Jackson Credit Opportunities Fund Investment Advisory and Management Agreement
Ex. 99.25(2)(g)(1)
Xxxxxxx Credit Opportunities Fund
Investment Advisory and Management Agreement
This Agreement effective as of September 30, 2023, is between Xxxxxxx Credit Opportunities Fund, a Massachusetts business trust (the “Trust”), and Xxxxxxx National Asset Management, LLC, a Michigan limited liability company (the “Adviser”).
Whereas, the Trust is a closed-end, management investment company registered as such with the Securities and Exchange Commission (the “Commission”) under the Investment Company Act of 1940, as amended (the “1940 Act”), operating as a closed-end interval fund pursuant to Rule 23c-3 under the 1940 Act;
Whereas, the Adviser is registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”);
Whereas, the Trust desires to retain the Adviser to perform investment advisory services, on the terms and conditions set forth herein; and
Whereas, the Adviser agrees to serve as the investment adviser and business manager for the Trust on the terms and conditions set forth herein.
Now Therefore, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the Trust and the Adviser agree as follows:
1. Appointment
The Trust hereby appoints the Adviser to provide certain investment advisory services to the Trust for the period and on the terms set forth in this Agreement, as amended or supplemented from time to time. The Adviser accepts such appointment and agrees to furnish the services herein set forth for the compensation herein provided.
2. Duties
The Adviser shall manage the affairs of the Trust including, but not limited to, continuously providing the Trust with investment advice and business management, including investment research, advice and supervision, determining which securities, commodities, and derivatives thereon (hereinafter collectively, “securities”) shall be purchased or sold by the Trust, effecting purchases and sales of securities on behalf of the Trust (and determining how voting and other rights with respect to securities owned by the Trust shall be exercised). The management of the Trust by the Adviser shall be subject to the control of the Trustees of the Trust (the “Trustees”) and in accordance with the objectives, policies and principles for the Trust set forth in the Trust’s Registration Statement and its current Prospectus and Statement of Additional Information, as amended from time to time, the requirements of the 1940 Act, and other applicable law, as well as to the factors affecting the Trust’s status as a regulated investment company under the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations thereunder. In performing such duties, the Adviser shall (i) provide such office space, bookkeeping, accounting, clerical, secretarial, and administrative services (exclusive of, and in addition to, any such service provided by any others retained by the Trust) and such executive and other personnel as shall be necessary for the operations of the Trust, (ii) be responsible for the financial and accounting records required to be maintained by the Trust (including those maintained by the Trust’s custodian), and (iii) oversee the performance of services provided to the Trust by others, including the custodian,
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transfer agent, shareholder servicing agent and sub-adviser, if any. The Trust acknowledges that the Adviser also acts as the investment adviser of other investment companies.
The Adviser may delegate certain of its duties under this Agreement with respect to the Trust to a sub-adviser, subject to the approval of the Trustees, by entering into a sub-advisory agreement (the “Sub-Advisory Agreement”) with the sub-adviser. The Adviser is solely responsible for payment of any fees or other charges arising from such delegation and the Trust shall have no liability therefor.
To the extent required by the laws of any state in which the Trust is subject to an expense guarantee limitation, if the aggregate expenses of the Trust in any fiscal year exceed the specified expense limitation ratios for that year (calculated on a daily basis), Adviser agrees to waive such portion of its advisory fee in excess of the limitation, but such waiver shall not exceed the full amount of the advisory fee for such year except as may be elected by Adviser in its discretion. For this purpose, aggregate expenses of the Trust shall include the compensation of Adviser and all other normal expenses and charges, but shall exclude interest, taxes, brokerage fees on Trust transactions, fees and expenses incurred in connection with the distribution of Trust shares, and extraordinary expenses including litigation expenses. In the event any amounts are so contributed by Adviser to the Trust, the Trust agrees to reimburse Adviser, provided that such reimbursement does not result in increasing the Trust’s aggregate expenses above the aforementioned expense limitation ratios.
3. Expenses
The Adviser shall pay all of its expenses arising from the performance of its obligations under this Agreement and shall pay any salaries, fees and expenses of the Trustees and any officers of the Trust who are employees of the Adviser. The Adviser shall not be required to pay any other expenses of the Trust, including, but not limited to direct charges relating to the purchase and sale of Trust securities, interest charges, fees and expenses of independent attorneys and auditors, taxes and governmental fees, cost of stock certificates and any other expenses (including clerical expenses) of issue, sale, repurchase or redemption of shares (including expenses associated with the Fund’s share repurchases pursuant to Rule 23c-3 under the 1940 Act) expenses of registering and qualifying shares for sale, expenses of printing and distributing reports and notices to shareholders, expenses of data processing and related services, shareholder recordkeeping and shareholder account service, expenses of printing and filing reports and other documents filed with governmental agencies, expenses of printing and distributing Prospectuses, fees and disbursements of transfer agents and custodians, expenses of disbursing dividends and distributions, fees and expenses of Trustees who are not employees of the Adviser or its affiliates, membership dues in the investment company trade association, insurance premiums and extraordinary expenses such as litigation expenses.
4. Compensation
As compensation for services performed and the facilities and personnel provided by the Adviser under this Agreement, the Trust will pay to the Adviser a single, unified fee, accrued daily and payable monthly on the average daily net assets in the Trust, in accordance with Schedule A hereto.
Upon any termination of this Agreement on a day other than the last day of the month, the fee for the period from the beginning of the month in which termination occurs to the date of termination shall be prorated according to the proportion which such period bears to the full month.
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5. Purchase and Sale of Securities
The Adviser shall purchase securities from or through and sell securities to or through such persons, brokers or dealers (including affiliated brokers or dealers) as the Adviser shall deem appropriate to carry out the policies with respect to Trust transactions as set forth in the Trust’s Registration Statement and its current Prospectus or Statement of Additional Information, as amended from time to time, or as the Trustees may direct from time to time.
Nothing herein shall prohibit the Trustees from approving the payment by the Trust of additional compensation to others for consulting services, supplemental research and security, and economic analysis.
6. Term of Agreement
This Agreement will become effective as to the Trust upon execution or, if later, the date that initial capital for the Trust is first provided to it and, unless sooner terminated as provided herein, will continue in full force and effect for two years from the date of its execution. Thereafter, this Agreement will continue from year to year through September 30th of each successive year, provided that such continuation is specifically approved at least annually (i) by the Trustees by vote cast in person at a meeting called for the purpose of voting on such renewal, or by the vote of a majority of the outstanding voting securities (as defined by the 1940 Act) of the Trust with respect to which renewal is to be effected, and (ii) by a majority of the non-interested Trustees by a vote cast in person at a meeting called for the purpose of voting on such renewal. Any approval of this Agreement or the renewal thereof by the vote of a majority of the outstanding voting securities of the Trust, or by the Trustees which shall include a majority of the non-interested Trustees, shall be effective to continue this Agreement.
7. Termination
This Agreement may be terminated at any time, without payment of any penalty, by the Trustees, including a majority of the non-interested Trustees, or by the vote of a majority of the outstanding voting securities (as defined in the 1940 Act) of the Trust on sixty (60) days’ written notice to the Adviser. Similarly, the Adviser with the consent of the Trustees (including a majority of the non-interested Trustees) may terminate this Agreement without penalty on like notice to the Trust provided, however, that this Agreement may not be terminated by the Adviser unless another investment advisory agreement has been approved by the Trust in accordance with the 1940 Act, or after six months’ written notice, whichever is earlier. This Agreement shall automatically terminate in the event of its assignment (as defined in the 1940 Act).
8. Reports
The Adviser shall report to the Trustees, or to any committee or officers of the Trust acting pursuant to the authority of the Trustees, at such times and in such detail as shall be reasonable and as the Trustees may deem appropriate in order to enable the Trustees to determine that the investment policies of the Trust are being observed and implemented and that the obligations of the Adviser under this Agreement are being fulfilled. Any investment program undertaken by the Adviser pursuant to this Agreement and any other activities undertaken by the Adviser on behalf of the Trust shall at all times be subject to any directives of the Trustees or any duly constituted committee or officer of the Trust acting pursuant to the authority of the Trustees.
The Adviser shall furnish all such information as may reasonably be necessary for the Trustees to evaluate the terms of this Agreement.
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9. Records
The Trust is responsible for maintaining and preserving for such period or periods as the Commission may prescribe by rules and regulations, such accounts, books and other documents that constitute the records forming the basis for all reports, including financial statements required to be filed pursuant to the 1940 Act and for the Trust’s auditor’s certification relating thereto. The Trust and the Adviser agree that in furtherance of the recordkeeping responsibilities of the Trust under Section 31 of the 1940 Act and the rules thereunder, the Adviser will maintain records and ledgers and will preserve such records in the form and for the period prescribed in Rule 31a-2 of the 1940 Act.
The Adviser and the Trust agree that all accounts, books and other records maintained and preserved by each as required hereby shall be subject at any time, and from time to time, to such reasonable periodic, special and other examinations by the Commission, the Trust’s auditors, the Trust or any representative of the Trust, or any governmental agency or other instrumentality having regulatory authority over the Trust. It is expressly understood and agreed that the books and records maintained by the Adviser shall, at all times, remain the property of the Trust.
10. Liability and Indemnification
In the absence of willful misfeasance, bad faith, gross negligence or reckless disregard of obligations or duties (“disabling conduct”) hereunder on the part of the Adviser (and its officers, directors, agents, employees, controlling persons, shareholders and any other person or entity affiliated with Adviser), Adviser shall not be subject to liability to the Trust or to any shareholder of the Trust for any act or omission in the course of, or connected with, rendering services hereunder including, without limitation, any error of judgment or mistake of law or for any loss suffered by any of them in connection with the matters to which this Agreement relates, except to the extent specified in Section 36(b) of the 1940 Act concerning loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services. Except for such disabling conduct or liability incurred under Section 36(b) of the 1940 Act, the Trust shall indemnify Adviser (and its officers, directors, agents, employees, controlling persons, shareholders and any other person or entity affiliated with Adviser) from any liability arising from Adviser’s conduct under this Agreement.
Indemnification to Adviser or any of its personnel or affiliates shall be made when (i) a final decision on the merits is rendered by a court or other body before whom the proceeding was brought, that the person to be indemnified was not liable by reason of disabling conduct or Section 36(b) or, (ii) in the absence of such a decision, a reasonable determination, based upon a review of the facts, that the person to be indemnified was not liable by reason of disabling conduct, by (a) the vote of a majority of a quorum of Trustees who are neither “interested persons” of the Trust as defined in Section 2(a)(19) of the 1940 Act nor parties to the proceeding (“disinterested, non-party Trustees”), or (b) an independent legal counsel in a written opinion. The Trust may, by vote of a majority of the disinterested, non-party Trustees, advance attorneys’ fees or other expenses incurred by officers, Trustees, investment advisers or principal underwriters, in defending a proceeding upon the undertaking by or on behalf of the person to be indemnified to repay the advance unless it is ultimately determined that such person is entitled to indemnification. Such advance shall be subject to at least one of the following: (1) the person to be indemnified shall provide a security for the undertaking, (2) the Trust shall be insured against losses arising by reason of any lawful advances, or (3) a majority of a quorum of the disinterested, non-party Trustees, or an independent legal counsel in a written opinion shall determine, based on a review of readily available facts, that there is reason to believe that the person to be indemnified ultimately will be found entitled to indemnification.
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11. Miscellaneous
Anything herein to the contrary notwithstanding, this Agreement shall not be construed to require, or to impose any duty upon either of the parties, to do anything in violation of any applicable laws or regulations.
A copy of the Declaration of Trust of the Trust is on file with the Secretary of the Commonwealth of Massachusetts, and notice is hereby given that this instrument is executed on behalf of the Trustees as Trustees, and is not binding upon any of the Trustees, officers, or shareholders of the Trust individually but binding only upon the assets and property of the Trust. With respect to any claim by the Adviser for recovery of that portion of the investment management fee (or any other liability of the Trust arising hereunder) allocated to the Trust, whether in accordance with the express terms hereof or otherwise, the Adviser shall have recourse solely against the assets of the Trust to satisfy such claim.
In Witness Whereof, the Trust and the Adviser have caused this Agreement to be executed by their duly authorized officers as of August 31, 2023, effective September 30, 2023.
| Attest: | Xxxxxxx Credit Opportunities Fund | ||||
| /s/ Xxxxx X. Xxxxxx | /s/ Xxxxxxx X. Xxxxxx | ||||
| By: | By: | ||||
| Xxxxx X. Xxxxxx | Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Assistant Secretary | ||||
| Attest: | Xxxxxxx National Asset Management, LLC | ||||
| /s/ Xxxxx X. Xxxxxx | /s/ Xxxx X. Xxxxx | ||||
| By: | By: | ||||
| Xxxxx X. Xxxxxx | Name: | Xxxx X. Xxxxx | |||
| Title: | President and CEO | ||||
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Schedule A
Dated September 30, 2023
(Compensation)
| Assets | Advisory Fee |
| $0 to $1 billion | 1.60% |
| Over $1 billion | 1.55% |
A-1
