AMENDED AND RESTATED PRIVATE PLACEMENT AGENT AGREEMENT
AMENDED
AND RESTATED PRIVATE PLACEMENT AGENT AGREEMENT
AGREEMENT made as of the 11th
day of February 2010, by and between Partners Group Private Equity, LLC, a
Delaware limited liability company (the “Fund”) and Foreside Fund Services, LLC,
a Delaware limited liability company, with its principal office and place of
business at Three ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (“Foreside” or the
“Placement Agent”).
WHEREAS, units in the Fund
(“Units”) have not been registered under the Securities Act of 1933 (as amended,
the “Act”) and it is intended that Units shall not be required to be registered
under the Act by virtue of the exemption afforded by Section 4(2) thereof and
Rule 506 under Regulation D thereunder;
WHEREAS, the Fund has been
registered as a closed-end management investment company under the Investment
Company Act of 1940, as amended (the “1940 Act”);
WHEREAS, Partners Group (USA)
Inc. (the “Investment Adviser”) serves as investment adviser to Partners Group
Private Equity (Master Fund), LLC (the “Master Fund”);
WHEREAS, investments in the
Fund will be made upon the terms and subject to the conditions set forth in the
Private Placement Memorandum of the Fund (as amended from time to time, the
“Offering Memorandum”);
WHEREAS, the Fund desires to
retain Foreside to advise, consult with and assist the Fund with the private
placement of Units;
WHEREAS, the Fund and Foreside
previously entered into a Private Placement Agent Agreement dated as of the 6th
day of April 2009, and the Fund and Foreside now wish to amend and restate the
terms and conditions contained in such previous agreement; and
WHEREAS, this Agreement sets
forth the terms and conditions upon which Foreside will serve as private
placement agent for the Fund;
NOW, THEREFORE, for and in
consideration of the mutual covenants and agreements contained herein, the
parties agree as follows:
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SECTION
1.
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OFFERING
OF UNITS; FORESIDE’S DUTIES
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(a) Foreside
is hereby authorized, as the Fund’s private placement agent to sell the Units
during the term of this Agreement and subject to the rules and regulations of
the Securities and Exchange Commission (the “SEC”) and the laws governing the
sale of securities in the various states (the “Blue Sky
Laws”). Notwithstanding anything to the contrary in this Agreement,
only officers or employees of the Investment Adviser shall solicit potential
investors, distribute marketing materials, subscription and other materials to
potential investors, or otherwise service or assist in the offering of the Units
during the term of this Agreement. The Placement Agent shall use
commercially reasonable efforts to identify U.S.-domiciled “Institutional
Investors” (as defined in Section 2211(a)(3) of the Rules of the Financial
Industry Regulatory Authority (“FINRA”)) and certain qualified investors, who
are “U.S. Persons” (as defined in Rule 902(k) under the Act), “accredited
investors” (as defined in Rule 501(a) under the Act), and meet other eligibility
standards set forth in the Offering Memorandum, as amended or supplemented from
time to time (investors meeting all of the foregoing qualifications, “Eligible
Investors”). The provisions of this paragraph do not obligate
Foreside to register as a broker or dealer under the Blue Sky Laws of any
jurisdiction when it determines it would be uneconomical for it to do so or to
maintain its registration in any jurisdiction in which it is now registered or
obligate Foreside to sell any particular number of Units.
(b) Subject
to applicable law and as requested by the Fund, the Placement Agent shall enter
into agreements (“Sub-Placement Agent Agreements”) with financial intermediaries
(each a “Financial Intermediary” and collectively, “Financial
Intermediaries”).
(c) The
Placement Agent shall devote such time and personnel as it, in its discretion,
deems appropriate, and shall not be required to devote any minimum amount of
time or personnel, or raise any minimum amount of funds, in connection with its
services hereunder.
(d) The
Placement Agent agrees to review all proposed advertising materials and sales
literature for compliance with applicable laws and regulations, and, if required
by law and/or regulation, shall file with appropriate regulators such
advertising materials and sales literature. The Placement Agent
agrees to furnish to the Client any comments provided by regulators with respect
to such materials.
(e) This
Agreement shall not be deemed to restrict or limit the ability of the Placement
Agent and its affiliates to provide other services to the Fund or its affiliates
or to receive compensation for such services.
(f) All
subscriptions for Units obtained by Foreside shall be directed to the Fund for
acceptance and shall not be binding on the Fund until accepted by
it. The Fund shall have the right to accept or reject any
subscription in accordance with the terms of its governing documents and its
Offering Memorandum. The Fund shall give notice of such determination
to the individual subscriber and the Placement Agent. No interest
will be paid to subscribers on rejected subscriptions.
(g) The
Placement Agent shall be held harmless and shall incur no liability whatsoever
in the event that the purchase of Units under such subscription is not
consummated due to any action or omission of the subscriber, the Fund, or any
other reason other than the willful misfeasance, bad faith or gross negligence
of the Placement Agent. The Placement Agent shall not have any
obligation to purchase any of the Units as principal under any
circumstances.
(h) Foreside
is authorized to rely, without investigation, on any representation,
certification, averment or other statement made by the Fund, the Investment
Adviser, a Financial Intermediary selected by the Investment Adviser and/or the
applicable investor in or in connection with any request for a Subscription
Agreement (or similar document) or otherwise in connection with a subscription
for Units, including (without limitation) with respect to (i) whether the
prospective investor is qualified and eligible to invest in the Fund, (ii)
whether any entity acting as an “underwriter” (as such term is defined in the
Act) for the Fund, including any Financial Intermediary, has a pre-existing
relationship with such prospective investor, and (iii) whether the prospective
investor is purchasing the Units with the intention not to re-sell such
Units. Foreside agrees that it will not conduct, and will not
authorize or permit its registered representatives to conduct, a general
solicitation or general advertising (as such terms are defined in Regulation D)
with respect to the Units.
(i) The
activities that are conducted by Foreside with respect to the Fund shall be
undertaken only in accordance with the terms and conditions set forth in the
Offering Memorandum, applicable laws and regulations, and the terms of this
Agreement. Each prospective Eligible Investor will be required to
execute and deliver a Subscription Agreement to the Fund in connection with
their initial subscription for Units. The Fund shall furnish copies
of the Offering Memorandum and the Subscription Agreement to Foreside under
separate cover and further additional copies will be sent to Foreside in
reasonable quantities upon Foreside’s request. Foreside shall have no
obligation to engage in any activities under this Agreement until final copies
of the Offering Memorandum are delivered and approved by Foreside, which
approval shall not be unreasonably withheld or delayed.
(j)
Foreside and its registered
representatives shall offer the Units only to Eligible Investors, and Foreside
agrees not to offer any Units, or enter any arrangement regarding the purchase
of any Units in any jurisdiction in which the Fund is not permitted to offer its
Units, provided that the Fund or the Investment Adviser has provided Foreside in
advance with a list of jurisdictions in which such offering may not be
made.
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SECTION
2.
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COMPLIANCE
WITH APPLICABLE SECURITIES LAWS
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(a) With
respect to their respective activities under this Agreement, Foreside and the
Fund each agree that it will comply with the applicable requirements of (i) the
Act (including Regulation D), (ii) the 1940 Act, (iii) the Securities Exchange
Act of 1934, as amended (the “1934 Act”) (including all regulations, rules and
releases under all such statutes), (iv) the Blue Sky Laws of the state or
jurisdiction in which such sale is made and (v) with respect to Foreside, with
all applicable rules and regulations of FINRA. In connection with the
foregoing, Foreside agrees to comply with such procedures as may be necessary in
order that no act or omission to act by Foreside in connection with the Fund’s
offering of Units shall cause to become unavailable the exemption from
registration of the Units under the Act provided by Section 4(2) thereof and
Rule 506 of Regulation D thereunder.
Neither
Foreside nor its registered representatives will give any information or make
any representation other than those contained in (i) the Offering Memorandum or
(ii) any sales literature, performance reports, financial statements and other
written materials provided by or on behalf of the Fund in connection with the
placement of Units (all such materials except the Offering Memorandum being
collectively referred to as “Related Offering Materials”).
(b) Units
in the Fund will be offered on a private placement basis to Eligible Investors
only. Neither the Fund nor any person acting on its behalf, shall
offer or sell Units by any form of general solicitation or general advertising,
including, without limitation, the methods described in Rule 502(c) of
Regulation D under the Act.
(c) The
Fund shall prepare the Offering Memorandum and the application for Units to be
used in connection with all subscriptions (the “Subscription
Application”). During the continuous offering, the Fund will deliver
to the Placement Agent, without charge, at its principal place of business, as
many copies of the foregoing documents as the Placement Agent may reasonably
request.
(d) The
Fund shall extend to prospective investors an opportunity, prior to purchase of
any Units, to ask questions and receive answers concerning the Fund and the
terms and conditions of the offering, and to obtain such additional information
as the prospective investor may consider necessary in making an informed
investment decision.
(e) The
Placement Agent may rely upon advice given by the Fund and the Fund’s counsel,
from time to time, as to the legality of, and any restrictions placed on, the
offer or sale of Units in jurisdictions where Units are or may be
offered. Subject to the foregoing and other provisions of this
Agreement, the Placement Agent is responsible for complying with all applicable
U.S. federal and state laws, rules and regulations directly applicable to the
Placement Agent in offering and selling Units in any U.S. jurisdiction,
including applicable rules of the FINRA.
(f) The
Fund agrees that no Units shall be offered in any jurisdiction outside of the
United States (a “Foreign Jurisdiction”) unless
(i) The
Fund obtains prior written approval from Foreside.
(ii) The
Fund notifies Foreside in writing of any contemplated offering in a Foreign
Jurisdiction, in each case setting forth the following
information: (A) name of the Fund; (B) the applicable
Foreign Jurisdiction; (C) whether, and, if so, with which regulatory authorities
the Fund may need to be registered; (D) to whom Units in the
Fund are proposed to be offered; (E) the location(s) from which
the offering activities are proposed to be conducted and the scope of such
activities; (F) whether the Fund will be offered or sold to investors or
intended investors through agents that are licensed to do the same in the
applicable Foreign Jurisdiction; and (G) such other information, including legal
analysis, as Foreside may reasonably deem relevant.
(iii) The
Fund shall certify to Foreside that, based on the activity of registered
representatives employed by the Investment Adviser in the applicable foreign
jurisdiction, the Fund has taken all necessary action to comply with the laws
and regulations of such foreign jurisdiction (“Foreign Laws and Regulations”) to
offer and sell its Units in the applicable foreign jurisdiction including
registration of such Units, if required. The Fund must also provide
Foreside with written confirmation from outside counsel stating that, provided
that Fund has complied with the applicable Foreign Laws and Regulations, such
Foreign Laws and Regulations do not require registration or any other action by
Foreside with respect to that foreign jurisdiction.
(iv) Foreside
reserves the right to restrict or prohibit any offering in a Foreign
Jurisdiction as Foreside reasonably deems necessary, in consultation with the
Fund, to comply with applicable law.
(v) The
Fund represents that it has in place policies and procedures to comply with the
laws, rules and regulations of any Foreign Jurisdiction governing private
offerings of the Fund.
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SECTION
3.
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STATE
BLUE SKY QUALIFICATION
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The Fund
will be responsible for ensuring that any notices or filings, that are necessary
for the purposes of achieving an exemption from registration of the Units under
the Blue Sky Laws as may be applicable in connection with the transactions
contemplated by this Agreement, are made, including the filing of documents with
the SEC and relevant states. The Fund will furnish any required
consent to service of process in connection therewith.
The Fund
or the Investment Adviser shall advise Foreside from time to time concerning the
states and other jurisdictions in which solicitations of Eligible Investors by
or on behalf of the Fund may be made under the applicable Blue Sky
Laws. Upon request by Foreside, the Fund or the Investment Adviser
shall provide evidence of qualification of Units in each applicable state or
jurisdiction. The Fund shall reasonably endeavor to ensure that any
individual who solicits Eligible Investors in the Fund is either (i) registered
with Foreside or (ii) otherwise appropriately licensed or registered in the
appropriate jurisdictions before any solicitation is made in such
jurisdiction.
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SECTION
4.
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INDEPENDENT
AGENT
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In
performing its duties hereunder, Foreside shall be regarded as an independent
agent. Except as specifically contemplated by Section 1(b) of this
Agreement, Foreside shall not have any right or authority to create any
obligations of any kind on behalf of either the Fund or the Investment Adviser
and shall make no representation to any third party to the
contrary. Foreside may provide services similar to those provided
under this Agreement for any other person or entity on such terms as may be
arranged with such person or entity, and Foreside shall not be required to
disclose to the Fund or the Investment Adviser any fact or thing that may come
to the knowledge of Foreside in the course of so doing.
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SECTION
5.
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CONFIDENTIALITY
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(a) Foreside
agrees to treat all records and other information related to the Fund (including
but not limited to that described in Section 5(b) below) as proprietary
information of the Fund and, on behalf of itself and its employees, to keep
confidential all such information, except that, to the extent consistent with
applicable law and regulation, Foreside may (i) provide information to
Foreside’s counsel and to persons engaged by the Fund or the Investment Adviser
to provide services with respect to the Fund; (ii) identify, if approved in
writing by the Investment Adviser, the Investment Adviser as a client of
Foreside for Foreside’s sales and marketing purposes; and (iii) release
information as approved in writing by the Fund or its authorized agents, provided, however, that
Foreside may release information without such approval if such information is
requested pursuant to, or required by, law, regulation, legal process or
regulatory authority; provided, further, however, that, in such event,
Foreside shall endeavor promptly to advise the Fund of such request or
requirement, to the extent practicable in advance of any actual release of
information.
(b) Without
limitation of the obligations of Foreside under Section 5(a) above, Foreside
acknowledges that any Unitholder list and all information related to investors
or prospective investors furnished to or assembled by Foreside in connection
with this Agreement constitutes proprietary information of substantial value to
the Fund and the Investment Adviser. Foreside agrees to treat, and to
require its employees to treat, all such information as proprietary to the Fund
and the Investment Adviser and further agrees that it shall not divulge any such
information to any person or organization except as may be directed in writing
by the Fund.
(c) Notwithstanding
any provision of this Agreement to the contrary, for purposes of this Section 5
the following information shall not be deemed confidential information:
(i) information that was known to Foreside before receipt thereof from or
on behalf of the Fund; (ii) information that is disclosed to Foreside by a third
person whom Foreside reasonably believes has a right to make such disclosure
without any obligation of confidentiality to the Fund; (iii) information that
becomes generally available to the public without violation of this Agreement by
Foreside; or (iv) information that is independently developed by Foreside, or
those of its employees or affiliates to whom such information was not disclosed,
and without reference to the Fund’s information.
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SECTION
6.
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TERMINATION
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(a) This
Agreement shall become effective as of the date first set forth above and shall
remain in effect until the second anniversary thereof. Thereafter,
this Agreement shall continue in effect from year to year, provided that each
such continuance is approved by the Board of Managers, including the vote of a
majority of the Board of Managers who are not “interested persons,” as defined
by the 1940 Act and the rules thereunder, of the Fund.
(b) After
this Agreement is effective, any party may terminate it (with or without cause)
by at least thirty (30) days’ advance written notice to the other
parties. Without limiting the generality of the foregoing, Foreside’s
exclusion from or suspension by FINRA will automatically terminate this
Agreement without notice. The provisions of Sections 5, 9, 10
and 11 shall survive any termination of this Agreement. This
Agreement shall terminate automatically in the event of its “assignment” as such
term is defined by the 1940 Act and the rules thereunder.
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SECTION
7.
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REPRESENTATIONS
OF FORESIDE
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Foreside represents and warrants to the
Fund that:
(a) It
is a limited liability company duly organized and existing and in good standing
under the laws of the State of Delaware and it is duly qualified to carry on its
business in the State of Maine;
(b) It
is empowered under applicable laws and by its organizational documents to enter
into this Agreement and perform its duties under this Agreement;
(c) All
requisite limited liability company actions have been taken to authorize it to
enter into and perform this Agreement;
(d) It
has and will continue to have access to the necessary facilities, equipment and
personnel to perform its duties and obligations under this
Agreement;
(e) This
Agreement, when executed and delivered, will constitute a legal, valid and
binding obligation of Foreside, enforceable against Foreside in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting the rights and remedies of creditors
and secured parties; and
(f) It
is registered under the 1934 Act with the SEC as a broker-dealer, it is a member
in good standing of FINRA, it will abide by all applicable laws, rules and
regulations, including without limitation the rules and regulations of FINRA and
the SEC, and it will immediately notify the Fund if any regulatory actions are
instituted against it by the SEC, any state or FINRA, or its membership in FINRA
or registration in any state is terminated or suspended. It is
registered pursuant to the Blue Sky Laws of all States and territories of the
United States to the extent necessary to permit it to offer Units in all such
States and territories.
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SECTION
8.
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DUTIES
AND REPRESENTATIONS OF THE FUND
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(a) The
Fund shall furnish to Foreside copies of the Offering Memorandum, the
Subscription Agreement, and supplements or amendments thereto, and all financial
statements and other documents to be delivered to Unitholders or investors at
least three business days prior to such delivery and shall otherwise cooperate
with reasonable requests for documents or other information by Foreside in
connection with its activities hereunder. The Fund shall make
available to Foreside the number of copies of such materials as Foreside shall
reasonably request. The Fund recognizes and confirms that in
performing the services contemplated by this Agreement, Foreside does not assume
responsibility for the accuracy or completeness of the documents described
herein, and Foreside will not make an appraisal of any of the assets owned or
managed by the Fund or the Investment Adviser.
(b) The
Fund represents and warrants to Foreside that:
(i)
It is organized and existing and in good standing
under the laws of the jurisdiction of its organization;
(ii) It
is empowered under applicable laws and by its organizational documents to enter
into and perform this Agreement;
(iii) All
proceedings required by its organizational documents have been taken to
authorize it to enter into and perform its duties under this
Agreement;
(iv) Pursuant
to its organizational documents, the Fund is authorized to issue an unlimited
number of Units in the Fund. The liability of each holder of Units in
the Fund for the losses, debts and obligations of the Fund, whether arising in
contract, tort or otherwise, shall generally be limited to the holder’s capital
contribution to the Fund.
(v) This
Agreement, when executed and delivered, will constitute a legal, valid and
binding obligation of the Fund, enforceable against the Fund in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting the rights and remedies of creditors
and secured parties;
(vi) The
execution, delivery and performance by the Fund of, and compliance
with, the Placement Agreement, and the Fund’s Administration Agreement,
Servicing Agreement or other related agreements to which it is a party and the
consummation by the Fund of the transactions contemplated therein will not
materially conflict with or result in a material breach of any of the terms or
provisions of, or constitute, with or without the giving of a notice or lapse of
time or both, a material default under, or result in the creation or imposition
of any material lien, charge or encumbrance upon any assets of the Fund pursuant
to, or give any other party a right to terminate any of its obligations under,
or result in the acceleration of any obligation under, any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Fund is a party or by which it may be bound or to which any of the assets
of the Fund is subject;
(vii) The
Units have not been and will not be registered under the Act or the Blue Sky
Laws of any state of the United States or any other jurisdiction. The
Units have been authorized for sale as contemplated by the Offering
Memorandum. Once payment is received, the Units issued will conform
to the description contained in the Offering Memorandum, as amended or
supplemented. The offer and sale of the Units in the manner
contemplated by this Agreement and the Offering Memorandum will be exempt from
the registration requirements of the Act pursuant to Section 4(2) thereof and
Regulation D thereunder. All statements of fact contained or to be
contained in the Offering Memorandum are or will be true and correct in all
material respects at the time indicated and the Offering Memorandum will not at
any time include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading to a purchaser of Units;
(viii)
The Fund has policies, procedures and internal controls in place
that are reasonably designed to comply with anti-money laundering laws and
regulations, including a customer identification program, and the regulations
administered by the U.S. Department of the Treasury’s Office of Foreign Assets
Control;
(ix) The
Units will not be offered in jurisdictions outside of the United States, except
as permitted under Section 2(f) of this Agreement; and
(x) The
Units will be offered and sold only to Eligible Investors.
(c) The
Fund shall, at its expense, amend or supplement the Offering Memorandum if, at
any time, an amendment or supplement is necessary to comply with applicable
laws, or is necessary to correct any materially untrue statement in the Offering
Memorandum or to eliminate any material omission therein or any omission therein
which makes any of the statements therein materially misleading. The Fund shall
notify Foreside promptly (i) upon discovery of any untrue statement of a
material fact in the Offering Memorandum or an omission to state therein a
material fact required or necessary to make the statements therein not
misleading, and/or (ii) of the occurrence of any event or change in
circumstances, of which the Fund is aware or reasonably should be aware, that
results in the Offering Memorandum containing an untrue statement of a material
fact or omitting to state therein a material fact required or necessary to make
the statements therein not misleading.
The Fund
shall not amend the Offering Memorandum without giving Foreside notice
reasonably in advance of its effectiveness; provided, however, that nothing
contained in this Agreement shall, in any way limit the Fund’s right to amend
the Offering Memorandum as the Fund may deem advisable.
(d) The
Fund shall advise Foreside promptly: (i) of any request by the SEC or any state
securities examiner for amendments to the Offering Memorandum or for additional
information related to the Fund; (ii) in the event of the issuance by the SEC or
any state securities examiner of any stop order suspending the use of the
Offering Memorandum or the initiation of any proceedings for that purpose; (iii)
of the happening of any material event, of which the Fund is aware or reasonably
should be aware, that makes untrue any statement made in the Fund’s then current
Offering Memorandum or which requires the making of a change in such document(s)
in order to make the statements therein not misleading; (iv) of any material
adverse change, except as reflected in the net asset value of the Fund, in the
condition, financial or otherwise, business affairs or business prospects of the
Fund; (v) of all action of the SEC or any state securities examiner with respect
to any amendments to the Fund; (vi) of any material violation of its
organizational documents or material default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, fiscal agency agreement, note,
lease or other instrument to which the Fund is a party or by which it may be
bound or to which any of its assets is subject; and (vii) except as disclosed in
the Offering Memorandum and any supplements thereto, of any action, suit or
proceeding before or by any court or governmental agency or body, U.S. or
non-U.S., now pending, or, to the knowledge of the Fund or the Master Fund,
threatened against or affecting the Fund or the Master Fund, the Adviser or any
of their respective officers or directors, as the case may be, which adverse
change, action, suit or proceeding is expected to impair or adversely affect in
any material respect the ability of the Fund or the Adviser to conduct its
business as described in its Offering Memorandum or to perform its obligations
under any Operative Agreement or (in the case of the Fund) to sell its
Units.
(e) Subject
to the duties assigned to Foreside under this Agreement, the Fund shall bear
full responsibility for conducting its operations and affairs (including the
preparation of the Fund’s governing documents, the Offering Memorandum, the
Subscription Application, and all Related Offering Materials) in compliance with
applicable laws, including (i) those governing the private placement of Units in
accordance with Regulation D under the Act; (ii) the 1940 Act, and rules
thereunder, (iii) any relevant provisions of the Investment Advisers Act of
1940, as amended (the “Advisers Act”) and the rules thereunder, and (iv) other
applicable laws, rules and exemptions, such as (if applicable) Rule 4.5 under
the Commodity Exchange Act, as amended. All restrictions relevant to
the offering of Units as may be necessary or appropriate in light of the
foregoing at any time shall be set forth in the most recent version of the
Offering Memorandum provided to Foreside by the Fund.
(f) Except
as otherwise expressly provided in this Agreement, Foreside shall be under no
duty to comply with or take any action as a result of any amendment to the
Fund’s governing documents, the Offering Memorandum, the Subscription
Application, any Related Offering Materials or any Fund policy. No
such amendment that is materially adverse to or imposes materially different or
additional duties upon the Placement Agent may be made unless Foreside expressly
consents thereto in advance in writing. The Fund will submit to
Foreside for approval prior to use, the Offering Memorandum, any amendment or
supplement thereto, and any other Related Offering Materials or documents
distributed to Fund investors or potential investors (whether or not as part of
the Placement) in which Foreside is mentioned.
(g) Upon
any amendment to this Agreement, Foreside and the Fund shall identify each
Financial Intermediary it has engaged as a Sub-Placement Agent pursuant to this
Agreement, and the Fund shall promptly notify such Sub-Placement Agents of such
amendments to this Agreement, to the extent required under the relevant
Sub-Placement Agent Agreements.
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SECTION
9.
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STANDARD
OF CARE
|
(a) Foreside
shall be under no duty to take any action under this Agreement except as
specifically set forth herein or as may be specifically agreed to by Foreside in
a written amendment to this Agreement.
(b) Neither
Foreside nor any other Foreside Indemnitee (as defined in Section 10) shall be
liable for any action taken or for any failure to take an action based on
reasonable reliance upon:
(i)
the written instructions of the Fund
(including an officer of the Fund), or of counsel to the Fund; for purposes of
this clause, procedures adopted by Foreside related to the implementation by
Foreside of its obligations hereunder and the other activities contemplated to
be taken by Foreside hereunder (acting individually or through its registered
representatives) that have been reviewed and approved by the Fund or counsel to
the Fund shall be deemed to be written instructions of the Fund or counsel to
the Fund;
(ii) any
written instruction or certified copy of any resolution of the Board of
directors, trustees or managers of the Investment Adviser or the Fund, and
Foreside may rely upon the genuineness of any such document or copy thereof
reasonably believed by Foreside to have been validly executed; or
(iii) any
signature, instruction, request, letter of transmittal, certificate, opinion of
counsel, statement, instrument, report, notice, consent, order, or other
document reasonably believed by Foreside to be genuine and to have been signed
or presented by the Investment Adviser or the Fund or other proper party or
parties;
and
Foreside shall not be under any duty or obligation to inquire into the validity
or invalidity or authority or lack thereof of any statement, written
instruction, resolution, signature, request, letter of transmittal, certificate,
opinion of counsel, instrument, report, notice, consent, order, or any other
document or instrument which Foreside reasonably believes to be
genuine.
(c) Notwithstanding
anything in this Agreement to the contrary, Foreside shall be liable to the Fund
and any of the Fund’s Unitholders only for any damages arising out of Foreside’s
failure to perform its duties under this Agreement to the extent such damages
were caused by Foreside’s willful misfeasance, gross negligence or reckless
disregard in the performance of such duties.
(d) Foreside
shall not be liable for the delays or errors of other service providers to the
Fund, including the failure by any such service provider to provide information
to Foreside when they have a duty to do so (irrespective of whether that duty is
owed specifically to Foreside or a third party).
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SECTION
10.
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INDEMNIFICATION
|
(a) Notwithstanding
anything in this Agreement to the contrary, Foreside shall not be responsible
for, and the Fund will indemnify, defend and hold Foreside, its employees,
agents, directors and officers and any person who controls Foreside within the
meaning of section 15 of the Act or section 20 of the 1934 Act (the “Foreside
Indemnitees”) free and harmless from and against any and all claims, demands,
actions, suits, judgments, liabilities, losses, damages, costs, charges,
reasonable counsel fees and other expenses of every nature and character
(including the cost of investigating or defending such claims, demands, actions,
suits or liabilities and any reasonable counsel fees incurred in connection
therewith) that any Foreside Indemnitee may incur, under the Act, the 1940 Act,
the 1934 Act or under common law or otherwise, arising out of or based upon
(collectively, “Foreside Claims”):
(i) any
material action (or omission to act) of Foreside or its agents taken in
connection with this Agreement, including the actions or omissions of any
Sub-Placement Agent pursuant to any Sub-Placement Agent Agreement; provided that such
action (or omission to act) is taken without willful misfeasance, gross
negligence or reckless disregard by Foreside of its duties and obligations under
this Agreement;
(ii) any
untrue or alleged untrue statement of a material fact contained in the Offering
Memorandum or Related Offering Materials or any omission or alleged omission to
state a material fact required to be stated in the Offering Memorandum or
Related Offering Materials or necessary to make the statements in any the
Offering Memorandum or Related Offering Materials not misleading, unless such
statement or omission was made in reliance upon, and in conformity with,
information furnished in writing to the Fund in connection with the preparation
of such Fund’s Offering Memorandum or Related Offering Materials by or on behalf
of Foreside;
(iii) any
material breach of the agreements, representations, warranties and covenants by
the Fund and the Investment Adviser in this Agreement; or
(iv) the
reliance on or use by Foreside or its agents or subcontractors of information,
records, documents or services which have been prepared, maintained or performed
by the Fund or the Investment Adviser;
provided,
that if any Foreside Claims arise out of or are based upon any indemnity
provided by Foreside to a Sub-Placement Agent or other parties (collectively the
"Sub-Placement Agent Indemnitees") with respect to any actions or omissions of
such Sub-Placement Agent Indemnitees under any Sub-Placement Agent Agreement,
the Fund's obligation to provide indemnification hereunder shall apply only if
and to the extent that the actions or omissions of the Sub-Placement Agent
Indemnitees giving rise to the claim for indemnification hereunder would, if
they had been the actions or omissions of Foreside Indemnitees other than
Sub-Placement Agent Indemnitees, entitle such Foreside Indemnitees to
indemnification hereunder; and provided, further, that the Placement Agent shall
not settle, or consent to the settlement of, a claim involving a Sub-Placement
Agent Indemnitee without the consent of the Fund, which consent shall not be
unreasonably withheld.
(b) The
Fund may assume the defense of any suit brought to enforce any Foreside Claim
and may retain counsel of good standing chosen by such Fund and approved by the
relevant Foreside Indemnitee(s), which approval shall not be withheld
unreasonably. The Fund shall advise the Foreside Indemnitee(s) that
it will assume the defense of the suit and retains counsel within ten (10) days
of receipt of the notice of the claim. If the Fund assumes the
defense of any such suit and retain counsel, the Foreside Indemnitee(s) shall
bear the fees and expenses of any additional counsel that they
retain. If the Fund does not assume the defense of any such suit, or
if the Foreside Indemnitee(s) does not approve of counsel chosen by the Fund or
has been advised that it may have available defenses or claims that are not
available to or conflict with those available to the Fund, the Fund will
reimburse any Foreside Indemnitee named as defendant in such suit for the
reasonable fees and expenses of any counsel that person retains. A
Foreside Indemnitee shall not settle or confess any claim without the prior
written consent of the Fund, which consent shall not be unreasonably withheld or
delayed.
(c) Notwithstanding
anything in this Agreement to the contrary, the Fund shall not be responsible
for, and Foreside will indemnify, defend, and hold the Fund and its officers and
directors (collectively, the “Fund Indemnitees”), free and harmless from and
against any and all claims, demands, actions, suits, judgments, liabilities,
losses, damages, costs, charges, reasonable counsel fees and other expenses of
every nature and character (including the cost of investigating or defending
such claims, demands, actions, suits or liabilities and any reasonable counsel
fees incurred in connection therewith) that any Fund Indemnitee may incur, under
the Act, the 1940 Act, the 1934 Act or under common law or otherwise, but only
to the extent that such claims, demands, actions, suits, judgments, liabilities,
losses, damages, costs, charges, reasonable counsel fees and other expenses
result from, arise out of or are based upon (collectively, “Fund
Claims”):
(i) any
material action (or omission to act) of Foreside or its agents taken in
connection with this Agreement; provided that such
action (or omission to act) is the result of willful misfeasance, gross
negligence or reckless disregard by Foreside of its duties and obligations under
this Agreement;
(ii) any
untrue or alleged untrue statement of a material fact contained in the Offering
Memorandum or Related Offering Materials or any omission or alleged omission to
state a material fact required to be stated in the Offering Memorandum or
Related Offering Materials or necessary to make the statements in any the
Offering Memorandum or Related Offering Materials not misleading, if such
statement or omission was made in reliance upon, and in conformity with,
information furnished to the Fund in writing by or on behalf of Foreside in
connection with the preparation of the Offering Memorandum or Related Offering
Materials; or
(iii) any
material breach of the agreements, representations, warranties and covenants by
Foreside in this Agreement.
(d) Foreside
may assume the defense of any suit brought to enforce any Fund Claim and may
retain counsel of good standing chosen by Foreside and approved by the relevant
Fund Indemnitee(s), which approval shall not be withheld
unreasonably. Foreside shall advise the Fund Indemnitee(s) that it
will assume the defense of the suit and retain counsel within ten (10) days of
receipt of the notice of the claim. If Foreside assumes the defense
of any such suit and retains counsel, the Fund Indemnitee(s) shall bear the fees
and expenses of any additional counsel that they retain. If Foreside
does not assume the defense of any such suit, or if the Fund Indemnitee(s) does
not approve of counsel chosen by Foreside or has been advised that it may have
available defenses or claims that are not available to or conflict with those
available to Foreside, Foreside will reimburse any Fund Indemnitee named as
defendant in such suit for the reasonable fees and expenses of any counsel that
person retains. A Fund Indemnitee shall not settle or confess any
claim without the prior written consent of Foreside, which consent shall not be
unreasonably withheld or delayed.
(e) Each
party’s obligations to provide indemnification under this Section are
conditioned upon that party receiving notice of any action brought against a
Foreside Indemnitee or Fund Indemnitee, respectively, by the person against whom
such action is brought within twenty (20) business days after the summons or
other first legal process is served. Such notice shall refer to the
person or persons against whom the action is brought. The failure to
provide such notice shall not relieve the party entitled to such notice of any
liability that it may have to any Foreside Indemnitee or Fund Indemnitee except
to the extent that the ability of the party entitled to such notice to defend
such action has been materially adversely affected by the failure to provide
notice.
(f) The
provisions of this Section and the parties’ representations and warranties in
this Agreement shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of any Foreside Indemnitee or Fund
Indemnitee and shall survive the sale and redemption of any Units made pursuant
to subscriptions obtained by Foreside and the termination of this
Agreement. The indemnification provisions of this Section will inure
exclusively to the benefit of each person that may be a Foreside Indemnitee or
Fund Indemnitee at any time and their respective successors and assigns (it
being intended that such persons be deemed to be third party beneficiaries under
this Agreement).
(g) Each
party agrees promptly to notify the other party of the commencement of any
litigation or proceeding of which it becomes aware arising out of or in any way
connected with the issuance or sale of Units.
(h) Nothing
contained herein shall require the Fund to take any action contrary to any
provision of its Offering Memorandum or any applicable statute or regulation or
shall require Foreside to take any action contrary to any provision of its
governing documents or any applicable statute or regulation; provided, however,
that neither the Fund nor Foreside may amend the Offering Memorandum or Related
Offering Materials or their respective governing documents in any manner that
would result in a violation of a representation or warranty made in this
Agreement.
(i)
No party hereto shall be liable for
any consequential, special or indirect losses or damages suffered by another
party hereto, whether or not the likelihood of such losses or damages was known
by the party.
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SECTION
11.
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COMPENSATION
AND EXPENSES
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(a) The
Fund acknowledges that Foreside will enter into a separate services agreement
with the Investment Adviser pursuant to which the Investment Adviser will
compensate Foreside and reimburse certain expenses of Foreside in consideration
of services provided by Foreside to the Investment Adviser with respect to the
Fund.
(b) Foreside
may receive a placement fee from the Fund in connection with the sale of Units
by Financial Intermediaries, which fee shall be paid to such Financial
Intermediaries pursuant to a Sub-Placement Agent Agreement entered into by and
between Foreside and each Financial Intermediary. For avoidance of doubt, any
such payment of placement fees pursuant to a Sub-Placement Agent Agreement may
be effected by the relevant Financial Intermediary (i) charging such placement
fee directly to the relevant client, (ii) netting the amount of such placement
fee against the subscription amount paid over to the Fund and (iii) retaining
such placement fee amount for the Financial Intermediary's own account, subject
to Foreside's consent and the terms of the relevant Sub-Placement Agent
Agreement.
(c) The
Fund will pay, or will cause to be paid, all costs and expenses relating to (i)
the preparation and photocopying or printing of its Offering Memorandum, and all
amendments and supplements thereto, and Related Offering Materials; (ii) the
exemption from registration or qualification of Units for offer and sale under
Regulation D and under all relevant Blue Sky Laws; (iii) the furnishing to
Foreside of copies of the Fund’s Offering Memorandum and all amendments or
supplements thereto and of Related Offering Materials and other documents
reasonably requested by Foreside, in such quantities as may be reasonably
requested by Foreside, including costs of shipping and mailing; (iv) fees and
disbursements of counsel to the Fund in connection with the organization and
maintenance of the Fund and the transactions contemplated by this Agreement; and
(v) all other expenses of the Fund which are not the express obligations of
Foreside as set forth in this Agreement.
(d) As
between Foreside and the Fund, Foreside shall pay all expenses relating to its
broker-dealer qualification.
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SECTION
12.
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MISCELLANEOUS
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(a) No
provisions of this Agreement may be amended or modified in any manner except by
a written agreement properly authorized and executed by all parties
hereto.
(b) This
Agreement shall be governed by, and the provisions of this Agreement shall be
construed and interpreted under and in accordance with, the laws of the State of
Delaware, without giving effect to the conflicts of laws, principles and rules
thereof.
(c) This
Agreement constitutes the entire agreement between the parties hereto and
supersedes any prior agreement with respect to the subject matter hereof,
whether oral or written.
(d) The
liability and obligation of the Fund under or in connection with this Agreement
is several (and not joint), whether or not so stated elsewhere.
(e) This
Agreement may be executed by the parties hereto on any number of counterparts,
and all of the counterparts taken together shall be deemed to constitute one and
the same instrument.
(f) If
any part, term or provision of this Agreement is held to be illegal, in conflict
with any law or otherwise invalid, the remaining portion or portions shall be
considered severable and not be affected, and the rights and obligations of the
parties shall be construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or
invalid. This Agreement shall be construed as if drafted jointly by
all parties and no presumptions shall arise favoring any party by virtue of
authorship of any provision of this Agreement.
(g) Section
and paragraph headings in this Agreement are included for convenience only and
are not to be used to construe or interpret this Agreement.
(h) Material
Notices. Notices to the Fund relating to termination of the
Agreement, breaches of contractual duties, initiation of legal proceedings,
complaints in relation to services provided hereunder or any other material
notices under the Agreement, other than notices given in the ordinary course of
business (a “Material Notice”), must be given in writing (either by way of
facsimile or registered mail). A notice sent by facsimile shall be deemed to
have been served at the close of business on the day upon which the other party
confirms receipt . A notice sent by registered mail shall be deemed
to have been served at the close of business on the day upon which it is
delivered. Material Notices shall be sent as follows, or to such other address
as the parties may agree from time to time:
If to
Foreside:
Foreside
Fund Services, LLC
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attn: Counsel
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
If to the
Fund:
c/o
Partners Group (USA) Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: Executive
Office
Re:
Material Notice, Partners Group Private Equity, LLC
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Facsimile:
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(▇▇▇)
▇▇▇ ▇▇▇▇
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Telephone:
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(▇▇▇)
▇▇▇ ▇▇▇▇
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with a
copy to:
Partners
Group AG
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇-▇▇▇▇
▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Attention: Executive
Office
Re:
Material Notice, Partners Group Private Equity, LLC
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Facsimile:
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▇▇▇
▇▇ ▇▇▇ ▇▇ ▇▇
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Telephone:
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▇▇▇
▇▇ ▇▇▇ ▇▇ ▇▇
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(i) Ordinary
Notices.
(i) As
to the Fund, notices, requests, instructions and other writings given in the
ordinary course of business may be delivered to ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Chief Compliance Officer, postage prepaid, or to such
other address as the Fund may have designated to the Placement Agent in writing,
shall be deemed to have been properly delivered or given to the
Fund.
(ii) As
to the Placement Agent, notices, requests, instructions and other writings given
in the ordinary course of business may be delivered to Foreside Fund Services,
LLC, Three ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attn: Chief Compliance
Officer, Fax: (▇▇▇) ▇▇▇-▇▇▇▇, postage prepaid, or to such other addresses as the
Placement Agent may have designated to the Fund in writing, shall be deemed to
have been properly delivered or given to the Placement Agent
hereunder.
(j) Each
of the undersigned expressly warrants and represents that they have full power
and authority to sign this Agreement on behalf of the party indicated and that
their signature will bind the party indicated to the terms hereof and each party
hereto warrants and represents that this Agreement, when executed and delivered,
will constitute a legal, valid and binding obligation of the party, enforceable
against the party in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability.
(k) Except
as otherwise provided in this Agreement, neither this Agreement nor any rights
or obligations under this Agreement may be assigned by either party without the
written consent of the other parties. This Agreement shall inure to
the benefit of and be binding upon the parties and their respective permitted
successors and assigns.
(l) No
party to this Agreement shall be responsible or liable for any failure or delay
in performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdowns, flood or
catastrophe, acts of God, insurrection, war, acts of terrorism, riots or failure
of the mails or any transportation medium, communication system or power supply;
provided, however, that in each specific case such circumstance shall be beyond
the reasonable control of the party seeking to apply this force majeure
clause.
[Balance
of Page Intentionally Blank; Signature Page Follows]
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed in their names and on
their behalf by and through their duly authorized persons, as of the day and
year first above written.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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FORESIDE
FUND SERVICES, LLC
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By:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Vice
President
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