FUND SERVICING AGREEMENT
THIS
AGREEMENT (the “Agreement”) is made as of the
[ ],
by and between Partners Group Private Equity (TEI), LLC, a Delaware limited
liability company (the “Fund”), and Partners Group (USA) Inc., a Delaware
corporation (“Partners Group”).
WHEREAS,
the Fund is registered under the Investment Company Act of 1940 (the “Investment
Company Act”) and is subject to regulation as such under applicable federal
securities laws;
WHEREAS,
units of limited liability company interests (“Units”) in the Fund will be
offered to investors;
WHEREAS,
the Fund wishes to retain Partners Group (in such capacity, the “Fund Servicing
Agent”) to provide, or to retain parties to provide, services necessary for the
operations of the Fund and the provision of fund services to members
(collectively, “Fund Services”);
WHEREAS,
Partners Group wishes to provide, or retain other parties to provide, such Fund
Services;
NOW
THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed by the parties as follows:
|
|
1.
|
Appointment of
Partners Group.
|
The Fund
hereby authorizes the Fund Servicing Agent to provide, and/or retain other
parties (including broker-dealers or financial advisers) to provide, Fund
Services to members and the Fund. Such Fund Services shall, to the
extent such Fund Services are not required to be performed by the Fund’s
administrator or other parties pursuant to the Fund’s administration agreement
or otherwise, include some or all of the following:
(a) providing
the Fund with personnel to perform such executive, administrative and clerical
services as are reasonably necessary to provide effective administration of the
Fund and member services;
(b) as
agreed from time to time with the board of managers of the Fund (collectively
the “Board” and individually the “Managers”) in accordance with Rule 38a-1 under
the Investment Company Act, making available the services of appropriate
compliance personnel and resources relating to compliance policies and
procedures of the Fund;
(c) providing
the Fund with office space and office equipment and services including telephone
service, heat, utilities, stationery supplies and similar items;
(d) assisting
in the establishment of member accounts and providing ongoing account
maintenance services to members, including handling inquiries from members
regarding the Fund;
(e) assisting
in communicating with members and providing information about the Fund, Units
owned by members, repurchase offers and other activities of the
Fund;
(f) assisting
in enhancement of relations and communication between members and the
Fund;
(g) handling
member inquiries and calls relating to administrative matters;
(h) assisting
in the maintenance of the Fund’s records with respect to the
members;
(i)
assisting the Fund in providing or procuring
accounting services for the Fund and member capital accounts;
(j)
assisting in administering meetings of the
Board and its committees and meetings of the members;
(k) assisting
in administering subscriptions and tender offers, including assistance in the
preparation of regulatory filings and the transmission of cash between members
and the Fund, and the Fund and Partners Group Private Equity (Master Fund), LLC
(or any successor thereto designated by the Fund);
(l)
assisting in arranging, at the Fund’s
expense, for the preparation of all required tax returns;
(m) assisting
in the periodic updating of the Fund’s offering memorandum and statement of
additional information, the preparation of proxy statements to
members, and the preparation of reports filed with regulatory
authorities;
(n) periodically
reviewing the services performed by the Fund’s service providers, and making
such reports and recommendations to the Board concerning the performance of such
services as the Board reasonably requests;
(o) to
the extent requested by the Board or officers of the Fund, negotiating changes
to the terms and provisions of the Fund’s custody, administration and escrow
agreements;
(p) providing
information and assistance as requested in connection with the registration of
the Fund’s Units in accordance with state securities requirements;
(q) providing
assistance in connection with the preparation of the Fund’s periodic financial
statements and annual audit as reasonably requested by the Board or officers of
the Fund or the Fund’s independent accountants; and
(r) supervising
other aspects of the Fund’s operations and providing other administrative
services to the Fund.
2
|
|
2.
|
Use of
Name.
|
(a) As
licensee of the rights to use and sublicense the use of the name “Partners
Group” and any trademarks or derivatives thereof or logo associated therewith,
the Fund Servicing Agent hereby grants the Fund a non-exclusive right and
sublicense to use the Partners Group name and xxxx (i) as part of the Fund’s
name, and (ii) in connection with the Fund’s investment products and services,
in each case only for so long as this Agreement, any other fund servicing
agreement between the Fund and the Fund Servicing Agent (or any organization
which shall have succeeded to the Fund Servicing Agent’s business as investment
servicing agent (the “Fund Servicing Agent’s Successor”)), or any extension,
renewal or amendment hereof or thereof remains in effect, and only for so long
as the Fund Servicing Agent or the Fund Servicing Agent’s Successor is a
licensee of the Partners Group name and xxxx. The Fund agrees that it
shall have no right to sublicense or assign rights to use the Partners Group
name and xxxx, it shall acquire no interest in the Partners Group name and xxxx
other than the rights granted herein and the Fund shall not challenge the
validity of the Partners Group name and xxxx or Partners Group’s ownership
thereof.
(b) The
Fund further agrees that all services and products it offers in connection with
the Partners Group name and xxxx shall meet commercially reasonable standards of
quality, as may be determined by the Fund Servicing Agent from time to
time. At the Fund Servicing Agent’s reasonable request, the Fund
shall cooperate with the Fund Servicing Agent and shall execute and deliver any
and all documents necessary to maintain the Partners Group name and xxxx and
protect (including, but not limited to any trademark infringement action) the
Fund Servicing Agent and/or enter the Fund as a registered user
thereof.
(c) At
such time as this Agreement or any other fund servicing agreement shall no
longer be in effect between the Fund Servicing Agent (or the Fund Servicing
Agent’s Successor) and the Fund, or the Fund Servicing Agent no longer is a
licensee of the Partners Group name and xxxx, the Fund shall (to the extent
that, and as soon as, it lawfully can) cease to use the current name of the Fund
or any other name indicating that it is managed by or otherwise connected with
the Fund Servicing Agent (or the Fund Servicing Agent’s
Successor). In no event shall the Fund use the Partners Group name
and xxxx or any other name or xxxx confusingly similar thereto (including, but
not limited to, any name or xxxx that includes the name “Partners Group”) if
this Agreement or any other fund servicing agreement between the Fund Servicing
Agent (or the Fund Servicing Agent’s Successor) and the Fund is
terminated.
|
|
3.
|
Fund Servicing
Fee.
|
(a) In
consideration for the Fund Servicing Agent providing (or engaging other parties
to provide) the Fund Services, the Fund will pay the Fund Servicing Agent a
monthly servicing fee (the “Fund Servicing Fee”) equal to 1/12 of 0.70% (0.70%
on an annualized basis) of the Fund’s net assets as of each
month-end.
(b) The
Fund Servicing Agent may pay the whole or any part of any amounts that it
receives pursuant to this Section 3 to any person, including any
“affiliated person” (as such term is defined in the Investment Company Act) of
the Fund Servicing Agent.
3
|
|
4.
|
Allocation of
Expenses.
|
(a) All
costs and expenses of the Fund not expressly assumed by the Fund Servicing Agent
under this Agreement pursuant to clause (b) of this Section 4 shall be paid by
the Fund including, but not limited to, any fees and expenses in connection with
the organization of the Fund and the offering and issuance of Units; all fees
and expenses relating to portfolio transactions and positions for the Fund’s
account such as direct and indirect expenses associated with the Fund’s
investments, including its investments, through Partners Group Private Equity
(Master Fund), LLC (the “Master Fund”), in investment funds, or proposed
investments, whether or not such investments are completed, including travel and
other expenses incurred in connection with the selection or monitoring of
investments, or enforcing the Fund’s rights in respect of such investments;
quotation or valuation expenses; brokerage commissions; interest and fees on any
borrowings by the Fund; professional fees (including, without limitation,
expenses of consultants, experts and specialists); research expenses; fees and
expenses of outside counsel (including fees and expenses associated with the
review of documentation for prospective investments by the Fund), including
foreign counsel; accounting, auditing and tax preparation expenses; fees and
expenses in connection with repurchase offers and any repurchases or redemptions
of Units; taxes and governmental fees (including tax preparation fees); the
Fund’s pro rata share of the investment management fee payable by the Master
Fund to Partners Group in its capacity as investment manager of the Master Fund,
the incentive allocation, the Fund Servicing Fee and the fees and expenses of
the Fund’s administrator; fees and expenses of any custodian, subcustodian,
transfer agent, and registrar, and any other agent of the Fund; all costs and
charges for equipment or services used in communicating information regarding
the Fund’s transactions among the Fund Servicing Agent and any custodian or
other agent engaged by the Fund; bank services fees; costs and expenses relating
to any amendment of the Fund’s limited liability company agreement (the “LLC
Agreement”) or the Fund’s other organizational documents; any expenses in
connection with meetings of the Board or its committees; expenses of preparing,
amending, printing, and distributing offering memoranda, statements of
additional information, and any other sales material (and any supplements or
amendments thereto), reports, notices, websites, other communications to
members, and proxy materials; expenses of preparing, printing, and filing
reports and other documents with government agencies; expenses of members’
meetings, including the solicitation of proxies in connection therewith;
expenses of corporate data processing and related services; member recordkeeping
and member account services, fees, and disbursements; expenses relating to
investor and public relations; fees and expenses of the Managers who are not
employees of the Fund Servicing Agent or its affiliates; insurance premiums;
Extraordinary Expenses (as defined below); and all costs and expenses incurred
as a result of dissolution, winding-up and termination of the Fund.
“Extraordinary
Expenses” means all expenses incurred by the Fund outside of the ordinary course
of its business, including, without limitation, costs incurred in connection
with any claim, litigation, arbitration, mediation, government investigation or
dispute and the amount of any judgment or settlement paid in connection
therewith, or the enforcement of the Fund’s rights against any person or entity;
costs and expenses for indemnification or contribution payable by the Fund to
any person or entity (including, without limitation, pursuant to the
indemnification obligations contained in the LLC Agreement); expenses of a
reorganization, restructuring or merger of the Fund; expenses of holding, or
soliciting proxies for, a meeting of members of the Fund; and the expenses of
engaging a new administrator, custodian, transfer agent, escrow agent or other
major service provider.
4
(b) The
Fund Servicing Agent will bear all of its own overhead expenses, including but
not limited to rent, salaries, office equipment and communications
expenses. In addition, the Fund Servicing Agent is responsible for
the payment of the compensation and expenses of those Managers and officers of
the Fund affiliated with the Fund Servicing Agent, and making available, without
expense to the Fund, the services of such individuals, subject to their
individual consent to serve and to any limitations imposed by law.
|
|
5.
|
Duties of the Fund
Servicing Agent.
|
(a) The
Fund Servicing Agent agrees to provide the Fund Services, or to engage other
parties to provide Fund Services and compensate such parties for their
services.
(b) The
Fund Servicing Agent shall, if requested, report to the Board on a quarterly
basis regarding: (i) the nature of the Fund Services provided by
the Fund Servicing Agent or other persons; (ii) the amount of payments by
the Fund Servicing Agent to such persons; and (iii) the amount of the Fund
Servicing Fee paid by the Fund, in each case, with respect to the quarterly
period then ending.
|
|
6.
|
Recordkeeping and
Reports.
|
The Fund Servicing Agent shall maintain
all books and records of the Fund required by Rule 31a-1 under the Investment
Company Act (other than those records being maintained by the Fund's
administrator, custodian or transfer agent) and preserve such records for the
periods prescribed therefore by Rule 31a-2 of the Investment Company
Act.
|
|
7.
|
Liability of the
Fund.
|
The Fund
Servicing Agent understands and agrees that the obligations of the Fund under
this Agreement are not binding upon any member, or any person serving on the
Board, personally, but bind only the Fund and the Fund’s
property. The Fund Servicing Agent represents that it has notice of
the provisions of the LLC Agreement, as amended, disclaiming member and Manager
liability for acts and obligations of the Fund.
|
|
8.
|
Independent
Contractor.
|
The Fund
Servicing Agent shall for all purposes herein be deemed to be an independent
contractor and shall, unless otherwise expressly provided herein or authorized
by the Board from time to time, have no authority to act for or represent the
Fund in any way or otherwise be deemed its agent.
|
|
9.
|
Liability.
|
None of
the Fund Servicing Agent, its affiliates, partners, managers, members,
principals, directors, officers or employees, nor any of their executors, heirs,
assigns, successors or other legal representatives (each an “Indemnified Person”
and collectively the “Indemnified Persons”) shall be liable for any error of
judgment, for any mistake of law or for any act or omission by such person in
connection with the performance or non-performance of services to the Fund
hereunder, in the absence of willful misfeasance or gross negligence in the
performance or non-performance of the Fund Servicing Agent’s duties hereunder
(collectively, “disabling conduct”). Any person, even though also
employed by the Fund Servicing Agent, who may be or become an employee of the
Fund and paid by the Fund shall be deemed, when acting within the scope of his
or her employment by the Fund, to be acting in such employment solely for the
Fund and not as an employee or agent of the Fund Servicing Agent.
5
|
|
10.
|
Indemnification,
|
(a) To
the fullest extent permitted by law, the Fund shall, subject to Section 10(b)
hereof, indemnify, defend and hold harmless each Indemnified Person from or
against all losses, charges, expenses, assessments, claims, damages, costs and
liabilities (“Losses”), including, but not limited to, amounts paid in
satisfaction of judgments, in compromise, or as fines or penalties, and
reasonable counsel fees and disbursements, incurred in connection with the
defense or disposition of any action, suit, investigation or other proceeding,
whether civil or criminal, before any judicial, arbitral, administrative or
legislative body, in which such Indemnified Person may be or may have been
involved as a party or otherwise, or with which such Indemnified Person may be
or may have been threatened, by reason of the past or present performance of
services to the Fund by such Indemnified Person, except to the extent such
Losses shall have been finally determined in a non-appealable decision on the
merits in any such action, suit, investigation or other proceeding to have been
incurred or suffered by such Indemnified Person by reason of disabling
conduct.
(b) Expenses,
including reasonable counsel fees and disbursements, so incurred by any such
Indemnified Person (but excluding amounts paid in satisfaction of judgments, in
compromise, or as fines or penalties), shall be paid or reimbursed by the Fund
in advance of the final disposition of any such action, suit, investigation or
proceeding upon receipt of an undertaking by or on behalf of such Indemnified
Person to repay to the Fund amounts so paid if it shall ultimately be determined
that indemnification of such expenses is not authorized under Section 10 hereof;
provided, however, that (i)
such Indemnified Person shall provide security for such undertaking, (ii) the
Fund shall be insured by or on behalf of such Indemnified Person against Losses
arising by reason of such Indemnified Person’s disabling conduct, or (iii) a
majority of the Managers who are not parties to the proceeding or independent
legal counsel in a written opinion shall determine based on a review of readily
available facts (as opposed to a full trial-type inquiry) that there is reason
to believe such Indemnified Person has not engaged in disabling
conduct.
(c) As
to the disposition of any action, suit, investigation or proceeding (whether by
a compromise payment, pursuant to a consent decree or otherwise) without an
adjudication or a decision on the merits by a court, or by any other body before
which the proceeding shall have been brought, that an Indemnified Person is
liable to the Fund or its members by reason of disabling conduct,
indemnification shall be provided pursuant to Section 10 hereof if (i) approved
as in the best interests of the Fund by a majority of the Managers who are not
parties to the proceeding upon a determination based upon a review of readily
available facts (as opposed to a full trial-type inquiry) that such Indemnified
Person has not engaged in disabling conduct, or (ii) the Board secures a written
opinion of independent legal counsel based upon a review of readily available
facts (as opposed to a full trial-type inquiry) to the effect that such
Indemnified Person is not likely to be liable to the Fund or its members by
reason of disabling conduct.
6
(d) Any
indemnification or advancement of expenses made pursuant to this Section 10
shall not prevent the recovery from any Indemnified Person of any such amount if
such Indemnified Person subsequently shall be determined in a final decision on
the merits of any court of competent jurisdiction in any action, suit,
investigation or proceeding involving the liability or expense that gave rise to
such indemnification or advancement of expenses to be liable to the Fund or its
members by reason of disabling conduct. In any suit brought by an
Indemnified Person to enforce a right to indemnification under this Section 10
it shall be a defense that, and in any suit in the name of the Fund to recover
any indemnification or advancement of expenses made pursuant to this Section 10
the Fund shall be entitled to recover such expenses upon a final adjudication
that, the Indemnified Person has not met the applicable standard of conduct set
forth in this Section 10. In any such suit brought to enforce a right
to indemnification or to recover any indemnification or advancement of expenses
made pursuant to this Section 10, the burden of proving that the Indemnified
Person is not entitled to be indemnified, or to any indemnification or
advancement of expenses, under this Section 10 shall be on the Fund (or any
member acting derivatively or otherwise on behalf of the Fund or its
members).
(e) The
rights of indemnification provided in this Section 10 shall not be exclusive or
affect any other right to which any Indemnified Person may be entitled by
contract or otherwise under law. Notwithstanding anything in this
Section 10 to the contrary, the provisions of this Section 10 shall not be
construed so as to relieve the Indemnified Person of, or provide indemnification
with respect to, any liability (including liability under Federal securities
laws, which, under certain circumstances, impose liability even on persons who
act in good faith) to the extent (but only to the extent) that such liability
may not be waived, limited, or modified under applicable law or that such
indemnification would be in violation of applicable law, but shall be construed
so as to effectuate the provisions of this Section 10 to the fullest extent
permitted by law. The provisions of this Section 10 shall
indefinitely survive the termination or cancellation of this
Agreement.
(f) The
Fund Servicing Agent (and the other Indemnified Persons) may rely upon and, in
the absence of disabling conduct, shall be protected in acting upon any document
which it reasonably believes to be genuine and to have been signed or presented
by the proper person or persons. The Fund Servicing Agent (and the
other Indemnified Persons) shall not be held to have notice of any change of
authority of any Manager, officer, employee or agent of the Fund until receipt
of written notice thereof from the Fund.
(g) Nothing
herein shall make the Fund Servicing Agent (and the other Indemnified Persons)
liable for the performance or omissions of unaffiliated third parties not under
the Fund Servicing Agent’s reasonable control such as, by way of example and not
limitation, custodians, brokers, subadvisers, postal or delivery services,
telecommunications providers and processing and settlement
services.
7
|
|
11.
|
Duration.
|
This
Agreement will take effect on the date first set forth above and remain in
effect until terminated pursuant to Section 11 or 14
hereof. Unless earlier terminated pursuant to Section 14 hereof,
this Agreement shall remain in effect for a period of two (2) years from such
date and thereafter for succeeding one-year periods unless sooner
terminated.
|
|
12.
|
Assignments or
Amendment.
|
Any
amendment to this Agreement shall be in writing and shall be subject to the
approval of the Board, including the vote of a majority of the Managers who are
not “interested persons” of the Fund.
|
|
13.
|
Notice.
|
(a) Notices
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 (each 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 the
Adviser:
Partners
Group (USA) Inc.
000
Xxxxxxxxx Xxxxxx, 00xx
xxxxx
Xxx Xxxx,
XX 00000
Attention: Executive
Office
Re:
Material Notice, Partners Group Private Equity (TEI), LLC
Facsimile: (000)
000 0000
Telephone: (000)
000 0000
with a
copy to:
Partners
Group AG
Xxxxxxxxxxxx
00
XX-0000
Xxxx-Xxx, Xxxxxxxxxxx
Attention: Executive
Office
Re:
Material Notice, Partners Group Private Equity (TEI), LLC
Facsimile: x00
00 000 00 00
Telephone: x00
00 000 00 00
8
If to the
Fund:
Xxxxx X.
Xxxxxxx, Chairman
c/o
Partners Group (USA) Inc.
000
Xxxxxxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx,
XX 00000
Re:
Material Notice, Partners Group Private Equity (TEI), LLC
Facsimile: (000)
000 0000
Telephone: (000)
000 0000
(b) Any
notice or communication required or permitted to be given by either party to the
other in the ordinary course of business shall be deemed sufficient if sent by
mail, Federal Express (or substantially similar delivery service), facsimile,
electronic mail or otherwise as agreed between the parties.
|
|
14.
|
Termination.
|
This
Agreement may be terminated (i) by the Fund Servicing Agent at any time
without penalty upon 60 days’ written notice to the Fund (which notice may
be waived by the Fund); or (ii) by the Fund at any time without penalty
upon 60 days’ written notice to the Fund Servicing Agent (which notice may
be waived by the Fund Servicing Agent). Any termination of this
Agreement shall not affect the obligation of the Fund to pay the amount of the
Fund Servicing Fee then owing hereunder, or to reimburse the Fund Servicing
Agent for payments made or obligations incurred prior to such
termination.
|
|
15.
|
Governing
Law.
|
This Agreement shall be construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws principles thereof, and the applicable provisions of Federal
law. To the extent that the applicable laws of the State of New York,
or any of the provisions herein, conflict with the applicable provisions of
Federal law, the latter shall control.
|
|
16.
|
Severability.
|
If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
effected thereby and, to this extent, the provisions of this Agreement shall be
deemed to be severable.
|
|
17.
|
Counterparts.
|
This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, and it shall not be necessary in making proof
of this Agreement to produce or account for more than one such
counterpart.
9
IN
WITNESS WHEREOF, the parties have executed this Agreement by their officers
thereunto duly authorized as of the day and year first written
above.
By:
_________________________________
Name:
Title:
Name:
Title:
By:
_________________________________
Name:
Title:
Name:
Title:
PARTNERS
GROUP (USA) INC.
By:
_________________________________
Name:
Title:
Name:
Title:
By:
_________________________________
Name:
Title:
Name:
Title:
10
