ESCROW AGREEMENT
Exhibit
(k)(2)
This
ESCROW AGREEMENT (the “Agreement”) is made and entered into this [__] day of
[____] 2010, by and between Partners Group Private Equity (Institutional TEI),
LLC, a Delaware limited liability company (the “Fund”), UMB Fund Services, Inc.,
as recordkeeper (the “Administrator”) and UMB Bank, n.a., a national banking
association organized and existing under the laws of the United States of
America, as escrow agent (the “Escrow Agent”).
WITNESSETH:
WHEREAS,
the Fund is a limited liability company which is registered as a closed-end,
non-diversified investment company under the provisions of the Investment
Company Act of 1940, and is authorized to offer and sell limited liability
company units in the Fund (“Units”) in reliance on exemptions provided in the
Securities Act of 1933 and state securities laws for transactions not involving
any public offering; and
WHEREAS,
the Fund is expected to generally accept subscription proceeds for Units on the
first business day of each month and to accept requests for the repurchase of
Units on the first business day of each calendar quarter; and
WHEREAS,
the Fund desires to appoint UMB Bank, n.a. as escrow agent for the purposes of
(i) holding investment proceeds tendered by investors prior to the time such
funds are transferred to the Fund for investment and (ii) holding funds to be
distributed in connection with the repurchase of Units prior to the time such
funds are transferred to investors.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements herein contained, the parties hereto hereby agree as
follows:
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1.
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Appointment
and Delegation.
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The Fund hereby appoints UMB Bank, n.a.
as Escrow Agent, on the terms set forth in this Agreement. UMB Bank,
n.a. hereby agrees to serve as Escrow Agent on the terms set forth in this
Agreement. The Fund hereby authorizes the Administrator, in its
capacity as recordkeeper, to provide instructions to the Escrow Agent on the
Fund’s behalf in accordance with the terms of this Agreement.
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2.
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Procedures.
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(a) The
Escrow Agent will establish an escrow account for the Fund, consisting of four
(4) segregated sub-accounts: the Subscription Sub-Account, the Repurchase
Sub-Account, the Income Sub-Account and the Holdback Sub-Account (such
sub-accounts shall be referred to collectively as the “Escrow
Accounts”).
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Exhibit
(k)(2)
(b) Purchase
payments that are periodically received by the Administrator (the “Purchase
Proceeds”) will be deposited into the Subscription Sub-Account. The Escrow Agent
shall have no duty or obligation with respect to the collection of any Purchase
Proceeds.
(c) Simultaneously
with any deposit of Purchase Proceeds, the Administrator will deliver to the
Escrow Agent a cash letter confirming the amount of the Purchase Proceeds so
delivered. In the event the Fund or the Administrator provides
written notice (in the form of a cash letter) to the Escrow Agent that an
underlying purchase order has been revoked (a “Purchase Reversal Letter”), the
Escrow Agent shall promptly (but in no event later than the close of business on
the day of receipt of such Purchase Reversal Letter in accordance with
subparagraph (d) of Paragraph 4) transfer from the Subscription Sub-Account the
Purchase Proceeds specified in the Purchase Reversal Letter to the demand
deposit account maintained by the Administrator on the Fund’s behalf in
accordance with the payment procedures in Paragraph 4.
(d) On
the last business day of each calendar month, the Administrator will deliver to
the Escrow Agent a cash letter instructing the Escrow Agent to transfer the
Purchase Proceeds on deposit in the Subscription Sub-Account, if any, to the
Fund’s operating account (the “Operating Account”).
(e) The
Escrow Agent shall provide the Fund and the Administrator with (i) a statement
of the assets held and transactions of the Escrow Accounts on a monthly basis
and (ii) electronic access to such information on a daily basis. At
the Escrow Agent’s request, the Administrator shall provide periodic summaries
of Escrow Account activity to the Escrow Agent.
(f) The
Escrow Agent shall invest all amounts deposited in the Escrow Accounts with it
hereunder, and earnings thereon, if any, in the UMB Money Market Special
Account. All monies must be deposited to the Escrow Accounts prior to
4:00 p.m. CT in order to receive credit for that day’s earnings. All
investment earnings on the Escrow Accounts shall be transferred on the first
business day of each month to the Income Sub-Account. In turn, the
earnings held in the Income Sub-Account will be transferred to the Fund’s
Operating Account on the first business day of the month.
(g) Proceeds
to be delivered to investors in connection with periodic repurchases of Units by
the Fund from such investors (“Repurchase Proceeds”) will be deposited into the
Repurchase Sub-Account, less a five percent (5%) withholding (the “Holdback
Amount”), if applicable. Any Holdback Amount will be deposited into
the Holdback Sub-Account.
(h) The
Fund may from time to time deposit Repurchase Proceeds in the Repurchase
Sub-Account. On the last business day of each calendar quarter during
which repurchases occur, the Administrator will deliver to the Escrow Agent a
cash letter instructing the Escrow Agent to disburse the Repurchase Proceeds, if
any, on deposit in the Operating Account to the Repurchase Sub-Account, and
another cash letter instructing the Escrow Agent to transfer the Repurchase
Proceeds from the Repurchase Sub-Account to the demand deposit account
maintained by the Administrator on the Fund’s behalf for disbursement to
investors.
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Exhibit
(k)(2)
(i) On
an annual basis, the Administrator will deliver to the Escrow Agent a cash
letter instructing the Escrow Agent to disburse the Holdback Amount, if any, on
deposit in the Holdback Sub-Account to the demand deposit account maintained by
the Administrator on the Fund’s behalf for further transfer to the Fund’s
Operating Account or investors, as applicable.
(j) In
the event an adjustment needs to be made in connection with any money movement
hereunder, the Administrator shall deliver to the Escrow Agent a cash letter
specifying the corrective action to be taken, and the Escrow Agent shall act in
accordance with such instructions.
(k) Prior
to delivery to it or its designated agents of the Purchase Proceeds, the Fund or
its agents shall have no title, right, claim, lien or any other interest in the
funds held in escrow hereunder, and such funds shall under no circumstances be
available to the Fund or its agents or their creditors for payment or
reimbursement for liabilities or indebtedness.
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3.
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Compensation.
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For its services hereunder, the Escrow
Agent shall be entitled to a one-time account acceptance fee of $500, plus an
annual escrow fee of $600 for the Escrow Accounts and transaction fees of $5.00
per deposit and/or distribution. In addition to the foregoing fees,
all reasonable out-of-pocket expenses relating to the administration of this
Agreement and the Escrow Accounts such as, but not limited to, wire fees,
postage, shipping, courier, telephone and facsimile charges will be paid
directly by the Fund.
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4.
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Payment
Procedures.
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(a) Whenever
payments are required to be made to the Escrow Agent under this Agreement, such
payments shall be made by electronic transfer per the following
instructions:
UMB Bank, n.a., Kansas City,
Missouri
ABA # 000000000
A/C #
_____________________
A/C Name: Trust Clearing
Attn: Xxxx Xxxxxxx
(b)
Whenever
payments are required to be made by the Escrow Agent to the Administrator under
this Agreement, such payments shall be made by electronic transfer per the
following instructions:
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Exhibit
(k)(2)
UMB Bank,
n.a., Kansas City, Missouri
ABA #000000000
A/C #
___________________________
Attn: Financial
Control
(c) Every
cash letter delivered to the Escrow Agent hereunder pursuant to Paragraph 2
shall bear the signature of two (2) authorized Administrator
signers. If requested by the Administrator, each cash letter shall
also bear the countersignature of two (2) authorized Fund signers. In
connection with the execution of this Agreement, the Administrator shall deliver
to the Escrow Agent, and the Fund shall deliver to the Administrator, a list of
authorized signers, together with a certificate of incumbency and specimen
signatures in the form attached as Appendix I. The party providing
such certificate may provide an updated certificate evidencing the appointment,
removal or change of authority of any authorized signer, it being understood
that the party relying on such certificate shall not be held to have notice of
any change in the authority of any authorized signer until receipt of written
notice thereof.
(d) A
cash letter must be received by the Escrow Agent by 3:00 p.m. CT on the day such
cash letter is transmitted in order for the instructions contained in such cash
letter to be honored on that day.
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5.
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Representations.
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The Fund
represents and warrants as follows:
(a) it
is duly organized and in good standing under the laws of the State of Delaware
and all necessary action has been taken by it and it is duly authorized to enter
into this Agreement;
(b) its
Tax Identification Number is [XX-XXXXXXX];
(c) this
Agreement and all other documents related to the transactions described herein
have been duly executed and delivered by the Fund and constitute the legal,
valid and binding obligations of the Fund, enforceable in accordance with their
respective terms;
(d) the
execution, delivery and performance of this Agreement and all other documents
related to the transactions described herein by the Fund do not and will not
breach or violate or cause a default under its Limited Liability Company
Agreement or any provision of any agreement, instrument, judgment, injunction or
order applicable to or binding upon it.
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Exhibit
(k)(2)
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6.
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Miscellaneous.
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It is understood and agreed, further,
that the Escrow Agent shall:
(a) be
under no duty to pay and transfer any monies hereunder, unless the same shall
have been first received by the Escrow Agent pursuant to the provisions of this
Agreement;
(b) be
under no duty to accept any information from any person or entity other than the
Fund or the Administrator, and then only to the extent and in the manner
expressly provided for in this Agreement;
(c) act
hereunder as a depository only and be protected in acting upon any written
instruction or notice provided by the Fund or the Administrator pursuant to this
Agreement and the information contained therein and shall be protected in acting
upon any written instruction or notice provided by the Fund or Administrator,
provided that the Administrator has acted on the reasonable belief that such
written instruction is genuine and has been signed or presented by the proper
party or parties;
(d) be
indemnified and held harmless by the Fund against any claim made against it by
reason of its acting or failing to act in connection with any of the
transactions contemplated hereby and against any loss, liability, cost, suit or
expense, including the expense of defending itself against any claim of
liability it may sustain in carrying out the terms of this Agreement except such
claims which are occasioned by its fraud, bad faith, reckless disregard of its
duties, negligence or willful misconduct;
(e) have
no liability or duty to inquire into the terms and conditions of any
subscriptions for Units, and that its duties and responsibilities shall be
limited to those expressly set forth under this Agreement and are purely
ministerial in nature;
(f) be
permitted to consult with counsel of its choice, including in-house counsel, and
shall not be liable for any action taken, suffered or omitted by it in good
faith in accordance with the advice of such counsel, provided, however, that
nothing contained in this Subparagraph (f), nor any action taken by the Escrow
Agent, or of any such counsel, shall relieve the Escrow Agent from liability for
any claims which are occasioned by its fraud, bad faith, reckless disregard of
its duties, negligence or willful misconduct, all as provided in Subparagraph
(d) above;
(g) not
be bound by any amendment or revocation of this Agreement, unless the same shall
be in writing and signed by all of the parties of this Agreement;
(h) be
entitled to refrain from taking any action other than to keep all property held
by it in escrow hereunder until it shall be directed otherwise in writing by the
Fund, or by a final judgment by a court of competent jurisdiction, if it is
uncertain as to its duties and rights hereunder (including, without limitation,
the receipt of conflicting instructions or directions from any of the parties
hereto or any third parties);
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Exhibit
(k)(2)
(i) have
no liability for following the instructions herein contained or expressly
provided for, or written instructions given by, the Fund or the
Administrator;
(j)
have the right, at any time, to resign hereunder by giving written
notice of its resignation to the Fund at the address as set forth in
Subparagraph (l) hereof, at least ninety (90) days before the date specified for
such resignation to take effect, and upon the effective date of such
resignation;
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(i)
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all
cash and other funds and all other property then held by the Escrow Agent
hereunder shall be delivered by it to such successor Escrow Agent as may
be designated in writing by the Fund, whereupon the Escrow Agent’s
obligations hereunder shall cease and
terminate;
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(ii)
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if
no such successor Escrow Agent has been designated by such date, all
obligations of the Escrow Agent hereunder shall, nevertheless, cease and
terminate, and the Escrow Agent’s sole responsibility thereafter shall be
to keep all property then held by it and to deliver the same to a person
designated in writing by the Fund or in accordance with the directions of
a final order or judgment of a court of competent jurisdiction; yet, if no
such designation, order or judgment is received by Escrow Agent within
ninety (90) days after its giving such resignation notice, it is
unconditionally and irrevocably authorized and empowered to petition a
court of competent jurisdiction for
directions.
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(k) be
reimbursed by the Fund upon its request for all reasonable costs, fees, charges,
expenses, disbursements and advances incurred or made by it on behalf of the
Fund and in accordance with any provision of this Agreement, or as a result of
the acceptance of this Agreement.
(l) all
deliveries and notices to the Escrow Agent shall be in writing and shall be sent
or delivered to:
UMB Bank,
n.a., as Escrow Agent
Attn: Xxxx
X. Xxxxxxx M/S 1020409
0000
Xxxxx Xxxxxxxxx, 0xx
Xxxxx
Xxxxxx
Xxxx, XX 00000
Facsimile:
(000) 000-0000
Notices
to the Fund relating to termination of the Agreement, breaches of contractual
duties, 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 sending
party confirms receipt by telephone. 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:
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Exhibit
(k)(2)
c/o
Partners Group (USA) Inc.
000
Xxxxxxxxx Xxxxxx, 00xx
xxxxx
Xxx Xxxx,
XX 00000
Attention: Chief
Compliance Officer
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
Other
notices required or permitted to be given to the Fund shall be in writing and
shall be deemed to have been given when sent by registered or certified mail,
postage prepaid, return receipt requested, 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.
All
deliveries and notices hereunder to the Administrator shall be in writing and
shall be sent or delivered to:
UMB Fund
Services, Inc.
Attn:
Xxxxxxx X. Xxxxxx Xxxxxx
000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
(m) Nothing
in this Agreement is intended to or shall confer upon anyone other than the
parties hereto any legal or equitable right, remedy or claim. This
Agreement shall be construed in accordance with the laws of the State of
Missouri and may be amended or settled only by a writing executed by the parties
thereto.
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Exhibit
(k)(2)
(n) This
Agreement may be executed in multiple counterparts, each of which shall be
regarded for all purposes as an original, and such counterparts shall constitute
but one and the same instrument. In addition, the transaction
described herein may be conducted and related documents may be stored by
electronic means. Copies, telecopies, facsimiles, electronic files
and other reproductions of original executed documents shall be deemed to be
authentic and valid counterparts of such original documents for all purposes,
including the filing of any claim, action or suit in the appropriate court of
law.
(o) In
order to comply with provisions of the USA PATRIOT Act of 2001, as amended from
time to time, Escrow Agent may request certain information and/or documentation
to verify, confirm and record identification of persons or entities who are
parties to the Agreement.
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7.
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Tax
Reporting.
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The parties hereto agree that for
purposes of tax reporting, all interest or other income, if any, attributable to
the Escrow Accounts pursuant to this Agreement shall be allocable to the
Fund. The Fund agrees to provide the Escrow Agent with an Internal
Revenue Service Form W-9 upon execution of this Agreement. The Fund
understands that if such tax reporting documentation is not so certified to the
Escrow Agent, the Escrow Agent may be required by the Internal Revenue Code, as
amended from time to time, to withhold a portion of any interest or other income
earned on the investment of monies or other property held by the Escrow Agent
pursuant to this Agreement. The Escrow Agent will prepare and send
notifications on Form 1099 for each calendar year for which such Form is
required during the term hereof.
[REMAINDER
OF PAGE INTENTIONALLY BLANK]
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Exhibit
(k)(2)
IN
WITNESS WHEREOF, the parties hereto have caused the Escrow Agreement to be
executed by their respective duly authorized officers.
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PARTNERS
GROUP PRIVATE
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EQUITY
(INSTITUTIONAL
TEI),
LLC
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By:
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Title:
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By:
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Title:
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UMB
BANK, N.A., AS ESCROW AGENT
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By:
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Title:
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UMB
FUND SERVICES, INC.
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By:
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Title:
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9
Exhibit
(k)(2)
APPENDIX
I
INCUMBENCY AND OFFICER’S CERTIFICATE
I, Xxxxx
Xxxxxx and Xxxxxx Xxxxxxx, being duly elected and acting officers of Partners
Group Private Equity (Institutional TEI), LLC, a Delaware limited liability
company (the “Company”), hereby certify that each of the following persons has
the authority to act pursuant to the Escrow Agreement between UMB Bank, n.a.,
UMB Fund Services, Inc. and Partners Group Private Equity (Institutional TEI),
LLC, and has set forth his or her respective signature
hereafter:
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Name and Title
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Specimen Signature
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Xxxxx
Xxxxxx, President
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Xxxxxx
Xxxxxxx, CFO
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Xxxxxx
Xxxxxxxx, CCO
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Dated
this [___] day of [___], 2010
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