File No. 812-14707
Before the
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
In the Matter of the Application of:
TICC CAPITAL CORP., OXFORD LANE CAPITAL CORP.,
TICC MANAGEMENT, LLC, OXFORD LANE MANAGEMENT, LLC, OXFORD BRIDGE, LLC AND OXFORD BRIDGE MANAGEMENT, LLC
FIRST AMENDED AND RESTATED APPLICATION FOR AN
ORDER UNDER
SECTIONS 17(d) AND 57(i) OF THE INVESTMENT COMPANY ACT OF
1940 AND RULE 17d-1 UNDER THE INVESTMENT COMPANY ACT OF 1940
PERMITTING CERTAIN JOINT TRANSACTIONS OTHERWISE PROHIBITED BY
SECTIONS 17(d) AND 57(a)(4) OF THE INVESTMENT COMPANY ACT OF
1940 AND RULE 17d-1 UNDER THE INVESTMENT COMPANY ACT OF 1940
Please direct all communications,
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Copies to:
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notices and orders to:
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Steven B. Boehm, Esq.
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TICC Capital Corp.
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Harry S. Pangas, Esq.
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Oxford Lane Capital Corp.
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Anne G. Oberndorf, Esq.
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8 Sound Shore Drive, Suite 255
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Eversheds Sutherland (US) LLP
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Greenwich, Connecticut 06830
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700 Sixth Street, NW, Suite 700
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Attention: Jonathan H. Cohen
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Washington, DC 20001-3980
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(203) 983-5275
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(202) 637-3593 (fax)
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February 7, 2017
This document contains 24 pages (including exhibits),
which have been numbered sequentially.
UNITED STATES OF AMERICA
BEFORE THE
SECURITIES AND EXCHANGE COMMISSION
In the Matter of:
TICC CAPITAL CORP., OXFORD LANE CAPITAL CORP., TICC MANAGEMENT,
LLC, OXFORD LANE MANAGEMENT, LLC, OXFORD BRIDGE, LLC AND OXFORD BRIDGE MANAGEMENT, LLC
8 Sound Shore Drive, Suite 255
Greenwich, Connecticut 06830
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First Amended and Restated Application for an Order under Sections 17(d) and 57(i) of the Investment Company Act of 1940 and Rule 17d–1 under the Investment Company Act of 1940 Permitting Certain Joint Transactions Otherwise Prohibited by Sections 17(d) and 57(a)(4) of the Investment Company Act of 1940 and Rule 17d–1 under the Investment Company Act of 1940.
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I.
Summary of Application
The following entities hereby request an order (the “
Order
”)
of the U.S. Securities and Exchange Commission (the “
Commission
”) pursuant to Sections 17(d) and 57(i)
of the Investment Company Act of 1940, as amended (the “
1940 Act
”), and Rule 17d–1 promulgated
under the 1940 Act, authorizing certain joint transactions that otherwise may be prohibited by either or both of Sections 17(d)
and 57(a)(4) as modified by the exemptive rules adopted by the Commission under the 1940 Act:
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TICC Capital Corp. (“
TICC
”),
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Oxford Lane Capital Corp. (“
OXLC
” and together with TICC, the “
Existing Regulated Funds
”),
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TICC Management,
LLC (“
TICC Adviser
”) on behalf of itself and its successors,
1
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Oxford Lane Management, LLC (“
OXLC Adviser
”),
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Oxford Bridge, LLC (the “
Private Fund
”), and
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Oxford Bridge Management, LLC (the “
Private Fund Adviser
” and together with the Existing Regulated Funds,
TICC Adviser, OXLC Adviser and the Private Fund, the “
Applicants
”).
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1
The term “successor,” as applied to each
Adviser (as defined below), means an entity that results from a reorganization into another jurisdiction or change in the type
of business organization.
In particular, the relief requested in this application (the “
Application
”)
would permit a Regulated Fund
2
and
one or more other Regulated Funds and/or one or more Affiliated Funds
3
to participate in the same investment opportunities through a proposed co-investment program (the “
Co-Investment
Program
”) where such participation would otherwise be prohibited under Section 57(a)(4) and Rule 17d–1
by (a) co-investing with each other in securities issued by issuers in private placement transactions in which an Adviser
negotiates terms in addition to price (“
Private Placement Securities
”);
4
and (b) making additional investments in securities of such issuers, including through the exercise of warrants,
conversion privileges, and other rights to purchase securities of the issuers (“
Follow-On Investments
”). “
Co-Investment
Transaction
” means any transaction in which a Regulated Fund (or its Wholly-Owned Investment Sub (as defined below))
participated together with one or more other Regulated Funds and/or one or more Affiliated Funds in reliance on the requested
Order.
5
“
Potential Co-Investment
Transaction
” means any investment opportunity in which a Regulated Fund (or its Wholly-Owned Investment Sub) could not
participate together with one or more Affiliated Funds and/or one or more other Regulated Funds without obtaining and relying
on the Order.
A Regulated Fund may, from time to time, form a special purpose
subsidiary (a “
Wholly-Owned Investment Sub
”) (i) that is wholly-owned by a Regulated Fund (with the Regulated
Fund at all times holding, beneficially and of record, 100% of the voting and economic interests); (ii) whose sole business
purpose is to hold one or more investments on behalf of the Regulated Fund (and, in the case of an SBIC Subsidiary,
6
maintain a license under the SBA Act and issue debentures guaranteed by the SBA); (iii) with respect to which the Regulated
Fund’s Board has the sole authority to make all determinations with respect to the entity’s participation under the
conditions to this Application; and (iv) that would be an investment company but for Section 3(c)(1) or 3(c)(7) of the 1940
Act. All subsidiaries of the Regulated Funds participating in Co-Investment Transactions will be Wholly-Owned Investment Subs and
will have Objectives and Strategies (as defined below) that are either the same as, or a subset of, the respective Regulated Fund’s
Objectives and Strategies.
All existing entities that currently intend to rely upon the requested
Order have been named as Applicants. Any other existing or future entity that subsequently relies on the Order will comply with
the terms and conditions of the Application. Applicants do not seek relief for transactions that would be permitted under other
regulatory or interpretive guidance, including, for example, transactions effected consistent with Commission staff no-action positions.
7
2
“
Regulated Fund
” means any of the Existing Regulated Funds and any Future Regulated Fund. “
Future
Regulated Fund
” means any closed-end management investment company (a) that is registered under the 1940 Act or
has elected to be regulated as a BDC (as defined below), (b) whose investment adviser is an Adviser, and (c) that intends
to participate in the Co-Investment Program. The term “
Adviser
” means (a) TICC Adviser, (b) OXLC Adviser,
(c) the Private Fund Adviser, and (d) any future investment adviser that controls, is controlled by or is under common control
with TICC Adviser, OXLC Adviser or the Private Fund Adviser and is registered as an investment adviser under the Investment Advisers
Act of 1940 (the “
Advisers Act
”).
3
“
Affiliated Fund
” means the Private Fund and any Future Affiliated Fund. “
Future Affiliated
Fund
” means any entity (a) whose investment adviser is an Adviser, (b) that would be an investment company
but for Section 3(c)(1) or 3(c)(7) of the 1940 Act, and (c) that intends to participate in the Co-Investment Program.
4
The term “private placement transactions” means transactions in which the offer and sale of securities
by the issuer are exempt from registration under the Securities Act of 1933, as amended (the “
1933 Act
”).
5
No Non-Interested Director (as defined below) of a Regulated Fund will have a financial interest in any Co-Investment
Transaction, other than indirectly through share ownership in one of the Regulated Funds.
6
“
SBIC Subsidiary
” means any Wholly-Owned Investment Sub (as defined below) that is licensed by
the Small Business Administration (the “
SBA
”) to operate under the Small Business Investment Act of 1958, as
amended, (the “
SBA Act
”) as a small business investment company (an “
SBIC
”).
7
See, e.g.
, Massachusetts Mutual Life Insurance Co. (pub. avail. June 7, 2000), Massachusetts Mutual Life
Insurance Co. (pub. avail. July 28, 2000) and SMC Capital, Inc. (pub. avail. Sept. 5, 1995).
II.
Background
TICC
TICC is a Maryland corporation organized as a closed-end management
investment company that has elected to be regulated as a business development company (“
BDC
”) under Section 54(a) of
the 1940 Act.
8
The common stock
of TICC trades on the NASDAQ Global Select Market under the symbol “TICC.” As of September 30, 2016, TICC had net
assets of approximately $360.9 million. TICC’s Objectives and Strategies
9
are to maximize its risk adjusted total return by investing primarily in corporate debt securities. TICC’s
debt investments may include bilateral loans (loans where TICC holds the entirety and/or a significant portion of a particular
loan) and syndicated loans (those where multiple investors hold portions of that loan). TICC has and may continue to invest in
structured finance investments, including collateralized loan obligation (“
CLO
”) investment vehicles that own
debt securities. CLO investments may also include warehouse facilities, which are financing structures intended to aggregate loans
that may be used to form the basis of a CLO vehicle. TICC may also invest in publicly traded debt and/or equity securities.
The board of directors of TICC (the “
TICC Board
”)
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is comprised of five directors, three of whom are not “interested persons,” within the meaning of Section 2(a)(19)
of the 1940 Act (the “
Non-Interested Directors
”). The Nominating and Corporate Governance Committee of
the TICC Board selects and nominates any additional Non-Interested Directors who may be selected to serve on the TICC Board.
In addition, for income tax purposes, TICC has elected to be treated
as a regulated investment company (“
RIC
”) under Subchapter M of the U.S. Internal Revenue Code of 1986, as amended
(the “
Code
”).
8
Section 2(a)(48) defines a BDC to be any closed-end investment company that operates for the purpose of making
investments in securities described in Section 55(a)(1) through 55(a)(3) of the 1940 Act and makes available significant
managerial assistance with respect to the issuers of such securities.
9
“
Objectives and Strategies
” means a Regulated Fund’s investment objectives and strategies,
as described in the Regulated Fund’s registration statement on Form N-2, other filings the Regulated Fund has made
with the Commission under the 1933 Act, or under the Securities Exchange Act of 1934, as amended, and the Regulated Fund’s
reports to shareholders.
10
The term “
Board
” refers to the board of directors or trustees of any Regulated Fund.
OXLC
OXLC is a Maryland corporation that is a non-diversified closed-end
management investment company that has registered as an investment company under the 1940 Act. The common stock of OXLC trades
on the NASDAQ Global Select Market under the symbol “OXLC.” As of September 30, 2016, OXLC had net assets of approximately
$196.4 million. OXLC’s Objectives and Strategies are to maximize its portfolio’s risk-adjusted total return by purchasing
portions of equity and junior debt tranches of CLO vehicles. OXLC may also invest in warehouse facilities, which are financing
structures intended to aggregate senior secured corporate loans that may be used to form the basis of a CLO vehicle.
The OXLC Board is comprised of five directors, three of whom are
Non-Interested Directors of OXLC. A majority of the Non-Interested Directors of OXLC, in accordance with the NASDAQ Global
Select Market listing standards, recommends candidates for election as directors.
OXLC has elected to be treated as a RIC under the Code and intends
to continue to make such election in the future.
The Private Fund
The Private Fund was formed as a Delaware limited liability company
on November 3, 2015. The Private Fund’s investment objective is to maximize its portfolio’s risk-adjusted total return
by investing primarily
in structured finance investments, specifically the equity and junior debt tranches of CLO Vehicles
and in warehouse facilities, which are financing structures intended to aggregate loans that may be used to form the basis of a
CLO vehicle. The Private Fund would be an investment company but for the exclusion from the definition of investment company provided
by Section 3(c)(7) of the 1940 Act. Its investment objective and investment policies are similar to those of OXLC and overlap
to an extent with those of TICC.
Advisers
TICC Adviser, Oxford Lane Adviser and the Private Fund Adviser are
each controlled by BDC Partners LLC (“
BDC Partners
”). BDC Partners serves as administrator to TICC and to OXLC,
pursuant to respective administrations agreements with each. BDC Partners
does not currently
offer investment advisory services to any person and is not expected to do so in the future. Accordingly, BDC Partners has not
been included as an Applicant.
TICC Adviser
TICC Adviser was formed as a Delaware limited liability company
on July 9, 2003 and is an investment adviser registered with the Commission under the Advisers Act. TICC Adviser serves as the
investment adviser to TICC and manages its portfolio in accordance with TICC’s Objectives and Strategies.
Under the terms of TICC’s investment advisory agreement with
TICC Adviser (the “
TICC Advisory Agreement
”), TICC Adviser, subject to the overall supervision of the TICC Board,
manages the day-to-day operations of, and provides investment advisory services to, TICC. TICC Adviser, among other things, determines
the composition of TICC’s portfolio, the nature and timing of the changes to TICC’s portfolio and the manner of implementing
such changes; identifies, evaluates and negotiates the structure of the investments that TICC makes; closes, monitors and services
the investments TICC makes; and determines what investments TICC will purchase, retain or sell.
OXLC Adviser
OXLC Adviser was formed as a Connecticut limited liability company
on June 26, 2010 and is an investment adviser registered with the Commission under the Advisers Act. OXLC Adviser serves as the
investment adviser to OXLC and manages its portfolio in accordance with OXLC’s Objectives and Strategies.
Under the terms of OXLC’s investment advisory agreement with
OXLC Adviser (the “
OXLC Advisory Agreement
”), OXLC Adviser, subject to the overall supervision of the OXLC Board,
manages the day-to-day operations of, and provides investment advisory services to, OXLC. OXLC Adviser, among other things, determines
the composition of OXLC’s portfolio, the nature and timing of the changes to OXLC’s portfolio and the manner of implementing
such changes; identifies, evaluates and negotiates the structure of the investments that OXLC makes (including performing due diligence
on OXLC’s prospective investments); closes and monitors the investments OXLC makes; and provides OXLC with other investment
advisory, research and related services as it may from time to time require.
The Private Fund Adviser
The Private Fund Adviser was formed as a Connecticut limited liability
company on October 14, 2015 and is an investment adviser registered with the Commission under the Advisers Act. The Private Fund
Adviser serves as the investment adviser to the Private Fund and manages its portfolio in accordance with the Private Fund’s
investment objectives and strategies. The Private Fund Adviser manages the day-to-day operations of, and provides investment advisory
services to the Private Fund. The Private Fund Adviser, among other things, determines the composition of the Private Fund’s
portfolio, the nature and timing of the changes to Private Fund’s portfolio and the manner of implementing such changes;
identifies, evaluates and negotiates the structure of the investments that the Private Fund makes (including performing due diligence
on the Private Fund’s prospective investments); closes and monitors the investments the Private Fund makes.
III.
Order Requested
The Applicants request the Order of the Commission under Sections 17(d)
and 57(i) under the 1940 Act, and Rule 17d-l under the 1940 Act to permit, subject to the terms and conditions
set forth below in this Application (the “
Conditions
”), one or more Regulated Funds to be able to participate
in Co-Investment Transactions with one or more other Regulated Funds and/or one or more Affiliated Funds.
The Regulated Funds and the Affiliated Funds seek relief to invest
in Co-Investment Transactions because such Co-Investment Transactions would otherwise be prohibited by Sections 17(d) and 57(a)(4)
of the 1940 Act and Rule 17d-l under the 1940 Act. This Application seeks relief in order to (i) enable the
Regulated Funds and the Affiliated Funds to avoid the practical difficulties of trying to structure, negotiate and persuade counterparties
to enter into transactions while awaiting the granting of the relief requested in individual applications with respect to each
Co-Investment Transaction that arises in the future, and (ii) enable the Regulated Funds and the Affiliated Funds to avoid
the significant legal and other expenses that would be incurred in preparing such individual applications.
A. Section 17(d) and Section 57(a)(4)
Section 17(d) of the 1940 Act generally prohibits an affiliated
person (as defined in Section 2(a)(3) of the 1940 Act), or an affiliated person of such affiliated person, of a registered
closed-end investment company acting as principal, from effecting any transaction in which the registered closed-end investment
company is a joint or a joint and several participant, in contravention of such rules as the Commission may prescribe for the purpose
of limiting or preventing participation by the registered closed-end investment company on a basis different from or less advantageous
than that of such other participant. Rule 17d–1 under the 1940 Act generally prohibits participation by a registered
investment company and an affiliated person (as defined in Section 2(a)(3) of the 1940 Act) or principal underwriter
for that investment company, or an affiliated person of such affiliated person or principal underwriter, in any “joint enterprise
or other joint arrangement or profit-sharing plan,” as defined in the rule, without prior approval by the Commission by order
upon application.
Similarly, with regard to BDCs, Section 57(a)(4) of the 1940
Act prohibits certain persons specified in Section 57(b) of the 1940 Act from participating in a joint transaction with
a BDC or a company controlled by a BDC in contravention of rules as prescribed by the Commission. In particular Section 57(a)(4)
of the 1940 Act applies to:
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Any director, officer, employee, or member of an advisory board of a BDC, or any person (other than the BDC itself) who is
an affiliated person of the foregoing pursuant to Section 2(a)(3)(C) of the 1940 Act; or
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Any investment adviser or promoter of, general partner in, principal underwriter for, or person directly or indirectly either
controlling, controlled by, or under common control with, a BDC,
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or any person who is an affiliated person of any of the foregoing within the meaning of Section 2(a)(3)(C) or (D) of
the 1940 Act.
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Excluded from this category are the BDC itself and any person who, if it were not directly or indirectly controlled by the BDC,
would not otherwise be under common control with the BDC.
Section 2(a)(3)(C) of the 1940 Act defines an “affiliated
person” of another person to include any person directly or indirectly controlling, controlled by, or under common control
with, such other person. Section 2(a)(9) of the 1940 Act defines “control” as the power to exercise a controlling
influence over the management or policies of a company, unless such power is solely the result of an official position with that
company. Under Section 2(a)(9) of the 1940 Act, a person who beneficially owns, either directly or through one or more
controlled companies, more than 25% of the voting securities of a company is presumed to control such company. The Commission
and its staff have indicated on a number of occasions their belief that an investment adviser controls the fund that it advises,
absent compelling evidence to the contrary.
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TICC Adviser is the investment adviser to TICC, OXLC Adviser is
the investment adviser to OXLC, the Private Fund Adviser is the investment adviser to the Private Fund, and an Adviser will be
the investment adviser to each of the Future Regulated Funds and each of the Future Affiliated Funds. Each of TICC Adviser, OXLC
Adviser, and the Private Fund Adviser may be deemed to control TICC, OXLC, and the Private Fund respectively, and any other Adviser
will be controlling, controlled by, or under common control with TICC Adviser, OXLC Adviser, and the Private Fund Adviser. As a
result, the Regulated Funds may be deemed to be under common control, and thus affiliated persons of each other under Section 2(a)(3)(C)
of the 1940 Act. In addition, the Affiliated Fund may be deemed to be under common control with the Regulated Funds, and thus
affiliated persons of each Regulated Fund under Section 2(a)(3)(C) of the 1940 Act. As a result, these relationships might
cause a Regulated Fund and one or more other Regulated Funds and/or one or more Affiliated Funds participating in Co-Investment
Transactions to be subject to Sections 17(d) or 57(a)(4) of the 1940 Act, and thus subject to the provisions of
Rule 17d-l of the 1940 Act.
B. Rule 17d–1
Rule 17d–l under the 1940 Act generally prohibits
participation by a registered investment company and an affiliated person (as defined in Section 2(a)(3) of the 1940
Act) or principal underwriter for that investment company, or an affiliated person of such affiliated person or principal underwriter,
in any “joint enterprise or other joint arrangement or profit-sharing plan,” as defined in the rule, without prior
approval by the Commission by order upon application.
Rule 17d–1 was promulgated by the Commission pursuant
to Section 17(d) of the 1940 Act and made applicable to BDCs by Section 57(i) of the 1940 Act. Section 57(i)
of the 1940 Act provides that, until the Commission prescribes rules under Section 57(a)(4) of the 1940 Act, the
Commission’s rules under Section 17(d) of the 1940 Act applicable to registered closed-end investment companies
will be deemed to apply. Because the Commission has not adopted any rules under Section 57(a)(4) of the 1940 Act, Rule 17d–I
under the 1940 Act applies.
Applicants seek relief pursuant to Rule 17d-l under the 1940
Act, which permits the Commission to authorize joint transactions upon application. In passing upon applications filed pursuant
to Rule 17d–l under the 1940 Act, the Commission is directed by Rule 17d–1(b) under the 1940 Act
to consider whether the participation of a registered investment company or controlled company thereof in the joint enterprise
or joint arrangement under scrutiny is consistent with provisions, policies and purposes of the 1940 Act and the extent to
which such participation is on a basis different from or less advantageous than that of other participants.
12
See, e.g.,
In re Investment Company Mergers
, SEC Rel. No. IC–25259 (Nov. 8, 2001);
In re Steadman Security Corp
.,
46 S.E.C. 896, 920 n.81 (1977) (“[T]he investment adviser almost always controls the fund. Only in the very rare case
where the adviser’s role is simply that of advising others who may or may not elect to be guided by his advice…can
the adviser realistically be deemed not in control.”).
The Commission has stated that Section 17(d) of the 1940
Act, upon which Rule 17d–1 under the 1940 Act is based, and upon which Section 57(a)(4) of the 1940 Act
was modeled, was designed to protect investment companies from self-dealing and overreaching by insiders. The Commission has also
taken notice that there may be transactions subject to these prohibitions that do not present the dangers of overreaching. See
Protecting Investors: A Half-Century of Investment Company Regulation
, 1504 Fed. Sec. L. Rep., Extra Edition (May 29,
1992) at 488
et seq
. The Court of Appeals for the Second Circuit has enunciated a like rationale for the purpose behind
Section 17(d): “The objective of [Section] 17(d) . . . is to prevent . . . injuring the interest of stockholders of
registered investment companies by causing the company to participate on a basis different from or less advantageous than that
of such other participants.”
Securities and Exchange Commission v. Talley Industries. Inc.
, 399 F.2d 396, 405
(2d Cir. 1968),
cert. denied
393 U.S. 1015 (1969). Furthermore, Congress acknowledged that the protective system established
by the enactment of Section 57 is “similar to that applicable to registered investment companies under section 17
of the 1940 Act, and rules thereunder, but is modified to address concerns relating to unique characteristics presented by
business development companies.” H.Rep. No. 96-1341, 96th Cong., 2d Sess. 45 (1980)
reprinted in
1980
U.S.C.C.A.N. 4827.
Applicants believe that the terms and conditions of this Application
would ensure that the conflicts of interest that Section 17(d) and Section 57(a)(4) of the 1940 Act were designed
to prevent would be addressed and the standards for an order under Rule 17d–1 under the 1940 Act are met.
C. Protection Provided by the Proposed Conditions
Applicants believe that the proposed conditions, as discussed more
fully in Section III.D. of this Application (the “
Conditions
”), will ensure the protection of shareholders
of the Regulated Funds and compliance with the purposes and policies of the 1940 Act with respect to the Co-Investment Transactions.
In particular, the Conditions, as outlined below, would ensure that each Regulated Fund would only invest in investments that are
appropriate to the interests of shareholders and the investment needs and abilities of that Regulated Fund. In addition, each Regulated
Fund would be able to invest on equal footing with each other Regulated Fund and the Affiliated Funds, including identical terms,
conditions, price, class of securities purchased, settlement date, and registration rights. Each Regulated Fund would have the
ability to engage in Follow-On Investments in a fair manner consistent with the protections of the other conditions. Each Regulated
Fund would have the ability to participate on a proportionate basis, at the same price and on the same terms and conditions in
any sale of a security purchased in a Co-Investment Transaction. Fees and expenses of Co-Investment Transactions would be borne
by the applicable Adviser, or shared pro-rata among the Regulated Funds and Affiliated Funds who participate in the Co-Investment
Transactions. The conditions would also prevent a Regulated Fund from investing in any current investments of an affiliated person,
which eliminates the possibility of a Regulated Fund from being forced to invest in a manner that would benefit an affiliated person’s
existing investment. Also, sufficient records of the transactions would be maintained to permit the examination staff of the Commission
to monitor compliance with the terms of the requested order.
The Conditions impose a variety of duties on the Advisers with respect
to Co-Investment Transactions and Potential Co-Investment Transactions by the Regulated Funds. These duties include determinations
regarding investment appropriateness, the appropriate level of investment, and the provision of information to the Board of any
Regulated Fund. In addition, when considering Potential Co-Investment Transactions for any Regulated Fund, the applicable Adviser
will consider only the Objectives and Strategies, investment policies, investment positions, Available Capital (defined below),
and other pertinent factors applicable to that Regulated Fund. Each Adviser, as applicable, undertakes to perform these duties
consistently for each Regulated Fund, as applicable, regardless of which of them serves as investment adviser to these entities.
The participation of a Regulated Fund in a Potential Co-Investment Transaction may only be approved by a required majority, as
defined in Section 57(o) (a “
Required Majority
”), of the directors of the Board eligible to vote on that
Co-Investment Transaction under Section 57(o) (the “
Eligible Directors
”).
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13
In the case of a Regulated Fund that is a registered closed-end fund, the Board members that make up the Required
Majority will be determined as if the Regulated Fund were a BDC subject to Section 57(o).
The amount of each Regulated Fund’s capital available for
investment (“
Available Capital
”) will be determined based on the amount of cash on hand, existing commitments
and reserves, if any, the targeted leverage level, targeted asset mix and other investment policies and restrictions set from time
to time by the Board of the applicable Regulated Fund or imposed by applicable laws, rules, regulations or interpretations. Likewise,
an Affiliated Fund’s capital available for investment will be determined based on the amount of cash on hand, existing commitments
and reserves, if any, the targeted leverage level, targeted asset mix and other investment policies and restrictions set by the
Affiliated Fund’s directors, general partner, managing member or adviser or imposed by applicable laws, rules, regulations
or interpretations.
If the Advisers, the principal owners of any of the Advisers (the
“
Principals
”), or any person controlling, controlled by, or under common control with the Advisers or the Principals,
and the Affiliated Funds (collectively, the “
Holders
”) own in the aggregate more than 25 percent of the outstanding
voting shares of a Regulated Fund (the “
Shares
”), then the Holders will vote such Shares as required under Condition
14.
Applicants believe that this condition will ensure that the Non-Interested
Directors will act independently in evaluating the Co-Investment Program, because the ability of the Advisers or the Principals
to influence the Non-Interested Directors by a suggestion, explicit or implied, that the Non-Interested Directors can be removed
will be limited significantly. The Non-Interested Directors shall evaluate and approve the independent party referenced in Condition
14, taking into account its qualifications, reputation for independence, cost to the shareholders, and other factors that they
deem relevant.
In sum, the Applicants believe that the proposed conditions would
ensure that each Regulated Fund that participates in a Co-Investment Transaction does not participate on a basis different from,
or less advantageous than, that of such other participants. As a result, the Applicants believe that the participation of the Regulated
Funds in Co-Investment Transactions done in accordance with the Conditions would be consistent with the provisions, policies, and
purposes of the 1940 Act, and would be done in a manner that was not different from, or less advantageous than, the other
participants.
With respect to each Wholly-Owned Investment Sub, such a subsidiary
would be prohibited from investing in a Co-Investment Transaction with an Affiliated Fund or Regulated Fund because it would be
a company controlled by its parent Regulated Fund for purposes of Section 57(a)(4) of the 1940 Act and Rule 17d-l
under the 1940 Act. Applicants request that each Wholly-Owned Investment Sub be permitted to participate in Co-Investment
Transactions in lieu of its parent Regulated Fund and that the Wholly-Owned Investment Sub’s participation in any such transaction
be treated, for purposes of the Order, as though the parent Regulated Fund were participating directly. Applicants represent that
this treatment is justified because a Wholly-Owned Investment Sub would have no purpose other than serving as a holding vehicle
for the Regulated Fund’s investments and, therefore, no conflicts of interest could arise between the Regulated Fund and
the Wholly-Owned Investment Sub. The Regulated Fund’s Board would make all relevant determinations under the Conditions with
regard to a Wholly-Owned Investment Sub’s participation in a Co-Investment Transaction, and the Regulated Fund’s Board
would be informed of, and take into consideration, any proposed use of a Wholly-Owned Investment Sub in the Regulated Fund’s
place. If the Regulated Fund proposes to participate in the same Co-Investment Transaction with any of its Wholly-Owned Investment
Subs, the Board will also be informed of, and take into consideration, the relative participation of the Regulated Fund and the
Wholly-Owned Investment Sub.
D. Proposed Conditions
Applicants agree that any Order granting the requested relief shall
be subject to the following Conditions:
1. Each time an Adviser considers a Potential Co-Investment Transaction
for an Affiliated Fund or another Regulated Fund that falls within a Regulated Fund’s then-current Objectives and Strategies,
the Regulated Fund’s Adviser will make an independent determination of the appropriateness of the investment for such Regulated
Fund in light of the Regulated Fund’s then-current circumstances.
2. (a) If the Adviser deems a Regulated Fund’s participation
in any Potential Co-Investment Transaction to be appropriate for the Regulated Fund, it will then determine an appropriate level
of investment for the Regulated Fund.
(b) If the aggregate amount recommended by the
applicable Adviser to be invested by the applicable Regulated Fund in the Potential Co-Investment Transaction, together with the
amount proposed to be invested by the other participating Regulated Funds and Affiliated Funds, collectively, in the same transaction,
exceeds the amount of the investment opportunity, the investment opportunity will be allocated among them pro rata based on each
participant’s Available Capital, up to the amount proposed to be invested by each. The applicable Adviser will provide the
Eligible Directors of each participating Regulated Fund with information concerning each participating party’s Available
Capital to assist the Eligible Directors with their review of the Regulated Fund’s investments for compliance with these
allocation procedures.
(c) After making the determinations required
in conditions 1 and 2(a), the applicable Adviser will distribute written information concerning the Potential Co-Investment
Transaction (including the amount proposed to be invested by each participating Regulated Fund and Affiliated Fund) to the Eligible
Directors of each participating Regulated Fund for their consideration. A Regulated Fund will co-invest with one or more other
Regulated Funds and/or one or more Affiliated Funds only if, prior to the Regulated Fund’s participation in the Potential
Co-Investment Transaction, a Required Majority concludes that:
(i) the terms of the Potential Co-Investment
Transaction, including the consideration to be paid, are reasonable and fair to the Regulated Fund and its shareholders and do
not involve overreaching in respect of the Regulated Fund or its shareholders on the part of any person concerned;
(ii) the Potential Co-Investment Transaction
is consistent with:
(A) the interests of the shareholders
of the Regulated Fund; and
(B) the Regulated Fund’s then-current
Objectives and Strategies;
(iii) the investment by any other
Regulated Funds or Affiliated Funds would not disadvantage the Regulated Fund, and participation by the Regulated Fund would not
be on a basis different from or less advantageous than that of other Regulated Funds or Affiliated Funds;
provided that
,
if any other Regulated Fund or Affiliated Fund, but not the Regulated Fund itself, gains the right to nominate a director for election
to a portfolio company’s board of directors or the right to have a board observer or any similar right to participate in
the governance or management of the portfolio company, such event shall not be interpreted to prohibit the Required Majority from
reaching the conclusions required by this condition (2)(c)(iii), if:
(A) the Eligible Directors will have
the right to ratify the selection of such director or board observer, if any;
(B) the applicable Adviser agrees to,
and does, provide periodic reports to the Regulated Fund’s Board with respect to the actions of such director or the information
received by such board observer or obtained through the exercise of any similar right to participate in the governance or management
of the portfolio company; and
(C) any fees or other compensation that
any Affiliated Fund or any Regulated Fund or any affiliated person of any Affiliated Fund or any Regulated Fund receives in connection
with the right of the Affiliated Fund or a Regulated Fund to nominate a director or appoint a board observer or otherwise to participate
in the governance or management of the portfolio company will be shared proportionately among the participating Affiliated Funds
(who each may, in turn, share its portion with its affiliated persons) and the participating Regulated Funds in accordance with
the amount of each party’s investment; and
(iv) the proposed investment by the
Regulated Fund will not benefit the Advisers, the Affiliated Funds or the other Regulated Funds or any affiliated person of any
of them (other than the parties to the Co-Investment Transaction), except (A) to the extent permitted by condition 13,
(B) to the extent permitted by Section 17(e) or 57(k) of the 1940 Act, as applicable, (C) indirectly,
as a result of an interest in the securities issued by one of the parties to the Co-Investment Transaction, or (D) in the
case of fees or other compensation described in condition 2(c)(iii)(C).
3. Each Regulated Fund has the right to decline to participate in
any Potential Co-Investment Transaction or to invest less than the amount proposed.
4. The applicable Adviser will present to the Board of each Regulated
Fund, on a quarterly basis, a record of all investments in Potential Co-Investment Transactions made by any of the other Regulated
Funds or Affiliated Funds during the preceding quarter that fell within the Regulated Fund’s then-current Objectives and
Strategies that were not made available to the Regulated Fund, and an explanation of why the investment opportunities were not
offered to the Regulated Fund. All information presented to the Board pursuant to this condition will be kept for the life of the
Regulated Fund and at least two years thereafter, and will be subject to examination by the Commission and its staff.
5. Except for Follow-On Investments made in accordance with condition 8,
14
a Regulated Fund will not invest in reliance on the Order in any issuer in which another Regulated Fund, Affiliated Fund, or any
affiliated person of another Regulated Fund or Affiliated Fund is an existing investor.
6. A Regulated Fund will not participate in any Potential Co-Investment
Transaction unless the terms, conditions, price, class of securities to be purchased, settlement date, and registration rights
will be the same for each participating Regulated Fund and Affiliated Fund. The grant to an Affiliated Fund or another Regulated
Fund, but not the Regulated Fund, of the right to nominate a director for election to a portfolio company’s board of directors,
the right to have an observer on the board of directors or similar rights to participate in the governance or management of the
portfolio company will not be interpreted so as to violate this condition 6, if conditions 2(c)(iii)(A), (B) and
(C) are met.
7. (a) If any Affiliated Fund or any Regulated Fund elects to
sell, exchange or otherwise dispose of an interest in a security that was acquired in a Co-Investment Transaction, the applicable
Advisers will:
(i) notify each Regulated Fund that
participated in the Co-Investment Transaction of the proposed disposition at the earliest practical time; and
(ii) formulate a recommendation as
to participation by each Regulated Fund in the disposition.
(b) Each Regulated Fund will have the right
to participate in such disposition on a proportionate basis, at the same price and on the same terms and conditions as those applicable
to the participating Affiliated Funds and Regulated Funds.
(c) A Regulated Fund may participate in such
disposition without obtaining prior approval of the Required Majority if: (i) the proposed participation of each Regulated
Fund and each Affiliated Fund in such disposition is proportionate to its outstanding investments in the issuer immediately preceding
the disposition; (ii) the Board of the Regulated Fund has approved as being in the best interests of the Regulated Fund the
ability to participate in such dispositions on a pro rata basis (as described in greater detail in this application); and (iii) the
Board of the Regulated Fund is provided on a quarterly basis with a list of all dispositions made in accordance with this condition.
In all other cases, the Adviser will provide its written recommendation as to the Regulated Fund’s participation to the Eligible
Directors, and the Regulated Fund will participate in such disposition solely to the extent that a Required Majority determines
that it is in the Regulated Fund’s best interests.
(d) Each Affiliated Fund and each Regulated
Fund will bear its own expenses in connection with any such disposition.
14
This exception applies only to Follow-On Investments by a Regulated Fund in issuers in which the Regulated Fund already
holds investments.
8. (a) If any Affiliated Fund or any Regulated Fund desires
to make a Follow-On Investment in a portfolio company whose securities were acquired in a Co-Investment Transaction, the applicable
Advisers will:
(i) notify each Regulated Fund that
participated in the Co-Investment Transaction of the proposed transaction at the earliest practical time; and
(ii) formulate a recommendation as
to the proposed participation, including the amount of the proposed Follow-On Investment, by each Regulated Fund.
(b) A Regulated Fund may participate in such
Follow-On Investment without obtaining prior approval of the Required Majority if: (i) the proposed participation of each
Regulated Fund and each Affiliated Fund in such investment is proportionate to its outstanding investments in the issuer immediately
preceding the Follow-On Investment; and (ii) the Board of the Regulated Fund has approved as being in the best interests of
the Regulated Fund the ability to participate in Follow-On Investments on a pro rata basis (as described in greater detail in this
application). In all other cases, the Adviser will provide its written recommendation as to the Regulated Fund’s participation
to the Eligible Directors, and the Regulated Fund will participate in such Follow-On Investment solely to the extent that a Required
Majority determines that it is in the Regulated Fund’s best interests.
(c) If, with respect to any Follow-On Investment:
(i) the amount of the opportunity
is not based on the Regulated Funds’ and the Affiliated Funds’ outstanding investments immediately preceding the Follow-On
Investment; and
(ii) the aggregate amount recommended
by the applicable Adviser to be invested by the applicable Regulated Fund in the Follow-On Investment, together with the amount
proposed to be invested by the other participating Regulated Funds and Affiliated Funds, collectively, in the same transaction,
exceeds the amount of the investment opportunity, then the investment opportunity will be allocated among them pro rata based on
each participant’s Available Capital, up to the maximum amount proposed to be invested by each.
(d) The acquisition of Follow-On Investments
as permitted by this condition will be considered a Co-Investment Transaction for all purposes and subject to the other conditions
set forth in this application.
9. The Non-Interested Directors of each Regulated Fund will be provided
quarterly for review all information concerning Potential Co-Investment Transactions and Co-Investment Transactions, including
investments made by other Regulated Funds or Affiliated Funds that the Regulated Fund considered but declined to participate in,
so that the Non-Interested Directors may determine whether all investments made during the preceding quarter, including those investments
that the Regulated Fund considered but declined to participate in, comply with the conditions of the Order. In addition, the Non-Interested
Directors will consider at least annually the continued appropriateness for the Regulated Fund of participating in new and existing
Co-Investment Transactions.
10. Each Regulated Fund will maintain the records required by Section 57(f)(3)
of the 1940 Act as if each of the Regulated Funds were a BDC and each of the investments permitted under these conditions
were approved by the Required Majority under Section 57(f) of the 1940 Act.
11. No Non-Interested Director of a Regulated Fund will also be
a director, general partner, managing member or principal, or otherwise an “affiliated person” (as defined in the 1940
Act) of an Affiliated Fund.
12. The expenses, if any, associated with acquiring, holding or
disposing of any securities acquired in a Co-Investment Transaction (including, without limitation, the expenses of the distribution
of any such securities registered for sale under the 1933 Act) will, to the extent not payable by the Advisers under their
respective investment advisory agreements with Affiliated Funds and the Regulated Funds, be shared by the Regulated Funds and the
Affiliated Funds in proportion to the relative amounts of the securities held or to be acquired or disposed of, as the case may
be.
13. Any transaction fee (including break-up or commitment fees but
excluding broker’s fees contemplated by Section 17(e) or 57(k) of the 1940 Act, as applicable), received in
connection with a Co-Investment Transaction will be distributed to the participating Regulated Funds and Affiliated Funds on a
pro rata basis based on the amounts they invested or committed, as the case may be, in such Co-Investment Transaction. If any transaction
fee is to be held by an Adviser pending consummation of the transaction, the fee will be deposited into an account maintained by
such Adviser at a bank or banks having the qualifications prescribed in Section 26(a)(1) of the 1940 Act, and the account
will earn a competitive rate of interest that will also be divided pro rata among the participating Regulated Funds and Affiliated
Funds based on the amounts they invest in such Co-Investment Transaction. None of the Affiliated Funds, the Advisers, the other
Regulated Funds or any affiliated person of the Regulated Funds or Affiliated Funds will receive additional compensation or remuneration
of any kind as a result of or in connection with a Co-Investment Transaction (other than (a) in the case of the Regulated
Funds and the Affiliated Funds, the pro rata transaction fees described above and fees or other compensation described in condition 2(c)(iii)(C);
and (b) in the case of an Adviser, investment advisory fees paid in accordance with the agreement between the Adviser and
the Regulated Fund or Affiliated Fund.
14. If the Holders own in the aggregate more than 25% of the Shares
of a Regulated Fund, then the Holders will vote such Shares as directed by an independent third party when voting on (1) the election
of directors; (2) the removal of one or more directors; or (3) any other matter under either the 1940 Act or applicable State law
affecting the Board’s composition, size or manner of election.
IV.
Statement in Support of Relief Requested
Applicants submit that allowing the Co-Investment Transactions described
by this Application is justified on the basis of (i) the potential benefits to the Regulated Funds and the shareholders thereof
and (ii) the protections found in the terms and conditions set forth in this Application.
A. Potential Benefits
In the absence of the relief sought hereby, in some circumstances
the Regulated Funds would be limited in their ability to participate in attractive and appropriate investment opportunities. Section 17(d)
and Section 57(a)(4) of the 1940 Act and Rule 17d–1 under the 1940 Act should not prevent BDCs and registered
closed–end investment companies from making investments that are in the best interests of their shareholders.
In cases where the Advisers identify investment opportunities requiring
larger capital commitments, they must seek the participation of other entities with similar investment styles. The ability to participate
in Co-Investment Transactions that involve committing larger amounts of financing would enable each Regulated Fund to participate
with one or more of the Affiliated Funds and the other Regulated Funds in larger financing commitments, which would, in turn, be
expected to obtain discounted prices and increase income, expand investment opportunities and provide better access to due diligence
information for the Regulated Funds. Indeed, each Regulated Fund’s inability to co-invest with one or more of the Affiliated
Funds and the other Regulated Funds could potentially result in the loss of beneficial investment opportunities for such Regulated
Fund and, in turn, adversely affect such Regulated Fund’s shareholders. For example, a Regulated Fund may lose investment
opportunities if the Adviser cannot provide “one-stop” financing to a potential portfolio company. Portfolio companies
may reject an offer of funding arranged by an Adviser due to a Regulated Fund’s inability to commit the full amount of financing
required by the portfolio company in a timely manner (i.e., without the delay that typically would be associated with obtaining
single-transaction exemptive relief from the Commission). To the extent there is an investment that falls within the Objectives
and Strategies of a Regulated Fund and one or more other Regulated Funds and/or the investment objectives and strategies of one
or more Affiliated Funds, it is expected that a Regulated Fund will co-invest with one or more other Regulated Funds and/or one
or more Affiliated Funds, with certain exceptions based on available capital or diversification. The Regulated Funds, however,
will not be obligated to invest, or co-invest, when investment opportunities are referred to them.
Each Regulated Fund and its shareholders will benefit from the ability
to participate in Co-Investment Transactions. The Board of each Regulated Fund, including the Non-Interested Directors, has (or
will have prior to relying on the requested Order) determined that it is in the best interests of the Regulated Fund to participate
in Co-Investment Transactions because, among other matters, (i) the Regulated Fund will be able to participate in a larger
number and greater variety of transactions; (ii) the Regulated Fund will be able to participate in larger transactions; (iii) the
Regulated Fund will be able to participate in all opportunities approved by a Required Majority or otherwise permissible under
the Order rather than risk underperformance through rotational allocation of opportunities among the Regulated Funds; (iv) the
Regulated Fund and any other Regulated Funds participating in the proposed investment will have greater bargaining power, more
control over the investment and less need to bring in other external investors or structure investments to satisfy the different
needs of external investors; (v) the Regulated Fund will be able to obtain greater attention and better deal flow from investment
bankers and others who act as sources of investments; and (vi) the general terms and conditions of the proposed Order are
fair to the Regulated Funds and their shareholders. The Board of each of the Existing Regulated Funds, including the Non-Interested
Directors, also determined that it is in the best interests of the Existing Regulated Funds and their shareholders to obtain the
Order at the earliest possible time and instructed the officers of the Existing Regulated Funds, the Advisers and counsel to use
all appropriate efforts to accomplish such goal. For these reasons, the respective Boards of the Existing Regulated Funds have
determined (or will have prior to relying on the requested Order) that it is proper and desirable for each of TICC and OXLC to
participate in Co-Investment Transactions with one or more other Regulated Funds and/or one or more Affiliated Funds.
B. Protective Representations and Conditions
The terms and conditions set forth in this application ensure that
the proposed Co-Investment Transactions are consistent with the protection of each Regulated Fund’s shareholders and with
the purposes intended by the policies and provisions of the 1940 Act. Specifically, the Conditions incorporate the following
critical protections: (i) in each Co-Investment Transaction, all Regulated Funds and Affiliated Funds participating in the
Co-Investment Transactions will invest at the same time for the same price and with the same terms, conditions, class, registration
rights and any other rights, so that none of them receives terms more favorable than any other; (ii) a Required Majority of
each Regulated Fund must approve various investment decisions with respect to such Regulated Fund in accordance with the Conditions;
and (iii) the Regulated Funds are required to retain and maintain certain records.
Other than pro rata dispositions and Follow-On Investments as provided
in conditions 7 and 8, and after making the determinations required in conditions 1 and 2(a), the applicable
Adviser will present each Potential Co-Investment Transaction and the proposed allocation to the Eligible Directors, and the Required
Majority will approve each Co-Investment Transaction prior to any investment by the participating Regulated Fund. With respect
to the pro rata dispositions and Follow-On Investments provided in conditions 7 and 8, a Regulated Fund may participate
in a pro rata disposition or Follow-On Investment without obtaining prior approval of the Required Majority if, among other things:
(i) the proposed participation of each Regulated Fund and Affiliated Fund in such disposition is proportionate to its outstanding
investments in the issuer immediately preceding the disposition or Follow-On Investment, as the case may be; and (ii) the
Board of the Regulated Fund has approved that Regulated Fund’s participation in pro rata dispositions and Follow-On Investments
as being in the best interests of the Regulated Fund. If the Board does not so approve, any such disposition or Follow-On Investment
will be submitted to the Regulated Fund’s Eligible Directors. The Board of any Regulated Fund may at any time rescind, suspend
or qualify its approval of pro rata dispositions and Follow-On Investments with the result that all dispositions and/or Follow-On
Investments must be submitted to the Eligible Directors.
The Applicants believe that participation by the Regulated Funds
in pro rata dispositions and Follow-On Investments, as provided in conditions 7 and 8, is consistent with the provisions,
policies and purposes of the 1940 Act and will not be made on a basis different from or less advantageous than that of other
participants. A formulaic approach, such as pro rata dispositions and Follow-On Investments, eliminates the discretionary ability
to make allocation determinations, and in turn eliminates the possibility for overreaching and promotes fairness. The Applicants
note that the Commission has adopted a similar pro rata approach in the context of Rule 23c-2 under the 1940 Act, which
relates to the redemption by a closed-end investment company of less than all of a class of its securities, indicating the general
fairness and lack of overreaching that such approach provides.
The foregoing analysis applies equally where a Wholly-Owned Investment
Sub is involved in a Co-Investment Transaction as each Wholly-Owned Investment Sub will be treated as one company with its parent
for purposes of this Application.
V.
Precedents
The Commission previously has issued orders permitting certain investment
companies subject to regulation under the 1940 Act and their affiliated persons to co-invest in Private Placement Securities.
See
Ares Capital Corporation, et al.
(File No. 812-13603) Investment Company
Act Rel. Nos. 32399 (December 21, 2016) (notice) and 32427 (January 18, 2017) (order);
Fidus Investment Corporation,
et al.
(File No. 812-14605) Investment Company Act Rel. Nos. 32381 (December 7, 2016) (notice) and 32411 (January 4,
2017) (order);
Goldman Sachs BDC Inc., et al.
(File No. 812-14219) Investment Company Act Rel. Nos. 32382 (December 7,
2016) (notice) and 32409 (January 4, 2017) (order)
.
VI.
Procedural Matters
Pursuant to Rule 0-2(f) under the 1940 Act, each Applicant
states that its address is as indicated below:
8 Sound Shore Drive, Suite 255
Greenwich, CT 06830
Attention:
Jonathan
H. Cohen
(203) 983-5275 (Tel.)
Applicants further state that all written or oral communications
concerning this Application should be directed to:
Eversheds Sutherland
(US) LLP
700 Sixth Street, NW, Suite 700
Washington, DC 20001-3980
Attention: Steven B. Boehm, Esq.
Harry S. Pangas, Esq.
Anne G. Oberndorf, Esq.
(202) 383-0100 (Tel.)
(202) 637-3593 (Fax)
The Applicants desire that the Commission issue an Order pursuant
to Rule 0-5 under the 1940 Act without conducting a hearing.
The verifications required by Rule 0-2(d) under the 1940 Act
are attached hereto as Exhibit A.
Pursuant to Rule 0-2 under the 1940 Act, each Applicant declares
that this Application for a Commission order is signed on behalf of each Applicant, pursuant to the general authority vested in
each signatory by the Certificate of Incorporation and By-laws, Certificate of Formation and Limited Liability Company Agreement
of each Applicant, or other similar document, or, with regard to TICC and OXLC, pursuant to the resolutions attached hereto as
Exhibits B and C, respectively.
Applicants request that any questions regarding this Application
be directed to the persons listed on the facing page of this Application.
VII.
Request for Order of Exemption
For the foregoing reasons, the Applicants request that the Commission
enter an Order under Sections 17(d) and 57(i) of the 1940 Act and Rule 17d–1 under the 1940 Act
granting Applicants the relief sought by the Application. Applicants submit that the requested exemption is consistent with the
protection of investors.
Dated: February 7, 2017
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TICC Capital Corp.
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By:
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/s/ Jonathan H. Cohen
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Name: Jonathan H. Cohen
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Title: Chief Executive Officer
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Oxford Lane Capital Corp.
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By:
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/s/ Jonathan H. Cohen
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Name: Jonathan H. Cohen
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Title: Chief Executive Officer
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TICC Management, LLC
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By: BDC Partners, LLC, its managing member
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By:
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/s/ Jonathan H. Cohen
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Name: Jonathan H. Cohen
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|
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Title: Managing Member
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Oxford Lane Management, LLC
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By: BDC Partners, LLC, its managing member
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By:
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/s/ Jonathan H. Cohen
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Name: Jonathan H. Cohen
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|
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Title: Managing Member
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Oxford Bridge, LLC
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By: Oxford Bridge Management, LLC, its Managing Member
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By:
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/s/ Saul Rosenthal
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Name: Saul Rosenthal
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Title: President
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Oxford Bridge Management, LLC
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By:
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/s/ Saul Rosenthal
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Name: Saul Rosenthal
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Title: President
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Exhibit A
Verification
The undersigned states that he has duly executed the attached application
for an order under Sections 17(d) and 57(i) of the Investment Company Act of 1940 and Rule 17d-1 under the Investment
Company Act of 1940, dated as of February 7, 2017 for and on behalf of each entity listed below; that he is the authorized person
of each such entity; and that all action by officers, directors, and other bodies necessary to authorize the undersigned to execute
and file such instrument has been taken. The undersigned further states that he is familiar with such instrument, and the contents
thereof, and that the facts therein set forth are true to the best of his knowledge, information and belief.
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TICC Capital Corp.
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By:
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/s/ Jonathan H. Cohen
|
|
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Name: Jonathan H. Cohen
|
|
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Title: Chief Executive Officer
|
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|
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Oxford Lane Capital Corp.
|
|
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|
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By:
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/s/ Jonathan H. Cohen
|
|
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Name: Jonathan H. Cohen
|
|
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Title: Chief Executive Officer
|
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|
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TICC Management, LLC
|
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By: BDC Partners, LLC, its managing member
|
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By:
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/s/ Jonathan H. Cohen
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Name: Jonathan H. Cohen
|
|
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Title: Managing Member
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Oxford Lane Management, LLC
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By: BDC Partners, LLC, its managing member
|
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By:
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/s/ Jonathan H. Cohen
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|
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Name: Jonathan H. Cohen
|
|
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Title: Managing Member
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Oxford Bridge, LLC
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By: Oxford Bridge Management, LLC, its Managing Member
|
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By:
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/s/ Saul Rosenthal
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Name: Saul Rosenthal
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Title: President
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Oxford Bridge Management, LLC
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By:
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/s/ Saul Rosenthal
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Name: Saul Rosenthal
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Title: President
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Exhibit B
Resolutions Adopted by
the Board of Directors of TICC Capital Corp.
WHEREAS
,
the Board believes it is in the best interests of the Company to file an application with the Commission for an order pursuant
to Sections 17(d) and 57(i) of the 1940 Act and Rule 17d-l promulgated under the 1940 Act (the “
Application
”),
to authorize the entering into of certain joint transactions and co-investments by the Company with certain entities which may
be deemed to be “affiliates” of the Company pursuant to the provisions of the 1940 Act, which such joint transactions
and co-investments would otherwise be prohibited by Sections 17(d) and 57(a)(4) of the 1940 Act, all as more fully set forth in
the draft Application that has been presented to the Board; and
WHEREAS
,
the Board has reviewed the Application, a copy of which is attached hereto as Exhibit A.
NOW, THEREFORE,
BE IT RESOLVED
, that the Chief Executive Officer, Chief Financial Officer and Secretary of the Company (each an “
Authorized
Officer
” and, collectively, the “
Authorized Officers
”) be, and they hereby are, authorized,
empowered and directed, in the name and on behalf of the Company, to cause to be prepared, executed, delivered and filed with the
Commission the Application, and to do such other acts or things and execute such other documents, including amendments to the Application,
as they deem necessary or desirable to cause the Application to conform to comments received from the Staff of the Commission and
otherwise to comply with the 1940 Act and the rules and regulations promulgated thereunder, in such form and accompanied by such
exhibits and other documents, as the Authorized Officers preparing the same shall approve, such approval to be conclusively evidenced
by the filing of the Application; and it is further
RESOLVED
,
that the Authorized Officers be, and each of them hereby is, authorized, empowered and directed, in the name and on behalf of the
Company, to perform all of the agreements and obligations of the Company in connection with the foregoing resolutions, to take
or cause to be taken any and all further actions, to execute and deliver, or cause to be executed and delivered, all other documents,
instruments, agreements, undertakings, and certificates of any kind and nature whatsoever, to incur and pay all fees and expenses
and to engage such persons as the Authorized Officers may determine to be necessary, advisable or appropriate to effectuate or
carry out the purposes and intent of the foregoing resolutions, and the execution by the Authorized Officers of any such documents,
instruments, agreements, undertakings and certificates, the payment of any fees and expenses or the engagement of such persons
or the taking by them of any action in connection with the foregoing matters shall conclusively establish the Authorized Officers’
authority therefore and the authorization, acceptance, adoption, ratification, approval and confirmation by the Company thereof.
(Adopted by Written Consent dated October 13,
2016)
Exhibit C
Resolutions Adopted by the Board of Directors
of Oxford Lane Capital Corp.
WHEREAS
,
the Board believes it is in the best interests of the Company to file an application with the Commission for an order pursuant
to Sections 17(d) and 57(i) of the 1940 Act and Rule 17d-l promulgated under the 1940 Act (the “
Application
”),
to authorize the entering into of certain joint transactions and co-investments by the Company with certain entities which may
be deemed to be “affiliates” of the Company pursuant to the provisions of the 1940 Act, which such joint transactions
and co-investments would otherwise be prohibited by Sections 17(d) and 57(a)(4) of the 1940 Act, all as more fully set forth in
the draft Application that has been presented to the Board; and
WHEREAS
,
the Board has reviewed the Application, a copy of which is attached hereto as Exhibit A.
NOW, THEREFORE,
BE IT RESOLVED
, that the Chief Executive Officer, Chief Financial Officer and Secretary of the Company (each an “
Authorized
Officer
” and, collectively, the “
Authorized Officers
”) be, and they hereby are, authorized,
empowered and directed, in the name and on behalf of the Company, to cause to be prepared, executed, delivered and filed with the
Commission the Application, and to do such other acts or things and execute such other documents, including amendments to the Application,
as they deem necessary or desirable to cause the Application to conform to comments received from the Staff of the Commission and
otherwise to comply with the 1940 Act and the rules and regulations promulgated thereunder, in such form and accompanied by such
exhibits and other documents, as the Authorized Officers preparing the same shall approve, such approval to be conclusively evidenced
by the filing of the Application; and it is further
RESOLVED
,
that the Authorized Officers be, and each of them hereby is, authorized, empowered and directed, in the name and on behalf of the
Company, to perform all of the agreements and obligations of the Company in connection with the foregoing resolutions, to take
or cause to be taken any and all further actions, to execute and deliver, or cause to be executed and delivered, all other documents,
instruments, agreements, undertakings, and certificates of any kind and nature whatsoever, to incur and pay all fees and expenses
and to engage such persons as the Authorized Officers may determine to be necessary, advisable or appropriate to effectuate or
carry out the purposes and intent of the foregoing resolutions, and the execution by the Authorized Officers of any such documents,
instruments, agreements, undertakings and certificates, the payment of any fees and expenses or the engagement of such persons
or the taking by them of any action in connection with the foregoing matters shall conclusively establish the Authorized Officers’
authority therefore and the authorization, acceptance, adoption, ratification, approval and confirmation by the Company thereof.
(Adopted by Written Consent dated October 13,
2016)
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