unaudited net asset value, a promissory note, which may or may not be incorporated into the note applicable to the Initial Payment, entitling its holder to a contingent payment (the "Post-Audit Payment") equal to the excess, if any, of (A) the net asset value of the Interest or portion of an Interest repurchased by the Partnership as of the date of the repurchase, determined based on the audited financial statements of the Partnership for the Fiscal Year in which the repurchase was effective, over (B) the Initial Payment. Any obligation under such a promissory note with respect to the Initial Payment will be due and payable not more than 30 days after the date of repurchase or, if the Partnership has requested withdrawal of its capital from any Investment Funds in funding the repurchase of Interests, ten Business Days after the Partnership has received at least 90% of the aggregate amount withdrawn by the Partnership from the Investment Funds. Any obligation under such a promissory note with respect to the Post-Audit Payment will be due and payable promptly following the preparation of the applicable audited financial statements. Notwithstanding anything to the contrary in this Section 4.5(e), the Directors, in their discretion, may cause the Partnership to pay all or any portion of the repurchase price in Securities (or any combination of Securities and cash) having a value, determined as of the date of repurchase, equal to the amount to be repurchased. All repurchases of Interests or portions of Interest will be subject to any and all conditions as the Directors may impose in their sole discretion. The General Partner may, in its discretion, cause the Partnership to repurchase a Limited Partner's entire Interest, if the Limited Partner's Capital Account balance in the Partnership, as a result of repurchase or Transfer requests by the Limited Partner, is less than $100,000 or such other minimum amount established by the General Partner from time to time in its sole discretion. Subject to the procedures of this Section 4.5(e), the amount due to any Partner whose Interest or portion of an Interest is repurchased will be equal to the value of the Partner's Capital Account or portion of such Capital Account, as of the effective date of repurchase, after giving effect to all allocations to be made to the Partner's Capital Account as of that date. If a Limited Partner's entire Interest is repurchased, that Limited Partner will cease to be a Limited Partner.
Appears in 1 contract
Samples: Limited Partnership Agreement (Endowment Master Fund L P)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner or other Person holding an Interest or portion of an Interest will have the right to withdraw or tender an Interest or portion of an Interest to the Partnership for repurchase. The Directors may, from time to time, in their complete and exclusive discretion and on terms and conditions as they may determine, cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, unless the Partnership has been advised by its legal counsel that more frequent offers would not cause any adverse tax consequences to the Partnership or the Partners. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tenders, the Directors will consider the following factors, among others:
(1) whether any Partners have requested to tender Interests or portions of Interests;
(2) the liquidity of the Partnership's assets (including fees and costs associated with withdrawing from Advisor Funds);
(3) the investment plans and working capital and reserve requirements of the Partnership;
(4) the relative economies of scale with respect to the size of the Partnership;
(5) the history of the Partnership in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the Partnership's interests in the Advisor Funds and Advisor Accounts;
(7) existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the anticipated tax consequences to the Partnership of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General Partner. The Directors will cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders only on terms fair to the Partnership and to all Partners and Persons holding Interests or portions of Interests acquired from Partners.
(b) Upon the commencement of an offer to repurchase Interests, the Partnership will send an advance notification of the offer (the "Notice") to the Partners via their financial intermediaries. The Notice will specify, among other things:
(1) the percentage of Interests that the Partnership is offering to repurchase;
(2) the date on which a Partner's repurchase request is due;
(3) the Valuation Date (as defined in Section 4.5(d) below) applicable to the repurchase offer;
(4) the date the proceeds from their Interest sales shall be due to the Partners; and
(5) the value of the Interests as of the date of the Notice.
(c) Each repurchase offer will be limited to the repurchase of approximately 5% of the Interests (but in no event to exceed the repurchase of more than 20% of the Interests per quarter). A Partner may participate in a repurchase offer only if he, she or it has been a Partner for 12 consecutive months prior to such offer. The General Partner may, in its sole discretion, permit repurchases that do not comply with the requirements set forth in this Section 4.5(c) (other than the requirement that the Partnership will not repurchase more than 20% of the Interests per quarter); provided that such non-conforming repurchases may be subject to a penalty of up to 5% of the amount requested to be repurchased (to be netted against withdrawal proceeds). The minimum value of a repurchase is $50,000, subject to the discretion of the General Partner to allow otherwise.
(d) Interests are expected to be repurchased at their net asset value determined as of approximately June 30, September 30, December 31 and March 31, as applicable (each such date, a "Valuation Date"). Partners tendering Interests for repurchase shall provide written notice of their intent to so tender by the date specified in the Notice, which date shall be approximately 65 days (but in no event less than 60 days) prior to the date of repurchase by the Partnership. Partners tendering their Interests may not have all such Interests accepted for repurchase by the Partnership. The Partnership may elect to repurchase less than the full amount a Partner requests to be repurchased. If a repurchase offer is oversubscribed, the Partnership will repurchase only a pro rata portion of the amount tendered by each Partner.
(e) The Directors may under certain circumstances elect to postpone, suspend or terminate an offer to repurchase Interests.
(f) A Limited Partner tendering a portion of its Interests for repurchase will be required to maintain a minimum capital account balance of $100,000. The Partnership may reduce the portion of Interests to be purchased from a Limited Partner to maintain the required minimum balance. Such minimum balance requirement may be waived by the General Partner in its sole discretion, subject to applicable federal securities laws. Additionally, the General Partner may, in its discretion, cause the Partnership to repurchase a Limited Partner's entire Interest if the Limited Partner's Capital Account balance in the Partnership, as a result of repurchase or Transfer requests by the Limited Partner, is less than $100,000 or such other minimum amount established by the General Partner from time to time in its sole discretion.
(g) Except as provided in SECTION 4.5(H) of this Agreement, a General Partner may tender its Interest or portion of an Interest under SECTION 4.5(A) of this Agreement only if and to the extent that (1) the repurchase would not cause the value of the Capital Account of the General Partner to be less than the value required to be maintained under SECTION 5.1(I) of this Agreement and (2) in the view of legal counsel to the Partnership, the repurchase would not jeopardize the classification of the Partnership as a partnership for U.S. federal income tax purposes.
(h) If a General Partner ceases to serve in that capacity under SECTION 4.1 of this Agreement (other than pursuant to SECTION 4.1(I)) and the business of the Partnership is continued in accordance with SECTION 6.1(A)(2)(B) of this Agreement, the former General Partner (or its trustee or other legal representative) may, by written notice to the Directors within 60 days of the action resulting in the continuation of the Partnership under SECTION 6.1(A)(2)(B), tender to the Partnership all or any portion of its Interest. Within 30 days after the receipt of notice, the Directors will cause the Interest or portion of an Interest to be repurchased by the Partnership for cash in an amount equal to the balance of the former General Partner's Capital Account or applicable portion of the Capital Account. If the former General Partner does not tender to the Partnership all of its Interest as permitted by this SECTION 4.5(H), the Interest will automatically convert to and will be treated in all respects as the Interest of a Limited Partner. If the General Partner ceases to serve in this capacity under Section 4.1 of this Agreement (other than pursuant to SECTION 4.1(I)) and the Partnership is not continued under SECTION 6.1(A)(2)(B) of this Agreement, the liquidation and distribution provisions of ARTICLE VI of this Agreement will apply to the General Partner's Interest.
(i) The General Partner may cause the Partnership to repurchase an Interest or portion of an Interest of a Limited Partner or any Person acquiring an Interest from or through a Limited Partner, on terms fair to the Partnership and to the Limited Partner or Person acquiring an Interest from or through such Limited Partner, in the event that the General Partner, in its sole discretion, determines or has reason to believe that:
(1) the Interest or portion of an Interest has been Transferred in violation of SECTION 4.4 of this Agreement, or the Interest or portion of an Interest has vested in any Person other than by operation of law as the result of the death, dissolution, bankruptcy, insolvency or adjudicated incompetence of the Limited Partner;
(2) ownership of the Interest or portion of an Interest by a Partner or other Person is likely to (A) cause the Partnership to be in violation of, or (B) (x) require registration of any Interest or portion of any Interest under, or (y) subject the Partnership to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest or portion of an Interest may be harmful or injurious to the business or reputation of the Partnership, the Directors, the General Partner or any of their Affiliates, or may subject the Partnership or any of the Partners to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Partner or other Person in connection with the acquisition of the Interest or portion of an Interest was not true when made or has ceased to be true;
(5) with respect to a Limited Partner subject to special regulatory or compliance requirements, such as those imposed by ERISA, the Bank Holding Company Act or certain Federal Communication Commission regulations (collectively, "SPECIAL LAWS OR REGULATIONS"), such Limited Partner will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest or portion of an Interest; or
(6) it would be in the best interests of the Partnership, as determined by the General Partner or the Directors, for the Partnership to repurchase the Interest or portion of an Interest.
(j) Payments for accepted repurchases of Interests of less than 90% of a Partner's Capital Account generally will be paid approximately 90 days after the Valuation Date (after adjusting for fees, expenses, reserves or other allocations or repurchase) and will be subject to adjustment within 45 days after completion of the annual audit of the Partnership for the applicable Fiscal Year. Such annual audit may be delayed in the event that information necessary to complete the annual audit is not received on a timely basis from the Master Partnership or the Advisors. Payments for accepted repurchases of interests for 90% or more of a Partner's Capital Account may be paid in two installments. Payment of an amount equal to at least 90% of the interests repurchased (after adjusting for fees, expenses, reserves or other allocations or repurchase) generally will be made approximately 90 days after the Valuation Date. Final settlement of payments in connection with the repurchased Interests generally will be made within 45 days after completion of the annual audit of the Partnership for the applicable Fiscal Year. Payments in connection with repurchased interests may be delayed if such information is delayed. Notwithstanding anything to the contrary in this SECTION 4.5(J), the Directors, in their discretion, may cause the Partnership to pay all or any portion of the repurchase price in Securities (or any combination of Securities and cash) having a value, determined as of the date of repurchase, equal to the amount to be repurchased. All repurchases of Interests or portions of Interest will be subject to any and all conditions as the Directors may impose in their sole discretion. The General Partner may, in its discretion, cause the Partnership to repurchase a Limited Partner's entire Interest, if the Limited Partner's Capital Account balance in the Partnership, as a result of repurchase or Transfer requests by the Limited Partner, is less than a minimum amount that may be established by the General Partner from time to time in its sole discretion. Subject to the procedures of this SECTION 4.5(J), the amount due to any Partner whose Interest or portion of an Interest is repurchased will be equal to the value of the Partner's Capital Account or portion of such Capital Account, as of the applicable Valuation Date, after giving effect to all allocations to be made to the Partner's Capital Account as of that date. If a Limited Partner's entire Interest is repurchased, that Limited Partner will cease to be a Limited Partner.
Appears in 1 contract
Samples: Limited Partnership Agreement (Hatteras Multi-Strategy TEI Fund, L.P.)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner or other Person holding an Interest or portion of an Interest will have the right to withdraw or tender an Interest or portion of an Interest to the Partnership for repurchase. The Directors may, from time to time, in their complete and exclusive discretion and on terms and conditions as they may determine, cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, Year unless the Partnership it has been advised by its legal counsel to the Partnership to the effect that more frequent offers would not cause any adverse tax consequences to the Partnership or the Partners. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tenders, the Directors will consider the following factors, among others:
(1) whether any Partners have requested to tender Interests or portions of Interests;
(2) the liquidity of the Partnership's ’s assets (including fees and costs associated with withdrawing from Advisor FundsInvestment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve requirements of the Partnership;
(4) the relative economies of scale with respect to the size of the Partnership;
(5) the history of the Partnership in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the Partnership's ’s interests in the Advisor Funds and Advisor AccountsInvestment Fund;
(7) existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the anticipated tax consequences to the Partnership of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General PartnerPartner and/or the Adviser. The Directors will cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders only on terms fair to the Partnership and to all Partners and Persons holding Interests or portions of Interests acquired from Partners.
(b) Except as provided in Section 4.5(c) of this Agreement, a General Partner may tender its Interest or portion of an Interest under Section 4.5(a) of this Agreement only if and to the extent that (1) the repurchase would not cause the value of the Capital Account of the General Partner to be less than the value required to be maintained under Section 5.1(c) of this Agreement or (2) in the view of legal counsel to the Partnership, the repurchase would not jeopardize the classification of the Partnership as a partnership for U.S. Federal income tax purposes.
(c) If a General Partner ceases to serve in that capacity under Section 4.1 of this Agreement (other than pursuant to Section 4.1(d)) and the business of the Partnership is continued in accordance with Section 6.1(a)(2)(B) of this Agreement, the former General Partner (or its trustee or other legal representative) may, by written notice to the Directors within 60 days of the action resulting in the continuation of the Partnership under Section 6.1(a)(2)(B), tender to the Partnership all or any portion of its Interest. Within 30 days after the receipt of notice, the Directors will cause the Interest or portion of an Interest to be repurchased by the Partnership for cash in an amount equal to the balance of the former General Partner’s Capital Account or applicable portion of the Capital Account. If the former General Partner does not tender to the Partnership all of its Interest as permitted by this Section 4.5(c), the Interest will automatically convert to and will be treated in all respects as the Interest of a Limited Partner. If the General Partner ceases to serve in this capacity under Section 4.1 of this Agreement (other than pursuant to Section 4.1(d)) and the Partnership is not continued under Section 6.1(a)(2)(B) of this Agreement, the liquidation and distribution provisions of Article VI of this Agreement will apply to the General Partner’s Interest.
(d) The General Partner may cause the Partnership to repurchase an Interest or portion of an Interest of a Limited Partner or any Person acquiring an Interest from or through a Limited Partner, on terms fair to the Partnership and to the Limited Partner or Person acquiring an Interest from or though such Limited Partner, in the event that the General Partner, in its sole discretion, determines or has reason to believe that:
(1) the Interest or portion of an Interest has been Transferred in violation of Section 4.4 of this Agreement, or the Interest or portion of an Interest has vested in any Person other than by operation of law as the result of the death, dissolution, bankruptcy, insolvency or adjudicated incompetence of the Limited Partner;
(2) ownership of the Interest or portion of an Interest by a Partner or other Person is likely to (A) cause the Partnership to be in violation of, or (B) (x) require registration of any Interest or portion of any Interest under, or (y) subject the Partnership to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest or portion of an Interest may be harmful or injurious to the business or reputation of the Partnership, the Directors, the General Partner or the Adviser or any of their Affiliates, or may subject the Partnership or any of the Partners to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Partner or other Person in connection with the acquisition of the Interest or portion of an Interest was not true when made or has ceased to be true;
(5) with respect to a Limited Partner subject to special regulatory or compliance requirements, such as those imposed by ERISA, the Bank Holding Company Act or certain Federal Communication Commission regulations (collectively, “Special Laws or Regulations”), such Limited Partner will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest or portion of an Interest; or
(6) it would be in the best interests of the Partnership, as determined by the General Partner or the Directors, for the Partnership to repurchase the Interest or portion of an Interest.
(e) Repurchases of Interests or portions of Interests by the Partnership will be payable promptly after the date of each repurchase or, in the case of an offer by the Partnership to repurchase Interests or portions of Interests, promptly after the expiration date of the repurchase offer in accordance with the terms of the repurchase offer. Payment of the purchase price for an Interest or portion of an Interest will consist of: (1) cash or a promissory note, which will be non-transferable and need not bear interest, in an amount equal to the percentage, as may be determined by the Directors, of the estimated unaudited net asset value of the Interest or portion of an Interest repurchased by the Partnership determined as of the date of the repurchase (the “Initial Payment”); and (2) if determined to be appropriate by the Directors or if the Initial Payment is less than 100% of the estimated unaudited net asset value, a promissory note, which may or may not be incorporated into the note applicable to the Initial Payment, entitling its holder to a contingent payment (the “Post-Audit Payment”) equal to the excess, if any, of A) the net asset value of the Interest or portion of an Interest repurchased by the Partnership as of the date of the repurchase, determined based on the audited financial statements of the Partnership for the Fiscal Year in which the repurchase was effective, over (B) the Initial Payment. Any obligation under such a promissory note with respect to the Initial Payment will be due and payable not more than 30 days after the date of repurchase or, if the Partnership has requested withdrawal of its capital from any Investment Funds in funding the repurchase of Interests, ten Business Days after the Partnership has received at least 90% of the aggregate amount withdrawn by the Partnership from the Investment Funds. Any obligation under such a promissory note with respect to the Post-Audit Payment will be due and payable promptly following the preparation of the applicable audited financial statements. Notwithstanding anything to the contrary in this Section 4.5(e), the Directors, in their discretion, may cause the Partnership to pay all or any portion of the repurchase price in Securities in kind (or any combination of Securities in kind and cash) having a value, determined as of the date of repurchase, equal to the amount to be repurchased. All repurchases of Interests or portions of Interest will be subject to any and all conditions as the Directors may impose in their sole discretion. The General Partner may, in its discretion, cause the Partnership to repurchase a Limited Partner’s entire Interest, if the Limited Partner’s Capital Account balance in the Partnership, as a result of repurchase or Transfer requests by the Limited Partner, is less than $250,000 or such other minimum amount established by the General Partner from time to time in its sole discretion. Subject to the procedures of this Section 4.5(e), the amount due to any Partner whose Interest or portion of an Interest is repurchased will be equal to the value of the Partner’s Capital Account or portion of such Capital Account, as of the effective date of repurchase, after giving effect to all allocations to be made to the Partner’s Capital Account as of that date. If a Limited Partner’s entire Interest is repurchased, that Limited Partner will cease to be a Limited Partner.
Appears in 1 contract
Samples: Limited Partnership Agreement (Morgan Stanley Institutional Fund of Hedge Funds Lp)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner or other Person holding an Interest or portion of an Interest will have the right to withdraw or tender an Interest or portion of an Interest to the Partnership for redemption or repurchase. The Directors may, from time to time, in their complete and exclusive discretion and on terms and conditions as they may determine, cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, unless the Partnership has been advised by its legal counsel that more frequent offers would not cause any adverse tax consequences to the Partnership or the Partners. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tenders, the Directors will consider the following factors, among others:
(1) whether any Partners have requested to tender Interests or portions of Interests;
(2) the liquidity of the Partnership's assets (including fees and costs associated with withdrawing from Advisor Funds);
(3) the investment plans and working capital and reserve requirements of the Partnership;
(4) the relative economies of scale with respect to the size of the Partnership;
(5) the history of the Partnership in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the Partnership's interests in the Advisor Funds and Advisor Accounts;
(7) existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the anticipated tax consequences to the Partnership of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General PartnerPartner and/or the Investment Manager. The Directors will cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders only on terms fair to the Partnership and to all Partners and Persons holding Interests or portions of Interests acquired from Partners.
Appears in 1 contract
Samples: Limited Partnership Agreement (Hatteras Master Fund, L.P.)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner or other Person holding an Interest or portion of an Interest will have the right to withdraw or tender an Interest or portion of an Interest to the Partnership for redemption or repurchase. The Directors may, from time to time, in their complete and exclusive discretion and on terms and conditions as they may determine, cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, unless the Partnership has been advised by its legal counsel that more frequent offers would not cause any adverse tax consequences to the Partnership or the Partners. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tenders, the Directors will consider the following factors, among others:
(1) whether any Partners have requested to tender Interests or portions of Interests;
(2) the liquidity of the Partnership's assets (including fees and costs associated with withdrawing from Advisor FundsInvestment Funds and/or disposing of assets managed by Sub-advisers);
(3) the investment plans and working capital and reserve requirements of the Partnership;
(4) the relative economies of scale with respect to the size of the Partnership;
(5) the history of the Partnership in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the Partnership's interests in the Advisor Funds and Advisor AccountsInvestment Funds;
(7) existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the anticipated tax consequences to the Partnership of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General PartnerPartner and/or the Adviser. The Directors will cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders only on terms fair to the Partnership and to all Partners and Persons holding Interests or portions of Interests acquired from Partners.
(b) Except as provided in Section 4.5(c) of this Agreement, a General Partner may tender its Interest or portion of an Interest under Section 4.5(a) of this Agreement only if and to the extent that (1) the repurchase would not cause the value of the Capital Account of the General Partner to be less than the value required to be maintained under Section 5.1(c) of this Agreement or (2) in the view of legal counsel to the Partnership, the repurchase would not jeopardize the classification of the Partnership as a Partnership for U.S. Federal income tax purposes.
(c) If a General Partner ceases to serve in that capacity under Section 4.1 of this Agreement (other than pursuant to Section 4.1(d)) and the business of the Partnership is continued in accordance with Section 6.1(a)(2)(B) of this Agreement, the former General Partner (or its trustee or other legal representative) may, by written notice to the Directors within 60 days of the action resulting in the continuation of the Partnership under Section 6.1(a)(2)(B), tender to the Partnership all or any portion of its Interest. Within 30 days after the receipt of notice, the Directors will cause the Interest or portion of an Interest to be repurchased by the Partnership for cash in an amount equal to the balance of the former General Partner's Capital Account or applicable portion of the Capital Account. If the former General Partner does not tender to the Partnership all of its Interest as permitted by this Section 4.5(c), the Interest will automatically convert to and will be treated in all respects as the Interest of a Limited Partner. If the General Partner ceases to serve in this capacity under Section 4.1 of this Agreement (other than pursuant to Section 4.1(d)) and the Partnership is not continued under Section 6.1(a)(2)(B) of this Agreement, the liquidation and distribution provisions of Article VI of this Agreement will apply to the General Partner's Interest.
(d) The General Partner may cause the Partnership to repurchase an Interest or portion of an Interest of a Limited Partner or any Person acquiring an Interest from or through a Limited Partner, on terms fair to the Partnership and to the Limited Partner or Person acquiring an Interest from or through such Limited Partner, in the event that the General Partner, in its sole discretion, determines or has reason to believe that:
(1) the Interest or portion of an Interest has been Transferred in violation of Section 4.4 of this Agreement, or the Interest or portion of an Interest has vested in any Person other than by operation of law as the result of the death, dissolution, bankruptcy, insolvency or adjudicated incompetence of the Limited Partner;
(2) ownership of the Interest or portion of an Interest by a Partner or other Person is likely to (A) cause the Partnership to be in violation of, or (B) (x) require registration of any Interest or portion of any Interest under, or (y) subject the Partnership to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest or portion of an Interest may be harmful or injurious to the business or reputation of the Partnership, the Directors, the General Partner or the Adviser or any of their Affiliates, or may subject the Partnership or any of the Partners to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Partner or other Person in connection with the acquisition of the Interest or portion of an Interest was not true when made or has ceased to be true;
(5) with respect to a Limited Partner subject to special regulatory or compliance requirements, such as those imposed by ERISA, the Bank Holding Company Act or certain Federal Communication Commission regulations (collectively, "Special Laws or Regulations"), such Limited Partner will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest or portion of an Interest; or
(6) it would be in the best interests of the Partnership, as determined by the General Partner or the Directors, for the Partnership to repurchase the Interest or portion of an Interest.
(e) Repurchases of Interests or portions of Interests by the Partnership will be payable promptly after the date of each repurchase or, in the case of an offer by the Partnership to repurchase Interests or portions of Interests, promptly after the expiration date of the repurchase offer in accordance with the terms of the repurchase offer. Payment of the purchase price for an Interest or portion of an Interest will consist of: (1) cash or a promissory note, which will be non-transferable and need not bear interest, in an amount equal to the percentage, as may be determined by the Directors, of the estimated unaudited net asset value of the Interest or portion of an Interest repurchased by the Partnership determined as of the ate of the repurchase (the "Initial Payment"); and (2) if determined to be appropriate by the Directors or if the Initial Payment is less than 100% of the estimated unaudited net asset value, a promissory note, which may or may not be incorporated into the note applicable to the Initial Payment entitling its holder to a contingent payment (the "Post-Audit Payment") equal to the excess, if any, of (A) the net asset value of the Interest or portion of any Interest repurchased by the Partnership as of the date of the repurchase, determined based on the audited financial statements of the Partnership for the Fiscal year in which the repurchase was effective, over (B) the Initial Payment. Any obligation under such a promissory note with respect to the Initial Payment will be due and payable not more than 30 days after the date of repurchase or, if the Partnership has requested withdrawal of its capital from any Investment Funds in funding the repurchase of Interests, ten Business Days after the Partnership has received at least 90% of the aggregate amount withdrawn by the Partnership from the Investment Funds. Any obligation under such a promissory note with respect to the Post-Audit Payment will be due and payable promptly following the preparation of the applicable audited financial statements. Notwithstanding anything to the contrary in this Section 4.5(e), the Directors, in their discretion, may cause the Partnership to pay all or any portion of the repurchase price in Securities (or any combination of Securities and cash) having a value, determined as of the date of repurchase, equal to the amount to be repurchased. All repurchases of Interests or portions of Interest will be subject to any and all conditions as the Directors may impose in their sole discretion. The General Partner may, in its discretion, cause the Partnership to repurchase a Limited Partner's entire Interest, if the Limited Partner's Capital Account balance in the Partnership, as a result of repurchase or Transfer requests by the Limited Partner, is less than $100,000 or such other minimum amount established by the General Partner from time to time in its sole discretion. Subject to the procedures of this Section 4.5(e), the amount due to any Partner whose Interest or portion of an Interest is repurchased will be equal to the value of the Partner's Capital Account or portion of such Capital Account, as of the effective date of repurchase, after giving effect to all allocation to be made to the Partner's Capital Account as of that date. If a Limited Partner's entire Interest is repurchase, that Limited Partner will cease to be a Limited Partner.
Appears in 1 contract
Samples: Limited Partnership Agreement (Endowment Master Fund L P)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner or other Person holding an Interest or portion of an Interest will have the right to withdraw or tender an Interest or portion of an Interest to the Partnership for repurchase. The Directors may, from time to time, in their complete and exclusive discretion and on terms and conditions as they may determine, cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, Year unless the Partnership it has been advised by its legal counsel to the Partnership to the effect that more frequent offers would not cause any adverse tax consequences to the Partnership or the Partners. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tenders, the Directors will consider the following factors, among others:
(1) whether any Partners have requested to tender Interests or portions of Interests;
(2) the liquidity of the Partnership's ’s assets (including fees and costs associated with withdrawing from Advisor Investment Funds);
(3) the investment plans and working capital and reserve requirements of the Partnership;
(4) the relative economies of scale with respect to the size of the Partnership;
(5) the history of the Partnership in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the Partnership's ’s interests in the Advisor Funds and Advisor AccountsInvestment Fund;
(7) existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the anticipated tax consequences to the Partnership of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General PartnerPartner and/or the Adviser. The Directors will cause the Partnership to repurchase Interests or portions of Interests in accordance with written tenders only on terms fair to the Partnership and to all Partners and Persons holding Interests or portions of Interests acquired from Partners.
(b) Except as provided in Section 4.5(c) of this Agreement, a General Partner may tender its Interest or portion of an Interest under Section 4.5(a) of this Agreement only if and to the extent that (1) the repurchase would not cause the value of the Capital Account of the General Partner to be less than the value required to be maintained under Section 5.1(c) of this Agreement or (2) in the view of legal counsel to the Partnership, the repurchase would not jeopardize the classification of the Partnership as a partnership for U.S. Federal income tax purposes.
(c) If a General Partner ceases to serve in that capacity under Section 4.1 of this Agreement (other than pursuant to Section 4.1(d)) and the business of the Partnership is continued in accordance with Section 6.1(a)(2)(B) of this Agreement, the former General Partner (or its trustee or other legal representative) may, by written notice to the Directors within 60 days of the action resulting in the continuation of the Partnership under Section 6.1(a)(2)(B), tender to the Partnership all or any portion of its Interest. Within 30 days after the receipt of notice, the Directors will cause the Interest or portion of an Interest to be repurchased by the Partnership for cash in an amount equal to the balance of the former General Partner’s Capital Account or applicable portion of the Capital Account. If the former General Partner does not tender to the Partnership all of its Interest as permitted by this Section 4.5(c), the Interest will automatically convert to and will be treated in all respects as the Interest of a Limited Partner. If the General Partner ceases to serve in this capacity under Section 4.1 of this Agreement (other than pursuant to Section 4.1(d)) and the Partnership is not continued under Section 6.1(a)(2)(B) of this Agreement, the liquidation and distribution provisions of Article VI of this Agreement will apply to the General Partner’s Interest.
(d) The General Partner may cause the Partnership to repurchase an Interest or portion of an Interest of a Limited Partner or any Person acquiring an Interest from or through a Limited Partner, on terms fair to the Partnership and to the Limited Partner or Person acquiring an Interest from or though such Limited Partner, in the event that the General Partner, in its sole discretion, determines or has reason to believe that:
(1) the Interest or portion of an Interest has been Transferred in violation of Section 4.4 of this Agreement, or the Interest or portion of an Interest has vested in any Person other than by operation of law as the result of the death, dissolution, bankruptcy, insolvency or adjudicated incompetence of the Limited Partner;
(2) ownership of the Interest or portion of an Interest by a Partner or other Person is likely to (A) cause the Partnership to be in violation of, or (B) (x) require registration of any Interest or portion of any Interest under, or (y) subject the Partnership to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest or portion of an Interest may be harmful or injurious to the business or reputation of the Partnership, the Directors, the General Partner or the Adviser or any of their Affiliates, or may subject the Partnership or any of the Partners to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Partner or other Person in connection with the acquisition of the Interest or portion of an Interest was not true when made or has ceased to be true;
(5) with respect to a Limited Partner subject to special regulatory or compliance requirements, such as those imposed by ERISA, the Bank Holding Company Act or certain Federal Communication Commission regulations (collectively, “Special Laws or Regulations”), such Limited Partner will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest or portion of an Interest; or
(6) it would be in the best interests of the Partnership, as determined by the General Partner or the Directors, for the Partnership to repurchase the Interest or portion of an Interest.
(e) Repurchases of Interests or portions of Interests by the Partnership will be payable promptly after the date of each repurchase or, in the case of an offer by the Partnership to repurchase Interests or portions of Interests, promptly after the expiration date of the repurchase offer in accordance with the terms of the repurchase offer. Payment of the purchase price for an Interest or portion of an Interest will consist of: (1) cash or a promissory note, which will be non-transferable and need not bear interest, in an amount equal to the percentage, as may be determined by the Directors, of the estimated unaudited net asset value of the Interest or portion of an Interest repurchased by the Partnership determined as of the date of the repurchase (the “Initial Payment”); and (2) if determined to be appropriate by the Directors or if the Initial Payment is less than 100% of the estimated unaudited net asset value, a promissory note, which may or may not be incorporated into the note applicable to the Initial Payment, entitling its holder to a contingent payment (the “Post-Audit Payment”) equal to the excess, if any, of (A) the net asset value of the Interest or portion of an Interest repurchased by the Partnership as of the date of the repurchase, determined based on the audited financial statements of the Partnership for the Fiscal Year in which the repurchase was effective, over (B) the Initial Payment. Any obligation under such a promissory note with respect to the Initial Payment will be due and payable not more than 30 days after the date of repurchase or, if the Partnership has requested withdrawal of its capital from any Investment Funds in funding the repurchase of Interests, ten Business Days after the Partnership has received at least 90% of the aggregate amount withdrawn by the Partnership from the Investment Funds. Any obligation under such a promissory note with respect to the Post-Audit Payment will be due and payable promptly following the preparation of the applicable audited financial statements. All repurchases of Interests or portions of Interest will be subject to any and all conditions as the Directors may impose in their sole discretion. The General Partner may, in its discretion, cause the Partnership to repurchase a Limited Partner’s entire Interest, if the Limited Partner’s Capital Account balance in the Partnership, as a result of repurchase or Transfer requests by the Limited Partner, is less than $25,000,000 or such other minimum amount established by the General Partner from time to time in its sole discretion. Subject to the procedures of this Section 4.5(e), the amount due to any Partner whose Interest or portion of an Interest is repurchased will be equal to the value of the Partner’s Capital Account or portion of such Capital Account, as of the effective date of repurchase, after giving effect to all allocations to be made to the Partner’s Capital Account as of that date. If a Limited Partner’s entire Interest is repurchased, that Limited Partner will cease to be a Limited Partner.
Appears in 1 contract
Samples: Limited Partnership Agreement (Morgan Stanley Institutional Fund of Hedge Funds II LP)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner No Member or other Person holding an Interest or portion of an Interest acquired from a Member will have the right to withdraw require the Fund to redeem or tender an Interest or portion of an Interest to otherwise repurchase the Partnership for repurchase. Interest.
(b) The Directors may, Fund may from time to timetime repurchase Interests from Members in accordance with written tenders by Members at those times, in their complete and exclusive discretion those amounts, and on terms and conditions as they the Board of Directors may determine, cause the Partnership determine in its sole discretion. The Fund will not offer to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, unless the Partnership Fund has been advised by its legal counsel to the Fund to the effect that more frequent offers would not cause any adverse tax consequences to the Partnership Fund or the PartnersMembers. The Investment Manager expects that it will recommend to the Board of Directors that the Fund offer to repurchase Interests from Members approximately six months after the Initial Closing Date (or, if such date is not the last day of a calendar quarter, the last day of that calendar quarter), and, after that date, quarterly, effective as of the last day of March, June, September and December. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tendersaccept such a recommendation, the Board of Directors will consider the following factors, among others:
(1) whether any Partners Members have requested to tender Interests or portions of Intereststo the Fund;
(2) the liquidity of the Partnership's Fund’s assets (including fees and costs associated with withdrawing from Advisor FundsInvestment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve requirements of the PartnershipFund;
(4) the relative economies of scale of the tenders with respect to the size of the PartnershipFund;
(5) the history of the Partnership Fund in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the Partnership's Fund’s interests in the Advisor Funds and Advisor AccountsInvestment Funds;
(7) the existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the any anticipated tax consequences to the Partnership Fund of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General Partner. Investment Manager.
(c) The Directors Fund will cause the Partnership to repurchase Interests or portions of Interests from Members at net asset value in accordance with written tenders only on terms and conditions that the Board of Directors determines to be fair to the Partnership Fund and to all Partners and Members or Persons holding Interests acquired from Members. The net asset value of a Member’s Interest will be calculated in accordance with the Fund’s procedures as of the relevant Repurchase Date, after giving effect to all allocations that are made as of that date. When the Board of Directors determines that the Fund will repurchase Interests, notice will be provided to Members, specifying the date on which repurchase requests must be received by the Fund (the “Notice Due Date”), describing the terms of the offer, containing information Members should consider in deciding whether to participate in the repurchase opportunity and containing information on how to participate. The Notice Due Date will be a date set by the Board of Directors occurring no sooner than 20 Business Days after the commencement of the repurchase offer and such date may be extended by the Board of Directors in its absolute discretion. Members deciding whether to tender their Interests during the period that a repurchase offer is open may obtain the most recently calculated net asset value of their Interests by contacting the Investment Manager during the period.
(d) The Fund expects to employ the following repurchase procedures, which procedures may be deviated from, varied or portions amended by the Board of Directors in its sole discretion upon notice to the Members:
(1) A Member choosing to tender an Interest for repurchase must do so by the Notice Due Date, which generally will be the 25th calendar day of the second month prior to the month in which the Repurchase Date falls (or, if such date is not a Business Day, the preceding Business Day).
(2) Promptly after the Notice Due Date, the Fund will give to each Member whose Interest has been accepted for repurchase a promissory note (the “Promissory Note”) entitling the Member to be paid an amount equal to the net asset value, as of the Repurchase Date, of the repurchased Interest. The determination of the value of Interests acquired as of the Repurchase Date is subject to adjustment based upon the results of the next annual audit of the Fund’s financial statements.
(3) The Promissory Note, which will be non-interest-bearing and non-transferable, is expected to contain terms providing for payment at two separate times.
(4) The initial payment in respect of the Promissory Note (the “Initial Payment”) will be in an amount equal to at least 95% of the net asset value of the repurchased Interest as of the Repurchase Date less any Repurchase Fee due to the Fund in connection with the repurchase. The Initial Payment will be made on or before the later of (i) 45 days after the Repurchase Date, or (ii) if the Fund has requested withdrawals of its capital from Partnersany Investment Funds in order to fund the repurchase of Interests, ten Business Days after the Fund has received at least 95% of the aggregate amount withdrawn by the Fund from the Investment Funds.
(5) The second and final payment in respect of the Promissory Note (the “Post-Audit Payment”) is expected to be in an amount equal to the excess, if any, of (i) the net asset value of the repurchased Interest as of the Repurchase Date and based upon the results of the annual audit of the Fund’s financial statements for the year in which the Repurchase Date occurs, less any Repurchase Fee due to the Fund in connection with the repurchase, over (ii) the Initial Payment. The Fund anticipates that the annual audit of the Fund’s financial statements will be completed within 60 days after the end of each Fiscal Year of the Fund and that the Post- Audit Payment will be made promptly after the completion of the audit.
(e) In the event that the Managing Member, the Investment Manager or any of their respective Affiliates holds an Interest in his, her or its capacity as a Member, the Interest may be tendered for repurchase in connection with any repurchase offer made by the Fund.
(f) If the Managing Member ceases to serve in that capacity under Section 4.1 of this Agreement (other than under Section 4.1(c) of this Agreement), the Board of Directors may, by written notice to the former Managing Member (or its trustee or other legal representative) within 60 days of the former Managing Member ceasing to serve as managing member of the Fund, require the former Managing Member to tender to the Fund its entire Interest on a date set out in the notice. On such date, the Board of Directors will cause the Interest to be repurchased by the Fund for cash at a valuation determined by the Board of Directors in accordance with Section 4.5(c) of this Agreement, and the former Managing Member will thereupon cease to be a Member.
(g) The Fund may repurchase an Interest of a Member or any Person acquiring an Interest from or through a Member without consent or other action by the Member or other Person if the Fund in its sole discretion determines that:
(1) the Interest has been Transferred or has vested in any Person other than with the consent of the Fund or by operation of law as the result of the death, divorce, bankruptcy, insolvency, adjudicated incompetence or dissolution of the Member;
(2) ownership of the Interest by a Member or other Person is likely to cause the Fund to be in violation of, or require registration of any Interest under, or subject the Fund to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest may be harmful or injurious to the business or reputation of the Fund, the Board of Directors, the Managing Member, the Investment Manager or any of their Affiliates, or may subject the Fund or any of the Members to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Member or other Person in connection with the acquisition of the Interest was not true when made or has ceased to be true;
(5) with respect to a Member subject to special regulatory or compliance requirements, such as those imposed by Employee Retirement Income Security Act of 1974, the Bank Holding Company Act of 1956 or certain Federal Communication Commission regulations (collectively, “Special Laws or Regulations”), such Member will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest; or
(6) it would be in the best interests of the Fund for the Fund to repurchase the Interest.
(h) A Member (other than the Managing Member) tendering for repurchase only a portion of the Member’s Interest will be required to maintain a Capital Account balance of at least $50,000 after giving effect to the repurchase. If a Member (other than the Managing Member) tenders an amount that would cause the Member’s Capital Account balance to fall below the required minimum, the Fund shall have the right to either (1) reduce the amount to be repurchased from the Member so that the required minimum balance is maintained or (2) repurchase the remainder of the Member’s Interest in the Fund. The Fund may repurchase the entire Interest held by a Member (other than the Managing Member) if the Member’s Capital Account balance in the Fund, as a result of repurchase or Transfer by the Member, is less than $50,000. If the entire Interest of a Member (other than the Managing Member) is repurchased, that Member will cease to be a Member.
(i) Repurchases of Interests from Members by the Fund may be paid, in the discretion of the Fund, in cash, by the distribution of Securities in-kind or partly in cash and partly in-kind. The Fund, however, expects not to distribute Securities in-kind, except in the unlikely event that making a cash payment would result in a material adverse effect on the Fund or on Members not tendering Interests for repurchase. Any Securities distributed will be valued in accordance with this Agreement and will be distributed to all tendering Members on a proportional basis.
(j) The Fund may suspend or postpone a repurchase offer in certain limited circumstances, and only by a vote of a majority of the Board of Directors, including a majority of the Independent Directors. These circumstances include the following:
(1) for any period during which circumstances exist as a result of which it is not reasonably practicable for the Fund to dispose of Securities it owns or to determine the value of the Fund’s net assets;
(2) for any other periods that the SEC permits by order for the protection of Members; or
(3) other unusual circumstances as the Board of Directors in its discretion deems advisable to the Fund and its Members.
(k) A fee (a “Repurchase Fee”) will be charged by the Fund on any repurchase of an Interest from a Member at any time prior to the day immediately preceding the one-year anniversary of the Member’s purchase of the Interest. Partial Interests will be repurchased on a “first in – first out” basis (in other words, the portion of the Interest repurchased will be deemed to have been taken from the earliest Capital Contribution made by such Member (adjusted for subsequent appreciation and depreciation) until that Capital Contribution is decreased to zero, and then from each subsequent Capital Contribution made by such Member (as adjusted) until such Capital Contribution is decreased to zero). Other than any Repurchase Fee, the Fund will not impose any charges in connection with repurchases of Interests. At the Fund’s discretion, no Repurchase Fee will be charged by the Fund in connection with any repurchase of a Member’s Interest under Section 4.5(g).
(l) A repurchase of a Member’s Interest under Sections 4.5(g) or (h) shall be on terms and conditions as the Fund may determine in its sole discretion, provided that (1) valuation of the Interest shall be determined in accordance with Section 4.5(c), and (2) payment for the Interest shall be made no later than as provided under the Fund’s then-current tender offer procedures.
(m) Notwithstanding any provision to the contrary contained in this Agreement, the Fund will not repurchase any Interest or make a distribution to any Member on account of the Member’s Interest, if such repurchase or distribution would violate the Delaware Act or other applicable law.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Jp Morgan Access Multi-Strategy Fund LLC)
Repurchase of Interests. (a) Except as otherwise provided in this Agreement, no Partner No Member or other Person holding an Interest or portion of an Interest acquired from a Member will have the right to withdraw require the Fund to redeem or tender an Interest or portion of an Interest to otherwise repurchase the Partnership for repurchase. Interest.
(b) The Directors may, Fund may from time to timetime repurchase Interests from Members in accordance with written tenders by Members at those times, in their complete and exclusive discretion those amounts, and on terms and conditions as they the Board of Directors may determine, cause the Partnership determine in its sole discretion. The Fund will not offer to repurchase Interests or portions of Interests in accordance with written tenders. The Partnership will not offer, however, to repurchase Interests or portions of Interests on more than four occasions during any one Fiscal Year, unless the Partnership Fund has been advised by its legal counsel to the Fund to the effect that more frequent offers would not cause any adverse tax consequences to the Partnership Fund or the PartnersMembers. The Investment Manager and the Managing Member expect that they will recommend to the Board of Directors that the Fund offer to repurchase Interests from Members approximately six months after the Initial Closing Date (or, if such date is not the last day of a calendar quarter, the last day of that calendar quarter), and, after that date, quarterly, effective as of the last day of March, June, September and December. In determining whether to cause the Partnership to repurchase Interests or portions of Interests, pursuant to written tendersaccept such a recommendation, the Board of Directors will consider the following factors, among others:
(1) whether any Partners Members have requested to tender Interests or portions of Intereststo the Fund;
(2) the liquidity of the PartnershipFund's assets (including fees and costs associated with withdrawing from Advisor FundsInvestment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve requirements of the PartnershipFund;
(4) the relative economies of scale of the tenders with respect to the size of the PartnershipFund;
(5) the history of the Partnership Fund in repurchasing Interests or portions of Interests;
(6) the availability of information as to the value of the PartnershipFund's interests in the Advisor Funds and Advisor AccountsInvestment Funds;
(7) the existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) the any anticipated tax consequences to the Partnership Fund of any proposed repurchases of Interests or portions of Interests; and
(9) the recommendations of the General Partner. Managing Member and/or the Investment Manager.
(c) The Directors Fund will cause the Partnership to repurchase Interests or portions of Interests from Members at net asset value in accordance with written tenders only on terms and conditions that the Board of Directors determines to be fair to the Partnership Fund and to all Partners and Persons Members or persons holding Interests or portions of Interests acquired from PartnersMembers. The net asset value of a Member's Interest will be calculated in accordance with the Fund's procedures as of the relevant Repurchase Date, after giving effect to all allocations that are made as of that date (including any Incentive Allocation to the Special Member in respect of the Interest (or portion of the Interest) being repurchased). When the Board of Directors determines that the Fund will repurchase Interests, notice will be provided to Members, specifying the date on which repurchase requests must be received by the Fund (the "Notice Due Date"), describing the terms of the offer, containing information Members should consider in deciding whether to participate in the repurchase opportunity and containing information on how to participate. The Notice Due Date will be a date set by the Board of Directors occurring no sooner than 20 business days after the commencement of the repurchase offer and such date may be extended by the Board of Directors in its absolute discretion. Members deciding whether to tender their Interests during the period that a repurchase offer is open may obtain the most recently calculated net asset value of their Interests by contacting the Investment Manager during the period.
(d) The Fund expects to employ the following repurchase procedures, which procedures may be deviated from, varied or amended by the Board of Directors in their sole discretion upon notice to the Members:
(1) A Member choosing to tender an Interest for repurchase must do so by the Notice Due Date, which generally will be the 25th calendar day of the second month prior to the month in which the Repurchase Date falls (or, if such date is not a Business Day, the preceding Business Day).
(2) Promptly after the Notice Due Date, the Fund will give to each Member whose Interest has been accepted for repurchase a promissory note (the "Promissory Note") entitling the Member to be paid an amount equal to the net asset value, as of the Repurchase Date, of the repurchased Interest. The determination of the value of Interests as of the Repurchase Date is subject to adjustment based upon the results of the next annual audit of the Fund's financial statements.
(3) The Promissory Note, which will be non-interest-bearing and non-transferable, is expected to contain terms providing for payment at two separate times.
(4) The initial payment in respect of the Promissory Note (the "Initial Payment") will be in an amount equal to at least 95% of the net asset value of the repurchased Interest as of the Repurchase Date less any Repurchase Fee due to the Fund in connection with the repurchase. The Initial Payment will be made on or before the later of (i) 30 days after the Repurchase Date, or (ii) if the Fund has requested withdrawals of its capital from any Investment Funds in order to fund the repurchase of Interests, ten Business Days after the Fund has received at least 95% of the aggregate amount withdrawn by the Fund from the Investment Funds.
(5) The second and final payment in respect of the Promissory Note (the "Post-Audit Payment") is expected to be in an amount equal to the excess, if any, of (i) the net asset value of the repurchased Interest as of the Repurchase Date and based upon the results of the annual audit of the Fund's financial statements for the year in which the Repurchase Date occurs, less any Repurchase Fee due to the Fund in connection with the repurchase, over (ii) the Initial Payment. The Managing Member anticipates that the annual audit of the Fund's financial statements will be completed within 60 days after the end of each Fiscal Year of the Fund and that the Post-Audit Payment will be made promptly after the completion of the audit.
(e) In the event that the Managing Member, the Special Member, the Investment Manager or any of their respective Affiliates holds an Interest in his, her or its capacity as a Member, the Interest may be tendered for repurchase in connection with any repurchase offer made by the Fund.
(f) If the Managing Member ceases to serve in that capacity under Section 4.1 of this Agreement (other than under Section 4.1(c) of this Agreement) and the Fund is continued, the Board of Directors may, by written notice to the former Managing Member (or its trustee or other legal representative) within 60 days of the former Managing Member ceasing to serve as managing member of the Fund, require the former Managing Member to tender to the Fund its entire Interest on a date set out in the notice. On such date, the Board of Directors will cause the Interest to be repurchased by the Fund for cash at a valuation determined by the Board of Directors in accordance with Section 4.5(c) of this Agreement.
(g) The Fund may repurchase an Interest of a Member or any Person acquiring an Interest from or through a Member without consent or other action by the Member or other Person if the Managing Member in its sole discretion determines that:
(1) the Interest has been Transferred or has vested in any Person other than with the consent of the Managing Member or by operation of law as the result of the death, divorce, bankruptcy, insolvency, adjudicated incompetence or dissolution of the Member;
(2) ownership of the Interest by a Member or other Person is likely to cause the Fund to be in violation of, or require registration of any Interest under, or subject the Fund to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest may be harmful or injurious to the business or reputation of the Fund, the Board of Directors, the Managing Member, the Special Member, the Investment Manager or any of their Affiliates, or may subject the Fund or any of the Members to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Member or other Person in connection with the acquisition of the Interest was not true when made or has ceased to be true;
(5) with respect to a Member subject to special regulatory or compliance requirements, such as those imposed by Employee Retirement Income Security Act of 1974, the Bank Holding Company Act of 1956 or certain Federal Communication Commission regulations (collectively, "Special Laws or Regulations"), such Member will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest; or
(6) it would be in the best interests of the Fund for the Fund to repurchase the Interest.
(h) A Member (other than the Managing Member or the Special Member) tendering for repurchase only a portion of the Member's Interest will be required to maintain a Capital Account balance of at least $1,000,000 after giving effect to the repurchase. If a Member (other than the Managing Member or the Special Member) tenders an amount that would cause the Member's Capital Account balance to fall below the required minimum, the Managing Member shall have the right to either (1) reduce the amount to be repurchased from the Member so that the required minimum balance is maintained or (2) repurchase the remainder of the Member's Interest in the Fund. The Managing Member may, in its sole discretion, cause the Fund to repurchase the entire Interest held by a Member (other than the Managing Member or Special Member) if the Member's Capital Account balance in the Fund, as a result of repurchase or Transfer by the Member, is less than $1,000,000. If the entire Interest of a Member (other than the Managing Member or Special Member) is repurchased, that Member will cease to be a Member.
(i) Repurchases of Interests from Members by the Fund may be paid, in the discretion of the Managing Member, in cash, or by the distribution of securities in-kind or partly in cash and partly in-kind. The Fund, however, expects not to distribute securities in-kind, except in the unlikely event that making a cash payment would result in a material adverse effect on the Fund or on Members not tendering Interests for repurchase. Any securities distributed will be valued in accordance with this Agreement and will be distributed to all tendering Members on a proportional basis.
(j) The Fund may suspend or postpone a repurchase offer in certain limited circumstances, and only by a vote of a majority of the Board of Directors, including a majority of the Independent Directors. These circumstances include the following:
(1) for any period during which circumstances exist as a result of which it is not reasonably practicable for the Fund to dispose of securities it owns or to determine the value of the Fund's net assets;
(2) for any other periods that the Securities and Exchange Commission permits by order for the protection of Members; or
(3) other unusual circumstances as the Board of Directors in its discretion deems advisable to the Fund and its Members.
(k) A fee (a "Repurchase Fee") will be charged by the Fund on any repurchase of an Interest from a Member at any time prior to the day immediately preceding the one-year anniversary of the Member's purchase of the Interest. Partial Interests will be repurchased on a "first in - first out" basis (in other words, the portion of the Interest repurchased will be deemed to have been taken from the earliest Capital Contribution made by such Member (adjusted for subsequent appreciation and depreciation) until that Capital Contribution is decreased to zero, and then from each subsequent Capital Contribution made by such Member (as adjusted) until such Capital Contribution is decreased to zero). Other than any Repurchase Fee, the Fund will not impose any charges in connection with repurchases of Interests.
(l) A repurchase of a Member's Interest under Sections 4.5(g) or (h) shall be on terms and conditions as the Managing Member may determine in its sole discretion, provided that (1) valuation of the Interest shall be determined in accordance with Section 4.5(c), and (2) payment for the Interest shall be made no later than as provided under the Fund's then-current tender offer procedures.
(m) Notwithstanding any provision to the contrary contained in this Agreement, the Fund and the Managing Member on behalf of the Fund will not repurchase any Interest or make a distribution to any Member on account of the Member's Interest, if such repurchase or distribution would violate the Delaware Act or other applicable law.
Appears in 1 contract
Samples: Limited Liability Company Agreement (J P Morgan Atlas Global Long / Short Equity Fund LLC)
