ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this 1st day of May, 2006, by and between Mercantile Absolute
Return Fund for Tax-Exempt/Deferred Investors LLC, a Delaware limited liability company (the
“Company”), a registered, non-diversified, closed-end management investment company under the
Investment Company Act of 1940, as amended (the “1940 Act”), consisting of limited
liability company interests (the “Interests”); and Mercantile Capital Advisors, Inc., a Maryland
corporation (the “Administrator”).
WHEREAS, the Company desires the Administrator to provide, and the Administrator is willing to
provide administrative, accounting, investor and recordkeeping services to the Company on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained, the
Company and the Administrator hereby agree as follows:
ARTICLE 1. Retention of the Administrator. The Company hereby retains the
Administrator to furnish the Company with accounting, administrative, investor and recordkeeping
services as set forth in this Agreement, and the Administrator hereby accepts such employment.
ARTICLE 2. Administrative and Accounting Services. The Administrator shall perform
or arrange for and supervise the performance by others of the accounting, investor, administrative
and recordkeeping services necessary for the operation of the Company.
ARTICLE 3. Member Account Services.
(A) The Administrator shall provide personal member services and account maintenance services
(“Member Services”) to members of the Company (the “Members”). These Member Services shall
include, but shall not be limited to (i) handling inquiries from Members regarding the Company,
including but not limited to questions concerning their investments in the Company, capital account
balances, and reports and tax information provided by the Company; (ii) assisting in the
enhancement of relations and communications between Members and the Company; (iii) assisting in the
maintenance of Members’ accounts with the Company; (iv) assisting in the maintenance of Company
records containing Member information, such as changes of address; and (v) providing such other
information and Member liaison services as the Company may reasonably request.
(B) The Administrator is authorized to facilitate, on behalf of the Company, the provision by
financial advisers or other financial intermediaries (“Member Service Providers”) of Member
Services to Members that are customers of such Member Service Providers and to compensate such
Member Service Providers for their services. The Administrator shall report to the Board of
Directors of the Company on a quarterly basis regarding: (i) the nature of the Member Services
provided by the Member Service Providers; and (ii) the amount of payments made by the Administrator
to such Member Service Providers.
ARTICLE 4. Duties of the Administrator
In performing its duties under this Agreement, the Administrator will act in all material
respects in accordance with the Company’s Limited Liability Company Agreement and prospectus as
they may be amended (provided copies are delivered to the Administrator). The Administrator (i)
shall not have or be required to have any authority to supervise the investment or reinvestment of
the securities or other properties which comprise the assets of the Company and (ii) shall not
provide any investment advisory services to the Company, and shall have no liability related to the
foregoing. The Administrator shall provide the Company with all necessary office space, equipment,
supplies, personnel, personnel compensation and facilities (including facilities for Members’ and
Board of Directors meetings) for providing such services. The Administrator may sub-contract with
third parties to perform certain or all of the services to be performed by the Administrator
hereunder; provided, however, that the Administrator shall remain principally responsible to the
Company for the acts and omissions of such other entities. In meeting its duties hereunder,
Administrator shall have the general authority to do all acts deemed in the Administrator’s good
faith belief to be necessary and proper to perform its obligations under this Agreement.
ARTICLE 5. Allocation of Charges and Expenses.
(A) The Administrator. The Administrator shall furnish at its own expense the
executive, supervisory and clerical personnel necessary to perform its obligations under this
Agreement. The Administrator shall also pay all compensation, if any, of officers of the Company
who are affiliated persons of the Administrator or any affiliated corporation of the Administrator;
provided, however, that unless otherwise specifically provided, the Administrator shall not be
obligated to pay the compensation of any employee of the Administrator retained by the Directors of
the Company to perform services on behalf of the Company.
(B) Company Expenses. The Company assumes and shall pay or cause to be paid all other
expenses of the Company not otherwise allocated in this Agreement, including, without limitation,
organizational costs, taxes, expenses for legal and auditing services, the expenses of preparing
(including typesetting), printing and mailing reports, prospectuses, statements of additional
information, proxy solicitation and tender offer materials and notices to Members, all expenses
incurred in connection with issuing and redeeming Interests, the costs of pricing services, the
costs of custodial services, the cost of initial and ongoing registration of the Interests under
Federal and state securities laws, fees and out-of-pocket expenses of Directors who are not
affiliated persons of the Administrator or any affiliated corporation of the Administrator, the
costs of Directors’ meetings, insurance, interest, brokerage costs, litigation and other
extraordinary or nonrecurring expenses, and all fees and charges of service providers to the
Company. The Company shall reimburse the Administrator for its reasonable out-of-pocket expenses,
including all reasonable charges for SAS 70 audit charges, and reasonable copying, postage,
telephone, and fax charges incurred by the Administrator in the performance of its duties.
ARTICLE 6. Compensation of the Administrator. The Company shall pay to the
Administrator compensation based on the fee schedule outlined in Schedule A until this Agreement is
terminated in accordance with Article 8. Such compensation shall be calculated and accrued
monthly, and paid to the Administrator quarterly, within 30 days of quarter-end, otherwise the
Administrator shall be entitled to charge and/or set-off such amounts against any
account of the Company. If this Agreement becomes effective subsequent to the first day of a
month or terminates before the last day of a month, the Administrator’s compensation for that part
of the month in which this Agreement is in effect shall be prorated in a manner consistent with the
calculation of the fees as set forth above.
ARTICLE 7. Standard of Care; Limitation of Liability of the Administrator. The
Administrator shall exercise due care and diligence to ensure the accuracy of all services
performed under this Agreement. The duties of the Administrator shall be confined to those
expressly set forth herein, and no implied duties are assumed by or may be asserted against the
Administrator hereunder. The Administrator shall not be liable for any error of judgment or
mistake of law or for any loss arising out of any investment or for any act or omission in carrying
out its duties hereunder, except a loss resulting from willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of reckless disregard of its obligations
and duties hereunder. (As used in this Article 7, the term “Administrator” shall include officers,
employees, sub-administrators and other agents of the Administrator as well as that entity itself.)
Under no circumstances shall the Administrator be liable to the Company for consequential,
indirect or punitive damages. So long as the Administrator, or its agents, act without willful
misfeasance, bad faith or gross negligence in the performance of their respective duties, and
without reckless disregard of their respective obligations and duties hereunder, the Company
assumes full responsibility and shall indemnify the Administrator and hold it harmless from and
against any and all actions, suits and claims, whether groundless or otherwise, and from and
against any and all losses, damages, costs, charges, reasonable counsel fees and disbursements,
payments, expenses and liabilities (including reasonable investigation expenses) arising directly
or indirectly out of any act or omission of the Administrator in carrying out its duties hereunder.
So long as the Company, or its agents, act without willful misfeasance, bad faith or gross
negligence in the performance of their respective duties, and without reckless disregard of their
respective obligations and duties hereunder, the Administrator shall indemnify the Company and hold
it harmless from and against any and all actions, suits and claims, whether groundless or
otherwise, and from and against any and all losses, damages, costs, charges, reasonable counsel
fees and disbursements, payments, expenses and liabilities (including reasonable investigation
expenses) arising directly or indirectly out of any act or omission of the Company in carrying out
its duties hereunder.
The indemnity and defense provisions set forth herein shall indefinitely survive the
termination of this Agreement.
The indemnification rights hereunder shall include the right to reasonable advances of defense
expenses in the event of any pending or threatened litigation with respect to which indemnification
hereunder may ultimately be merited. If in any case a party hereunder (the “Indemnifying Party”)
is asked to indemnify or hold the other party harmless (the “Indemnified Party”), the Indemnified
Party shall promptly notify and advise the Indemnifying Party of the pertinent facts concerning the
situation in question, and the Indemnified Party will use all reasonable care to identify and
notify the Indemnifying Party promptly concerning any situation which presents or appears likely to
present the probability of such a claim for indemnification, but failure to do so shall not affect
the rights hereunder.
The Indemnifying Party shall be entitled to participate at its own expense in, or, if it so
elects, to assume the defense of, any suit brought to enforce any claims subject to this indemnity
provision. If the Indemnifying Party elects to assume the defense of any such claim, the defense
shall be conducted by counsel chosen by the Indemnifying Party and satisfactory to the Indemnified
Party, whose approval shall not be unreasonably withheld. In the event that the Indemnifying Party
elects to assume the defense of any suit and retain counsel, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it. If the Indemnifying Party does not
elect to assume the defense of a suit, it will reimburse the Indemnified Party for reasonable fees
and expenses of any counsel retained by the Indemnified Party.
The Indemnified Party may apply to the Indemnifying Party at any time for instructions and may
consult with counsel for the Indemnifying Party or the Company as applicable, or its own counsel
and the Company’s accountants and other experts, at the Indemnifying Party’s expense, with respect
to any matter arising in connection with the Indemnified Party’s duties. The Indemnified Party
shall not be liable or accountable for any action taken or omitted by it in good faith in
accordance with such instruction or with the opinion of such counsel, accountants or other experts.
Also, the Indemnified Party shall be protected in acting upon any document which it reasonably
believes to be genuine and to have been signed or presented by the proper authorized person or
persons. Nor shall the Indemnified Party be held to have notice of any change of authority of any
officers, employee or agent of the Indemnifying Party until receipt of written notice thereof from
the Indemnifying Party.
The Indemnified Party shall be liable for the performance or omissions of any unaffiliated
third parties to whom the Indemnified Party has delegated its duties hereunder.
The Administrator is entitled to rely on the price information provided by any master fund in
which the Company invests, the underlying funds in which the Company (including through its
investment in any master fund) invests, and brokers in order to calculate the Company’s net asset
value and the Administrator shall not be liable for any valuation errors resulting from the use of
such information, provided the Administrator complies with the valuation procedures described in
the Company’s prospectus and adopted by the Company.
ARTICLE 8. Duration and Termination of this Agreement. This Agreement shall become
effective on the date set forth above and shall remain in effect for one year (the “Initial Term”).
Thereafter, this Agreement shall continue in effect for successive one-year terms (each a “Renewal
Term”), unless terminated in accordance with the provisions of this Article 8. This Agreement may
be terminated only: (a) by either party at the end of the Initial Term or the end of any Renewal
Term on 90 days’ prior written notice; (b) by either party on such date as is specified in written
notice given by the terminating party, in the event of a material breach of this Agreement by the
other party, provided the terminating party has notified the other party of such material breach at
least 45 days prior to the specified date of termination and the breaching party has not remedied
such breach by the specified date; or (c) as to the Company, effective upon the liquidation of the
Company. For purposes of this paragraph, the term “liquidation” shall mean a transaction in which
the assets of the Company are sold or otherwise disposed of and proceeds
therefrom are distributed in cash to the Members in complete liquidation of the Interests of
such Members.
ARTICLE 9. Activities of the Administrator. The services of the Administrator
rendered to the Company are not to be deemed to be exclusive. The Administrator is free to render
such services to others and to have other businesses and interests.
ARTICLE 10. Proprietary and Confidential Information. The Administrator agrees on
behalf of itself and its employees to treat confidentially and as proprietary information all
records and other information relative to the Company and its Members received by the Administrator
in connection with this Agreement, including any non-public personal information as defined in
Regulation S-P, and that it shall not use or disclose any such information except for the purpose
of carrying out the terms of this Agreement; provided, however, that Administrator may disclose
such information as required by law, or after prior notification to and approval in writing by the
Company, which approval may not be withheld where the Administrator may be exposed to civil or
criminal contempt proceedings or penalties for failure to comply.
ARTICLE 11. Certain Records. The Administrator shall maintain customary records in
connection with its duties as specified in this Agreement. Any records required to be maintained
and preserved pursuant to Rules 31a-1 and 31a-2 under the 1940 Act which are prepared or maintained
by the Administrator on behalf of the Company shall be prepared and maintained at the expense of
the Administrator, but shall be the property of the Company and will be made available or
surrendered promptly to the Company on request.
In case of any request or demand for the inspection of such records by another party, the
Administrator may exhibit such records to any person in any case where it is advised by its counsel
that it may be held liable for failure to do so, unless (in cases involving potential exposure only
to civil liability) the Company will indemnify the Administrator against such liability.
ARTICLE 12. Compliance with Governmental Rules and Regulations. The Administrator
undertakes to comply in all material respects with applicable requirements of the Securities Act of
1933, the Securities Exchange Act of 1934, the 1940 Act, the USA PATRIOT Act and any laws, rules
and regulations of governmental authorities having jurisdiction with respect to the duties to be
performed by the Administrator hereunder including any applicable anti-money laundering laws and
regulations.
ARTICLE 13. Internet Access. Data and information may be made electronically
accessible to the Company through Internet access to one or more links provided by the
Administrator or a sub-administrator (“Web Link”). All rights in Web Link (including text and
“look and feel” attributes) are owned by the sub-administrator. Any commercial use of the content
or any other aspect of Web Link requires the written permission of the sub-administrator. Use of
the Web Link by the Company will be subject to any terms of use set forth on the web site. Web
Link and the information (including text, graphics and functionality) in the Web Link is presented
“As Is” and “As Available” without express or implied warranties including, but not limited to,
implied warranties of non-infringement, merchantability and fitness for a particular purpose. The
sub-administrator neither warrants that the Web Link will be uninterrupted or error
free, nor guarantees the accessibility, reliability, performance, timeliness, sequence, or
completeness of information provided on the Web Link.
ARTICLE 14. Entire Agreement; Amendments. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior agreement, draft or proposal with
respect to the subject matter hereof. This Agreement or any part hereof may be changed or waived
only by an instrument in writing signed by the party against which enforcement of such change or
waiver is sought.
ARTICLE 15. Assignment. This Agreement shall not be assignable by either party
without the prior written consent of the other party.
ARTICLE 16. Agreement for Sole Benefit of the Administrator and the Company. This
Agreement is for the sole and exclusive benefit of the Company and the Administrator and will not
be deemed to be for the direct or indirect benefit of the clients or customers of the Company or
the Administrator. The clients or customers of the Company or the Administrator will not be deemed
to be third party beneficiaries of this Agreement nor to have any other contractual relationship
with the Company by reason of this Agreement and each party hereto agrees to indemnify and hold
harmless the other party from any claims of its clients or customers against the other party
including any attendant expenses and attorneys’ fees, based on this Agreement or the services
provided hereunder.
ARTICLE 17. Waiver. Any term or provision of this Agreement may be waived at any
time by the party entitled to the benefit thereof by written instrument executed by such party. No
failure of either party hereto to exercise any power or right granted hereunder, or to insist upon
strict compliance with any obligation hereunder, and no custom or practice of the parties with
regard to the terms of performance hereof, will constitute a waiver of the rights of such party to
demand full and exact compliance with the terms of this Agreement.
ARTICLE 18. Notice. Any notice required or permitted to be given by either party to
the other shall be deemed sufficient if sent by registered or certified mail, federal express (or
substantially similar delivery service), postage prepaid, addressed by the party giving notice to
the other party at the last address furnished by the other party to the party giving notice: if to
the Administrator at: Xxx Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000; and if to the Company, Attention:
Mercantile Absolute Return Fund for Tax-Exempt/Deferred Investors LLC, c/o SEI Mutual Fund
Services, Xxx Xxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx, 00000.
ARTICLE 19. Force Majeure. No breach of any obligation of a party to this Agreement
will constitute an event of default or breach to the extent it arises out of a cause, existing or
future, that is beyond the control and without negligence of the party otherwise chargeable with
breach or default, including without limitation: work action or strike; lockout or other labor
dispute; flood; war; riot; theft; earthquake or natural disaster. Either party desiring to rely
upon any of the foregoing as an excuse for default or breach will, when the cause arises, give to
the other party prompt notice of the facts which constitute such cause; and, when the cause ceases
to exist, give prompt notice thereof to the other party.
ARTICLE 20. Equipment Failures. In the event of equipment failures beyond the
Administrator’s control, the Administrator shall take reasonable steps to ensure that any
sub-administrator can minimize service interruptions but shall have no liability with respect
thereto. The sub-administrator shall be required to develop and maintain a plan for recovery from
equipment failures which may include contractual arrangements with appropriate parties making
reasonable provision for emergency use of electronic data processing equipment to the extent
appropriate equipment is available.
ARTICLE 21. Definitions of Certain Terms. The term “affiliated person,” when used in
this Agreement, shall have the meaning specified in the 1940 Act and the rules and regulations
thereunder, subject to such exemptions as may be granted by the Securities and Exchange Commission.
ARTICLE 22. Headings. All Article headings contained in this Agreement are for
convenience of reference only, do not form a part of this Agreement and will not affect in any way
the meaning or interpretation of this Agreement. Words used herein, regardless of the number and
gender specifically used, will be deemed and construed to include any other number, singular or
plural, and any other gender, masculine, feminine, or neuter, as the contract requires.
ARTICLE 23. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of Delaware without giving effect to the conflicts of laws principles thereof,
and the applicable provisions of the 1940 Act. To the extent that the applicable laws of the State
of Delaware, or any of the provisions herein, conflict with the applicable provisions of the 1940
Act, the latter shall control.
ARTICLE 24. Multiple Originals. This Agreement may be executed in two or more
counterparts, each of which when so executed shall be deemed to be an original, but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 25. Binding Agreement. This Agreement, and the rights and obligations of the
parties hereunder, shall be binding on, and inure to the benefit of, the parties and their
respective successors and assigns.
ARTICLE 26. Severability. If any part, term or provision of this Agreement is held
to be illegal, in conflict with any law or otherwise invalid, the remaining portion or portions
shall be considered severable and not be affected, and the rights and obligations of the parties
shall be construed and enforced as if the Agreement did not contain the particular part, term or
provision held to be illegal or invalid.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the
day and year first above written.
| MERCANTILE CAPITAL ADVISORS, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Senior Vice President | |||
| MERCANTILE ABSOLUTE RETURN FUND
FOR TAX-EXEMPT/DEFERRED INVESTORS LLC |
||||
| By: | /s/ Xxxxx X. XxXxxxxxx | |||
| Name: | Xxxxx X. XxXxxxxxx | |||
| Title: | President | |||
SCHEDULE A
TO THE ADMINISTRATION AGREEMENT BETWEEN
MERCANTILE ABSOLUTE RETURN FUND
FOR TAX-EXEMPT/DEFERRED INVESTORS LLC
AND
MERCANTILE CAPITAL ADVISORS, INC.
TO THE ADMINISTRATION AGREEMENT BETWEEN
MERCANTILE ABSOLUTE RETURN FUND
FOR TAX-EXEMPT/DEFERRED INVESTORS LLC
AND
MERCANTILE CAPITAL ADVISORS, INC.
| • | Administration Fee — 25 basis points per annum of the net assets of the Company | |
| • | Feeder Services Fee — $15,000.00 per annum |
