Warehousing Agreement
This Warehousing Agreement (the “Agreement”), dated as of , is entered into by and among (the “Warehousing Entity”), (the “Investment Manager”), in its capacity as investment manager, on behalf of and not for its own account, of (i) and (ii) and and their related parallel vehicles and subsidiaries (collectively, the “Feeder Group”, and together with , the “Fund”).
WHEREAS:
The Fund intends to invest primarily in privately negotiated, equity-oriented investments and to a lesser extent debt and other securities;
In order to support the development of the Fund and until the Fund has sufficient capital to make such investments directly, as determined by the Investment Manager in its sole discretion, the parties agree that the Warehousing Entity will warehouse certain investments in which the Fund would otherwise invest directly (such investments, the “Warehoused Investments”) and sell such investments (or transfer commitments with respect thereto) to the Fund in accordance with the pricing methodology described below (the “Warehouse”);
It is expected that (1) Warehoused Investments may be offered to both the Fund and investment funds, vehicles, accounts, products and/or other similar arrangements sponsored, advised, and/or managed by or its affiliates (individually and collectively, “Other Accounts”), dedicated to investing in similar strategies in accordance with such Other Account’s allocation policy and applicable law and (2) each transfer of an Approved Warehoused Investment (as defined below) from the Warehousing Entity to the Fund will be subject to the allocation policies of the Investment Manager, applicable law, and the terms set forth in the organizational documents of the Fund;
NOW, THEREFORE, in consideration of the premises, mutual covenants and agreements hereinafter contained, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Acquisition of Approved Warehoused Investments.
In connection with the launch of the Fund, the Warehousing Entity hereby agrees to warehouse certain Warehoused Investments and to subsequently transfer such Warehoused Investments to the Fund, and the Fund agrees to acquire such Warehoused Investments from the Warehousing Entity, from time to time, on the terms described herein following the point(s) in time at which the Fund has sufficient capital to acquire such investments, as determined by the Investment Manager in its sole discretion, and subject to:
applicable law (including obtaining any consents required to comply with );
the terms set forth in the organizational documents of the Fund; and
the registration of the Feeder Group on the official list of undertakings for collective investments maintained by in accordance with .
Each such date shall be referred to as a “Warehouse Closing Date.” The Investment Manager will elect which Approved Warehoused Investments will be purchased by the Fund on each applicable Warehouse Closing Date in its discretion.
Investment Discretion.
From time to time prior to the launch of the Fund, the Warehousing Entity may acquire Warehoused Investments that have been approved by the Investment Manager and the Fund’s investment committee but for which the Fund does not have sufficient capital (as determined by the Investment Manager in its sole discretion) to invest in directly, up to an aggregate invested equity amount of (or such higher amount as may be agreed between the parties), subject in each case to the Warehousing Entity’s approval at the time of acquisition. If an Approved Warehoused Investment is made alongside Other Accounts or other parties, it will represent only the portion of such investment acquired by the Warehousing Entity for the purpose of transferring it to the Fund.
Fundraising.
The Investment Manager acknowledges that the Warehousing Entity’s approval of a Warehoused Investment may be dependent on the progress of fundraising by the Fund. As a result, the Investment Manager will provide regular updates to the Warehousing Entity on such fundraising efforts.
Transfer of Approved Warehoused Investments.
On each Warehouse Closing Date, the Fund will acquire from the Warehousing Entity each funded Approved Warehoused Investment selected by the Investment Manager at a price equal to the cost paid by the Warehousing Entity plus an amount equal to an annualized rate of %, measured from the acquisition date to the applicable Warehouse Closing Date. Any unfunded Approved Warehoused Investment commitments will be transferred at no additional cost and become commitments of the Fund.
Allocation Within the Fund.
The Investment Manager will determine which and what portions of Approved Warehoused Investments are to be acquired by and the Feeder Group on each Warehouse Closing Date.
Acknowledgment of No Guarantee.
The Warehousing Entity acknowledges that there can be no assurance the Fund will have sufficient capital to purchase any Approved Warehoused Investments. In such case, the Warehousing Entity will retain the investment unless it is reallocated by the Investment Manager to one or more Other Accounts, subject to their consent.
Allocation to Other Accounts.
If the Fund fails to acquire any Approved Warehoused Investment (each, an “Available Investment”), the Investment Manager and its affiliates may seek to allocate such investment to one or more Other Accounts, provided such allocation is:
consistent with applicable allocation policies and procedures;
in compliance with applicable law;
consistent with the governing documents of each applicable Other Account;
appropriate for the target hold of the Other Account; and
in line with the fiduciary duties owed to each such Other Account.
Schedule of Approved Investments.
Annex A to this Agreement will list each Approved Warehoused Investment, including all relevant investment details. This Annex will be updated by the Warehousing Entity as necessary to reflect newly acquired or transferred investments.
Commitments Through Closing.
The Warehousing Entity shall continue to provide committed funding for all Approved Warehoused Investments until the applicable Warehouse Closing Date, unless otherwise extended by mutual agreement.
Broken Deal Expenses.
The Fund shall bear its proportional share of any fees, costs, and expenses incurred by or on behalf of the Warehousing Entity in relation to developing, negotiating, and structuring prospective or approved investments (including Approved Warehoused Investments) that are not ultimately consummated (to the extent not reimbursed by a third party) (“Broken Deal Expenses”). These expenses shall be payable by the Fund on the earlier of the applicable Warehouse Closing Date or the termination of this Agreement.
Deal Expenses.
Following the transfer of a funded Approved Warehoused Investment to the Fund, the Fund shall bear all associated fees, costs, and expenses incurred in developing, negotiating, and structuring such investment (to the extent not reimbursed by a third party).
Financing Expenses.
Following the transfer of a funded Approved Warehoused Investment, the Fund shall bear all costs related to developing, negotiating, and structuring the Warehouse. If no transfer occurs, these expenses shall be borne by the Warehousing Entity.
Term.
This Agreement shall remain in effect for a period of from the date hereof, unless extended by mutual written agreement. No Warehouse Closing Dates shall occur following the end of the term unless agreed otherwise.
Miscellaneous.
This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. This Agreement may be amended only with the written consent of the parties. It shall be governed by and construed in accordance with the laws of .
Signatures.
If the above correctly reflects our understanding with respect to the foregoing matters, please so confirm by signing in the space provided below.
By:
By:
By:
By:
By:
Annex A
Approved Warehoused Investments
[Insert a schedule of all Approved Warehoused Investments below, organized by investment type.]
