INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of this 31st day of August, 2010 by and
among PNC Capital Advisors, LLC, a Delaware limited liability
company, in its role as Manager (the "Manager") of PNC Long-
Short Master Fund LLC, a Delaware limited liability company (the
"Company"), and Robeco Investment Management, Inc., a
corporation organized under the laws of Delaware (the
"Adviser"), and the Company.
1. Duties of Adviser.
(a) The Manager hereby appoints the Adviser to act as
investment adviser to the Company, for the period and on the
terms set forth in this Agreement, pursuant to the policies set
forth in the Company's registration statement, including the
information therein incorporated by reference, filed with the
Securities and Exchange Commission under the Investment Company
Act of 1940, as amended (the "1940 Act"), (File No. 811-21818)
(the "Registration Statement"), and the Investment Management
Agreement between the Company and the Manager (the "Management
Agreement"), as the Management Agreement may be amended from
time to time with notice to the Adviser. The Adviser
specifically acknowledges its obligations as set forth in the
Company's Registration Statement and the Management Agreement,
provided that the Adviser shall not be obligated to follow any
amendment to the policies to the Company or the Management
Agreement that increases its obligations, responsibilities or
liabilities thereunder until it has received actual notice of
such amendment and has agreed thereto in writing. The Manager
employs the Adviser to formulate a continuing investment program
in accordance with the investment objective and strategies set
forth in the Company's Registration Statement and to manage the
investment and reinvestment of the assets of the Company, to
continuously review, supervise and administer the investment
program of the Company, to determine in its discretion the
securities to be purchased or sold and the portion of the
Company's assets to be held uninvested, to provide the Manager
and the Company with records concerning the Adviser's activities
which the Company is required to maintain and upon request, to
render regular reports to the Company's officers and Board of
Directors (the "Board") concerning the Adviser's discharge of
the foregoing responsibilities. Without limiting the generality
of the foregoing, the Adviser is specifically authorized to
invest the Company's assets (which may constitute, in the
aggregate, all of the Company's assets) in unregistered
investment funds or other investment vehicles and registered
investment companies ("Investment Funds") which are managed by
investment managers ("Investment Managers"). The Adviser shall
discharge the foregoing responsibilities subject to the
oversight of the officers and the Board, and in compliance with
the objectives, policies and limitations set forth in the
Company's Registration Statement, as the same may be amended or
supplemented from time to time with notice to the Adviser, and
applicable laws and regulations.
(b) Without limiting the foregoing, the Adviser
acknowledges its responsibility and agrees to conduct proper due
diligence on potential investments and the Investment Funds and
their Investment Managers as is required by its fiduciary role,
including, without limitation, reviewing the valuation
procedures of each Investment Fund and making a determination
that such Investment Fund complies with the valuation procedures
adopted by the Company.
(c) The Adviser shall vote proxies with respect to the
Investment Funds or any other portfolio securities in accordance
with its Proxy Voting Policies and Procedures, a copy of which
has been provided to the Company and the Manager.
(d) The Adviser accepts such employment and agrees to
render the services and to provide, at its own expense, the
office space, furnishings and equipment and the personnel
required by it to perform the services on the terms and for the
compensation provided herein.
2. Portfolio Transactions.
(a) To the extent applicable, the Adviser is authorized to
select the brokers or dealers that will execute the purchases
and sales of securities for the Company and is directed to use
its best efforts to obtain the best available price and most
favorable execution, except as prescribed herein.
(b) The Adviser will promptly communicate to the officers
and the Board such information relating to portfolio
transactions as they may reasonably request.
3. Compensation of the Adviser.
(a) For the services to be rendered by the Adviser as
provided in Section 1 of this Agreement, the Manager shall pay
to the Adviser a portion of the management fee (the "Management
Fee") received by the Manager from the Company, pursuant to the
Company's Limited Liability Company Agreement (the "LLC
Agreement"), at the end of each quarter. The Management Fee
received by the Manager from the Company is equal to 0.3125%
(approximately 1.25% on an annualized basis) of the Company's
net assets. The Adviser's portion of the Management Fee shall be
equal to 50% of 0.3125% (approximately 1.25% on an annual basis)
of the Company's net assets and shall be payable within 15 days
of receipt by the Manager of such fee from the Company. The
Management Fee will be computed based on the capital account of
each member of the Company as of the end of business on the last
business day of each quarter in the manner set out in the LLC
Agreement.
(b) The Manager shall also pay to the Adviser an amount
equal to 50% of any Incentive Fee (as described in the Company's
Registration Statement and the investment management agreement
between PNC Long-Short Fund LLC ("PLSF") and the Manager (the
"PLSF Management Agreement") and the investment management
agreement between PNC Long-Short TEDI Fund LLC, a Delaware
limited liability company ("PLSF TEDI"), and the Manager (the
"PLSF TEDI Management Agreement")) payable to the Manager at the
end of each fiscal year. For these purposes (i.e., determining
the portion of the Incentive Fee payable to the Adviser), the
Incentive Fee payable to the Manager shall be calculated
pursuant to the Incentive Fee formula/rate as set forth in the
PLSF Management Agreement and PLSF TEDI Management Agreement.
The Incentive Fee shall be due and payable by the Manager within
15 days after it has been received by the Manager from PLSF and
PLSF TEDI at the end of each fiscal year; provided, however,
that in the event that this Agreement is terminated prior to the
end of any fiscal year, the amount payable pursuant to this
paragraph shall be determined as if such fiscal year had ended
as of the date of such termination.
(c) Any reduction in the Management Fee or the
Incentive Fee payable to the Manager, whether voluntary, as a
result of a contractual limitation on expenses, or otherwise,
shall not result in any reduction to the amounts payable to the
Adviser as set forth in (a) and (b) of this Section.
(d) In addition to its portion of the Management Fee
and the Incentive Fee stated above, the Adviser will be
reimbursed by the Manager for all out-of-pocket expenses
associated with background checks on the Investment Managers.
4. Other Services.
The Adviser will provide to the Company, or will arrange at
its expense to be provided to the Company, such management and
administrative services as may be agreed upon from time to time
by the Adviser and the Manager.
5. Reports.
The parties agree to furnish to each other any current
prospectuses, proxy statements, reports to partners, certified
copies of their financial statements, and such other information
with regard to their affairs as each may reasonably request in
connection with this Agreement.
The Adviser shall submit and present to the Board reports
of the assets of the Company, the value of such assets, and the
performance of the Investment Funds on a quarterly basis. All
investment information supplied by the Adviser to the Manager
and the Board is confidential and is to be used by the Company
for internal purposes only. Upon termination of this Agreement,
the Adviser shall promptly, upon demand, return to the Manager
all records (or copies of such records) that the Manager
reasonably believes are necessary in order to discharge the
Manager's responsibilities to the Company.
6. Basic Business Records.
The Adviser shall comply with the applicable record-keeping
requirements of a registered investment adviser of a registered
investment company outlined in the 1940 Act and in the
Investment Advisers Act of 1940, as amended (the "Advisers
Act"), and as otherwise set forth in Exhibit A.
7. Status of Adviser.
It is understood that Adviser performs investment advisory
services for various clients other than the Company. The
Company agrees that Adviser may give advice and take action in
the performance of its duties with respect to any of its other
clients which may differ from advice given, or the time or
nature of action taken, with respect to the Company, so long as
it is Adviser's policy, to the extent practical, to seek to
allocate investment opportunities to the Company over a period
of time on a fair and equitable basis relative to other clients.
Nothing in this Agreement shall be deemed to impose upon Adviser
any obligation to purchase or sell for the Company any security
or property which Adviser, its principals, affiliates or
employees may purchase or sell for its or their own accounts or
for the account of any other client, if in the sole discretion
of Adviser such transaction or investment appears unsuitable,
impractical or undesirable for the Company.
8. Custody.
The assets of the Company shall be held in the custody of a
bank, trust company, brokerage firm or other entity in
accordance with the 1940 Act. The Company has notified the
Adviser as to the identity of the custodian as of the date
hereof, and shall notify the Adviser of any subsequent changes
in the custodian. The Company shall be responsible for all
custodial arrangements and the payment of all custodial charges
and fees, and the Adviser shall have no responsibility or
liability with respect to custody arrangements made by the
Company or the acts, omissions or other conduct of the custodian
selected by the Company.
9. Liability of Adviser.
In the absence of willful misfeasance, bad faith or gross
negligence on the part of the Adviser in performance of its
obligations and duties hereunder, the Adviser shall not be
subject to any liability whatsoever to the Company, or to any
member of the Company (each, a "Member," and collectively, the
"Members") to the Manager, or any affiliate of the Manager, for
any error of judgment, mistake of law or any other act or
omission in the course of, or connected with, rendering services
hereunder including, without limitation, for any losses that may
be sustained in connection with the purchase, holding,
redemption or sale of any security on behalf of the Company.
The Adviser does not represent that any level of performance
will be achieved.
10. Indemnification.
(a) To the fullest extent permitted by law, the Company
and the Manager shall, subject to Section 10(c) of this
Agreement, indemnify the Adviser (including for this purpose
each officer, director, partner, principal, employee or agent
of, or any person who controls, is controlled by or is under
common control with, the Adviser, and their respective
executors, heirs, assigns, successors or other legal
representatives) (each such person being referred to as an
"indemnitee") against all losses, claims, damages, liabilities,
costs and expenses arising by reason of being or having been
Adviser to the Company, or the past or present performance of
services to the Company in accordance with this Agreement by the
indemnitee, except to the extent that the loss, claim, damage,
liability, cost or expense was caused by reason of willful
misfeasance, bad faith or gross negligence of the duties
involved in the conduct of the indemnitee's office. These
losses, claims, damages, liabilities, costs and expenses
include, but are not limited to, amounts paid in satisfaction of
judgments, in compromise, or as fines or penalties, and counsel
fees and expenses, incurred in connection with the defense or
disposition of any action, suit, investigation or other
proceeding, whether civil or criminal, before any judicial,
arbitral, administrative or legislative body, in which the
indemnitee may be or may have been involved as a party or
otherwise, or with which such indemnitee may be or may have been
threatened, while in office or thereafter. The rights of
indemnification provided under this Section are not to be
construed so as to provide for indemnification of an indemnitee
for any liability (including liability under U.S. federal
securities laws which, under certain circumstances, impose
liability even on persons that act in good faith) to the extent
that indemnification would be in violation of applicable law,
but shall be construed so as to effectuate the applicable
provisions of this Section.
(b) Expenses, including counsel fees and expenses,
incurred by any indemnitee (but excluding amounts paid in
satisfaction of judgments, in compromise, or as fines or
penalties) may be paid from time to time by the Company in
advance of the final disposition of any action, suit,
investigation or other proceeding upon receipt of an undertaking
by or on behalf of the indemnitee to repay to the Company
amounts paid if a determination is made that indemnification of
the expenses is not authorized under Section 10(a) of this
Agreement, so long as (i) the indemnitee provides security for
the undertaking, (ii) the Company is insured by or on behalf of
the indemnitee against losses arising by reason of the
indemnitee's failure to fulfill his, her or its undertaking, or
(iii) a majority of the directors (each, a "Director," and
collectively, the "Directors") of the Company who are not
"interested persons" (as that term is defined in the 0000 Xxx)
of the Company ("Independent Directors") (excluding any Director
who is or has been a party to any other action, suit,
investigation or other proceeding involving claims similar to
those involved in the action, suit, investigation or proceeding
giving rise to a claim for advancement of expenses under this
Agreement) or independent legal counsel in a written opinion
determines based on a review of readily available facts (as
opposed to a full trial-type inquiry) that reason exists to
believe that the indemnitee ultimately shall be entitled to
indemnification.
(c) As to the disposition of any action, suit,
investigation or other proceeding (whether by a compromise
payment, pursuant to a consent decree or otherwise) without an
adjudication or a decision on the merits by a court, or by any
other body before which the proceeding has been brought, that an
indemnitee is liable to the Company or its Members by reason of
willful misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of the
indemnitee's office, indemnification shall be provided in
accordance with Section 10(a) of this Agreement if (i) approved
as in the best interests of the Company by a majority of the
Independent Directors (excluding any Director who is or has been
a party to any other action, suit, investigation or other
proceeding involving claims similar to those involved in the
action, suit, investigation or proceeding giving rise to a claim
for indemnification under this Agreement) upon a determination
based upon a review of readily available facts (as opposed to a
full trial-type inquiry) that the indemnitee acted in good faith
and in the reasonable belief that the actions were in the best
interests of the Company and that the indemnitee is not liable
to the Company or its Members by reason of willful misfeasance,
bad faith, gross negligence, or reckless disregard of the duties
involved in the conduct of the indemnitee's office, or (ii) the
Directors secure a written opinion of independent legal counsel
based upon a review of readily available facts (as opposed to a
full trial-type inquiry) to the effect that indemnification
would not protect the indemnitee against any liability to the
Company or its Members to which the indemnitee would otherwise
be subject by reason of willful misfeasance, bad faith or gross
negligence.
(d) Any indemnification or advancement of expenses made in
accordance with this Section shall not prevent the recovery from
any indemnitee of any amount if the indemnitee subsequently is
determined in a final judicial decision on the merits in any
action, suit, investigation or proceeding involving the
liability or expense that gave rise to the indemnification or
advancement of expenses to be liable to the Company or its
Members by reason of willful misfeasance, bad faith or gross
negligence. In any suit brought by an indemnitee to enforce a
right to indemnification under this Section it shall be a
defense that, and in any suit in the name of the Company to
recover any indemnification or advancement of expenses made in
accordance with this Section the Company shall be entitled to
recover the expenses upon a final adjudication from which no
further right of appeal may be taken that, the indemnitee has
not met the applicable standard of conduct described in this
Section. In any suit brought to enforce a right to
indemnification or to recover any indemnification or advancement
of expenses made in accordance with this Section, the burden of
proving that the indemnitee is not entitled to be indemnified,
or to any indemnification or advancement of expenses, under this
Section shall be on the Company (or on any Member acting
derivatively or otherwise on behalf of the Company or its
Members).
(e) An indemnitee may not satisfy any right of
indemnification or advancement of expenses granted in this
Section or to which he, she or it may otherwise be entitled
except out of the assets of the Company, and no Member shall be
personally liable with respect to any such claim for
indemnification or advancement of expenses.
(f) The rights of indemnification provided in this Section
shall not be exclusive of or affect any other rights to which
any person may be entitled by contract or otherwise under law.
Nothing contained in this Section shall affect the power of the
Company to purchase and maintain liability insurance on behalf
of the Adviser or any indemnitee.
11. Duration and Termination.
This Agreement will become effective as of the date first
written above and will continue annually thereafter so long as
such continuance is specifically approved at least annually (a)
by the vote of a majority of the Directors who are not parties
to this Agreement or interested persons of any such party, cast
in person at a meeting called for the purpose of voting on such
approval, and (b) by the Board or by vote of a majority of the
outstanding voting securities of the Company. If the Board
officially considers terminating this Agreement at any Board
meeting, the Company agrees to provide the Adviser with written
notice that such matter has been officially considered by the
Board. This Agreement may be terminated by the Manager at any
time, without the payment of any penalty, by the Manager's
recommendation to, and by a vote of a majority of the entire
Board or by vote of a majority of the outstanding voting
securities of the Company on 60 days' written notice to the
Adviser. This Agreement may be terminated by the Adviser at any
time, without the payment of any penalty, upon 60 days' written
notice to the Manager. This Agreement will automatically and
immediately terminate in the event of its assignment by the
Adviser, provided that an assignment to a successor to all or
substantially all of the Adviser's business or to a wholly-owned
subsidiary of such successor that does not result in a change of
actual control of the Adviser's business shall not be deemed to
be an assignment for the purposes of this Agreement.
12. Representations of the Company.
The Company represents, warrants and agrees that:
(a) The retention of the Adviser by the Company as
investment adviser with respect to the investment of all
properties held by the Company is authorized by the governing
documents relating to the Company.
(b) The terms of this Agreement do not violate any
obligation by which the Company is bound, whether arising by
contract, operation of law or otherwise.
(c) This Agreement has been duly authorized by
appropriate action and when executed and delivered will be
binding upon the Company in accordance with its terms, and the
Company will deliver to the Adviser such evidence of such
authority as the Adviser may reasonably require, whether by way
of a certified resolution of otherwise.
(d) The Company shall hold the Adviser harmless from
and indemnify the Adviser against any and all liability or loss
which the Adviser may incur or suffer, if and to the extent that
such liability or loss was caused by the inaccuracy or breach by
the Company of any of the provisions set forth in Paragraphs
12(a) through (c) hereof.
13. Representations of the Adviser.
The Adviser represents, warrants and agrees that:
(a) It is registered as an investment adviser under
the Advisers Act and will maintain such registration in full
force and effect during the term of this Agreement.
(b) The terms of this Agreement do not violate any
obligation by which the Adviser is bound, whether arising by
contract, operation of law or otherwise.
(c) This Agreement has been duly authorized by
appropriate action and when executed and delivered will be
binding upon the Adviser in accordance with its terms.
(d) Subject to the terms of Sections 9 and 10 hereof,
the Adviser shall hold the Company harmless from and indemnify
the Company against any and all liability or loss which the
Company may incur or suffer, if and to the extent that such
liability or loss was caused by the inaccuracy or breach by the
Adviser of any of the provisions set forth in Paragraphs 13(a)
through (c) hereof.
14. Definitions.
As used in this Agreement, the terms "assignment,"
"interested persons," and a "vote of a majority of the
outstanding voting securities" shall have the respective
meanings set forth in Section 2(a)(4), Section 2(a)(19) and
Section 2(a)(42) of the 1940 Act.
15. Amendment of Agreement.
This Agreement may be amended by mutual consent, but the
consent of the Manager must be approved (a) by vote of a
majority of those members of the Board of the Company who are
not parties to this Agreement or interested persons of any such
party, cast in person at a meeting called for the purpose of
voting on such amendment, and (b) by vote of a majority of the
outstanding voting securities of the Company; provided, however,
that the vote described in clause (b) shall not be required with
respect to any amendment that is intended to clarify a term
contained in this Agreement or is otherwise permitted under
the1940 Act without such vote.
16. Severability.
If any provisions of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
17. Applicable Law.
This Agreement shall be construed in accordance with the
laws of the State of Delaware, provided, however, that nothing
herein shall be construed in a manner inconsistent with the 1940
Act.
18. Notices.
Any notice under this Agreement shall be given in writing
and deemed to have been duly given when delivered by hand or
facsimile or five days after mailed by certified mail, post-
paid, by return receipt requested to the other party at the
principal office of such party.
19. Counterparts.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original.
20. Form ADV; Company Changes.
The Manager acknowledges receiving Part II of the Adviser's
Form ADV. The Adviser covenants that it will notify the Manager
of any changes to its membership within a reasonable time after
such change.
21. Company Obligations.
The parties to this Agreement agree that the obligations of
the Company under this Agreement shall not be binding upon any
of the Directors, Members or any officers, employees or agents,
whether past, present or future, of the Company, individually,
but are binding only upon the assets and property of the
Company.
*********
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers as of
the day and year first written above.
ROBECO INVESTMENT MANAGEMENT, INC.
__/s/Xxxxxxx X. Xxxxxxxx, III_______________/s/Xxxxxxx X. Davis____
By: Xxxxxxx X. Xxxxxxxx, III Xxxxxxx X. Xxxxx
Title: Chief Operating Officer Chief Financial Officer
Senior Managing Director Senior Managing Director
PNC CAPITAL ADVISORS, LLC
__/s/Xxxxxxxx X. Spratley_______________
By: Xxxxxxxx X. Xxxxxxxx
Title: Managing Director
PNC LONG-SHORT MASTER FUND LLC
__/s/Xxxxxxxx X. Spratley__________________
By: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
EXHIBIT A
The following is a list of records the Adviser is to keep on
behalf of the Company.
1. Basic Business Records. The Adviser will maintain true,
accurate, current, and complete copies, where necessary, of
each of the following books and records:
a. Originals of all written communications received
and copies of all written communications sent by
the Adviser relating to recommendations or advice
given or proposed;
b. A list of all discretionary accounts;
x. Xxxxxx of attorney and other evidences of the
granting of any discretionary authority;
d. Written agreements (or copies thereof) entered
into by the Adviser on behalf of the Company;
e. A copy of each written disclosure statement and
amendment or revision given to any person and a
record of the dates and persons to whom such
statements were given or offered to be given; and
f. All written acknowledgments of receipt obtained
from advisory clients relating to disclosure of
soliciting fees paid by the Adviser and copies of
all disclosure statements delivered to advisory
clients by such solicitors on behalf of the Company.
2. Records for Investment Supervisory Accounts. The
Adviser must maintain a record for the Company, showing
each interest bought or sold and the date, amount, and
price of each purchase and sale. The Adviser must also
maintain a record, by Investment Fund, for each
investment in which the Company has a current position,
the type of interest and the amount of the Company's
current position. These records need to be maintained
and be true, accurate, current, and complete only to
the extent that this information is reasonably
available to, or obtainable by, the Adviser.
3. Records pursuant to the Adviser's Code of Ethics
a. A record of any violation of the Adviser's Code of
Ethics, and any action taken as a result of the
violation, in an easily accessible place for at
least five years after the end of the fiscal year
in which the violation occurs;
b. A copy of each report made by an Access Person as
required by Rule 17j-1(f) under the 1940 Act,
including any information provided in lieu of the
reports under Rule 17j-1(d)(2)(v), in an easily
accessible place for at least five years after the
end of the fiscal year in which the report is made
or the information is provided;
c. A record of all persons, currently or within the
past five years, who are or were required to make
reports under Rule 17j-1(d) or who are or were
responsible for reviewing these reports, in an
easily accessible place; and
d. A copy of each report required by Rule 17j-1(c),
for at least five years after the end of the
fiscal year in which it is made, the first two
years in an easily accessible place.
