FORM OF INVESTMENT SUB-ADVISORY AGREEMENT BY AND AMONG FS CREDIT INCOME FUND, FS CREDIT INCOME ADVISOR, LLC AND GOLDENTREE ASSET MANAGEMENT CREDIT ADVISOR LLC
Exhibit (g)(2)
FORM OF
INVESTMENT SUB-ADVISORY AGREEMENT
BY AND AMONG
FS CREDIT INCOME ADVISOR, LLC
AND
GOLDENTREE ASSET MANAGEMENT CREDIT ADVISOR LLC
THIS INVESTMENT SUB-ADVISORY AGREEMENT (“Agreement”) made this [ ] day of [ ], 2017, by and among FS CREDIT INCOME ADVISOR, LLC, a Delaware limited liability company (the “Adviser”), FS CREDIT INCOME FUND, a Delaware statutory trust (the “Fund”), and GOLDENTREE ASSET MANAGEMENT CREDIT ADVISOR LLC, a Delaware limited liability company (the “Sub-Adviser”).
WHEREAS, the Adviser and the Sub-Adviser are investment advisers that are or will be registered under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and engage in the business of providing investment management services; and
WHEREAS, the Adviser has been retained to act as the investment adviser to the Fund, a closed-end management investment company registered under the Investment Company Act of 1940, as amended (the “1940 Act”), pursuant to an Investment Advisory Agreement, dated [ ], 2017 (the “Advisory Agreement”), a copy of which is attached hereto as Exhibit A; and
WHEREAS, the Advisory Agreement permits the Adviser, subject to the supervision and direction of the Fund’s board of trustees (the “Board”), to delegate certain of its duties thereunder to other investment advisers, subject to the requirements of the 1940 Act; and
WHEREAS, the Adviser desires to retain the Sub-Adviser to assist it in fulfilling certain of its obligations under the Advisory Agreement, and the Sub-Adviser is willing to render such services subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the parties hereby agree as follows:
| 1. | Duties of the Sub-Adviser. |
(a) Retention of Sub-Adviser. The Adviser hereby engages the Sub-Adviser to assist the Adviser in managing the investment and reinvestment of the assets of the Fund, subject to the terms set forth herein and subject to the supervision of the Adviser and the Board.
(b) Responsibilities of Sub-Adviser. Without limiting the generality of the foregoing, the Sub-Adviser shall, during the term and subject to the provisions of this Agreement and the supervision of the Adviser and Board:
| (i) | within the parameters of the Fund’s investment guidelines, determine the composition and allocation of the portfolio of the Fund, the nature and timing of the changes therein and the manner of implementing such changes; |
| (ii) | determine the specific securities and other assets to be purchased, retained, or sold by the Fund; |
| (iii) | within the parameters of the Fund’s investment guidelines, assist in the determination of what portion of the Fund’s asset shall be held uninvested; |
| (iv) | place orders with respect to, and arrange for, any investment (including executing and delivering all documents relating to the Fund’s investments on behalf of the Fund); |
| (v) | identify, evaluate and, if applicable, negotiate the structure of the investments made by the Fund; |
| (vi) | assist the Adviser in monitoring and servicing the Fund’s investments; |
| (vii) | perform due diligence on prospective portfolio companies; |
| (viii) | assist the Adviser in negotiating, obtaining and managing financing facilities for the benefit of the Fund or its subsidiaries; |
| (ix) | provide such information to the Fund and the Adviser as the Fund or the Adviser deems reasonably necessary for the Fund and the Adviser to (A) comply with the 1940 Act and the rules and regulations thereunder (including, but not limited to, quarterly certifications pursuant to Rule 17j-1 under the 1940 Act), and (B) maintain a current and/or effective private placement memorandum, prospectus and/or registration statement under the Securities Act and the 1940 Act that complies with the requirements of the Securities Act, the 1940 Act and/or the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated under each; |
| (x) | maintain books and records with respect to the Fund’s securities transactions and render to the Adviser and the Board such periodic and special reports with respect thereto as they may reasonably request; provided that in no case shall the Sub-Adviser be required to disclose Information1 relating to the details of its proprietary investment and trading strategies (collectively, the “Investment Strategies”), provided, further, this shall not in any way limit the Adviser and the Board from obtaining Information relating to the generalized concepts and ideas relating to the Investment Strategies2; |
| 1 | “Information” includes any and all non-public, proprietary or confidential information concerning the business of the disclosing parties and/or their affiliates or investors, or potential investors, therein obtained, including, without limitation, portfolio information and reports, certifications, and other non-public information provided by the parties pursuant to this Agreement. |
| 2 | The Adviser agrees and acknowledges that the Investment Strategies are Information of the Sub-Adviser and are subject to protection as a trade secret (among others). The Adviser shall not reverse engineer, disassemble, decompile or translate the Investment Strategies or otherwise attempt to derive the underlying quantitative models or methodologies of the Investment Strategies. |
| (xi) | report to the Adviser and to the Board and provide such information, and make appropriate persons available for the purpose of reviewing with representatives of the Adviser and the Board on a regular basis at reasonable times its activities hereunder, including without limitation, review of the general investment strategies of the Fund, the performance of the Fund in relation to standard industry indices, stock market and interest rate considerations and general conditions affecting the marketplace, and the placement and execution of portfolio transactions and provide various other reports and information from time to time as reasonably requested by the Adviser or the Board; |
| (xii) | act upon reasonable instructions from the Adviser which, in the reasonable determination of the Sub-Adviser, are not inconsistent with the Sub-Adviser’s fiduciary duties under this Agreement or the Fund’s investment guidelines; and |
| (xiii) | provide the Adviser with such other research and related services as the Adviser may, from time to time, reasonably require for the Adviser to manage the Fund. |
The Adviser will retain ultimate responsibility for maintaining the investment program for the Fund, and the Adviser and the Sub-Adviser shall be jointly responsible for the development of investment guidelines with respect thereto, including the review and modification (if necessary) of such guidelines. Except as otherwise agreed by the parties in writing, the Sub-Adviser shall be required to provide only the services expressly described in this Section 1(b), and shall have no responsibility to provide any other services to the Adviser or the Fund, including, but not limited to, administrative, management or other similar services.
(c) Acceptance of Engagement. The Sub-Adviser hereby agrees during the term hereof to render the services described herein for the compensation provided herein, subject to the limitations contained herein. The Sub-Adviser shall carry out its responsibilities under this Agreement in compliance with: (i) the Fund’s investment objectives, policies and restrictions set forth in the Fund’s registration statement and prospectus, as agreed upon by the Adviser and the Sub-Adviser, so long as not inconsistent with the Fund’s investment guidelines; (ii) such policies, directives, regulatory restrictions and compliance policies as the Adviser may from time to time establish or issue and communicate to the Sub-Adviser in writing; and (iii) applicable law and related regulations. The Adviser shall promptly notify the Sub-Adviser in writing of changes to (ii) above. In no event shall the Sub-Adviser be held responsible for failing to comply with changes to (ii) above unless it had previously received the written notification in the foregoing sentence.
(d) Independent Contractor Status. The Sub-Adviser shall, for all purposes herein provided, be deemed to be an independent contractor and, except as expressly provided or authorized herein, shall have no authority to act for or represent the Adviser or the Fund in any way or otherwise be deemed an agent of the Adviser or the Fund.
(e) Brokerage Commissions. Subject to the Sub-Adviser’s duties set forth in this Section 1, and the limitations contained herein, the Sub-Adviser is hereby authorized, to the fullest extent now or hereafter permitted by law, to cause the Fund to pay a member of a national securities exchange, broker or dealer an amount of commission for effecting a securities transaction in excess of the amount of
commission another member of such exchange, broker or dealer would have charged for effecting that transaction, if the Sub-Adviser determines in good faith, taking into account such factors as price (including the applicable brokerage commission or dealer spread), size of order, difficulty of execution, and operational facilities of the firm and the firm’s risk and skill in positioning blocks of securities, that such amount of commission is reasonable in relation to the value of the brokerage and/or research services provided by such member, broker or dealer, viewed in terms of either that particular transaction or its overall responsibilities with respect to the Fund’s portfolio, and constitutes the best net results for the Fund.
(f) Voting of Proxies. The Adviser hereby delegates to the Sub-Adviser the Adviser’s discretionary authority to exercise voting rights with respect to the securities and other assets of the Fund (the “Sub-Adviser Assets”) and authorizes the Sub-Adviser to delegate further such discretionary authority to a designee identified in a notice given to the Fund and the Adviser. The Sub-Adviser, including without limitation its designee, shall have the power to vote, either in person or by proxy, all securities and other investments in which the Sub-Adviser Assets may be invested from time to time, and shall not be required to seek or take instructions from, the Adviser or the Fund or take any action with respect thereto. Such authorization shall include the ability to exercise authority with regard to corporate actions affecting investments in the Sub-Adviser Assets.
The Sub-Adviser has established a written procedure for proxy voting in compliance with current applicable rules and regulations, including but not limited to Rule 30b1-4 under the 1940 Act. The Sub-Adviser will provide the Adviser, or its designee, a copy of such procedure and establish a process for the timely distribution of the Sub-Adviser’s voting record with respect to the Fund’s securities and other information necessary for the Fund to complete information required by Form N-2 under the 1940 Act and the Securities Act of 1933, as amended, Form N-PX under the 1940 Act, and Form N-CSR under the Xxxxxxxx-Xxxxx Act of 2002, as amended, respectively.
(g) Power and Authority. To facilitate the Sub-Adviser’s performance of its responsibilities, but subject to the restrictions contained herein, the Adviser, on behalf of the Fund, hereby delegates to the Sub-Adviser, and the Sub-Adviser hereby accepts, the power and authority to act on behalf of the Fund to effectuate investment decisions for the Fund, including the execution and delivery of all documents relating to the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and the transfer of cash and other assets to facilitate the arrangement of the Fund’s investments. If the Sub-Adviser deems it necessary or advisable to make, through a special purpose vehicle, any investment it is permitted hereunder to make on behalf of the Fund, then the Sub-Adviser shall have authority to create, or arrange for the creation of, such special purpose vehicle and to make such investment through such special purpose vehicle. The Adviser, on behalf of the Fund, but subject to the restrictions contained herein, also grants to the Sub-Adviser the power and authority to engage in all activities and transactions (and anything incidental thereto) that the Sub-Adviser reasonably deems appropriate, necessary or advisable to carry out its duties pursuant to this Agreement. Any such actions taken by the Sub-Adviser on behalf of the Fund shall be in the name of the Fund.
| 2. | Expenses. |
Except as provided below in this Section 2 or as otherwise agreed by the parties in writing, the Sub-Adviser assumes no obligation with respect to, and shall not be responsible for, the expenses of the Adviser or the Fund in fulfilling the Sub-Adviser’s obligations hereunder.
During the term of this Agreement, the Sub-Adviser shall pay all expenses incurred by it in connection with the activities it undertakes to meet its obligations hereunder. The Sub-Adviser shall, at its sole expense, employ or associate itself with such persons as it reasonably believes will assist it in the execution of its duties under this Agreement, including without limitation, persons employed or otherwise
retained by the Sub-Adviser or made available to the Sub-Adviser by its members or affiliates. The Fund shall reimburse the Sub-Adviser for expenses reasonably incurred by the Sub-Adviser at the written request of the Adviser or on behalf of the Fund or the Adviser, to the same extent as such expenses would be reimbursable by the Fund to the Adviser and on a pro rata basis therewith pursuant to Section 2 of that certain Administration Agreement between the Fund and the Adviser, dated [ ] [ ], 2017 (as the same may be amended from time to time, the “Administration Agreement”), had such expenses been incurred by the Adviser (“Sub-Adviser Admin Expenses”); provided, however, that the Sub-Adviser shall not be entitled to any such reimbursements of Sub-Adviser Admin Expenses that would constitute “ordinary operating expenses” (as defined in the Expense Limitation Agreement between the Adviser and the Fund, dated [ ], 2017 (the “Expense Limitation Agreement”)) of the Fund during any quarterly period in which the Adviser has waived and/or paid any of the Fund’s “ordinary operating expenses” in order to keep the Fund’s “ordinary operating expenses” from exceeding any applicable cap set forth in the Expense Limitation Agreement. Any such unreimbursed Sub-Adviser Admin Expenses shall be deferred and subject to repayment by the Fund to the same extent as if such Sub-Adviser Admin Expenses were “ordinary operating expenses” of the Fund that had been waived and/or paid by the Adviser pursuant to the Expense Limitation Agreement. The Sub-Adviser shall maintain and supply to the Fund and the Adviser, as they may reasonably request, reasonably detailed records of all Sub-Adviser Admin Expenses. For the avoidance of doubt, GoldenTree shall not be responsible for reimbursing the Fund, and shall have no liability for, any expenses that exceed the expense limitation set forth in the Expense Limitation Agreement.
| 3. | Compensation. |
(a) In consideration of the Sub-Adviser’s services hereunder, with respect to each Term Year (as defined below), the Adviser shall pay the Sub-Adviser a sub-advisory fee equal to 77.5 basis points (0.775%) of the Fund’s average daily gross assets (the “Sub-Advisory Fee”). The Sub-Advisory Fee shall be payable on a quarterly basis in arrears promptly following the time that the Base Management Fee (as defined in the Advisory Agreement) is paid or, if deferred or waived, would have been paid, to the Adviser pursuant to the Advisory Agreement.
(b) In the event that this Agreement is terminated other than at the end of a Term Year, the Sub-Advisory Fee payable to the Sub-Adviser shall be appropriately prorated.
For purposes of this Agreement, a “Term Year” shall mean each annual period beginning on the Effective Date (as defined in Section 9 hereof) or anniversary thereof, and ending on the day prior to the anniversary of the Effective Date.
| 4. | Representations, Warranties and Covenants of the Sub-Adviser. |
The Sub-Adviser represents and warrants to, and covenants with, the Adviser and the Fund as follows:
(a) The Sub-Adviser shall be registered as an investment adviser under the Advisers Act as of the Effective Date and shall maintain such registration;
(b) The Sub-Adviser is a limited liability company duly organized and validly existing under the laws of the State of Delaware with the power to own and possess its assets and carry on its business as it is now being conducted;
(c) The execution, delivery and performance by the Sub-Adviser of this Agreement are within the Sub-Adviser’s powers and have been duly authorized by all necessary action, and no further action by or in respect of, or filing with, any governmental body, agency or official is required on the part
of the Sub-Adviser for the execution, delivery and performance by the Sub-Adviser of this Agreement, and the execution, delivery and performance by the Sub-Adviser of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Sub-Adviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Sub-Adviser;
(d) In the event that the Sub-Adviser files Part 2 to its Form ADV with the U.S. Securities and Exchange Commission (the “SEC”) pursuant to Section 203(c) of the Advisers Act, the Sub-Adviser will promptly provide the Adviser and the Fund with a complete copy thereof;
(e) Upon written request of the Adviser or the Fund, the Sub-Adviser shall permit representatives of the Adviser or the Fund to examine the reports (or summaries of the reports) required to be made to the Sub-Adviser by Rule 17j-1(d)(1) and other records evidencing enforcement of the code of ethics;
(f) Solely with respect to information relating to the Sub-Adviser and as of the date of the applicable filing with the SEC: (A) the Fund’s registration statement on Form N-2, filed or to be filed with the SEC, does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) the Fund’s prospectus and/or private placement memorandum do not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(g) The Sub-Adviser shall comply in all material respects with all applicable provisions of Federal Securities Laws as defined in Rule 38a-1(e)(1) of the 1940 Act and rules and regulations of the SEC and, in addition, will conduct its activities under this Agreement in accordance with any applicable laws and regulations of any governmental authority pertaining to its investment advisory activities. The Sub-Adviser shall notify the Adviser of a change in control of the Sub-Adviser within a reasonable time before such change. The Sub-Adviser will also fully cooperate in any regulatory investigation, examination, or inspection of the Fund.
| 5. | Representations, Warranties and Covenants of the Adviser. |
The Adviser represents and warrants to, and covenants with, the Sub-Adviser and the Fund as follows:
(a) The Adviser shall be registered as an investment adviser under the Advisers Act as of the Effective Date and shall maintain such registration;
(b) The Adviser is a limited liability company duly organized and validly existing under the laws of the State of Delaware with the power to own and possess its assets and carry on its business as it is now being conducted;
(c) The execution, delivery and performance by the Adviser of this Agreement are within the Adviser’s powers and have been duly authorized by all necessary action, and no further action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Adviser for the execution, delivery and performance by the Adviser of this Agreement, and the execution, delivery and performance by the Adviser of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Adviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Adviser;
(d) The Adviser and the Fund have duly entered into the Advisory Agreement pursuant to which the Fund authorized the Adviser to enter into this Agreement;
(e) The Adviser shall comply in all material respects with all applicable provisions of Federal Securities Laws as defined in Rule 38a-1(e)(1) of the 1940 Act and rules and regulations of the SEC and, in addition, will conduct its activities under this Agreement in accordance with any applicable laws and regulations of any governmental authority pertaining to its investment advisory activities. The Adviser shall notify the Sub-Adviser of a change in control of the Adviser within a reasonable time after such change. The Adviser will also fully cooperate in any regulatory investigation, examination, or inspection of the Fund.
| 6. | Survival of Representations and Warranties; Duty to Update Information. |
(a) All representations and warranties made by the Sub-Adviser and the Adviser pursuant to Sections 4 and 5, respectively, shall survive for the duration of this Agreement and the parties hereto shall promptly notify each other in writing upon becoming aware that any of the foregoing representations and warranties are no longer true in any material respect.
(b) The Sub-Adviser shall promptly notify the Fund and the Adviser in writing:
| (i) | upon receiving notice that a governmental authority, agency or body intends to investigate it or any of its directors, officers or employees in connection with its investment activities, including any routine examination or proceeding in the ordinary course of business (any such matter, an “Investigation), to the extent that such Investigation is reasonably likely to adversely impact the Fund or the Sub-Adviser’s ability to perform its services hereunder; |
| (ii) | of any change in the portfolio managers of the Sub-Adviser providing services to the Fund hereunder; and |
| (iii) | of any prospective material change in approach to the Sub-Adviser’s management of and recommendations with respect to the Fund’s assets that are inconsistent in any material respect with the Fund’s investment guidelines. |
| (iv) | of any other change in the Sub-Adviser’s business activities or circumstances that could reasonably be expected to materially adversely affect the Sub-Adviser’s ability to discharge its obligations under this Agreement; and |
| (v) | of the execution of a definitive agreement that provides for a change in ownership of the Sub-Adviser or its affiliates constituting, or that would reasonably be expected to constitute, an “assignment” of this Agreement for purposes of the 1940 Act. |
| 7. | Liability and Indemnification. |
(a) The duties of the Sub-Adviser shall be confined to those expressly set forth herein. The Sub-Adviser (and its officers, managers, partners, members (and their members, including the owners of their members), agents, employees, controlling persons and any other person or entity affiliated with the Sub-Adviser) shall not be liable for any action taken or omitted to be taken by the Sub-Adviser or such other person in connection with the performance of any of its duties or obligations hereunder, except to the extent 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, except as may otherwise
be provided under provisions of applicable state law which cannot be waived or modified hereby. As used in this Section 7(a), the term “Sub-Adviser” shall include, without limitation, the Sub-Adviser’s affiliates and the Sub-Adviser’s and its affiliates’ respective partners, shareholders, directors, members, principals, officers, employees and other agents of the Sub-Adviser.
(b) The Sub-Adviser shall indemnify the Adviser and the Fund (and their officers, managers, partners, members (and their members, including the owners of their members), agents, employees, controlling persons and any other person or entity affiliated with the Adviser and the Fund), for any liability, losses, damages, costs and expenses, including reasonable attorneys’ fees and amounts reasonably paid in settlement (“Losses”), arising from, or in connection with, the Sub-Adviser’s willful misfeasance, bad faith or gross negligence in the performance of its duties, or by reason of reckless disregard of the performance of its obligations under this Agreement.
(c) (i) Except as set forth in clause (ii), the Fund shall indemnify the Sub-Adviser (and its officers, managers, partners, members (and their members, including the owners of their members), agents, employees, controlling persons and any other person or entity affiliated with the Sub-Adviser) (collectively, the “Indemnified Parties”), for any Losses, howsoever arising from, or in connection with, the Sub-Adviser’s performance of its obligations under this Agreement and (ii) the Adviser shall indemnify the Indemnified Parties for any Losses arising from, or in connection with, the Adviser’s willful misfeasance, bad faith or gross negligence in the performance of its duties, or by reason of reckless disregard of the performance of its obligations under this Agreement or the Advisory Agreement; provided, however, that in the case of clauses (i) and (ii) the Sub-Adviser shall not be indemnified for any Losses that may be sustained as a result of the Sub-Adviser’s 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.
(d) The Fund and the Adviser, as the case may be, may make advance payments in connection with the expenses of defending any action with respect to which indemnification might be sought hereunder if the Fund or the Adviser, as applicable, receives a written affirmation of the Indemnified Party’s good faith belief that the standard of conduct necessary for indemnification has been met and a written undertaking to reimburse the Fund or the Adviser, as applicable, unless it is subsequently determined that such Indemnified Party is entitled to such indemnification and if the Trustees of the Fund determine that the facts then known to them would not preclude indemnification. In addition, at least one of the following conditions must be met: (A) the Indemnified Party shall provide security for such Indemnified Party’s undertaking, (B) the Fund or the Adviser, as applicable, shall be insured against losses arising by reason of any unlawful advance, or (C) a majority of a quorum consisting of Trustees of the Fund who are neither “interested persons” of the Fund (as such term is defined in Section 2(a)(19) of the Investment Company Act) nor parties to the proceeding (“Disinterested Party Trustees”) or an independent legal counsel in a written opinion, shall determine, based on a review of readily available facts (as opposed to a full-trial type inquiry), that there is reason to believe that the Indemnified Party ultimately will be found entitled to indemnification. All determinations with respect to the standards for indemnification hereunder shall be made (1) by a final decision on the merits by a court or other body before whom the proceeding was brought that such Indemnified Party is not liable or is not liable by reason of disabling conduct, or (2) in the absence of such a decision, by (i) a majority vote of a quorum of the Disinterested Non-Party Trustees of the Fund, or (ii) if such a quorum is not obtainable or, even if obtainable, if a majority vote of such quorum so directs, independent legal counsel in a written opinion. All determinations that advance payments in connection with the expense of defending any proceeding shall be authorized and shall be made in accordance with the immediately preceding paragraph. The rights accruing to any Indemnified Party under these provisions shall not exclude any other right to which such Indemnified Party may be lawfully entitled.
| 8. | Confidentiality |
The non-disclosure agreement (“Confidentiality Agreement”) previously entered into between the parties is attached hereto as Schedule [ ] and is incorporated herein by reference. The Confidentiality Agreement will remain in effect throughout the term of this Agreement, and each party will abide by all of the provisions set forth therein.
| 9. | Responsibility of Dual Directors, Officers and/or Employees |
If any person who is a director, officer, equityholder or employee of the Sub-Adviser or its affiliates is or becomes a director, officer, equityholder and/or employee of the Fund and acts as such in any business of the Fund, then such director, officer, equityholder and/or employee of the Sub-Adviser or its affiliates shall be deemed to be acting in such capacity solely for the Fund, and not as a director, officer, equityholder or employee of the Sub-Adviser or its affiliates or under the control or direction of the Sub-Adviser or its affiliates, even if paid by the Sub-Adviser.
| 10. | Duration and Termination of Agreement. |
(a) Term and Effectiveness. This Agreement shall become effective as of the date of the initial closing at which the Fund issues common shares of beneficial interest of the Fund to multiple shareholders (the “Effective Date”). This Agreement shall remain in effect for two years from the Effective Date, and thereafter shall continue automatically for successive annual periods, provided that such continuance is specifically approved at least annually by (i) the vote of the Board, or by the vote of a “majority of the outstanding voting securities” (as such term is defined in Section 2(a)(42) of the 0000 Xxx) of the Fund and (ii) the vote of a majority of the Fund’s trustees who are not parties to this Agreement or “interested persons” (as such term is defined in Section 2(a)(19) of the 0000 Xxx) of any such party, in accordance with the requirements of the 1940 Act.
(b) Termination. This Agreement may be terminated at any time, without the payment of any penalty, upon 60 days’ written notice, by (i) the Adviser, if the Board or a “majority of the outstanding voting securities” (as such term is defined in Section 2(a)(42) of the 0000 Xxx) of the Fund determine that this Agreement should be terminated, or (ii) the Sub-Adviser. This Agreement shall automatically terminate in the event of (1) its “assignment” (as such term is defined for purposes of Section 15(a)(4) of the 0000 Xxx) or (2) the termination of the Advisory Agreement.
(c) Effect of Termination.
(i) In the event that (x) this Agreement expires as a result of a failure for its continuation to be approved in accordance with Section 9(a) other than for Cause (as defined below) or is terminated pursuant to Section 9(b)(i) other than for Cause, (y) the Adviser or its affiliate continues to serve as an investment adviser to the Fund and retains a third party that is not an affiliate of the Sub-Adviser to serve as an investment sub-adviser to the Fund (the “Successor Sub-Adviser”), and (z) the ratio of the Successor Sub-Adviser Fee (as defined below) to the New Management Fee (as defined below) is less than the ratio of the Existing Sub-Advisory Fee (as defined below) to the Existing Management Fee (as defined below) (such ratio being 44.2857% as of the date of this Agreement), the Adviser shall, in consideration of the efforts of the Sub-Adviser in assisting in the initial structuring and development of the Fund, make a payment (the “Make-Whole Payment”) to the Sub-Adviser as follows:
(A) If the New Management Fee is less than the Existing Management Fee, the Make Whole Amount will be equal to the average daily gross assets times two times the difference between (x) the product of (1) the ratio of the Existing Sub-Advisory Fee to the Existing Management Fee, multiplied by (2) the New Management Fee (such
amount, the “Pro-Forma GT Fee”), and (y) the Successor Sub-Adviser Fee. For example, if the New Management Fee is 1.00% per annum and the Successor Sub-Adviser Fee is 0.40% per annum, the Make-Whole Payment would be equal to the average daily gross assets times two times the difference between (x) the product of (1) the ratio of 0.775% to 1.75%, which is 44.2857%, multiplied by (2) 1.00%, which is 0.442857%, and (y) 0.40%. Such Make-Whole Payment would be the average daily gross assets times 0.085714% per annum.
(B) If the New Management Fee is equal to the Existing Management Fee, the Make Whole Amount will be equal to average daily gross assets times the difference between (x) the Existing Sub-Advisory Fee and (y) the Successor Sub-Adviser Fee. For example, if the New Management Fee is equal to the Existing Management Fee of 1.75% per annum, and the Successor Sub-Adviser Fee is 0.40% per annum, the Make-Whole Payment would be equal to the average daily gross assets times the difference between (x) 0.775% and (y) 0.40%. Such Make-Whole Payment would be the average daily gross assets times 0.375% per annum.
In the event that a Make Whole Payment is required pursuant to this Section, such payment will occur for (i) twelve (12) months, in the case where the Sub-Adviser is terminated within three (3) years of the Fund’s initial registration statement becoming effective with the SEC, or (ii) twenty-four (24) months, in the case where the Sub-Adviser is terminated in any period thereafter. The Make Whole Payment shall be payable on a quarterly basis in arrears at the same time that the Base Management Fee is paid or, if deferred or waived, would have been paid to the Adviser pursuant to the Advisory Agreement. Notwithstanding the foregoing, no Make Whole Payment shall be payable by the Adviser or its affiliates to the Sub-Adviser under any circumstances twenty-four (24) months following termination of this Agreement.
For purposes of the foregoing:
“Cause” means any of the following: (1) fraud, criminal conduct, willful misconduct or breach of fiduciary duty by the Sub-Adviser in connection with the performance of its obligations under this Agreement (or otherwise under the 1940 Act with respect to the Sub-Adviser’s relationship with the Fund), (2) a material breach of this Agreement by the Sub-Adviser or (3) a material failure by the Sub-Adviser to dedicate the personnel and financial resources necessary to effectively manage the Fund or perform its duties and obligations under this Agreement, in each case of (1), (2) and (3), determined solely by the Board, including a majority of the Independent Directors; and, in the case of either (2) or (3) that, after receipt of notice from the Adviser, remains uncured after thirty (30) days, to the extent curable.
“Existing Management Fee” means the Base Management Fee, which is 1.75% per annum, payable pursuant to the Advisory Agreement in effect as of the date of the termination of this Agreement.
“Existing Sub-Adviser Fee” means the Sub-Advisory Fee, which is 0.775% per annum, payable to the Sub-Adviser hereunder as of the date of the termination of this Agreement.
“New Management Fee” means the base management fee payable by the Fund to the Adviser (as it may be increased or decreased from time to time) following the date of the termination of this Agreement.
“Successor Sub-Adviser Fee” means the sub-advisory fee payable to the Successor Sub-Adviser (as it may be increased or decreased from time to time) following the date of the termination of this Agreement.
(ii) The provisions of Section 7, Section 8, this Section 10 and Section 15 of this Agreement shall remain in full force and effect, and the Adviser and the Sub-Adviser shall remain entitled
to the benefits thereof, notwithstanding any termination of this Agreement. Notwithstanding any termination of this Agreement for any reason, the Sub-Adviser shall be entitled to receive all amounts payable to it and not yet paid pursuant to Section 2, 3 and 10 (including any accrued but unreimbursed expenses, payable to it and not yet paid).
| 11. | Services Not Exclusive. |
Nothing in this Agreement shall prevent the Sub-Adviser or any member, manager, officer, employee, agent or other affiliate thereof from acting as investment adviser for any other person, firm or corporation, or from engaging in any other lawful activity, and shall not in any way limit or restrict the Sub-Adviser or any of its members, managers, officers, employees, agents or other affiliates from buying, selling or trading any securities for its or their own accounts or for the accounts of others for whom it or they may be acting. For the avoidance of doubt, the Adviser and the Sub-Adviser (or either of their respective affiliates) may enter into one or more agreements pursuant to which the Sub-Adviser and/or its affiliates and their personnel may be restricted in their investment management activities. The Sub-Adviser or any member, manager, officer, employee, agent or other affiliate thereof may allocate their time between advising the Fund and managing other investment activities and business activities in which they may be involved.
| 12. | Use of Name. |
In connection with the Fund’s (a) public filings, (b) requests for information from state and federal regulators, (c) offering materials and marketing materials and (d) press releases (the materials listed in (a) through (d), the “Fund Materials”), the Fund may state in such materials that investment advisory services are being provided by the Sub-Adviser to the Fund under the terms of this Agreement. The Sub-Adviser hereby grants a non-exclusive, non-transferable, and non-sublicensable license to the Fund for the use of the name “GoldenTree,” and the related rights and trademarks owned by the Sub-Adviser and its affiliates (the “Brand”), solely as permitted in the foregoing sentence. Prior to using the Brand in any manner (including in the Fund Materials), the Fund or the Adviser, as applicable, shall submit all proposed uses to the Sub-Adviser for prior written approval, unless the general form and scope of such use have been previously reviewed and approved by the Sub-Adviser (which approval shall not be unreasonably withheld, conditioned or delayed). The Adviser agrees to control the use of such Brand in accordance with the standards and policies as established between the Adviser and the Sub-Adviser. The Sub-Adviser reserves the right to terminate this license immediately upon written notice for any reason, including if the usage is not in compliance with the standards and policies. Notwithstanding the foregoing, the term of the license granted under this Section shall be for the term of this Agreement only, including renewals and extensions, and the right to use the Brand as provided herein shall terminate immediately upon the termination of this Agreement or the investment sub-advisory relationship between the Adviser and the Sub-Adviser. The Fund and the Adviser each agree that the Sub-Adviser is the sole owner of the Brand, and any and all goodwill in the Brand arising from the Fund’s use shall inure solely to the benefit of the Sub-Adviser.
| 13. | Notices. |
Any notice under this Agreement shall be given in writing, addressed and delivered or mailed, postage prepaid, to the other party at its principal office.
| 14. | Amendments. |
This Agreement may be amended by mutual consent of the parties, subject to the requirements of applicable law.
| 15. | Governing Law. |
Notwithstanding the place where this Agreement may be executed by any of the parties hereto, this Agreement shall be construed in accordance with the laws of the State of Delaware. For so long as the Fund is registered under the 1940 Act, this Agreement shall also be construed in accordance with the applicable provisions of the 1940 Act. In such case, to the extent the applicable laws of the State of Delaware, or any of the provisions herein, conflict with the provisions of the 1940 Act, the latter shall control.
| 16. | Severability. |
If any provision 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 and shall be interpreted to give maximum effect to the intent of the parties manifested thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the date above written.
| FS CREDIT INCOME ADVISOR, LLC | ||
| By: | ||
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Chief Executive Officer |
| By: | ||
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Chief Executive Officer |
| GOLDENTREE ASSET MANAGEMENT CREDIT ADVISOR LLC | ||
| By: | ||
| Name: | ||
| Title: |
EXHIBIT A
Advisory Agreement
