ADMINISTRATION, FUND ACCOUNTING AND RECORDKEEPING AGREEMENT
Exhibit
(k)(1)
THIS AGREEMENT is made as of
this [__] day of [___] 2010 (the “Effective Date”), by and between Partners
Group Private Equity (Institutional TEI), LLC, a Delaware limited liability
company (the “Fund”), and UMB Fund Services, Inc., a Wisconsin corporation (the
“Administrator”).
WHEREAS, the Fund is a limited
liability company which is registered as a closed-end management investment
company under the provisions of the Investment Company Act of 1940 (the “1940
Act”); and
WHEREAS, the Fund is a
“feeder” fund, investing substantially all of its assets into, and conducting
its investment activities through, Partners Group Private Equity (Offshore II),
LDC (the “Offshore Fund”), which in turn will invest all or substantially all of
its capital in Partners Group Private Equity (Master Fund), LLC (the “Master
Fund”). The Fund is authorized to offer and sell membership units in
the Fund, which represent an investment in the Master Fund (“Units”) in reliance
on exemptions provided in the Securities Act of 1933 (the “Securities Act”) and
state securities laws for transactions not involving any public offering;
and
WHEREAS, in pursuit of its
investment objective, the Master Fund will invest its assets primarily in (i)
primary and secondary investments in private investment funds (“Portfolio
Funds”), (ii) direct investments in the equity and/or debt of operating
companies (“Direct Investments”) and (iii) listed private equity vehicles, such
as business development companies (including derivatives tied to the returns of
such vehicles); and
WHEREAS, the Fund and the
Administrator desire to enter into an agreement pursuant to which the
Administrator shall provide certain administration, fund accounting and
recordkeeping services to the Fund.
NOW, THEREFORE, in
consideration of the mutual promises and agreements herein contained and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto, intending to be legally bound, do hereby agree as
follows:
1. Appointment
The Fund hereby appoints the
Administrator as administrator, fund accountant and record keeper of the Fund
and the Offshore Fund for the period and on the terms set forth in this
Agreement. The Administrator accepts such appointment and agrees to
render the services herein set forth, for the compensation herein
provided.
Exhibit
(k)(1)
2. Services
(a) Subject
to the direction and control of the Fund’s Board of Managers (the “Board”), and
utilizing information provided by the Fund and its agents and service providers,
the Administrator will provide the services listed on Schedule A hereto on
behalf of the Fund and, to the extent applicable, the Offshore
Fund. The duties of the Administrator shall be confined to those
expressly set forth therein, and no implied duties are assumed by or may be
asserted against the Administrator hereunder. The Fund agrees not to
(i) make any modifications to its registration statement or (ii) adopt any
policies, which would materially increase the obligations and responsibilities
of the Administrator hereunder without the prior written approval of the
Administrator, which approval shall not be unreasonably withheld.
(b) The
Board of the Fund shall instruct the investment adviser(s) and sub-advisers (if
any) (each a “Portfolio Manager”), prime broker and/or custodian, legal counsel,
independent accountants and other service providers and agents, past or present,
for the Fund to cooperate with the Administrator and to provide the
Administrator with such information, documents and advice relating to the Fund
as necessary and/or appropriate or as reasonably requested by the Administrator,
in order to enable the Administrator to perform its duties hereunder. The
Administrator shall be entitled to rely on any document that it reasonably
believes to be genuine and to have been signed or presented by the proper
party. Subject to the foregoing, in connection with its duties
hereunder, the Administrator shall (without investigation or verification) be
entitled and is hereby instructed to, rely upon any and all oral or written
instructions, advice, information or documents provided to the Administrator by
an officer or representative of the Board or the Fund or by any of the
aforementioned persons. Fees charged by such persons shall be an
expense of the Fund. The Administrator shall not be held to have notice of any
change of authority of any officer, agent, representative or employee of the
Board, the Fund, Portfolio Managers or service provider until receipt of written
notice thereof from the Fund.
(c) At any
time, the Administrator may request instructions from the Fund with respect to
any matter arising in connection with this Agreement. If such
instructions are not received within a reasonable time, the Administrator may
seek advice from legal counsel for the Fund at the expense of the Fund, or its
own legal counsel at its own expense, and it shall not be liable for any action
taken or not taken by it in good faith in accordance with such instructions or
in accordance with advice of counsel.
(d) The
Administrator hereby agrees that all records which it maintains for the Fund
pursuant to its duties hereunder are the property of the Fund and further agrees
to surrender promptly to the Fund any of such records upon the Board’s
request.
(e) It is
understood that in determining security valuations, as appropriate, the
Administrator employs one or more pricing services to determine valuations of
portfolio securities for purposes of calculating net asset values of the Master
Fund and the Fund, as described in the Confidential Private Offering Memorandum
dated [________, 2010], and any successor thereto (the “Offering
Memorandum”). The Administrator shall price the securities and other
holdings of the Master Fund and the Fund for which market quotations or prices
are available by the use of such services. For those securities where
prices are not provided by the pricing service(s) utilized by the Administrator,
the Master Fund and the Fund shall approve, in good faith, the procedures for
determining the fair value of securities. At such times as are
necessary and in accordance with such procedures, the Portfolio Managers shall
determine or obtain the valuation of the securities (subject always to the
review and supervision of the Master Fund’s Board and the Board) and shall
deliver to the Administrator the resulting prices for use in its calculation of
net asset values; in particular, the Administrator shall price investments in
Portfolio Funds and private Direct Investments based on the valuations provided
to it by the Portfolio Managers. The Administrator is authorized to
rely on the prices provided by the Portfolio Managers or other authorized
representatives of the Master Fund or the Fund without investigation or
verification.
Exhibit
(k)(1)
(f) The
Board and Portfolio Managers have and retain primary responsibility for all
compliance matters relating to the Fund, including but not limited to compliance
with all applicable provisions of the Securities Act, the 1940 Act, the
Securities Exchange Act of 1934, state securities laws, the Internal Revenue
Code of 1986, as amended, the USA PATRIOT Act of 2001, the Xxxxxxxx-Xxxxx Act of
2002 and the policies and limitations of the Fund relating to the portfolio
investments as set forth in the Offering Memorandum. The
Administrator’s monitoring and other functions hereunder shall not relieve the
Board and the Portfolio Managers of their primary day-to-day responsibility for
assuring such compliance. Notwithstanding the foregoing, the
Administrator will be responsible for its own compliance with such statutes
insofar as such statutes are applicable to the services it has agreed to provide
hereunder, and will promptly notify the Fund if it becomes aware of any
non-compliance which relates to the Fund. The Administrator shall
provide the Fund with quarterly and annual certifications (on a calendar basis)
with respect to the design and operational effectiveness of its compliance and
procedures.
(g) The
Administrator shall maintain a disaster recovery and business continuity plan
and adequate and reliable computer and other equipment necessary and appropriate
to carry out its obligations under this Agreement. Upon the Fund’s
reasonable request, the Administrator shall provide supplemental information
concerning the aspects of its disaster recovery and business continuity plan
that are relevant to the services provided hereunder.
3. Fees; Delegation;
Expenses
(a) In
consideration of the services rendered pursuant to this Agreement, the Fund will
pay the Administrator a fee, computed and payable monthly based on monthly net
assets, plus out-of-pocket expenses, each as provided in Schedule B hereto. In
addition, to the extent that the Administrator corrects, verifies or addresses
any prior actions or inactions by the Fund or by any other service provider, the
Administrator shall be entitled to additional fees as provided in Schedule
B. Fees shall be adjusted in accordance with Schedule B or as
otherwise agreed to in writing by the parties from time to time. The parties may
amend this Agreement to provide for any additional services requested by the
Fund, enhancements to current services, or to add funds for which the
Administrator has been retained and the fees associated with such additions or
enhancements shall be as agreed to in writing by the
parties.
Exhibit
(k)(1)
(b) For
the purpose of determining fees payable to the Administrator, net asset value
shall be computed in accordance with the Fund’s Limited Liability Company
Agreement, the Offering Memorandum and the resolutions of the Board, if any. The
fee for the period from the day of the month charges begin accruing under this
Agreement until the end of that month shall be pro-rated according to the
proportion that such period bears to the full monthly period. Fees
under this Agreement, except for any out-of pocket expenses, shall begin
accruing on the date the Fund first accepts subscriptions from
investors. The Fund will promptly reimburse the Administrator for all
out-of-pocket expenses or disbursements incurred by the Administrator in
connection with the performance of services under this Agreement, which have
been invoiced as provided in Section 3(d). Upon any termination of this
Agreement before the end of any month, the fee for such part of a month shall be
pro-rated according to the proportion which such period bears to the full
monthly period and shall be payable upon the date of termination of this
Agreement. Should the Fund be liquidated, merged with or acquired by
another fund or investment company, any accrued fees shall be immediately
payable.
(c) The
Administrator will bear all expenses incurred by it in connection with the
performance of its services under Section 2, except as otherwise provided
herein. The Administrator shall not be required to pay or finance any
costs and expenses incurred in the operation of the Fund, including, but not
limited to: taxes; interest; brokerage fees and commissions; salaries, fees and
expenses of the Board, the Portfolio Managers or any officers; any Securities
and Exchange Commission (the “Commission”) fees and state Blue Sky fees;
advisory fees; charges of custodians, prime brokers, transfer agents, dividend
disbursing and accounting services agents and other service providers; security
pricing services; insurance premiums; outside auditing and legal expenses,
including but not limited to attorneys’ fees incurred in connection with
responding to or complying with SEC or other regulatory investigations,
inquiries or subpoenas; costs of organization and maintenance of corporate
existence; taxes and fees payable to federal, state and other governmental
agencies; preparation, typesetting, printing, proofing and mailing of
prospectuses, statements of additional information, Offering Memoranda or
notices, forms or applications and proxy materials for regulatory purposes and
for distribution to prospective or current members; preparation, typesetting,
printing, proofing and mailing and other costs of shareholder reports; expenses
in connection with the electronic transmission of documents and information
including electronic filings with the Commission and the states; research and
statistical data services; expenses incidental to holding meetings of the Fund’s
members and Board; fees and expenses associated with internet, e-mail and other
related activities of the Fund (for avoidance of doubt, the Administrator will
pay fees and expenses associated with its own internet, email and related
activities); expenses incurred for distribution of Units and extraordinary
expenses. The Administrator shall not be required to pay any Blue Sky
fees or take any related Blue Sky actions except as set forth on Schedule A, and then
not unless and until it has received the associated fees from the
Fund.
(d) Except
as otherwise specified, fees payable hereunder shall be calculated in arrears
and billed on a monthly basis. The Fund agrees to pay all fees within
thirty days of receipt of each invoice. The Administrator retains the
right to charge interest in the amount of 1-1/2 percent per month on any amounts
that remain unpaid beyond such thirty day period.
Exhibit
(k)(1)
4. Proprietary and Confidential
Information
The Administrator agrees on behalf of
itself and its employees to treat confidentially and as proprietary information
of the Fund all records relative to the Fund’s members, including such
proprietary information received by the Administrator prior to the Effective
Date (“Confidential Information”), not to use such Confidential Information for
any purpose other than performance of its responsibilities and duties hereunder,
and not to disclose such Confidential Information except where the Administrator
may be exposed to civil or criminal proceedings for failure to comply, when
requested to divulge Confidential Information by duly constituted authorities or
court process, when subject to governmental or regulatory audit or
investigation, or when so requested by the Fund. In case of any requests or
demands for inspection of the records of the Fund or for the release of
Confidential Information, the Administrator will endeavor to notify the Board
promptly and to secure instructions from a representative of the Board as to
such inspection, unless prohibited by law from making such notification. In the
event that the Administrator has reasonably determined that prior notification
of the Board is not possible (including due to any prohibition under applicable
law), the Administrator will notify the Fund of the request, demand and/or
release of Confidential Information, together with an explanation of the
associated circumstances, as soon as reasonably practicable. Records and
information which have become known to the public through no wrongful act of the
Administrator or any of its employees, agents or representatives, and
information which was already in the possession of the Administrator prior to
the date hereof, shall not be considered as “Confidential Information” subject
to this paragraph.
5. Limitation of
Liability
(a) The Administrator
shall not be liable for any error of judgment or mistake of law or for any loss
suffered by the Fund in connection with the matters to which this Agreement
relates, except for a loss resulting from the Administrator’s willful
misfeasance, bad faith or gross negligence in the performance of its duties or
from reckless disregard by it of its obligations and duties under this
Agreement. Furthermore, the Administrator shall not be liable for (i)
any action taken or omitted to be taken in accordance with or in reliance upon
written or oral instructions, advice, data, documents or information (without
investigation or verification) received by the Administrator from or on behalf
of the Board or an officer or representative of the Fund, or from a
representative of any of the parties referenced in Section 2, provided that the
Administrator has acted on the reasonable belief that such written or oral
instructions, advice, data, documents or information are genuine and have been
signed or presented by the proper party, (ii) its reliance on the security
valuations without investigation or verification provided by pricing service(s),
the Board, a Portfolio Manager or other representatives of the Fund, (iii) any
liability arising from the offer or sale of any Unit by the Fund in reliance on
exemptions from registration under the Securities Act and the applicable
securities laws of each state and territory in which the Fund intends to offer
and sell Units, or (iv) any action taken or omission by the Fund, the Board,
Portfolio Mangers or any past or current service provider.
(b) The
Administrator assumes no responsibility hereunder, and shall not be liable, for
any default, damage, loss of data or documents, errors, delay or any other loss
whatsoever caused by events beyond its reasonable control. The
Administrator will, however, take all reasonable steps to minimize service
interruptions for any period that such interruption continues beyond its
control.
Exhibit
(k)(1)
(c) The
Fund agrees to indemnify and hold harmless the Administrator, its employees,
agents, officers, directors, affiliates and nominees (collectively, the
“Indemnified Parties”) from and against any and all claims, demands, actions and
suits, and from and against any and all judgments, liabilities, losses, damages,
costs, charges, reasonable counsel fees and other expenses of every nature and
character which may be asserted against or incurred by any Indemnified Party or
for which any Indemnified Party may be held liable (a “Claim”) arising out of or
in any way relating to (i) the Administrator’s actions or omissions except to
the extent a Claim resulted from the Administrator’s willful misfeasance, bad
faith, or gross negligence in the performance of its duties hereunder or from
reckless disregard by it of its obligations and duties hereunder; (ii) the
Administrator’s reliance on, implementation of or use of (without investigation
or verification) advice, instructions, requests, directions, information, data,
records and documents received by the Administrator from any party referenced in
Section 2 hereof or other representative of the Fund, provided that the
Administrator has acted on the reasonable belief that such written or oral
instructions, advice, data, documents or information are genuine and have been
signed or presented by the proper party, (iii) any breach of any of the Fund’s
obligations, representations or warranties hereunder, or (iv) any action taken
by or omission of the Fund, its Board, any Portfolio Managers, or any past or
current service provider.
(d) In no
event and under no circumstances shall the Administrator, its affiliates or any
of its or their officers, directors, members, agents or employees be liable to
anyone, including, without limitation, the other party, under any theory of
tort, contract, strict liability or other legal or equitable theory for lost
profits, exemplary, punitive, special, indirect or consequential damages for any
act or failure to act under any provision of this Agreement. The indemnity and
defense provisions set forth in this Section 5 shall indefinitely survive the
termination and/or assignment of this Agreement.
6. Term
(a) This
Agreement shall become effective as of the date this Agreement is executed and
shall continue in effect for a two (2) year period beginning on the Effective
Date (the “Initial Term”). After the Initial Term, the Agreement will
automatically renew for additional one (1) year periods unless either party has
provided written notice to the other party of its intent to terminate the
Agreement not less than sixty (60) days prior to the date the Agreement would
have otherwise been renewed.
(b) Notwithstanding
the foregoing, in the event that a party is alleged to be in breach of its
obligations or representations under this Agreement (the “Breaching Party”), the
other party (the “Non-Breaching Party”) may provide the Breaching Party with at
least sixty (60) days written notice of its intent to terminate the Agreement
and such written notice will include sufficient details regarding the events
which are alleged to constitute such breach and the date upon which the
Agreement will be terminated (the “Breach Termination
Date”). Notwithstanding such written notice to the Breaching Party,
the Breaching Party will have the right to attempt to cure the events which are
alleged to constitute the breach by providing the Non-Breaching Party with its
written notice of its intent to do so prior to the Breach Termination
Date. In the event that the Breaching Party provides proper written
notice of its intent to attempt to cure the events, then it shall have thirty
(30) days (or such longer period as the parties may agree to in writing) from
the date of such notice to cure the alleged breach. If the alleged breach is
cured to the satisfaction of the Non-Breaching Party (as evidenced in writing)
prior to the Breach Termination Date, then the Agreement shall not terminate on
such date but shall continue as provided in Section 6(a).
Exhibit
(k)(1)
(c) Notwithstanding
anything herein to the contrary, upon the termination of this Agreement or the
liquidation of the Fund, the Administrator shall deliver the records of the Fund
(in the form maintained by the Administrator to the extent permitted by
applicable license agreements) to the Board or person(s) designated by the Board
at the Fund’s cost and expense, and thereafter the Board or its designee shall
be solely responsible for preserving the records for the periods required by all
applicable laws, rules and regulations. The Administrator shall be entitled to
maintain a copy of such records for the purpose of defending itself against any
action arising under or as a result of this Agreement and shall be permitted to
maintain copies of any such records, papers and documents to the extent
necessary to comply with the recordkeeping requirements of federal and state
securities laws, tax laws and other applicable laws. The Fund shall
be responsible for all expenses associated with the movement (or duplication) of
records and materials and conversion thereof to a successor fund accounting and
administrative services agent, including all reasonable trailing expenses
incurred by the Administrator. In addition, in the event of
termination of this Agreement, or the proposed liquidation or merger of the
Fund, and the Fund requests the Administrator to provide additional services in
connection therewith, the Administrator shall provide such services and be
entitled to such compensation as the parties may mutually agree.
7. Non-Exclusivity
The services of the Administrator
rendered to the Fund are not deemed to be exclusive. The
Administrator may render such services and any other services to others,
including other investment vehicles, including hedge funds.
8. Governing Law;
Invalidity
This Agreement shall be governed by
Delaware law, excluding the laws on conflicts of laws. To the extent
that the applicable laws of the State of Delaware, or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the latter
shall control, and nothing herein shall be construed in a manner inconsistent
with the 1940 Act or any rule or order of the Commission
thereunder. Any provision of this Agreement which may be determined
by competent authority to be prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. In such case, the parties shall in good faith modify or
substitute such provision consistent with the original intent of the
parties.
9. Notices
(a)
Notices to the Fund relating to termination of the Agreement, breaches of
contractual duties (including notices of an alleged breach pursuant to Section
6(b)), or initiation of legal proceedings related to services provided under
this Agreement (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 in writing from time to time:
Exhibit
(k)(1)
c/o
Partners Group (USA) Inc.
000
Xxxxxxxxx Xxxxxx, 00xx
xxxxx
Xxx Xxxx,
XX 00000
Attention: CCO
Re:
Material Notice
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 (Institutional TEI),
LLC
Facsimile: x00
00 000 00 00
Telephone: x00
00 000 00 00
(b) All
other notices required or permitted to be given by either party to the other
shall be in writing and shall be deemed to have been given when sent by
registered or certified mail, postage prepaid, return receipt requested, as
follows: notices to the Administrator shall be sent to UMB Fund
Services, Inc., 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X, Xxxxxxxxx, XX, 00000,
Attention: Xxxxx X. Xxxxxxx, with a copy to General Counsel, and notices to the
Fund shall be sent to Partners Group Private Equity (Institutional TEI), LLC,
c/o Partners Group (USA) Inc., 000 Xxxxxxxxx Xxxxxx, 00xx xxxxx,
Xxx Xxxx, XX 00000, Attention: CCO. All other customary communications related
to the performance of services and communications under this Agreement may be
sent via electronic mail.
10. Entire
Agreement
This Agreement, together with the
Schedules attached hereto, constitutes the entire Agreement of the parties
hereto.
11.
Counterparts
This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original
agreement but such counterparts shall together constitute but one and the same
instrument. The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such
party.
Exhibit
(k)(1)
12. Amendments
The terms of this Agreement shall not
be waived, altered, modified, amended or supplemented in any manner whatsoever
except by a written instrument signed by the Administrator and the
Fund.
13. Assignment; Successors and
Assigns; Delegation
Neither party may assign this Agreement
without the prior written consent of the other party; provided, however, that
the Administrator may assign its rights hereunder to any subsidiary or affiliate
with thirty (30) days’ prior written notice of such assignment. This
Agreement shall be binding upon and shall insure to the benefit of the parties
hereto and their respective successors and permitted assigns. To the
extent that the Administrator appoints other parties to carry out some or all of
its responsibilities under this Agreement, the Administrator (i) will, prior to
appointing such other party, use reasonable care in determining that such other
party is able to provide such services and (ii) will remain responsible for the
provision of such services to the Fund.
14. Legal
Advice
Notwithstanding anything in this
Agreement to the contrary, the services provided by the Administrator hereunder
do not constitute, nor shall they be construed as constituting, legal advice or
the provision of legal services for or on behalf of the Fund or any other
person.
15. Records
The Administrator shall keep those
records specified in Schedule C hereto in the form and manner, and for such
period, as it may deem advisable but not inconsistent with the rules and
regulations of appropriate government authorities, in particular Rules 31a-2 and
31a-3 under the 1940 Act. The Administrator shall only destroy
records at the direction of the Fund, and any such destruction shall comply with
the provisions of Section 248.30(b) of Regulation S-P (17 CFR
248.1-248.30). The Administrator may deliver to the Fund from time to
time at the Administrator’s discretion, for safekeeping or disposition by the
Fund in accordance with law, such records, papers and documents accumulated in
the execution of its duties hereunder, as the Administrator may deem expedient,
other than those which the Administrator is itself required to maintain pursuant
to applicable laws and regulations. The Fund shall assume all
responsibility for any failure thereafter to produce any record, paper, or other
document so returned, if and when required.
Exhibit
(k)(1)
16. Miscellaneous
The Fund hereby grants to the
Administrator the limited power of attorney on behalf of the Fund to sign Blue
Sky forms and related documents in connection with the performance of its
obligations under this Agreement.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by a duly authorized
officer as of the day and year first above written.
(the
“Fund”)
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By:
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[Authorized
Person]
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By:
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[Authorized
Person]
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UMB
FUND SERVICES, INC.
(“Administrator”)
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By:
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Chief
Executive
Officer
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Exhibit
(k)(1)
Schedule
A
to
the
by
and between
and
UMB
Fund Services, Inc.
Services
Subject
to the direction and control of the Fund’s Board and utilizing information
provided by the Fund and its agents and the Portfolio Managers, the
Administrator will provide or perform the following services:
Regulatory
administration and compliance support services
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§
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compile
data for and prepare with respect to the Fund Semi-Annual Reports on Form
N-SAR and provide to Fund counsel for its review of the same; upon the
advice and direction of Fund counsel, file Form N-SAR with the Commission
as required;
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prepare
and review the financial statement for the Fund’s Annual and Semi-Annual
Reports included in Form N-CSR as required under the Xxxxxxxx-Xxxxx Act;
assist in compiling exhibits and disclosures for Form N-CSR as requested
by the Board; provide to Fund counsel for its review of Form N-CSR; upon
the advice and direction of Fund counsel, file Form N-CSR with the
Commission as required;
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in
connection with the Fund’s first and third fiscal quarters, prepare Form
N-Q and provide to Fund counsel for its review of the same; upon the
advice and direction of Fund counsel, file Form N-Q with the Commission as
required;
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§
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subject
to having received all relevant information from the Fund and upon the
advice and direction of Fund counsel, prepare Form N-PX and provide to
Fund counsel for its review of the same; upon the advice and direction of
Fund counsel, file Form N-PX with the Commission as
required;
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at
the direction of Fund counsel and with the assistance of the Fund, prepare
and file such other regulatory forms as may be required by the Commission
and/or which are customary, consistent with standard market
practice;
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provide
financial and Fund performance information for inclusion in
the Registration Statement for the Fund (on Form N-2 or any
replacement therefor) and any amendments thereto, subject to the review of
Fund counsel;
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Exhibit
(k)(1)
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§
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assist
in the acquisition of the Fund’s fidelity bond required by the 1940 Act,
monitor the amount of the bond and make the necessary Commission filings
related thereto;
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from
time to time as the Administrator deems appropriate (but no less
frequently than quarterly), check the Fund’s compliance with the policies
and limitations of the Fund relating to the portfolio investments as set
forth in the Fund’s Offering Memorandum and Statement of Additional
Information (but these functions shall not relieve the Fund’s Portfolio
Managers, if any, of their primary day-to-day responsibility for assuring
such compliance);
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develop
with legal counsel and the secretary of the Fund an agenda and draft
resolutions for each Board meeting and, if requested by the Board, attend
Board meetings and prepare minutes;
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prepare
and deliver Form 1099s to Board members and other Fund
vendors;
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upon
the advice and direction of Fund counsel, coordinate and, in conjunction
with the transfer agency services described below, carry out periodic
tender offers for the Fund (initial forms for such tender offers shall be
prepared by Fund counsel);
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assist
the Fund’s Chief Compliance Officer with the development and maintenance
of a compliance calendar for the Fund, provided that it is understood by
the parties that the Fund’s Chief Compliance Officer is ultimately
responsible for such calendar;
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prepare
and file state securities qualification/notice compliance filings, with
the advice of the Fund’s legal counsel, upon and in accordance with
instructions from the Fund, which instructions will include the states to
qualify in, the amounts of Shares to initially and subsequently qualify
and the warning threshold to be
maintained;
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Investor
servicing and transfer agency services
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distribute
offering and subscription materials to or for prospective investors as
directed by the Fund, pursuant to arrangements with fund “platforms” or
other distribution arrangements of the
Fund;
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review
subscription agreements for reasonableness; provided, however, the Board
remains solely responsible for determining investor eligibility; send
approval notices to investors as instructed by the Fund, if
applicable;
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§
|
subject
to the written or electronic direction of the Board, assist the Fund with
its monitoring obligations under the USA PATRIOT Act by (i) at such time
as directed by the Board, rejecting subscription agreements that are not
accompanied by required identifying information; (ii) providing an initial
check of identifying information against the FastData® AML database (or
any successor thereto) licensed by the Administrator; (iii) providing an
initial check of persons submitting subscription agreements against the
OFAC list; (iv) checking investors against the FastData® AML database (or
any successor thereto) and the OFAC list, as and when such database or
list is updated; (v) notifying the Fund of information or activity that it
believes to be suspicious; (vi) upon consultation with the Board, filing a
suspicious activity report with the appropriate authorities; (vi)
permitting federal regulators access to such information and records
maintained by the Administrator relating to the Administrator’s
implementation of the Fund’s monitoring obligations, as they may request,
and (vii) permitting such federal regulators to inspect the
Administrator’s implementation of such monitoring obligations on behalf of
the Fund (the customer identification verification component of these
services apply only to shareholders who are residents of the United
States);
|
Exhibit
(k)(1)
|
§
|
coordinate
processing of new investor subscriptions, which shall include (i)
coordinating receipt of funds from investors, (ii) providing the Fund with
a daily report detailing the status and amount of incoming wires and
subscription agreements, (iii) upon direction from the Fund, coordinating
transfer of funds between the escrow agent, the Fund and the Master Fund
and/or returning funds to investors whose subscriptions have not been
accepted and (iv) sending acceptance letters to new
investors;
|
|
§
|
coordinate
investor reporting, which shall include (i) preparing monthly reports
showing capital account balance information of each investor, (ii)
coordinating the printing of supplemental information or materials
provided by the Fund in conjunction with such reports, (iii) compiling the
foregoing materials and distributing the reports to investors and/or other
relevant parties as instructed by the Fund, (iv) providing on-line access
to investor information (provided that the Administrator is not
responsible for designing or maintaining any web site for the Fund) and
(v) sending quarterly statements of positions held to relevant parties as
instructed by the Fund;
|
|
§
|
coordinate
processing of tender offers made by the Fund, which shall include (i)
distributing tender offer letters to investors, (ii) coordinating receipt
of tender orders from investors, (iii) providing the Fund with a daily
report detailing the status and amount of incoming tender orders, (iv)
delivering promissory notes to investors whose tender orders have been
accepted, as described in the Offering Memorandum, (v) coordinating the
calculation of holdback amounts and (vi) upon direction from the Fund,
coordinating release of funds to
investors;
|
|
§
|
establish
and maintain a demand deposit account for purposes of processing investor
subscriptions and tender offers;
|
|
§
|
upon
the advice and direction of the Fund or Fund counsel, file Blue Sky forms
as and where directed;
|
|
§
|
on
a periodic basis (expected to be quarterly), pursuant to the terms of the
Limited Liability Company Agreement, prepare and provide to the Board a
report reflecting the Fund’s
performance;
|
Accounting
and tax-related services
|
§
|
act
as liaison with the Fund’s independent public accountants, and provide
account analyses, fiscal year summaries and other audit-related
information schedules;
|
|
§
|
assist
in the preparation of the Fund’s annual financial reports (and provide all
information in connection therewith as may be reasonably requested),
subject to the review and approval of the Fund and audit by the Fund’s
independent public accountants; distribute such annual financial reports
as required;
|
Exhibit
(k)(1)
|
§
|
establish
and maintain member capital accounts for each
investor;
|
|
§
|
calculate
items of income, expense, gain and loss, and allocate such items to
individual members’ capital accounts in accordance with the Fund’s Limited
Liability Company Agreement;
|
|
§
|
enter
all Portfolio Fund and security transactions into the accounting records
and track funded and unfunded
commitments;
|
|
§
|
receive
and record all transaction information provided by the Portfolio
Manager;
|
|
§
|
where
applicable, verify individual security settlements with the
custodian/prime broker;
|
|
§
|
maintain
a security ledger of transactions;
|
|
§
|
maintain
all general ledger accounts and related
subledgers;
|
|
§
|
periodically,
or upon the Fund’s request, reconcile fund records maintained by the
Administrator with those maintained by the Portfolio Managers or other
parties as the Fund may designate;
|
|
§
|
maintain
individual tax lots for each security
purchase/sale;
|
|
§
|
determine
realized gains or losses on security
trades;
|
|
§
|
monitor
individual investments for corporate actions, cash dividends and capital
changes and notify the Fund where such occurrences require action by the
Fund (e.g. proxies, corporate
actions);
|
|
§
|
provide
information to the Fund’s independent accountants, and to Fund counsel
when appropriate, to assist in the preparation and filing of the Fund’s
tax filings; such information shall be sufficient to permit the
preparation and filing of all federal and state income tax returns (and
such other required tax filings as may be agreed to by the parties),
including reports such as dividend and interest income reports, purchase
and sale and capital gain/loss reports, tax lot holding reports or other
reports, as applicable;
|
|
§
|
calculate
contractual expenses (e.g., advisory
fees);
|
|
§
|
calculate
the incentive allocation, if applicable, pursuant to the terms of the
Fund’s Limited Liability Company
Agreement;
|
|
§
|
determine
and periodically monitor the Fund’s income and expense accruals and cause
all appropriate expenses to be paid from Fund assets on proper
authorization from the Fund;
|
Exhibit
(k)(1)
|
§
|
monitor
payments required of the Fund (e.g. to fund capital calls issued by
Portfolio Funds) and cause such payments to be made from Fund assets on
proper authorization from the Fund;
|
|
§
|
calculate
net asset values of the Fund (i) in accordance with the Fund’s operating
documents as provided to the Administrator, and (ii) based on security
valuations provided by the pricing service(s), the Portfolio Funds in
which the Fund invests and the Fund’s Portfolio Managers, if applicable,
as provided herein;
|
|
§
|
maintain
the accounts, books and other documents produced by the Administrator in
connection with its services
hereunder;
|
General
services
|
§
|
provide
office space, facilities, equipment and personnel to carry out its
services hereunder;
|
|
§
|
provide
such reports as mutually agreed upon by the parties
hereto;
|
|
§
|
generally
provide such other services as are reasonably requested by the Fund or the
Portfolio Managers, and which are directly related to or required in
connection with the services listed above;
and
|
|
§
|
generally
assist in the Fund’s administrative operations as mutually agreed to by
the parties.
|
The
duties of the Administrator shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted against the
Administrator hereunder.
Exhibit
(k)(1)
Schedule
B
to
the
by
and between
and
UMB
Fund Services, Inc.
Fees
|
Accounting
and Administration
|
||||
|
n Monthly
base fee
|
$
|
|||
|
n Monthly
fee for Regulatory Administration
|
$2
|
|||
|
Investor
Services and Transfer Agent – Monthly Allocations to
Investors
|
||||
|
Annual
Investor Servicing Transfer Agent Fees**
|
||||
|
n First
500 investors, each
|
$
|
|||
|
n Next
500 investors, each
|
$
|
|||
|
n Each
investor over 1,000 investors
|
$
|
|||
|
**Minimum
annual Transfer Agent fee: $25,000 (per fund family)
|
||||
|
Telephone
Calls
|
||||
|
Per
phone call
|
$
|
|||
Exhibit
(k)(1)
Out-of-Pocket
Expenses
Out-of-pocket
expenses include but are not limited to normal recurring expenses such as
pricing services, postage, express delivery charges, courier services, printing
of reports, photocopying, stationery, record retention/storage/retrieval, travel
on behalf and request of the Fund, and expenses, including but not
limited to attorney’s fees, incurred in connection with responding to
and complying with SEC or other regulatory investigations, inquiries or
subpoenas, excluding routine examinations of the Administrator in its capacity
as a service provider to the funds. Negotiated project fees may apply
for special programming to create custom reports.
Optional
Services
|
USA
PATRIOT Act (AML)
|
||||||
|
Annual
fee
|
$ | |||||
|
Blue Sky State Filing
Fees
|
||||||
|
Per
state
|
$ | |||||
|
DDA
Account Fees
|
||||||
|
n
|
Monthly fee, per account | $ | ||||
|
n
|
Activity fees | |||||
|
o
|
Incoming
wires, each
|
$ | ||||
|
o
|
Outgoing
wires, each (repetitive)
|
$ | ||||
|
o
|
Outgoing
wires, each (non-repetitive)
|
$ | ||||
|
o
|
Account
debits, per item
|
$ | ||||
|
o
|
Account
credits, per item
|
$ | ||||
|
o
|
Overdrafts,
per item
|
$ | ||||
|
Voila
On-line Access (per fund family)
|
||||||
|
One-time
setup fee
|
$ | |||||
|
Monthly
maintenance fee
|
$ | |||||
Exhibit
(k)(1)
Schedule
C
to
the
by
and between
and
UMB
Fund Services, Inc.
|
|
§
|
Accounting
records, including Unit Holder Account Ledgers, Portfolio Transactions
Journals, Cash Receipts and Disbursements Journal, General Ledger,
Subsidiary Ledgers, Portfolio Securities Ledger, Commissions Ledger,
Capital Account Ledger and Trial
Balances.
|
|
|
§
|
Copies
of the Fund’s Limited Liability Company Agreement and minute
books.
|
|
|
§
|
Unit
Holder correspondence (including e-mail communications) relating to
matters required to be maintained by Section 31(a) of the 0000
Xxx
|
