ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
Excelsior Private Markets Fund II (TI), LLC
ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT is made and entered into as of the 17th day of August, 2011, by and between X X Xxxxx & Company (the “Administrator") and Excelsior Private Markets Fund II (TI), LLC ("Excelsior").
1. Definitions. As used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any person duly authorized by Excelsior's Board of Managers to give Oral Instructions and Written Instructions on behalf of Excelsior and listed on the Authorized Persons Appendix attached hereto and made a part hereof or any amendment thereto as may be received by the Administrator. An Authorized Person's scope of authority may be limited by Excelsior by setting forth such limitation in the Authorized Persons Appendix.
(d) "Board of Managers" shall have the same meanings as set forth in Excelsior's Company Agreement.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) “Company Agreement” is the limited liability company agreement of Excelsior.
(g) "Confidential Memorandum” means Excelsior’s Confidential Memorandum, as may be revised from time to time.
1 |
(h) "GLB Act" means the Xxxxx-Xxxxx-Xxxxxx Act, as amended.
(i) "Member" or “Members” shall have the same meanings as set forth in the Company Agreement.
(j) "Oral Instructions" mean oral instructions received by the Administrator from an Authorized Person or from a person reasonably believed by the Administrator to be an Authorized Person.
(k) "SEC" means the Securities and Exchange Commission.
(l) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act and the CEA.
(m) "Written Instructions" mean written instructions signed by an Authorized Person and received by the Administrator. The instructions may be delivered by hand, mail, tested telegram, cable, telex or facsimile sending device.
(a) The books and records pertaining to Excelsior which are in the possession or under the control of the Administrator shall be the property of Excelsior. Such books and records shall be prepared and maintained as required by the 1940 Act and other applicable securities laws, rules and regulations. Excelsior and Authorized Persons shall have access to such books and records at all times during the Administrator's normal business hours. Upon the reasonable request of Excelsior, copies of any such books and records shall be provided by the Administrator to Excelsior or to an Authorized Person, at Excelsior's expense.
(b) The Administrator shall keep the following records:
(i) all books and records with respect to Excelsior's books of account;
(ii) records of Excelsior's securities transactions; and
2 |
(iii) such specific books and records, set forth below, as Excelsior is required to maintain pursuant to Rule 31a-1 and Rule 31a-2 of the 1940 Act in connection with the services provided by the Administrator hereunder:
(a) Shareholder Transactions Journal
(b) Portfolio Transactions Journal
(c) Cash Receipts and disbursements Journal including Cash Reconciliations
(d) Transactions Journal
(e) General Ledger
(f) Portfolio Securities Ledger
(g) Capital Share Ledger including NAV Calculation Schedules ("pricing sheets"), and
(h) Trial Balance
(a) Establish, periodically review and update Excelsior's accounting systems and internal controls;
(b) Prepare quarterly performance summary for Excelsior;
(c) Prepare detailed quarterly reports for Members of Excelsior;
(d) Establish and maintain on a quarterly basis, the Member interests in the Company, and prepare and record all transactions, including capital commitments, capital calls, draw downs, and distributions;
(e) Prepare, send, and follow up on all capital drawdown notices to Members according to the Confidential Memorandum;
(f) Provide Excelsior with an estimate of tax gains and losses and other allocations with respect to each Member of Excelsior, as of December 15 of each year and at such other times that are practicable, as may be requested by Excelsior;
(g) Consult with the auditors designated by Excelsior to establish procedures for the annual audit of Excelsior and prepare such reports and other information as may be requested by such auditors;
3 |
(h) Consult with attorneys retained by Excelsior to ensure compliance with the Company Agreement;
(i) Prepare and file Excelsior's Annual, Semi-Annual and Quarterly Reports with the SEC on Forms N-SAR, N-CSR, N-Q and N-PX via XXXXX;
(j) Prepare for execution and file Excelsior's Federal Form 1065 and state tax returns;
(k) Prepare annual Form K-1's and supplementary schedules for Members in accordance with applicable tax regulations;
(l) Provide Excelsior with an analysis of the issues and effects associated with Effectively Connected Income, U.S.-source income, and Branch Profit Taxes (if any).
(m) Maintain the register of Members of Excelsior and enter on such register all issues, transfers and repurchases of interests in Excelsior;
(n) Calculate net asset value of Excelsior as referenced in the Confidential Memorandum;
(o) Calculate and invoice the Company for the amount of quarterly advisory fees due from each Member;
(p) Calculate any carried interests due to the Special Member and/or its affiliate for each Member;
(q) Arrange for the calculation of the issue prices of interests in Excelsior in accordance with the Company Agreement and Confidential Memorandum;
(r) Allocate income, expenses, gains and losses to individual Members' capital accounts in accordance with applicable tax laws and with the Company Agreement;
(s) Retain in a safe place Share Registers and transfer forms for a period of at least six years from the time of execution;
(t) On a monthly basis (or more frequently, if deemed necessary) compare the register of Members against the Office of Foreign Asset Control’s (“OFAC”) Watch List (as promulgated by the U.S. Treasury Department) and the U.S. Securities and Exchange Commission Watch List (as periodically updated by the SEC). If there is a match between the Member List and OFAC’s Watch List, the Administrator shall notify Excelsior, or a designee, of all account matches against such list, including information regarding the nature of the match;
4 |
(u) Maintain and provide to Excelsior current client identification profile of Members of Excelsior who are not clients of Bank of America Corporation and its affiliates to the extent that Excelsior has provided Administrator with subscription documents containing information necessary to create client information profiles relating to such Members. Client identification profile information shall include Member name, address and tax identification number.
(v) Mail the annual privacy notice to Members of Excelsior who are not clients of Bank of America Corporation and its affiliates; and
(w) Coordinate processing of treasury services which shall include (i) setting up new bank accounts for the Fund, (ii) providing cash reconciliations to Fund monthly or upon request, and (iii) coordinate, execute and give third party approval for all cash movements in accordance with the Fund’s offering documents, for investors subscriptions/redemptions, manager investments subscriptions/redemptions and payment of all fees and expenses for the Fund.
(a) Excelsior shall pay the Administrator, on a quarterly basis, within ten days after the end of each calendar quarter, a fee in an amount equal to $2,500, plus a tax compliance and preparation fee of $1,750 per calendar quarter, plus an audited financial statement preparation fee of $625 per calendar quarter.
(b) Administrator shall not be required to pay or finance any costs and expenses incurred in the operation of Excelsior, including, but not limited to: SEC fees; mailing of Offering Documents, notices, forms and applications and proxy materials for regulatory purposes and for distribution to current Investors; mailing and other costs of Investor reports; expenses in connection with the electronic transmission of documents and information including electronic filings with the SEC.
5 |
Further, the Administrator will adhere to all applicable laws and regulations relating to consumer privacy, including the GLB Act ("Privacy Law"), and to the privacy policies adopted by Excelsior pursuant to Title V of the GLB Act. Notwithstanding the foregoing, the Administrator will not share any nonpublic personal information concerning any of Excelsior's Members with any non-affiliated party unless specifically directed by Excelsior or allowed under one of the exceptions noted under Privacy Law. The Administrator shall (a) cause its employees and agents to be informed of, and to agree to be bound by, Privacy Law and the relevant provisions of this Agreement, and (b) maintain physical, electronic and procedural safeguards reasonably designed to protect the security, confidentiality and integrity of, and to prevent unauthorized access to or use of, any nonpublic personal information concerning any of Excelsior's Members.
6 |
7 |
[Signature page to follow.]
8 |
EXCELSIOR PRIVATE MARKETS FUND II (TI), LLC |
/s/ Xxxxxx X. Xxxx |
By: Xxxxxx X. Xxxx |
Title: Chief Financial Officer |
X X XXXXX & COMPANY |
/s/ Xxxxxxx X. Xxxxx |
By: Xxxxxxx X. Xxxxx |
Title: Chief Executive Officer |
9 |