Eight Recommendations for Hedge Fund Managers That Utilize Most Favored Nation Provisions in Side Letters

The challenging capital-raising environment has generally tilted the balance of power in favor of institutional investors. This has led to an uptick in investor requests for managers and their funds to enter into side letter agreements that grant the investor preferential rights such as reduced fees, greater transparency, enhanced liquidity rights and access to fund investment capacity. In addition to preferential terms, side letter requests now regularly include “Most Favored Nation” (MFN) provisions, which ensure that rights granted to current or future investors are also offered to the investor protected by the MFN. While managers may acquiesce to these demands, dismissing them as “standard” requests, MFN provisions can present numerous pitfalls for fund managers if they are not properly evaluated, prudently negotiated and effectively monitored to ensure compliance. This article, in addition to describing the anatomy of an MFN provision, sets forth eight recommendations for drafting and administering MFN provisions gleaned from conversations with industry experts. For additional commentary on side letter negotiations, see “HFLR and Seward & Kissel Webinar Explores Common Issues in Negotiating and Monitoring Side Letters” (Nov. 10, 2016).

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