AMENDED AND RESTATED
INVESTMENT MANAGEMENT
AGREEMENT
Keystone Private Income Fund
AGREEMENT made this 29th day of
December, 2020, by and between Keystone
Private Income Fund, a Delaware statutory
trust (the Fund), and Keystone National
Group, LLC, a Delaware limited liability
company (the Advisor).
WHEREAS, the Fund and the
Advisor entered into an investment
management agreement dated as of the 4th
day of March, 2020 (the Original
Agreement);
WHEREAS, the Fund is a closed-
end, management investment company
registered under the Investment Company
Act of 1940, as amended (the 1940 Act);
and
WHEREAS, the Advisor is
registered as an investment adviser under the
Investment Advisers Act of 1940 (the
Advisers Act) and is engaged in the business
of supplying investment advice as an
independent contractor; and
WHEREAS, the Fund and the Advisor
desire to amend and restate the Original
Agreement; and
WHEREAS, the Fund desires to
continue to retain the Advisor to render
investment management services with
respect to the Fund and the Advisor is
willing to render such services;
NOW, THEREFORE, in consideration
of mutual covenants herein contained, the
parties hereto agree as follows:
1. APPOINTMENT AND
ACCEPTANCE. The Fund hereby appoints
the Advisor to act as Advisor to the Fund for
the period and on the terms set forth in this
Agreement. The Advisor accepts such
appointment and agrees to furnish the
services herein set forth for the
compensation herein provided.
The Advisor will, at its own expense, render
the services and provide the office space,
furnishings and equipment, and personnel
(including any sub-advisers) required by it
to perform the services on the terms and for
the compensation provided herein. The
Advisor will not, however, pay for Fund
expenses (as described in the Confidential
Private Placement Memorandum and
Statement of Additional Information of the
Fund, as the same may be amended,
supplemented or restated from time to time),
including without limitation, any fees and
expenses directly related to portfolio
transactions and positions for the Funds
account such as direct and indirect expenses
associated with the Funds investments, due
diligence and other costs incurred in
connection with the identification, review,
underwriting of each investment.
2. DUTIES OF ADVISOR. The
Fund employs the Advisor to furnish and
manage a continuous investment program
for the Fund. The Advisor will continuously
review, supervise and (where appropriate)
administer the investment program of the
Fund, to determine in its discretion (where
appropriate) the securities to be purchased,
held, sold or exchanged, to provide the Fund
with records concerning the Advisors
activities which the Fund is required to
maintain and to render regular reports to the
Funds officers and Trustees concerning the
Advisors discharge of the foregoing
responsibilities. The Advisor may hire
(subject to the approval of the Funds Board
of Trustees (Board) and, except as otherwise
permitted under the terms of any applicable
exemptive relief obtained from the
Securities and Exchange Commission, or by
rule or regulation, a majority of the
outstanding voting securities of the Fund)
and thereafter supervise the investment
activities of one or more sub-advisers
deemed necessary to carry out the
investment program of the Fund. The
retention of a sub-adviser by the Advisor
shall not relieve the Advisor of its
responsibilities under this Agreement.
The Advisor shall discharge the foregoing
responsibilities subject to the control of the
Funds Board and in compliance with such
policies as the Board may from time to time
establish, with the objectives, policies, and
limitations for the Fund set forth in the
Funds registration statement as amended
from time to time, and with applicable laws
and regulations.
3. FUND TRANSACTIONS. The
Advisor is authorized to select the brokers or
dealers and other professional advisors and
consultants that will execute the purchases
and sales of portfolio securities and other
investments for the Fund and is directed to
use its best efforts to obtain best execution,
considering the Funds investment
objectives, policies, and restrictions as stated
in the Funds Confidential Private Placement
Memorandum and Statement of Additional
Information, as the same may be amended,
supplemented or restated from time to time,
and resolutions of the Funds Board. The
Advisor will promptly communicate to the
officers and the Board such information
relating to portfolio transactions as they may
reasonably request.
It is understood that the Advisor will not be
deemed to have acted unlawfully, or to have
breached a fiduciary duty to the Fund or be
in breach of any obligation owing to the
Fund under this Agreement, or otherwise, by
reason of its having directed a securities
transaction on behalf of the Fund to a
broker-dealer in compliance with the
provisions of Section 28(e) of the Securities
Exchange Act of 1934 or as described from
time to time by the Funds Prospectus and
Statement of Additional Information.
4. COMPENSATION OF THE
ADVISOR.
(a) Investment Management Fee.
For the services provided and the expenses
assumed pursuant to this Agreement, the
Fund shall pay to the Advisor compensation
at an annual rate of 1.50%, payable monthly
in arrears, based upon the Funds net assets
as of month-end before management fees for
the current month. Net assets means the total
value of all assets of the Fund, less an
amount equal to all accrued debts, liabilities
and obligations of the Fund. In the case of a
partial month, compensation will be based
on the number of days during the month in
which the Advisor invested Fund assets.
Compensation will be paid to the Advisor
before giving effect to any repurchase of
beneficial interests in the Fund effective as
of that date. The Advisor may, in its
discretion and from time to time, waive all
or a portion of its fee.
(b) The Fund will also pay the
Adviser an incentive fee calculated and
payable monthly in arrears based upon the
Funds net profits for the immediately
preceding month (the Incentive Fee). The
Incentive Fee will be equal to 15% of the
excess, if any, of (i) the net profits of the
Fund for the relevant period over (ii) the
then balance, if any, of the Loss Recovery
Account (as defined below). For purposes
of the Incentive Fee, the term net profits
shall mean the amount by which the net
asset value (NAV) of the Fund on the last
day of the relevant period exceeds the NAV
of the Fund as of the commencement of the
same period, including any net change in
unrealized appreciation or depreciation of
investments and realized income and gains
or losses and expenses (which, for this
purpose shall not include any distribution
and/or shareholder servicing fees, litigation,
any extraordinary expenses or Incentive
Fee). The Fund shall maintain a
memorandum account (the Loss Recovery
Account), which will have an initial balance
of zero and will be (i) increased upon the
close of each calendar month of the Fund by
the amount of the net losses of the Fund for
the month, and (ii) decreased (but not below
zero) upon the close of each calendar month
by the amount of the net profits of the Fund
for the month.
Payment of the Incentive Fee shall be
subject to a hurdle rate, expressed as a rate
of return on the Funds net assets equal to
0.58333333% per month (or an annualized
hurdle rate of 7.00%), subject to a catch-up
feature. The catch-up feature is intended to
provide the Adviser with an incentive fee of
15% on all of the Funds net profits when the
Funds net profits reach 0.68627451% of net
assets in any calendar month (8.24%
annualized). For purposes of the Incentive
Fee, net assets shall be calculated for the
relevant month as the NAV of the Fund as
of the first business day of each month.
All rights of compensation under this
Agreement for services performed as of the
termination date shall survive the
termination of this Agreement.
5. BOOKS AND RECORDS. The
Advisor will maintain all books and records
with respect to the securities transactions of
the Fund and will furnish to the Funds Board
such periodic and special reports as the
Board may reasonably request. The Fund
and the Advisor agree to furnish to each
other, if applicable, current registration
statements, proxy statements, reports to
shareholders, certified copies of their
financial statements, and such other
information with regard to their affairs as
each may reasonably request.
Any records required to be maintained and
preserved pursuant to the provisions of Rule
31a-1 and Rule 31a-2 promulgated under the
1940 Act which are prepared or maintained
by the Advisor on behalf of the Fund are the
property of the Fund and will be surrendered
promptly to the Fund on request.
6. STATUS OF ADVISOR. The
services of the Advisor to the Fund are not
to be deemed exclusive, and the Advisor
shall be free to render similar and any other
services to others so long as its services to
the Fund are not impaired thereby. The
Advisor shall be deemed to be an
independent contractor and shall, unless
otherwise expressly provided or authorized,
have no authority to act for or represent the
Fund in any way or otherwise be deemed an
agent of the Fund.
7. LIMITATION OF LIABILITY
AND INDEMNIFICATION OF ADVISOR.
(a) In the absence of willful
misfeasance, gross negligence or reckless
disregard of its obligations to the Fund, the
Advisor and any partner, director, officer or
employee of the Advisor, or any of their
affiliates, executors, heirs, assigns,
successors or other legal representatives,
will not be liable for any error of judgment,
mistake of law or for any act or omission by
the person in connection with the
performance of services to the Fund, except
as may otherwise be provided under
provisions of applicable state law or Federal
securities law which cannot be waived or
modified hereby.
(b) The Fund shall indemnify, to
the fullest extent permitted by law, the
Advisor, or any member, manager, officer or
employee of the Advisor, and any of their
affiliates, executors, heirs, assigns,
successors or other legal representatives,
against any liability or expense to which the
person may be liable that arises in
connection with the performance of services
to the Fund, so long as the liability or
expense is not incurred by reason of the
persons willful misfeasance, gross
negligence or reckless disregard of its
obligations to the Fund. The rights of
indemnification provided under this
Section shall not be construed so as to
provide for indemnification of any
aforementioned persons for any losses
(including any liability under Federal
securities laws which, under certain
circumstances, impose liability even on
persons that act in good faith) to the extent
(but only to the extent) that such
indemnification would be in violation of
applicable law, but shall be construed so as
to effectuate the applicable provisions of this
Section to the fullest extent permitted by
law.
(c) The Advisor shall indemnify, to
the fullest extent permitted by law, the Fund
and all controlling persons of the Fund (as
described in Section 15 of the Securities Act
of 1933, as amended), against any liability
or expense to which the person may be
liable that arises in connection with the
performance of services to the Advisor, so
long as the liability or expense is not
incurred by reason of the persons willful
misfeasance, gross negligence or reckless
disregard of its obligations to the Advisor.
The rights of indemnification provided
under this Section shall not be construed so
as to provide for indemnification of any
aforementioned persons for any losses
(including any liability under Federal
securities laws which, under certain
circumstances, impose liability even on
persons that act in good faith) to the extent
(but only to the extent) that such
indemnification would be in violation of
applicable law, but shall be construed so as
to effectuate the applicable provisions of this
Section to the fullest extent permitted by
law.
8. PERMISSIBLE INTERESTS.
Trustees, agents, and interest holders of the
Fund are or may be interested in the Advisor
(or any successor thereof) as members,
managers, officers, or interest holders, or
otherwise; members, managers, officers,
agents, and interest holders of the Advisor
are or may be interested in the Fund as
Trustees, interest holders or otherwise; and
the Advisor (or any successor) is or may be
interested in the Fund as an interest holder
or otherwise. In addition, brokerage
transactions for the Fund may be effected
through affiliates of the Advisor if approved
by the Funds Board, subject to the rules and
regulations of the Securities and Exchange
Commission.
9. AUTHORITY; NO CONFLICT.
The Advisor represents, warrants and agrees
that: it has the authority to enter into and
perform the services contemplated by this
Agreement; and the execution, delivery and
performance of this Agreement do not, and
will not, conflict with, or result in any
violation or default under, any agreement to
which Advisor or any of its affiliates are a
party.
10. LICENSE OF ADVISORS
NAME. The parties agree that the name of
the Advisor, the names of any affiliates of
the Advisor and any derivative or logo or
trademark or service xxxx or trade name are
the valuable property of the Advisor and its
affiliates. The Advisor hereby agrees to
grant a license to the Fund for use of its
name in the name of the Fund for the term of
this Agreement and such license shall
terminate upon termination of this
Agreement. If the Fund makes any
unauthorized use of the Advisors names,
derivatives, logos, trademarks, or service
marks or trade names, the parties
acknowledge that the Advisor shall suffer
irreparable harm for which monetary
damages may be inadequate and thus, the
Advisor shall be entitled to injunctive relief,
as well as any other remedy available under
law.
11. DURATION AND
TERMINATION. This Agreement shall
become effective on December 29, 2020,
unless sooner terminated as provided herein,
shall remain in effect until March 3, 2022
and thereafter, may continue in effect only if
such continuance is specifically approved at
least annually (a) by the vote of a majority
of those Trustees of the Board who are not
parties to this Agreement or interested
persons of any party to this Agreement, cast
in person at a meeting called for the purpose
of voting on such approval, and (b) by a vote
of a majority of the Funds Board or by vote
of a majority of the outstanding voting
securities of the Fund; provided, however,
that if the interest holders of the Fund fail to
approve the Agreement as provided herein,
the Advisor may continue to serve hereunder
in the manner and to the extent permitted by
the 1940 Act and rules and regulations
thereunder. The foregoing requirement that
continuance of this Agreement be
specifically approved at least annually shall
be construed in a manner consistent with the
1940 Act and the rules and regulations
thereunder.
Notwithstanding the foregoing, this
Agreement may be terminated as to the
Fund at any time, without the payment of
any penalty by vote of a majority of
members of the Funds Board or by vote of a
majority of the outstanding voting securities
of the Fund on 60 days written notice to the
Advisor, or by the Advisor at any time
without the payment of any penalty, on 60
days written notice to the Fund. This
Agreement will automatically and
immediately terminate in the event of its
assignment. Any notice under this
Agreement shall be given in writing,
addressed and delivered, or mailed postpaid,
to the other party at any office of such party.
As used in this Section 11, the terms
assignment, interested persons, and a vote of
a majority of the outstanding voting
securities shall have the respective meanings
set forth in the 1940 Act and the rules and
regulations thereunder; subject to such
exemptions as may be granted by the
Securities and Exchange Commission under
said Act.
12. 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, 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 Advisor:
Keystone National Group, LLC
00 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
If to the Fund:
Keystone Private Income Fund
c/o UMB Fund Services, Inc.
Attn: Regulatory Administration
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
13. 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.
14. GOVERNING LAW. This
Agreement shall be construed in accordance
with the laws of the State of Delaware,
without reference to conflict of law or
choice of law doctrines, 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.
IN WITNESS WHEREOF, the Parties
hereto have caused this Agreement to be
executed as of the day and year first written
above.
KEYSTONE PRIVATE INCOME FUND
By: /s/ Xxxxxxx Xxxxx
Title: Treasurer
KEYSTONE NATIONAL GROUP, LLC
By: /s/ Xxxxxxx Xxxxx
Title: Chief Financial Officer
