MPS Secondary Transfer Terms

This MPS Secondary Transfer Terms (this “Agreement”) is made and entered into as of the Effective Date as set forth in Exhibit A (the “Effective Date”), by and among the Seller, Buyer, and GP, each as defined in Exhibit A, in connection with (i) the purchase, sale, transfer, and assignment of Seller’s interest in the Target SPV (as set forth in Exhibit A) to Buyer (the “Fund Interest”); and (ii) Buyer’s assumption of the obligations relating to the Purchased Interest. Capitalized terms not defined herein shall have the meanings ascribed to them under Exhibit A or the limited partnership agreement or other governing document of the Target SPV. The Seller, Buyer, and GP shall each be referred to as a “Party” and collectively, the “Parties.”

RECITALS

WHEREAS, the Seller is the holder of certain limited partnership or limited liability company interests in the Target SPV, and desires to sell, transfer, and assign a portion of such interests to the Buyer (“Transfer”);

WHEREAS, the Buyer desires to purchase and acquire from the Seller the Fund Interest on the terms and conditions set forth herein;

WHEREAS, certain Persons may be entitled to receive carried interest with respect to the interests held by the Seller in the Target SPV under the Fund Agreement (the “Carry Recipients”), and the Seller has agreed to pay an amount equal to the Carry Amount (as defined below) to the applicable Carry Recipients at or prior to Settlement as an inducement to facilitate the Transfer;

WHEREAS, in connection with the Buyer’s acquisition of the Fund Interest, the Buyer has agreed to pay carried interest to the Carry Recipients with respect to future Distributions received by the Buyer in respect of the Purchased Interest (if applicable), subject to the Adjusted Watermark as set forth under this Agreement;

WHEREAS, the GP has agreed to consent to the Transfer of the Fund Interest from the Seller to the Buyer and to admit the Buyer as a limited partner or member of the Target SPV;

WHEREAS, the Broker has facilitated the transaction contemplated hereby, and each of the Seller and the Buyer has agreed to pay fees (if applicable) to the Broker as set forth in Exhibit A; and

WHEREAS, the Parties desire to set forth the complete terms and conditions governing the purchase, sale, transfer, assignment, investor rights, admission of the Buyer as a limited partner or member of the Target SPV, payment of the Carry Amount, Broker fees, and related matters in a single, consolidated agreement;

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and intending to be legally bound, the Parties agree as follows:

ARTICLE I - DEFINITIONS

Section 1.1. Definitions.  As used in this Agreement, the following terms have the following meanings:

“Adjusted Watermark” means the Purchase Price. For the avoidance of doubt, the Adjusted Watermark shall be the baseline above which the Buyer's future carried interest obligations are calculated and does not include any Broker fees.

“Administrator” means Belltower Fund Group, Ltd., or such other fund administrator as may be identified in Exhibit A.

“Broker” means Meridian Platform Securities, LLC or such other broker-dealer as may be identified in Exhibit A.

“Business Day” means any day other than a Saturday, Sunday, or day on which banking institutions in New York, New York are authorized or required by law to close.

“Buyer” means the entity identified as “Buyer” in Exhibit A, which is the purchaser purchasing the Fund Interest and the “Transferee” for purposes of the transfer and assumption provisions hereof.

“Buyer Carried Interest Payments” means the amounts payable by the Buyer to the Carry Recipients with respect to Distributions received by the Buyer after the Settlement, calculated in accordance with applicable carried interest allocations set forth in this Agreement, including the Adjusted Watermark.

“Buyer Fee” means the fee payable by the Buyer to the Broker, as set forth in Exhibit A (if applicable).

“Carry Amount” means the accrued carried interest attributable to the Purchased Interest as set forth in Exhibit A, calculated in accordance with the Fund Agreement and this Agreement. 

“Settlement” means the consummation of the transactions contemplated by this Agreement, occurring on the Settlement Date.

“Settlement Date” means the date on which Settlement occurs, which shall be the Effective Date, unless otherwise agreed upon by the Parties in writing.

“Distribution” means any distribution, payment, proceeds, securities, property, tax distribution, liquidation distribution, or other amount distributed, paid, or otherwise made available with respect to the Purchased Interests that is treated as a distribution or distributable amount under the Fund Agreement.

“Encumbrance” means any lien, pledge, charge, security interest, option, right of first refusal, co-sale right, preemptive right, claim, restriction, or encumbrance of any kind.

“Fund Agreement” means the limited partnership agreement, limited liability company agreement, operating agreement, side letter, schedule, subscription agreement, or other governing document of the Target SPV, as amended, restated, supplemented, or otherwise modified from time to time.

“Fund Interest” means the percentage of the Seller’s interest in the Target SPV being transferred to the Buyer, as set forth in Exhibit A (expressed as a percentage between 0% and 100% of the Seller’s interest).

“GP” means the general partner or manager of the Target SPV, as identified in Exhibit A.

“Net Consideration Amount” means the amount equal to the Purchase Price less the Carry Amount. 

“Person” means any individual, corporation, partnership, limited liability company, trust, association, or other entity.

“Portfolio Company” means any company or entity in which the Target SPV holds or has held an investment.

“Purchase Price” means the gross dollar amount agreed by the Buyer and Seller for the Fund Interest, which, for the avoidance of doubt, includes the Carry Amount, as set forth in Exhibit A.

“Purchased Interests” means the Fund Interest being sold and transferred pursuant to this Agreement.

“Seller” means the entity identified as “Selling LP” or “Seller” in Exhibit A, which is the “Transferor” for purposes of the transfer and assumption provisions hereof.

“Seller Fee” means the fee payable by the Seller to the Broker, as set forth in Exhibit A (if applicable).

“Subscription Agreement” means the subscription agreement or similar investment documentation pursuant to which interests in the Target SPV were originally issued.

“Target SPV” means the fund, series, or special purpose vehicle in which the Fund Interest is held, as identified in Exhibit A.

Section 1.2. Transaction-Specific Terms.  In the event any inconsistencies exist between this Agreement and Exhibit A with respect to the identity of any Party or any terms specific to the Transfer, Exhibit A shall control.

Section 1.3. Relationship to Fund Agreement. This Agreement is intended to supplement, and not amend, waive, or supersede, the Fund Agreement except to the extent the GP, the Target SPV, and any other required Party expressly agree herein. In the event of any conflict between this Agreement and the Fund Agreement, the Fund Agreement shall control with respect to the governance, operation, administration, and internal affairs of the Target SPV, including allocations, distributions, transfer restrictions, admissions, consents, tax matters, and limitations on liability; provided that this Agreement shall control as between the Parties with respect to the purchase and sale of the Purchased Interest, the Purchase Price, the Net Consideration Amount, the Carry Amount, Broker fees, Buyer Carried Interest Payments, Adjusted Watermark, and other transaction-specific obligations expressly set forth herein.

ARTICLE II - PURCHASE AND SALE

Section 2.1. Purchase and Sale.  Subject to the terms and conditions of this Agreement, at the Settlement, the Seller shall sell, assign, transfer, convey, and deliver to the Buyer, and the Buyer shall purchase and acquire from the Seller, all of the Seller’s right, title, and interest in and to the Purchased Interest, free and clear of all Encumbrances (other than restrictions under applicable securities laws and the Fund Agreement).

Section 2.2. Purchase Price. In consideration for the Purchased Interest, the Buyer shall pay to the Seller the Purchase Price, by wire transfer of immediately available funds to the account designated by the Seller in writing (or as otherwise agreed to by the Parties), on or before the Settlement Date. As an inducement to facilitate the transfer, the Seller shall pay the Carry Amount to the applicable Carry Recipients at or prior to Settlement in accordance with this Agreement. The Carry Amount shall be deducted from the Purchase Price as directed by the Seller. The Carry Amount is not a fee, commission, or payment for brokerage, placement, advisory, or other services. The Seller shall then receive the Net Consideration Amount, less the Seller Fee and any other amounts authorized under this Agreement.

Section 2.3. Broker Involvement; Broker Fees; Dual Agency Disclosure. The Parties acknowledge that the Broker acts as broker-dealer for both the Buyer and the Seller in connection with the transactions contemplated herein and may receive a fee from both sides. Each Party’s fee (if any) is the amount set forth in Exhibit A and may also be governed by a separate fee agreement between the Broker and the applicable Party. The Parties expressly acknowledge that the Broker may be compensated by both sides, which may create a potential conflict of interest. Unless otherwise waived by the Broker in writing, at or prior to the Settlement: (a) the Buyer shall pay the Buyer Fee to the Broker and (b) the Seller shall pay the Seller Fee to the Broker, or authorize the Administrator to deduct the Seller Fee from the Net Consideration Amount payable to the Seller. Except for the Broker and the fees expressly set forth in Exhibit A, no Party has engaged any broker, finder, financial adviser, placement agent, or investment banker that would give rise to any fee, commission, placement fee, success fee, or similar liability of any other Party in connection with the transactions contemplated hereby. The Buyer and the Seller each acknowledge that the Broker is not providing legal, tax, accounting, valuation, or investment advice; is not acting as a fiduciary to either Party; may rely on the representations, warranties, covenants, and certifications provided by the Parties; and may request and receive KYC, AML, sanctions, tax, and accreditation information reasonably necessary or advisable in connection with the transaction. Each of the Buyer and the Seller shall be solely responsible for the Broker fee allocated to it in Exhibit A and shall indemnify and hold harmless the other Parties from any claim for brokerage, finder’s, placement, financial advisory, or similar fees arising from its separate engagement of any person other than the Broker.

Section 2.4. Fee Payment Authorization. Each of the Buyer and the Seller acknowledges that the amounts wired by or on behalf of such Party in connection with the Transfer may be received into the Target SPV’s bank account or a funding account maintained by the Administrator for administrative convenience. Each such Party hereby authorizes and directs the Broker, acting as such Party’s agent solely for this limited purpose, to instruct the Administrator to transfer (i) the Buyer Fee from funds held for the Buyer’s benefit (including any FBO or funding account maintained for the Buyer) to the Broker’s account, and (ii) the Seller Fee from the Net Consideration Amount or other fund held for the Seller’s benefit (including any FBO or funding account maintained for the Seller) to the Broker’s account, in each case at or prior to Settlement. Each Party acknowledges that the Buyer Fee and the Seller Fee (if applicable) are payable to the Broker, are not capital contributions to or assets of the Target SPV, and will not be invested on such Party’s behalf. If the Transfer does not settle, no fee is owed and any amounts received in respect of a fee will be returned to the applicable Party.

Section 2.5. Funding Authorization. The Buyer further authorizes the Broker, acting as such Party’s agent solely for this limited purpose, to instruct the Administrator to transfer the Purchase Price from the Buyer’s FBO or funding account to the account designated by the Seller (or to the Target SPV’s account for distribution to the Seller) in satisfaction of the Buyer’s payment obligation at Settlement. The Seller further authorizes the Administrator, acting as such Party’s agent solely for this limited purpose, to deduct the Carry Amount from the Purchase Price proceeds and transfer the Carry Amounts to the applicable Carry Recipients at or prior to Settlement. 

Section 2.6. Settlement.  The Settlement shall occur on the Settlement Date. The Settlement shall take place remotely via the electronic exchange of documents and signatures. At the Settlement:

(a) the Seller shall deliver (or cause to be delivered) to the Buyer: (i) such transfer instruments, assignments, or other documents as may be reasonably required to effect the transfer of the Purchased Interests; and (ii) evidence of all required consents and approvals;

(b) the Buyer shall deliver (or cause to be delivered) to the Seller: (i) the Purchase Price by wire transfer; and (ii) such documents, certificates, and instruments as may be reasonably required to effect the transfer;

(c) the Carry Amount shall be paid in accordance with Article III; and

(d) the Broker shall receive the Buyer Fee and Seller Fee (if applicable) as set forth in Section 2.3.

Section 2.7. Conditions to Settlement.  The obligations of each Party to consummate the Settlement are subject to the satisfaction (or written waiver) of the following conditions:

(a) all representations and warranties of the other Parties shall be true and correct in all material respects as of the Settlement Date;

(b) the GP shall have consented to the transfer and admission of the Buyer as a limited partner or member of the Target SPV;

(c) no right of first refusal, co-sale right, or similar right shall be applicable to the transfer, or such rights shall have been waived, expired, or satisfied as confirmed in Section 4.4;

(d) any required legal opinions shall have been delivered, waived, satisfied, or confirmed not to be required as provided in Section 4.4;

(e) the Seller shall have sufficient funds to pay the Carry Amount at Settlement, upon receipt of the Purchase Price from Buyer; and

(f) each Party shall have delivered all documents required of it under this Agreement.

ARTICLE III - CARRIED INTEREST ARRANGEMENTS

Section 3.1. Carried Interest Arrangements. The Parties acknowledge that, upon any Distribution of assets by the Target SPV in accordance with the distribution waterfall set forth under the Fund Agreement, the applicable Carry Recipients are entitled to receive the accrued carried interest attributable to the Purchased Interest. Notwithstanding the foregoing, as a separate inducement to facilitate the Transfer, the Seller agrees to pay an amount equal to the Carry Amount (as defined in Exhibit A) to the applicable Carry Recipients at or prior to Settlement, subject to Buyer’s obligation to pay the Purchase Price. The Buyer agrees to pay the Purchase Price provided, (i) the Buyer’s carried interest obligations under the Fund Agreement with respect to the Purchased Interest are waived; and (ii) the Buyer’s carried interest obligations with respect to the Purchased Interest are limited as set forth under this Agreement.

Section 3.2. Payment of the Carry Amount. Seller understands and agrees that upon receipt of the Purchase Price from Buyer, Seller shall pay the Carry Amount to the applicable Carry Recipients by wire transfer (or by such other methods as the applicable Parties may agree) and retain the Net Consideration Amount, less the Seller Fee (if any) and any other amounts authorized to be deducted under this Agreement. Upon the receipt of the Carry Amount, each Carry Recipient shall be deemed to have irrevocably transferred and assigned to Buyer its right to receive any carried interest distributions under the Fund Agreement. Notwithstanding anything to the contrary under the Fund Agreement or otherwise, except as set forth in Section 3.3, no carried interest attributable to the Purchased Interest shall be paid by the Seller or Buyer, following the Settlement. The Parties acknowledge and agree that the Carry Amount does not constitute compensation for brokerage, placement, advisory, or similar services in connection with the Transfer.

Section 3.3. Buyer Carried Interest Payments on Future Distributions. Following the Settlement, notwithstanding anything to the contrary in the Fund Agreement or otherwise, solely with respect to the Purchased Interest, any reference to “Capital Contribution” or “Notional Capital Contribution,” as the case may be, as it applies to the allocation, calculation, and/or distribution of any carried interest attributable to the Purchased Interest, shall be replaced with the term, “Adjusted Watermark” as defined under this Agreement. For the avoidance of doubt, the Buyer’s future carried interest obligations shall be based solely on the Adjusted Watermark and no carried interest shall be payable by the Buyer until it has first received aggregate distributions equal to the Adjusted Watermark. Thereafter, any distributions shall be paid to the applicable Parties in accordance with the terms set forth in the Fund Agreement, as modified by this Section 3.3, at the carry rate set forth in Exhibit A.

Section 3.4. No Ongoing Management Fees.  Unless otherwise expressly set forth in Exhibit A or required by the Fund Agreement, after the Settlement, the Purchased Interests shall not be subject to any management fee or similar asset-based fee payable to any Carry Recipient or any of their respective affiliates. The Buyer’s sole obligation with respect to carried interest or performance-based compensation shall be the Buyer Carried Interest Payments described in Section 3.3.

Section 3.5. Acknowledgments. The Parties acknowledge and agree that:

(a) the Carry Amount represents the amount paid by the Seller in consideration for the GP to facilitate the Transfer as set forth in this Agreement;

(b) following the Settlement, each applicable Carry Recipient’s right to carried interest or performance-based compensation with respect to the Purchased Interest shall be limited to the Buyer Carried Interest Payments payable by the Buyer in accordance with Section 3.3;

(c) they have independently evaluated the carried interest arrangements set forth herein and are not relying on any Party for any assessment of value, tax consequences, or investment merit;

(d) they accept all tax consequences of the carried interest arrangements contemplated by this Agreement (as applicable) and will not make any claim against the other Parties with respect thereto; and

(e) the valuation of interests and the determination of future carry payments may be uncertain, and each Party accepts such uncertainty.

Section 3.6. GP Consent to Carried Interest Arrangements. The GP hereby consents to the carried interest arrangements described in this Article III and confirms that such arrangements are permitted under, or have received all approvals and waivers required by, the Fund Agreement. The GP further confirms that any legal opinion, transfer restriction, consent right, right of first refusal, co-sale right, or similar restriction applicable under the Fund Agreement has been satisfied, waived, or confirmed not to apply.

ARTICLE IV - TRANSFER, ASSUMPTION, AND FUND CONSENT

Section 4.1. Assignment and Transfer.  At the Settlement, the Seller hereby assigns, transfers, conveys, and delivers to the Buyer all of the Seller’s right, title, and interest in and to the Purchased Interests, including all rights to distributions, allocations of profits and losses, voting rights (if any), information rights, and all other rights and benefits appurtenant thereto under the Fund Agreement and the Subscription Agreement.

Section 4.2. Assumption of Obligations.  Effective as of the Settlement, the Buyer hereby assumes all obligations and liabilities of the Seller relating to the Purchased Interests arising from and after the Settlement Date, including without limitation:

(a) any unfunded capital commitment associated with the Purchased Interests;

(b) any obligation to make additional capital contributions in respect of the Purchased Interests;

(c) all obligations under the Fund Agreement and the Subscription Agreement (to the extent applicable to the Purchased Interests) arising from and after the Settlement Date, as modified by this Agreement; and

(d) any other liabilities or obligations associated with the Purchased Interests arising from and after the Settlement Date.

Section 4.3. Admission as Limited Partner/Member; Subscription Documents; Power of Attorney. Effective as of the Settlement, the Buyer shall be admitted as a limited partner or member of the Target SPV in respect of the Purchased Interests and shall be bound by the Fund Agreement and the Subscription Agreement as if it were an original signatory thereto, except as modified by this Agreement. As a condition to such admission, the Buyer appoints the GP as its attorney-in-fact with power of attorney to sign the Fund Agreement and all amendments thereto, on behalf of the Buyer, and the GP’s signature below acts as such signature. The Buyer’s signature on this Agreement shall be deemed to also be applied to the Subscription Agreement without further action by the General Partner or the Buyer. If requested, the Buyer shall provide to the GP or Administrator on or before the Settlement Date a completed IRS Form W-9 or applicable Form W-8, KYC/AML documentation, or any other certificates, representations, or instruments reasonably required by the GP or Administrator.

Section 4.4. GP Consent; Legal Opinion Waiver; Transfer Rights Confirmation.  The GP hereby gives the following affirmative confirmations:

(a) Transfer Consent. The GP consents to the transfer of the Purchased Interests from the Seller to the Buyer and to the admission of the Buyer as a limited partner, member, or equivalent investor of the Target SPV with respect to the Purchased Interests.

(b) Transfer Rights Confirmation. The GP confirms that any right of first refusal, co-sale right, tag-along right, preemptive right, transfer restriction, consent right, or similar right applicable to the transfer under the Fund Agreement has been waived, has expired, has been satisfied, or is not applicable.

(c) Legal Opinion Waiver / Confirmation. The GP confirms that any requirement under the Fund Agreement for the Target SPV to receive a legal opinion in connection with the transfer of the Purchased Interests has been waived, satisfied, or is not required. This confirmation does not waive any representation, covenant, compliance requirement, transfer condition, or applicable-law requirement under this Agreement, the Fund Agreement, or applicable law.

(d) No Additional Fees. The GP confirms that, following the Settlement, the Purchased Interests shall not be subject to any management fee, carried interest, or similar fee payable to any Carry Recipient or any third party, except as set forth in this Agreement (including Exhibit A) or otherwise agreed by the Parties.

Section 4.5. Expense Reimbursement. The Seller shall reimburse the GP and the Target SPV for all reasonable and documented out-of-pocket expenses (including reasonable counsel fees) incurred in connection with the transfer contemplated by this Agreement.
 

ARTICLE V - REPRESENTATIONS AND WARRANTIES OF THE SELLER

The Seller represents and warrants to the Buyer, the GP, and the Target SPV as of the Settlement Date as follows:

Section 5.1. Authority.  The Seller has full legal right, power, and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Seller.

Section 5.2. Title.  The Seller is the sole legal and beneficial owner of the Purchased Interests, free and clear of all Encumbrances (other than restrictions under applicable securities laws and the Fund Agreement). Upon consummation of the Settlement, the Buyer will acquire good and valid title to the Purchased Interests, free and clear of all Encumbrances (other than restrictions under applicable securities laws and the Fund Agreement).

Section 5.3. No Conflicts.  The execution and delivery of this Agreement by the Seller, and the consummation of the transactions contemplated hereby, do not and will not: (a) violate any provision of the Seller’s organizational documents; (b) violate any law, rule, regulation, order, judgment, or decree applicable to the Seller; or (c) conflict with, result in a breach of, or constitute a default under any material agreement to which the Seller is a party or by which the Purchased Interests are bound.

Section 5.4. No Brokers.  Except for the Broker (and the Seller Fee payable to the Broker as set forth in Exhibit A), the Seller has not engaged any broker, finder, financial adviser, or investment banker that would give rise to any fee or commission payable by the Buyer, the GP, or the Target SPV in connection with the transactions contemplated hereby.

Section 5.5. No Outstanding Obligations.  As of immediately prior to the Settlement (and after giving effect to the payment of the Carry Amount), there is no outstanding management fee, carried interest, performance fee, or similar obligation payable by the Seller with respect to the Purchased Interests, except as disclosed in Exhibit A or required by the Fund Agreement.

Section 5.6. No Undisclosed Distributions.  Except as disclosed to the Buyer in writing, there are no distributions, payments, or proceeds that have been declared, authorized, or paid with respect to the Purchased Interests that have not been received by the Seller or accounted for in the Purchase Price.

Section 5.7. Litigation.  There is no action, suit, proceeding, or investigation pending or, to the Seller’s knowledge, threatened against the Seller that would materially affect the Seller’s ability to perform its obligations under this Agreement or the Buyer’s ownership of the Purchased Interests following the Settlement.

Section 5.8. AML/OFAC Compliance.  The Seller is not: (a) a Person identified on the Specially Designated Nationals and Blocked Persons List maintained by OFAC; (b) a Person with whom dealings are prohibited under any OFAC sanctions program; or (c) a Person that is organized or resident in a country or territory that is the subject of comprehensive sanctions administered by OFAC.

ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF THE BUYER

The Buyer represents and warrants to the Seller and the GP, and the Target SPV as of the Settlement Date as follows:

Section 6.1. Authority.  The Buyer has full legal right, power, and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Buyer.

Section 6.2. Accredited Investor.  The Buyer is an “accredited investor” as defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”).

Section 6.3. Investment Intent; Restricted Securities.  The Buyer is acquiring the Purchased Interests for its own account, for investment purposes only, and not with a view to, or for sale in connection with, any distribution thereof in violation of the Securities Act or any applicable state securities laws. The Buyer understands that the Purchased Interests have not been registered under the Securities Act or any state securities laws and are “restricted securities” within the meaning of Rule 144 thereunder.

Section 6.4. Sophistication; No Reliance. The Buyer: (a) has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of acquiring the Purchased Interests; (b) has been afforded the opportunity to ask questions of, and receive answers from, the Seller, the GP, and the Target SPV concerning the Purchased Interests and the Target SPV; (c) has conducted its own independent investigation and due diligence regarding the Purchased Interests and the Target SPV; and (d) is not relying on the Seller, the GP, the Broker, or any of their respective affiliates for any investment advice, tax advice, legal advice, or assessment of value in connection with its decision to acquire the Purchased Interests.

Section 6.5. Information Disparity.  The Buyer acknowledges that the Seller and other Parties may possess material non-public information regarding the Target SPV, the Portfolio Company, or the Purchased Interests that has not been disclosed to the Buyer, and the Buyer is not relying on the completeness of any information provided.

Section 6.6. ICA/ERISA Compliance.  The Buyer represents that: (a) it is not and will not become, and no portion of the assets used to acquire the Purchased Interests constitutes assets of, an “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a “plan” within the meaning of Section 4975 of the Internal Revenue Code, or any entity whose underlying assets include plan assets; and (b) its acquisition of the Purchased Interests will not constitute or result in a prohibited transaction under Section 406 of ERISA or Section 4975 of the Internal Revenue Code unless exempt.

Section 6.7. Investment Company Act.  The Buyer represents that it is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

Section 6.8. AML/OFAC/KYC Compliance.  The Buyer represents that: (a) it is not a Person identified on the Specially Designated Nationals and Blocked Persons List maintained by OFAC or subject to sanctions under any OFAC program; (b) the funds used to pay the Purchase Price are not derived from any unlawful activity; (c) it is in compliance with all applicable anti-money laundering laws and regulations; and (d) it shall provide such “know your customer” documentation as may be reasonably requested by the GP or Broker.

Section 6.9. Sufficient Funds.  The Buyer has, or will have at the Settlement, sufficient immediately available funds to pay the Purchase Price, the Buyer Fee, and all other amounts required to be paid by the Buyer at the Settlement.

Section 6.10. No Conflicts.  The execution and delivery of this Agreement by the Buyer, and the consummation of the transactions contemplated hereby, do not and will not violate any provision of the Buyer’s organizational documents or any material agreement to which the Buyer is a party.

ARTICLE VII - INDEMNIFICATION AND RELEASE

Section 7.1. Indemnification by the Seller.  The Seller shall indemnify, defend, and hold harmless the Buyer, the Target SPV, each Carry Recipient, the Broker, and their respective affiliates, officers, directors, members, partners, managers, employees, agents, and representatives (collectively, the “Buyer Indemnified Parties”) from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of or resulting from: (a) any breach of any representation or warranty of the Seller contained in this Agreement; (b) any breach of any covenant or obligation of the Seller under this Agreement; or (c) any liability or obligation relating to the Purchased Interests arising prior to the Settlement Date (other than obligations expressly assumed by the Buyer).

Section 7.2. Indemnification by the Buyer.  The Buyer shall indemnify, defend, and hold harmless the Seller, the Target SPV, each Carry Recipient, the Broker, and their respective affiliates, officers, directors, members, partners, managers, employees, agents, and representatives (collectively, the “Seller Indemnified Parties”) from and against any and all Losses arising out of or resulting from: (a) any breach of any representation or warranty of the Buyer contained in this Agreement; (b) any breach of any covenant or obligation of the Buyer under this Agreement; or (c) any liability or obligation relating to the Purchased Interests arising from and after the Settlement Date.

Section 7.3. Indemnification Caps. The aggregate liability of the Seller under Section 7.1 shall not exceed fifty percent (50%) of the Purchase Price; provided, that such cap shall not apply to (and the Seller’s aggregate liability shall not exceed one hundred percent (100%) of the Purchase Price with respect to) Losses arising from: (i) fraud or intentional misrepresentation; (ii) willful breach of this Agreement; or (iii) breach of Section 5.2 (Title) or Section 5.4 (No Brokers). The aggregate liability of the Buyer under Section 7.2 shall not exceed fifty percent (50%) of the Purchase Price, subject to the same exceptions (applied mutatis mutandis).

Section 7.4. Effective as of the Settlement, the GP, on behalf of the Target SPV (and its respective affiliates, successors, and assigns), hereby irrevocably and unconditionally releases and discharges the Seller from any and all claims, demands, actions, causes of action, liabilities, damages, costs, and expenses of every kind and nature, whether known or unknown, arising out of or relating to the Seller’s ownership of the Purchased Interests prior to the Settlement Date or the transactions contemplated by this Agreement, other than claims arising from the Seller’s fraud or willful breach of this Agreement. In addition, the Seller, on behalf of itself and its respective affiliates, successors, and assigns, hereby irrevocably and unconditionally releases and discharges the Buyer, the GP, the Target SPV, the Broker, and their respective affiliates, successors, and assigns from any and all claims, demands, actions, causes of action, liabilities, damages, costs, and expenses of every kind and nature, whether known or unknown, arising out of or relating to the Seller’s ownership of the Purchased Interests or the transactions contemplated by this Agreement, other than claims arising from the released party’s fraud or willful breach of this Agreement.

Section 7.5. Survival.  The representations and warranties contained in this Agreement shall survive the Settlement for a period of twelve (12) months following the Settlement Date (or, in the case of representations and warranties relating to title, authority, and tax matters, until the expiration of the applicable statute of limitations). The covenants and agreements contained herein that by their terms contemplate performance after the Settlement shall survive in accordance with their respective terms.

ARTICLE VIII - CONFIDENTIALITY

Section 8.1. Confidentiality.  Each Party agrees to keep confidential the terms and conditions of this Agreement, the identity of the other Parties, and any non-public information received in connection with the transactions contemplated hereby (collectively, “Confidential Information”), and shall not disclose any Confidential Information to any third party without the prior written consent of the other parties, except: (a) to such Party’s affiliates, officers, directors, members, partners, managers, employees, legal counsel, accountants, and financial advisors who need to know such information and are bound by confidentiality obligations no less restrictive than those contained herein; (b) as required by applicable law, regulation, or legal process (provided that the disclosing Party shall, to the extent permitted, provide prompt notice to the other parties prior to such disclosure); or (c) to the extent necessary to enforce such Party’s rights under this Agreement.

Section 8.2. Public Announcements.  No Party shall issue any press release or make any public announcement relating to the transactions contemplated by this Agreement without the prior written consent of the other Parties, except as required by applicable law.

ARTICLE IX - TAX MATTERS

Section 9.1. Tax Consequences.  Each Party acknowledges that it has consulted (or has had the opportunity to consult) with its own tax advisors regarding the tax consequences of the transactions contemplated by this Agreement. No Party makes any representation or warranty to any other party regarding the tax treatment or tax consequences of the carried interest arrangements, the purchase and sale of the Purchased Interests, or any other transaction contemplated hereby. Each Party shall bear its own tax liabilities arising from or in connection with the transactions contemplated hereby.

Section 9.2. Tax Forms.  Each Party shall deliver to the other Parties (and to the GP, as applicable) such tax forms, certifications, and documentation as may be reasonably required, including IRS Form W-9 or applicable Form W-8.

Section 9.3. Allocation.  The Parties agree that the Purchase Price shall be allocated among the assets of the Target SPV (to the extent applicable) in a manner consistent with Section 1060 of the Internal Revenue Code, and each Party shall file all tax returns consistently with such allocation.

ARTICLE X - GENERAL PROVISIONS

Section 10.1. Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.

Section 10.2. Forum Selection.  Any action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in San Francisco, California, and each Party irrevocably submits to the exclusive jurisdiction of such courts and waives any objection to venue or inconvenient forum.

Section 10.3. Waiver of Jury Trial.  EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 10.4. Specific Performance.  Each Party acknowledges that a breach of this Agreement would cause irreparable harm to the other Parties and that monetary damages would be inadequate. Accordingly, each Party shall be entitled to seek specific performance and injunctive relief (without the need to post a bond or other security) as a remedy for any breach or threatened breach of this Agreement, in addition to all other remedies available at law or in equity.

Section 10.5. Expenses.  Except as otherwise expressly provided herein or in Exhibit A, each Party shall bear its own costs and expenses (including legal fees) incurred in connection with the negotiation, execution, and performance of this Agreement.

Section 10.6. Notices.  All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be delivered by email (with confirmation of receipt) or by nationally recognized overnight courier to the addresses provided by each party in connection with the transaction (or such other address as a party may designate in writing). Notices shall be deemed given upon receipt.

Section 10.7. Amendments and Waivers.  This Agreement may not be amended, modified, or supplemented except by a written instrument executed by all Parties. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party granting the waiver. No failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof.

Section 10.8. Severability.  If any provision of this Agreement is held to be invalid, illegal, or unenforceable, such provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable, and the validity, legality, and enforceability of the remaining provisions shall not be affected.

Section 10.9. Entire Agreement.  This Agreement (including Exhibit A and any other exhibits or schedules attached hereto) constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations, and discussions, whether oral or written, among the Parties with respect to such subject matter.

Section 10.10. Assignment.  No Party may assign its rights or obligations under this Agreement without the prior written consent of the other parties, except that the Buyer may assign its rights (but not its obligations) to an affiliate without consent, provided that such assignee assumes all obligations of the Buyer hereunder.

Section 10.11. No Third-Party Beneficiaries.  This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns, and nothing herein shall confer upon any other Person any legal or equitable right, benefit, or remedy.

Section 10.12. Electronic Signatures; Counterparts.  This Agreement may be executed electronically by electronic signature or by other electronic means, and such electronic signature shall have the same force and effect as a manual signature. 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. Delivery of an executed counterpart by electronic means (including PDF or other electronic format) shall be effective as delivery of a manually executed counterpart.

Section 10.13. Fee Shifting.  In any action or proceeding to enforce this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing Party.

Section 10.14. Further Assurances.  Each Party agrees to execute and deliver such additional documents, instruments, and agreements, and to take such further actions, as may be reasonably necessary or appropriate to carry out the purposes and intent of this Agreement.

Section 10.15. Headings. The headings and captions contained in this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.

[Signature Page Follows] IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. 

SELLER:

 By:         

 Name:    

 Title:      

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. 

BUYER:

 By:         

 Name:    

 Title:      

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. 

GP: 

 By:         

 Name:    

 Title:      

EXHIBIT A

This Exhibit A incorporates by reference the MPS Secondary Transfer Terms (“Agreement”) to which it is attached or linked, and this Exhibit is deemed part of the Agreement. Capitalized terms used but not defined in this Exhibit have the meanings given to them in the Agreement. If there is any conflict between this Exhibit and the Agreement, this Exhibit controls solely with respect to the parties, transaction terms, and other deal-specific matters set forth below. 

1. Parties

2. Transaction Terms

Purchased Interest and Purchase Price

Carry Amount and Broker Fees: