FORM OF
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of this 1st day of December, 2002 by and between
Mercantile Capital Advisors, Inc., a Maryland corporation, in its role as
Manager (the "Manager") of the Mercantile Absolute Return Fund LLC, a Delaware
limited liability company (the "Company"); and RCG Tapestry, LLC, a Delaware
limited liability company (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 Private Placement
Memorandum 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 Private Placement
Memorandum 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 Private Placement Memorandum 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 (i)
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"); (ii) invest the Company's assets in
separate investment vehicles for which the Investment Managers serve as general
partners or managing members and in which the Company is the sole investor
("Investment Funds"); and (iii) invest discrete portions of the Company's assets
with Investment Managers who are retained to manage the Company's assets
directly through separate managed accounts (Investment Managers who directly
manage Investment Funds and managed accounts for which the Company is the sole
investor are collectively referred to as "Subadvisers"). The selection of
Subadvisers shall, however, be subject to the approval by the Board in
accordance with requirements of the Investment Company Act of 1940, as amended
(the "1940 Act"), and a vote of a majority of the outstanding voting securities
of the Company unless the Company acts in reliance on exemptive or other relief
granted by the Securities and Exchange Commission from the provisions of the
1940 Act requiring such approval by security holders. The Adviser shall
discharge the foregoing
responsibilities subject to the control of the officers and the Board, and in
compliance with the objectives, policies and limitations set forth in the
Company's private placement memorandum, 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 forgoing, the Adviser acknowledges its
responsibility and agrees to conduct proper due diligence on the Investment
Funds and 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 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) 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 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 the Management
Fee stated by the Manager 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 the Incentive Fee made to the Manager at the end of each fiscal year. The
Incentive Fee made to the Manager is equal to 10% of the increase in net assets
of the Company in excess of the Loss Carryforward amount and Benchmark Return
(as described more fully in the Company's Private Placement Memorandum and the
LLC Agreement). The Incentive Fee shall be due and payable by the Manager within
15 days after it has been received by the Manager at the end of each fiscal
year.
2
(c) In addition to its portion of the Management Fee and the
Incentive Fee stated above, the Adviser will be reimbursed by the Company for
all out-of-pocket expenses relating to services provided to the Company.
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.
These services initially will include, among other things, providing to the
Company office facilities, equipment, personnel and other services.
5. Reports.
The parties agree to furnish to each other 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. See Exhibit A for a list of reports the
Adviser will keep on behalf of the Company. 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 its responsibilities to the Account.
6. Status of Adviser.
The services of the Adviser to the Company are not to be deemed
exclusive, and the Adviser shall be free to render similar services to others.
7. Liability of Adviser.
In the absence of (a) 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") 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.
8. Indemnification.
(a) To the fullest extent permitted by law, the Company shall,
subject to Section 8(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
3
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 8 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
8.
(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 8(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 8(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
4
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 8 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 8 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
8 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 8. 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 8, the burden of proving that the indemnitee is not entitled to be
indemnified, or to any indemnification or advancement of expenses, under this
Section 8 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 8 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 8 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 8
shall affect the power of the Company to purchase and maintain liability
insurance on behalf of the Adviser or any indemnitee.
9. Duration and Termination.
This Agreement will become effective as of the date first written
above and will continue for an initial one-year term and will continue
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
5
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.
10. 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.
11. 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.
12. 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.
13. Applicable Law.
This Agreement shall be construed in accordance with the laws of the
State of New York, provided, however, that nothing herein shall be construed in
a manner inconsistent with the 1940 Act.
14. 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.
15. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original.
6
16. 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.
17. 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.
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.
RCG TAPESTRY, LLC
-------------------------------------------
By:
Title:
MERCANTILE CAPITAL ADVISORS, INC.
-------------------------------------------
By:
Title:
MERCANTILE ABSOLUTE RETURN FUND LLC
-------------------------------------------
By:
Title:
7
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 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.
A-1
