INVESTMENT ADVISORY AGREEMENT
Exhibit (g)
THIS INVESTMENT ADVISORY AGREEMENT (the “Agreement”) is made as of the 14th day of December, 2018, by and between 1WS Credit Income Fund, a Delaware statutory trust (the “Fund”), and 1WS Capital Advisors, LLC, a Delaware limited liability
company (the “Investment Adviser”).
WHEREAS, the Fund engages in business as a closed-end, non-diversified management investment company and is registered as such under the
Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS, the Fund desires to retain the Investment Adviser to furnish investment advisory services to the Fund and to provide certain
management and administrative services to the Fund and the Investment Adviser desires to be retained to provide such services;
NOW, THEREFORE, in consideration of the terms and conditions hereinafter contained, the Fund and the Investment Adviser agree as follows:
1. The Fund hereby retains the Investment Adviser:
(a) to
act as investment adviser to the Fund and, subject to the oversight of the Board of Trustees of the Fund (the “Board”), to develop and implement the Fund’s investment program, to manage the Fund’s investment portfolio and make all decisions
regarding the purchase and sale of investments for the Fund, and to provide various management and administrative services to the Fund as hereinafter set forth. Without limiting the generality of the foregoing, the Investment Adviser shall: obtain
and evaluate such information and advice relating to the economy, securities markets, and securities and other instruments as it deems necessary or useful to discharge its duties hereunder; continuously manage the assets of the Fund in a manner
consistent with the investment objective, policies and restrictions of the Fund, as set forth in the Fund’s Prospectus and Statement of Additional Information and as may be adopted from time to time by the Board, and applicable laws and
regulations; determine the securities and other instruments to be purchased, sold or otherwise disposed of by the Fund and the timing of such purchases, sales and dispositions; and take such further action, including the placing of purchase and
sale orders and the voting of securities on behalf of the Fund, as the Investment Adviser shall deem necessary or appropriate; and
(b) to
assist in the selection of and the negotiation of agreements with, and monitor the quality of services provided by, the Fund’s administrator, custodian, transfer agent, and other organizations that provide services to the Fund (but the Fund shall
pay the fees and expenses of the administrator, custodian and transfer agent and such other organizations and the Investment Adviser shall not be responsible for the acts or omissions of such service providers). The Investment Adviser shall also
provide such additional management and administrative services as may reasonably be required in connection with the business affairs and operations of the Fund beyond those furnished by the Fund’s administrator.
2. The Investment Adviser shall, in all matters, conduct the Fund’s investment program in a manner consistent with: (i) the provisions of the 1940 Act and the rules or regulations thereunder; (ii) other applicable provisions of Federal and state
law; (iii) the provisions of this Agreement and the Declaration of Trust of the Fund, as amended from time to time; (iv) the policies and determinations of the Board; (v) the investment policies and restrictions of the Fund as reflected in the
registration statement of the Fund under the 1940 Act, as such policies may, from time to time, be amended; and (vi) the Prospectus and Statement of Additional Information of the Fund, as the same may be amended from time to time. The appropriate
officers and employees of the Investment Adviser shall be available upon reasonable notice for consultation with the Board with respect to any matters dealing with the business and affairs of the Fund.
3. Provided that the Fund shall not be required to pay any compensation to the Investment Adviser for the services to be provided hereunder other than as provided by the terms of this Agreement, the Investment Adviser is authorized: (i) to
obtain investment information, research or assistance from any other person, firm or corporation to supplement, update or otherwise assist the Investment Adviser in providing investment management services; (ii) utilize personnel of affiliates of
the Investment Adviser, including its managing member, in providing services hereunder; and (iii) to enter into investment sub-advisory agreements with any registered investment adviser (a “Sub-Adviser”), subject to such approvals of the Board
and/or shareholders of the Fund (“Shareholders”) as may be required to comply with applicable provisions of the 1940 Act, delegating any or all of the investment advisory services required to be provided by the Investment Adviser under Section 1(a)
hereof, subject to the supervision of the Investment Adviser.
4. The Investment Adviser shall provide the Fund with such office space, facilities, equipment, clerical help, and other personnel and services as the Fund shall reasonably require in the conduct of its business.
5. The Fund will, from time to time, furnish or otherwise make available to the Investment Adviser such financial reports, proxy statements, policies and procedures and other information relating to the business and affairs of the Fund as the
Investment Adviser may reasonably require in order to discharge its duties and obligations hereunder.
6. Without limiting the generality of Section 1 hereof, the Investment Adviser and, if applicable, a Sub-Adviser, shall be authorized to open, maintain and close
accounts in the name and on behalf of the Fund with brokers and dealers as it determines are appropriate; to select and place orders with brokers, dealers or other financial intermediaries for the execution, clearance or settlement of any
transactions on behalf of the Fund on such terms as the Investment Adviser (or such Sub-Adviser) considers appropriate and that are consistent with the policies of the Fund; and, subject to any policies adopted by the Board and to the provisions
of applicable law, to agree to the payment of such commissions, fees and other charges by the Fund as it shall deem reasonable under the circumstances taking into account all such factors as it deems relevant (including the quality of research
and other services made available to it even if such services are not for the exclusive benefit of the Fund and the cost of such services does not represent the lowest cost available) and shall be under no obligation to combine or arrange orders
so as to obtain reduced charges unless otherwise required under the federal securities laws. The Investment Adviser may, to the extent permitted by
law and subject to such procedures as may be adopted by the Board, use affiliates of the Investment Adviser, including its managing member or the Fund’s distributor(s) as brokers to effect the Fund’s securities transactions and the Fund may pay
such commissions to such brokers in such amounts as are permissible under applicable law.
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7. Fees; Expenses
(a) In
consideration for the provision by the Investment Adviser of its services hereunder and the Investment Adviser’s bearing of certain expenses, the Fund shall pay the Investment Adviser a management fee (the “Management Fee”) determined as set forth
in this Section 7.
(b) The
Management Fee shall be accrued daily and paid monthly in arrears within five business days after the end of the month and calculated at the annual rate of 1.50% of the daily Gross Assets (as defined in Section 7(c) below) of the Fund. In the event
that this Agreement becomes effective after the first day of a month or terminates prior to the last day of a month, the Management Fee payable for such month shall be pro-rated based on the number of days during such month this Agreement was in
effect.
For purposes of Sections 7(b), “Gross Assets” shall mean the total value of all assets of the Fund, prior to deducting
accrued debts, liabilities and obligations of the Fund, determined in accordance with the valuation and accounting policies and procedures of the Fund as from time to time in effect.
8. Unless specified in Section 9 or otherwise approved by the Board, the Investment Adviser is responsible for all costs and expenses associated with the provision of its services hereunder including, but not limited to: the cost of office
space, telephone service, heat, light, power and other utilities provided to the Fund; and the salaries of officers of the Fund, and the fees and expenses of the members of the Board of the Fund (the “Trustees”) who are also directors, officers or
employees of the Investment Adviser, or who are directors, officers or employees of any company affiliated with the Investment Adviser. The Investment Adviser shall, at its own expense, maintain such staff and employ or retain such personnel and
consult with such other persons as may be necessary to render the services required to be provided by the Investment Adviser or furnished to the Fund under this Agreement.
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9. Except as provided herein or in another agreement between the Fund and the Investment Adviser, the Fund shall bear all of its own expenses, including, but not limited to: all investment related expenses (e.g., costs and expenses directly
related to portfolio transactions and positions for the Fund’s account such as direct and indirect expenses associated with investments or prospective potential investments, transfer taxes and premiums, taxes withheld on foreign income, brokerage
commissions, commitment fees, debit balances and margin fees, borrowing charges on securities sold short, clearing and settlement charges, recordkeeping, interest expenses, dividends on securities sold but not yet purchased, investment-related
travel and lodging expenses and research-related expenses, other due diligence expenses, expenses of consultants, investment bankers and other experts); the Management Fee; the distribution and shareholder servicing fees (as set forth in the Fund’s
Prospectus); any non-investment related interest expense; organizational and offering expenses; the cost of effecting sales and repurchases of shares of the Fund; fees and disbursements of any attorneys and accountants engaged by or for the Fund
for any purpose; audit and tax preparation fees and expenses; taxes; administrative or transfer agent expenses and fees; custody and escrow fees and expenses; insurance costs; fees and expenses associated with marketing efforts; federal and any
state registration or notification fees; fees and travel-related expenses of members of the Board who are not employees of the Adviser or any affiliate of the Adviser; expenses related to the Fund’s compliance and reporting obligations under the
1940 Act and applicable federal and state securities laws, including compliance with The Xxxxxxxx-Xxxxx Act of 2002, as amended; costs for obtaining valuation/pricing information or data from third party pricing or valuation services; membership
fees for industry-related organizations; all costs and charges for equipment or services used in connection with the Fund’s website or communicating information regarding the Fund’s transactions among the Adviser and any custodian or other agent
engaged by the Fund; fees and expenses relating to software tools, programs or other technology (including risk management software, fees to risk management services providers, third-party software licensing, implementation, data management and
recovery services and custom development costs); research and market data (including news and quotation equipment and services, and any computer hardware and connectivity hardware (e.g., telephone and fiber optic lines) incorporated into the cost
of obtaining such research and market data); any costs associated with the retention of a chief compliance officer for the Fund that is not employed by the Investment Adviser and costs of any support services provided to the Fund’s chief compliance
officer; the costs of preparing, filing, printing and mailing shareholder and other reports and other communications, including quarterly repurchase offer correspondence or similar materials, to shareholders of the Fund; costs associated with the
use of any proxy solicitation service for the Fund; direct costs such as printing, mailing, long distance telephone and staff costs; any extraordinary Fund expenses, including, without limitation, costs incurred in connection with any claim,
litigation, arbitration, mediation, government investigation or similar proceeding and indemnification expenses, including as provided for in the Fund’s organizational documents; and such other expenses as may be approved from time to time by the
Board.
10. The
compensation provided to the Investment Adviser pursuant to Section 7 hereof shall be the entire compensation for the services provided to the Fund hereunder and the expenses assumed by the Investment Adviser under this Agreement.
11. The
Investment Adviser represents that it is duly organized in the State of Delaware as a limited liability company under the Delaware Limited Liability Company Act.
12. The
Investment Adviser will use its best efforts in the supervision and management of the investment activities of the Fund and in providing services hereunder, but in the absence of willful misconduct, bad faith, gross negligence or reckless disregard
of its obligations hereunder, the Investment Adviser, its managers, members, officers or employees and their respective affiliates, executors, heirs, assigns, successors and other legal representatives (collectively, “Affiliates”) shall not be
liable to the Fund for any error of judgment, for any mistake of law or for any act or omission by the Investment Adviser or any of its Affiliates or by any Sub-Adviser or for any loss suffered by the Fund.
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13. (a)
The Fund shall indemnify the Investment Adviser and its Affiliates (each an “Indemnified Person”) against any and all costs, losses, claims, damages or liabilities, joint or several, including, without limitation, reasonable attorneys’ fees and
disbursements, resulting in any way from the performance or non-performance of any Indemnified Person’s duties with respect to the Fund, except those resulting from the willful misconduct, bad faith or gross negligence of an Indemnified Person or
the Indemnified Person’s reckless disregard of such duties, and in the case of criminal proceedings, unless such Indemnified Person had reasonable cause to believe its actions were unlawful (collectively, “disabling conduct”). Indemnification shall
be made following: (i) a final decision on the merits by a court or other body before which the proceeding was brought that the Indemnified Person was not liable by reason of disabling conduct or (ii) a reasonable determination, based upon a review
of the facts and reached by (A) the vote of a majority of the Board who are not parties to the proceeding or (B) legal counsel selected by a vote of a majority of the Board in a written advice, that the Indemnified Person is entitled to
indemnification hereunder. The Fund shall advance to an Indemnified Person (to the extent that it has available assets and need not borrow to do so) reasonable attorneys’ fees and other costs and expenses incurred in connection with defense of any
action or proceeding arising out of such performance or non-performance. The Investment Adviser agrees, and each other Indemnified Person will agree as a condition to any such advance, that in the event the Indemnified Person receives any such
advance, the Indemnified Person shall reimburse the Fund for such fees, costs and expenses to the extent that it shall be determined that the Indemnified Person was not entitled to indemnification under this Section 13.
(b) Notwithstanding
any of the foregoing to the contrary, the provisions of this Section 13 shall not be construed so as to relieve the Indemnified Person of, or provide indemnification with respect to, any liability (including liability under Federal securities laws,
which, under certain circumstances, impose liability even on persons who act in good faith) to the extent (but only to the extent) that such liability may not be waived, limited or modified under applicable law or that such indemnification would be
in violation of applicable law, but shall be construed so as to effectuate the provisions of this Section 13 to the fullest extent permitted by law.
14. Nothing
contained in this Agreement shall prevent the Investment Adviser or any of its Affiliates from acting as investment adviser or manager for any other person, firm, fund, account, corporation or other entity and, except as required by applicable law
(including Rule 17j-1 under the 1940 Act), shall not in any way bind or restrict the Investment Adviser or any of its Affiliates from buying, selling or trading any securities or other investments for their own accounts or for the account of others
for whom they may be acting. Nothing in this Agreement shall limit or restrict the right of the Investment Adviser or any of its Affiliates to engage in any other business or to devote its, his or her time and attention in part to the management or
other aspects of any other business whether of a similar or dissimilar nature.
15. This
Agreement shall take effect on the date first set forth above (the “Effective Date”) and shall remain in effect for a period of two years from the Effective Date and shall continue in effect from year to year thereafter, provided that such
continuance is approved at least annually by the vote of a “majority of the outstanding voting securities” of the Fund, as defined by the 1940 Act and the rules thereunder, or by the Board; and provided that in either event such continuance is also
approved by a majority of the Trustees who are not “interested persons,” as defined by Section 2(a)(19) of the 1940 Act (the “Independent Trustees”), by vote cast in person at a meeting called for the purpose of voting on such approval. The Fund
may at any time, without payment of any penalty, terminate this Agreement upon sixty days’ prior written notice to the Investment Adviser, either by majority vote of the Board or by the vote of a “majority of the outstanding voting securities” of
the Fund (as defined by the 1940 Act and the rules thereunder). The Investment Adviser may at any time, without payment of penalty, terminate this Agreement upon sixty days’ prior written notice to the Fund. This Agreement shall automatically and
immediately terminate in the event of its “assignment,” as defined by the 1940 Act and the rules thereunder, by the Investment Adviser.
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16. Any
notice under this Agreement shall be given in writing and shall be 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.
17. This
Agreement may be amended only by the written agreement of the parties. Any amendment shall be required to be approved by the Board and by a majority of the Independent Trustees as and to the extent required by the provisions of Section 15(c) of the
1940 Act and the rules thereunder. If required by the 1940 Act, any amendment shall also be required to be approved by the vote of a “majority of the outstanding voting securities” of the Fund (as defined by the 1940 Act and the rules thereunder).
18. For
the avoidance of doubt, no person other than the Fund and the Investment Adviser is a party to this Agreement or shall be entitled to any right or benefit arising under or in respect of this Agreement, and there are no third-party beneficiaries of
this Agreement. Without limiting the generality of the foregoing, nothing in this Agreement is intended to, or shall be read to: (i) create in any person other than the Fund in question (including without limitation any Shareholder in any Fund) any
direct, indirect, derivative, or other rights against the Investment Adviser, or (ii) create or give rise to any duty or obligation on the part of the Investment Adviser (including without limitation any fiduciary duty) to any person other than the
Fund, all of which rights, benefits, duties, and obligations are hereby expressly excluded.
19. This
Agreement shall be construed in accordance with the laws of the State of New York and the applicable provisions of the 1940 Act. To the extent the applicable law of the State of New York, or any of the provisions herein, conflict with the
applicable provisions of the 1940 Act, the latter shall control.
20. The
Fund represents that this Agreement has been duly approved by the Board, including the vote of a majority of the Independent Trustees, and by the vote of a “majority of the outstanding voting securities” of the Fund (as defined by the 1940 Act and
the rules thereunder).
21. The
parties to this Agreement agree that the obligations of the Fund under this Agreement shall not be binding upon any of the Trustees, Shareholders or any officers, employees or agents, whether past, present or future, of the Fund, individually, but
are binding only upon the assets and property of the Fund.
22. This
Agreement embodies the entire understanding of the parties.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the day and year first above written.
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By:
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/s/ Xxxx X. Xxxxxx
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| Name: Xxxx X. Xxxxxx |
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Title: Trustee and Chief Executive Officer
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1WS CAPITAL ADVISORS, LLC
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| By: One Xxxxxxx Street Capital Management, L.P., its sole member | ||
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By:
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/s/ Xxxxx Xxxxx
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| Name: Xxxxx Xxxxx |
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Title: Chief Executive Officer
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