File No. 812-15735

 

U.S. SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

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In the Matter of the Application of:

T. ROWE PRICE OHA SELECT PRIVATE CREDIT FUND; OHA SENIOR PRIVATE LENDING FUND (U) LLC; T. ROWE PRICE OHA FLEXIBLE CREDIT INCOME FUND; OHA PRIVATE CREDIT ADVISORS LLC; OHA PRIVATE CREDIT ADVISORS II, L.P.; OAK HILL ADVISORS, L.P.; OAK HILL ADVISORS (EUROPE), LLP; OHA (UK) LLP; OHA ARTESIAN CUSTOMIZED CREDIT FUND I, L.P.; OHA BLACK BEAR FUND, L.P.; OHA CREDIT OPPORTUNITIES CA (C), L.P.; OHA CA CUSTOMIZED CREDIT FUND, L.P.  - OHA SENIOR PRIVATE LENDING FUND (CA 3); OHA CA CUSTOMIZED CREDIT FUND, L.P.  - OHA SENIOR PRIVATE LENDING FUND (CA 5); OHA CA CUSTOMIZED CREDIT FUND, L.P. - OHA CO-INVEST OPPORTUNITIES FUND (CA); OHA CA CUSTOMIZED CREDIT FUND, L.P. -OHA CREDIT SOLUTION FUNDS II (CA PARALLEL); OHA CREDIT CADENZA FUND, L.P.; OHA-CDP ESCF, L.P.; OHA BCSS SSD, L.P.; OHA MPS SSD, L.P.; OHA BCSS SSD II, L.P.; OHA MPS SSD II, L.P.; OHA CREDIT ORIGINATION VEHICLE I, L.P.; OHA CREDIT SOLUTIONS FUND ICAV; OHA CREDIT SOLUTIONS FUND, L.P.; OHA CREDIT SOLUTIONS FUND (OFFSHORE), L.P.; OHA CREDIT SOLUTIONS II ICAV; OHA CREDIT SOLUTIONS FUND II, L.P.; OHA CREDIT SOLUTIONS FUND II (OFFSHORE), L.P.; OHA KC CUSTOMIZED CREDIT MASTER FUND, L.P.; OHA CLO ENHANCED EQUITY MASTER FUND II, L.P.; OHA CLO ENHANCED EQUITY MASTER A FUND, L.P.; OHA AD DISLOCATION CREDIT FUND II, L.P.; OHA AD CUSTOMIZED CREDIT FUND (EUROPE), L.P.; OHA AD CUSTOMIZED CREDIT FUND (INTERNATIONAL), L.P.; OHA REAL ASSET OPPORTUNITIES MASTER FUND I, L.P.; OHA SA CUSTOMIZED CREDIT FUND, L.P.; OHA STRATEGIC CREDIT MASTER FUND II, L.P.; OHA STRATEGIC CREDIT MASTER FUND III, L.P.; OHA STRATEGIC CREDIT FUND III, L.P.; OHA STRATEGIC CREDIT MINI-MASTER FUND III (OFFSHORE), L.P.; OHA STRUCTURED PRODUCTS MASTER FUND C, L.P.; OHA STRUCTURED PRODUCTS MASTER FUND D, L.P.; OHA STRUCTURED PRODUCTS FUND E, L.P.; OHA STRUCTURED PRODUCTS MASTER FUND II, L.P.; OHA TACTICAL INVESTMENT MASTER FUND, L.P.; OHA TACTICAL INVESTMENT FUND, L.P.; OHA TACTICAL INVESTMENT MINI-MASTER FUND (OFFSHORE), L.P.; OHA TKY CUSTOMIZED CREDIT FUND, L.P.; OHA TKY CUSTOMIZED CREDIT FUND II, L.P.; OHA TKY CUSTOMIZED CREDIT FUND III, L.P.; ALOHA EUROPEAN CREDIT FUND, L.P.; OHA DIVERSIFIED CREDIT STRATEGIES FUND (PARALLEL), L.P.; OHA ENHANCED CREDIT STRATEGIES MASTER FUND, L.P.; OHA ENHANCED CREDIT STRATEGIES FUND, L.P.; OHA ENHANCED CREDIT STRATEGIES MINI-MASTER FUND, L.P.; OHA DIVERSIFIED CREDIT STRATEGIES TRACTOR MASTER FUND, L.P.; OHA LDN CUSTOMISED CREDIT MASTER, L.P.; OHA DIVERSIFIED CREDIT STRATEGIES MASTER FUND (PARALLEL II), L.P.; OHA CENTRE STREET PARTNERSHIP, L.P.; OHA CLO STRATEGIES MASTER FUND, L.P.; OHA DIVERSIFIED CREDIT STRATEGIES FUND MASTER, L.P.; OHA DIVERSIFIED CREDIT STRATEGIES FUND, L.P.; OHA DIVERSIFIED CREDIT STRATEGIES FUND MINI-MASTER, L.P.; OHAT CREDIT FUND, L.P.; OHA DELAWARE CUSTOMIZED CREDIT FUND-F, L.P.; OHA DELAWARE CUSTOMIZED CREDIT FUND, L.P. ; OHA DYNAMIC CREDIT ORCA FUND, L.P.; OHA FINLANDIA CREDIT FUND, L.P.; OHA AD CO-INVESTMENT FUND, L.P.; OHA FD CUSTOM CREDIT FUND, L.P.; OHA HT LEV LOAN FUND, L.P.; OHA CREDIT FUNDING 1, LTD.; OHA CREDIT FUNDING 2, LTD; OHA CREDIT FUNDING 3, LTD.; OHA CREDIT FUNDING 4, LTD.; OHA CREDIT FUNDING 5, LTD.; OHA CREDIT FUNDING 6, LTD.; OHA CREDIT FUNDING 7, LTD.; OHA CREDIT FUNDING 8, LTD.; OHA CREDIT FUNDING 9, LTD.; OHA CREDIT FUNDING 10, LTD.; OHA CREDIT FUNDING 11, LTD.; OHA CREDIT FUNDING 12, LTD.; OHA CREDIT PARTNERS VII, LTD.; OHA CREDIT PARTNERS X-R, LTD.; OHA CREDIT PARTNERS XI, LTD.; OHA CREDIT PARTNERS XII, LTD.; OHA CREDIT PARTNERS XIII, LTD.; OHA CREDIT PARTNERS XIV, LTD.; OHA CREDIT PARTNERS XV, LTD.; OHA CREDIT PARTNERS XVI, LTD.; OHA LOAN FUNDING 2013-1, LTD.; OHA LOAN FUNDING 2013-2, LTD.; OHA LOAN FUNDING 2015-1, LTD.; OHA LOAN FUNDING 2016-1, LTD.; OAK HILL EUROPEAN CREDIT PARTNERS III DAC; OAK HILL EUROPEAN CREDIT PARTNERS IV, DAC; OAK HILL EUROPEAN CREDIT PARTNERS V, DAC; OAK HILL EUROPEAN CREDIT PARTNERS VI, DAC; OAK HILL EUROPEAN CREDIT PARTNERS VII, DAC; OAK HILL EUROPEAN CREDIT PARTNERS VIII, DAC; OHA CREDIT SOLUTIONS II MASTER FUND A SPV, L.P.; OHA CREDIT SOLUTIONS II MASTER FUND B SPV, L.P.; OHA CREDIT SOLUTIONS MASTER FUND I SPV, L.P.; OHA CREDIT SOLUTIONS MASTER FUND II SPV, L.P.; OHA MADISON LOAN FUND, L.P.; OHA FALCON FUND, L.P.; OHA KC CUSTOMIZED CREDIT MASTER FUND II, L.P.; OHA TKY CUSTOMIZED CREDIT FUND IV, L.P.; OHA HIGHLANDS, L.P.; OHA CREDIT FUNDING 13, LTD.; OHA CREDIT FUNDING 14, LTD.; OHA CREDIT FUNDING 15, LTD.; TRP OHA SPV FUNDING I, LLC; TRP OHA SPV FUNDING II, LLC; OCREDIT INVESTMENT S.A ̀R.L.; OCREDIT UNI INVESTMENT S.a ̀ R.L.; ULEND INVESTMENT S.a ̀ R.L.; TRP OHA FCI SPV FUNDING I, LLC; TRP OHA FCI CA, LLC; OFLEX INVESTMENT S.a ̀ R.L.; OHA CLO ENHANCED EQUITY MASTER FUND III, L.P.; OHA STRUCTURED PRODUCTS MASTER FUND III, L.P.; OHA TKY CUSTOMIZED CREDIT FUND V, L.P.; OHA TKY CUSTOMIZED CREDIT FUND VI, L.P.; OHA HY FUND, L.P.; OHA LEGATO LOAN FUND, L.P.; OHA LL DISLOCATION MASTER FUND, L.P.; OHA TIDEWATER PARTNERS BL FUND, L.P.; OHA TIDEWATER PARTNERS MAC FUND, L.P.; OHA SENIOR PRIVATE LENDING FUND (R), L.P.; OHA SENIOR PRIVATE LENDING FUND, L.P.; OHA SENIOR PRIVATE LENDING MASTER FUND (OFFSHORE), L.P.; OHA SENIOR PRIVATE LENDING MASTER FUND (ONSHORE), L.P.; OHA SENIOR PRIVATE LENDING FUND, SCSp SICAV‐RAIF; OHA SEQUOIA CUSTOMIZED CREDIT FUND, L.P.; OHA VANDERBILT CO‐INVESTMENT, LLC; OHA WASATCH CUSTOMIZED CREDIT FUND, L.P.; OHA CREDIT FUNDING 16, LTD.; OHA CREDIT FUNDING 17, LTD.; OHA CREDIT FUNDING 18, LTD.; OHA CREDIT FUNDING 19, LTD.; OHA CREDIT FUNDING 20, LTD.; OHA CREDIT FUNDING 21, LTD.; OHA CREDIT FUNDING 22, LTD.; OHA CREDIT FUNDING 23, LTD.; OHA CREDIT PARTNERS XVII, LTD.

1 Vanderbilt, 16th Floor

New York, New York 10017-3978

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AMENDMENT NO. 2 TO THE APPLICATION FOR AN ORDER PURSUANT TO 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 AND RULE 17d-1 UNDER THE INVESTMENT COMPANY ACT OF 1940

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All Communications, Notices and Orders to:

Gregory S. Rubin

Vice President

1 Vanderbilt, 16th Floor

New York, New York 10017-3978

Telephone: (212) 326-1500

 

Copies to:

 

Richard Horowitz, Esq.

Nadeea Zakaria, Esq.

Dechert LLP

1095 Avenue of the Americas

New York, NY 10036

Telephone: (212) 698-3500

May 7, 2025

UNITED STATES OF AMERICA

BEFORE THE

SECURITIES AND EXCHANGE COMMISSION

 

I.            SUMMARY OF APPLICATION

 

The following entities hereby request an order (the “Order”) of the U.S. Securities and Exchange Commission (the “SEC” or “Commission”) under Section 57(i) of the Investment Company Act of 1940, as amended (the “1940 Act”),¹ and Rule 17d-1, permitting certain joint transactions otherwise prohibited by Sections 17(d) and 57(a)(4) of the 1940 Act and Rule 17d-1 thereunder.  The Order would supersede the exemptive order issued by the Commission on August 21, 2023 (the “Prior Order”)² that was granted pursuant to Sections 57(a)(4), 57(i) and Rule 17d-1, with the result that no person will continue to rely on the Prior Order if the Order is granted.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The relief requested in this application for the Order (the “Application”) would allow a Regulated Fund⁵ and one or more Affiliated Entities⁶ to engage in Co-Investment Transactions⁷ subject to the terms and conditions described herein. The Regulated Funds and Affiliated Entities that participate in a Co-Investment Transaction are collectively referred to herein as “Participants.”⁸ The Applicants do not seek relief for transactions effected consistent with Commission staff no-action positions.⁹

 

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The term Regulated Fund also includes (a) any Wholly-Owned Investment Sub (as defined below) of a Regulated Fund, (b) any Joint Venture (as defined below) of a Regulated Fund, and (c) any BDC Downstream Fund (as defined below) of a Regulated Fund that is a business development company.  “Wholly-Owned Investment Sub” means an entity: (a) that is a “wholly-owned subsidiary” (as defined in Section 2(a)(43) of the 1940 Act) of a Regulated Fund; (b) whose sole business purpose is to hold one or more investments and which may issue debt on behalf or in lieu of such Regulated Fund; and (c) is not a registered investment company or a business development company.  “Joint Venture” means an unconsolidated joint venture subsidiary of a Regulated Fund, in which all portfolio decisions, and generally all other decisions in respect of such joint venture, must be approved by an investment committee consisting of representatives of the Regulated Fund and the unaffiliated joint venture partner (with approval from a representative of each required).  “BDC Downstream Fund” means an entity (a) directly or indirectly controlled by a Regulated Fund that is a business development company, (b) that is not controlled by any person other than the Regulated Fund (except a person that indirectly controls the entity solely because it controls the Regulated Fund), (c) that would be an investment company but for Section 3(c)(1) or 3(c)(7) of the 1940 Act, (d) whose investment adviser is an Adviser and (e) that is not a Wholly-Owned Investment Sub.

 

In the case of a Wholly-Owned Investment Sub that does not have a chief compliance officer or a Board, the chief compliance officer and Board of the Regulated Fund that controls the Wholly-Owned Investment Sub will be deemed to serve those roles for the Wholly-Owned Investment Sub.  In the case of a Joint Venture or a BDC Downstream Fund (as applicable) that does not have a chief compliance officer or a Board, the chief compliance officer of the Regulated Fund will be deemed to be the Joint Venture’s or BDC Downstream Fund’s chief compliance officer, and the Joint Venture’s or BDC Downstream Fund’s investment committee will be deemed to be the Joint Venture’s or BDC Downstream Fund’s Board.

 

 

To the extent that an entity described in clause (b) is not advised by an Adviser, such entity shall be deemed to be an Adviser for purposes of the conditions.

 

 

 

 

II.          GENERAL DESCRIPTION OF THE APPLICANTS

 

 

OCREDIT was formed on December 16, 2021, as a Delaware limited liability company and subsequently converted into a Delaware statutory trust on March 2, 2022. OCREDIT is a non-diversified, closed-end management investment company that elected to be regulated as a BDC on June 30, 2023 under the 1940 Act. OCREDIT has elected to be treated as a regulated investment company (“RIC”) under Sub-Chapter M of the Internal Revenue Code of 1986, as amended (the “Code”). OCREDIT’s principal place of business is 1 Vanderbilt, 16th Floor, New York, New York 10017.

 

OCREDIT’s investment objective is to generate attractive risk-adjusted returns predominately in the form of current income, with select investments capturing long-term capital appreciation, while maintaining a strong focus on downside protection. OCREDIT has a five-member board (the “OCREDIT Board”), of which three (3) members are not “interested” persons of OCREDIT within the meaning of Section 2(a)(19) of the 1940 Act.¹⁰

 

 

ULEND was formed on June 27, 2022, as a Delaware limited liability company. ULEND is a diversified, closed-end management investment company that elected to be regulated as a BDC on December 2, 2022 under the 1940 Act. ULEND has elected to be treated as a RIC under Sub-Chapter M of the Code. ULEND’s principal place of business is 1 Vanderbilt, 16th Floor, New York, New York 10017.

 

ULEND’s investment objective is to generate attractive risk-adjusted returns, predominately in the form of current income, with select investments exhibiting the ability to capture long-term capital appreciation with a focus on downside protection. ULEND has a five-member board (the “ULEND Board”), of which three (3) are not “interested” persons of ULEND within the meaning of Section 2(a)(19) of the 1940 Act.

 

 

OFLEX was formed on May 14, 2024, as a Delaware statutory trust. OFLEX is registered under the 1940 Act as a non-diversified, closed-end management investment company that is operated as an interval fund. OFLEX intends to be treated as a RIC under Sub-Chapter M of the Code. OFLEX’s principal place of business is 1 Vanderbilt, 16th Floor, New York, New York 10017.

 

OFLEX’s investment objective is to produce current income. OFLEX has a five-member board (the “OFLEX Board” and, together with the OCREDIT Board and ULEND Board, the “Board”), of which three (3) are not “interested” persons of OFLEX within the meaning of Section 2(a)(19) of the 1940 Act.

 

 

The Existing Affiliated Funds are investment funds, each of whose investment adviser and investment sub-adviser (if any) is an Adviser and each of which either would be an investment company but for Section 3(c)(7) of the Act or relies on Rule 3a-7 under the Act. A list of the Existing Affiliated Funds and the Adviser to each Existing Affiliated Fund is included on Schedule A hereto.

 

 

OHA Private Credit is organized as a limited liability company under the laws of the state of Delaware. OHA Private Credit is registered with the Commission pursuant to Section 203 of the Advisers Act and serves as the investment adviser to OCREDIT on behalf of itself and its successors.

 

 

OHA Private Credit II is organized as a limited partnership under the laws of the state of Delaware. OHA Private Credit II is registered with the Commission pursuant to Section 203 of the Advisers Act and serves as the investment adviser to ULEND and OFLEX on behalf of itself and its successors.

 

OHA is organized as a limited partnership under the laws of the state of Delaware. OHA is registered with the Commission pursuant to Section 203 of the Advisers Act and serves as the investment adviser to certain Existing Affiliated Funds on behalf of itself and its successors.

 

Each of OHA Europe and OHA UK (i) is organized as a United Kingdom limited liability partnership, (ii) is authorized and regulated by the Financial Conduct Authority, (iii) is a relying adviser to OHA, and (iv) serves as the investment adviser to certain Existing Affiliated Funds on behalf of itself and its successors.

 

 

Each of TRP SPV I and TRP SPV II (i) is a Delaware limited liability company and (ii) is a wholly owned subsidiary of OCREDIT.

 

Each of OCREDIT Investment and OCREDIT UNI Investment (i) is a Luxembourg disregarded entity and (ii) is a wholly owned subsidiary of OCREDIT.

 

ULEND Investment is a Luxembourg disregarded entity and a wholly owned subsidiary of ULEND.

 

OFLEX Investment is a Luxembourg disregarded entity and a wholly owned subsidiary of OFLEX.

 

Each of FCI SPV I and FCI CA (i) is a Delaware limited liability company and (ii) is a wholly owned subsidiary of OFLEX.

 

III.         ORDER REQUESTED

 

The Applicants request an Order of the Commission under Sections 17(d) and 57(i) of the 1940 Act and Rule 17d-1 thereunder to permit, subject to the terms and conditions set forth below in this Application (the “Conditions”), each Regulated Fund to be able to participate with one or more Affiliated Entities in Co‑Investment Transactions otherwise prohibited by Sections 17(d) and 57(a)(4) of the 1940 Act and Rule 17d‑1 thereunder.

 

 

Section 17(d), in relevant part, prohibits an affiliated person, or an affiliated person of such affiliated person, of a registered investment company, acting as principal, from effecting any transaction in which the registered investment company is “a joint or a joint and several participant with such person” in contravention of such rules as the SEC may prescribe “for the purpose of limiting or preventing participation by such [fund] on a basis different from or less advantageous than that of such other participant.”

 

Rule 17d-1 prohibits an affiliated person, or an affiliated person of such affiliated person, of a registered investment company, acting as principal, from participating in, or effecting any transaction in connection with, any “joint enterprise or other joint arrangement or profit-sharing plan”¹¹ in which the fund is a participant without first obtaining an order from the SEC.

 

 

Section 57(a)(4), in relevant part, prohibits any person related to a business development company in the manner described in Section 57(b), acting as principal, from knowingly effecting any transaction in which the business development company is a joint or a joint and several participant with such persons in contravention of such rules as the Commission may prescribe for the purpose of limiting or preventing participation by the business development company on a basis less advantageous than that of such person.  Section 57(i) provides that, until the SEC prescribes rules under Section 57(a), the SEC’s rules under Section 17(d) applicable to registered closed-end investment companies will be deemed to apply to persons subject to the prohibitions of Section 57(a).  Because the SEC has not adopted any rules under Section 57(a), Rule 17d-1 applies to persons subject to the prohibitions of Section 57(a).

 

Rule 17d-1(b) provides, in relevant part, that in passing upon applications under the rule, the Commission will consider whether the participation of a registered investment company in a joint enterprise, joint arrangement or profit-sharing plan on the basis proposed is consistent with the 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.

 

 

Each Regulated Fund may be deemed to be an affiliated person of each other Regulated Fund within the meaning of Section 2(a)(3) if it is deemed to be under common control because an Adviser is or will be either the investment adviser or sub-adviser to each Regulated Fund. Section 17(d) and Section 57(b) apply to any investment adviser to a closed-end fund or a business development company, respectively, including a sub-adviser. Thus, an Adviser and any Affiliated Entities that it advises could be deemed to be persons related to Regulated Funds in a manner described by Sections 17(d) and 57(b). OHA Private Credit and OHA Private Credit II are each majority-owned by OHA, are under common control, and are thus affiliated persons of each other. OHA Europe and OHA UK are each indirectly majority-owned by OHA, are under common control, and are thus affiliated persons of each other. Accordingly, with respect to the Existing Advisers and any other Advisers that are deemed to be affiliated persons of each other, Affiliated Entities advised by any of them could be deemed to be persons related to Regulated Funds (or a company controlled by a Regulated Fund) in a manner described by Sections 17(d) and 57(b). In addition, any entities or accounts controlled by or under common control with the Existing Advisers and/or any other Advisers that are deemed to be affiliated persons of each other that may, from time to time, hold various financial assets in a principal capacity, could be deemed to be persons related to Regulated Funds (or a company controlled by a Regulated Fund) in a manner described by Sections 17(d) and 57(b).  Finally, with respect to any Wholly-Owned Investment Sub, Joint Venture, or BDC Downstream Fund of a Regulated Fund, such entity 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 agree that any Order granting the requested relief will be subject to the following Conditions.

 

1.          Same Terms.  With respect to any Co-Investment Transaction, each Regulated Fund, and Affiliated Entity participating in such transaction will acquire, or dispose of, as the case may be, the same class of securities, at the same time, for the same price and with the same conversion, financial reporting and registration rights, and with substantially the same other terms (provided that the settlement date for an Affiliated Entity may occur up to ten business days after the settlement date for the Regulated Fund, and vice versa).  If a Participant, but not all of the Regulated Funds, has the right to nominate a director for election to a portfolio company’s board of directors, the right to appoint a board observer or any similar right to participate in the governance or management of a portfolio company, the Board of each Regulated Fund that does not hold this right must be given the opportunity to veto the selection of such person.¹²

 

2.           Existing Investments in the Issuer.  Prior to a Regulated Fund acquiring in a Co‑Investment Transaction a security of an issuer in which an Affiliated Entity has an existing interest in such issuer, the “required majority,” as defined in Section 57(o) of the 1940 Act,¹³ of the Regulated Fund (“Required Majority”) will take the steps set forth in Section 57(f) of the 1940 Act,¹⁴ unless: (i) the Regulated Fund already holds the same security as each such Affiliated Entity; and (ii) the Regulated Fund and each other Affiliated Entity holding the security is participating in the acquisition in approximate proportion to its then-current holdings.

 

 

 

3.           Related Expenses.  Any expenses associated with acquiring, holding or disposing of any securities acquired in a Co-Investment Transaction, to the extent not borne by the Adviser(s), will be shared among the Participants in proportion to the relative amounts of the securities being acquired, held or disposed of, as the case may be.¹⁵

 

4.          No Remuneration.  Any transaction fee¹⁶ (including break-up, structuring, monitoring or commitment fees but excluding broker’s fees contemplated by section 17(e) or 57(k) of the 1940 Act, as applicable), received by an Adviser and/or a Participant in connection with a Co-Investment Transaction will be distributed to the Participants 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 the 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 Participants based on the amount they invest in such Co-Investment Transaction.  No Affiliated Entity, Regulated Fund, or any of their affiliated persons will accept any compensation, remuneration or financial benefit in connection with a Regulated Fund’s participation in a Co-Investment Transaction, except: (i) to the extent permitted by Section 17(e) or 57(k) of the 1940 Act; (ii) as a result of either being a Participant in the Co‑Investment Transaction or holding an interest in the securities issued by one of the Participants; or (iii) in the case of an Adviser, investment advisory compensation paid in accordance with investment advisory agreement(s) with the Regulated Fund(s) or Affiliated Entity(ies).

 

5.         Co-Investment Policies.  Each Adviser (and each Affiliated Entity that is not advised by an Adviser) will adopt and implement policies and procedures reasonably designed to ensure that: (i) opportunities to participate in Co-Investment Transactions are allocated in a manner that is fair and equitable to every Regulated Fund; and (ii) the Adviser negotiating the Co‑Investment Transaction considers the interest in the Transaction of any participating Regulated Fund (the “Co-Investment Policies”).  Each Adviser (and each Affiliated Entity that is not advised by an Adviser) will provide its Co-Investment Policies to the Regulated Funds and will notify the Regulated Funds of any material changes thereto.¹⁷

 

 

 

 

6.            Dispositions:

 

(a)          Prior to any Disposition¹⁸ by an Affiliated Entity of a security acquired in a Co-Investment Transaction, the Adviser to each Regulated Fund that participated in the Co-Investment Transaction will be notified and each such Regulated Fund given the opportunity to participate pro rata based on the proportion of its holdings relative to the other Affiliated Entities participating in such Disposition.

 

(b)         Prior to any Disposition by a Regulated Fund of a security acquired in a Co-Investment Transaction, the Required Majority will take the steps set forth in Section 57(f) of the 1940 Act, unless: (i) each Affiliated Entity holding the security participates in the Disposition in approximate proportion to its then-current holding of the security; or (ii) the Disposition is a sale of a Tradable Security.¹⁹

 

7.            Board Oversight.

(a)          Each Regulated Fund’s directors will oversee the Regulated Fund’s participation in the co-investment program in the exercise of their reasonable business judgment.

 

(b)         Prior to a Regulated Fund’s participation in Co-Investment Transactions, the Regulated Fund’s Board, including a Required Majority, will: (i) review the Co-Investment Policies, to ensure that they are reasonably designed to prevent the Regulated Fund from being disadvantaged by participation in the co-investment program; and (ii) approve policies and procedures of the Regulated Fund that are reasonably designed to ensure compliance with the terms of the Order.

 

(c)          At least quarterly, each Regulated Fund’s Adviser and chief compliance officer (as defined in Rule 38a-1(a)(4)) will provide the Regulated Fund Boards with reports or other information requested by the Board related to a Regulated Fund’s participation in Co-Investment Transactions and a summary of matters, if any, deemed significant that may have arisen during the period related to the implementation of the Co-Investment Policies and the Regulated Fund’s policies and procedures approved pursuant to (b) above.

 

(d)          Every year, each Regulated Fund’s Adviser and chief compliance officer will provide the Regulated Fund’s Board with reports or other information requested by the Board related to the Regulated Fund’s participation in the co-investment program and any material changes in the Affiliated Entities’ participation in the co-investment program, including changes to the Affiliated Entities’ Co-Investment Policies.

 

(e)         The Adviser and the chief compliance officer will also notify the Regulated Fund’s Board of a compliance matter related to the Regulated Fund’s participation in the co-investment program and related Co-Investment Policies or the Regulated Fund’s policies and procedures approved pursuant to (b) above that a Regulated Fund’s chief compliance officer considers to be material.

 

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8.           Recordkeeping.  All information presented to the Board pursuant to the order 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.  Each Regulated Fund will maintain the records required by Section 57(f)(3) as if it were a business development company and each of the Co-Investment Transactions were approved by the Required Majority under Section 57(f).²⁰

 

9.             In the event that the Commission adopts a rule under the 1940 Act allowing co-investments of the type described in this Application, any relief granted by the Order will expire on the effective date of that rule.

 

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 their respective shareholders and (ii) the protections found in the terms and conditions set forth in this Application.

 

 

Section 57(a)(4) and Rule 17d-1 (as applicable) limit the ability of the Regulated Funds to participate in attractive co-investment opportunities under certain circumstances. If the relief is granted, the Regulated Funds should: (i) be able to participate in a larger number and greater variety of investments, thereby diversifying their portfolios and providing related risk-limiting benefits; (ii) be able to participate in larger financing opportunities, including those involving issuers with better credit quality, which otherwise might not be available to investors of a Regulated Fund’s size; (iii) have greater bargaining power (notably with regard to creditor protection terms and other similar investor rights), 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; (iv) benefit from economies of scale by sharing fixed expenses associated with an investment with the other Participants; and (v) be able to obtain better deal flow from investment bankers and other sources of investments.

 

 

Each Co-Investment Transaction would be subject to the terms and conditions of this Application.  The Conditions are designed to address the concerns underlying Sections 17(d) and 57(a)(4) and Rule 17d-l by ensuring that participation by a Regulated Fund in any Co-Investment Transaction would not be on a basis different from or less advantageous than that of other Participants.  Under Condition 5, each Adviser (and each Affiliated Entity that is not advised by an Adviser) will adopt and implement Co-Investment Policies that are reasonably designed to ensure that (i) opportunities to participate in Co-Investment Transactions are allocated in a manner that is fair and equitable to every Regulated Fund; and (ii) the Adviser negotiating the Co Investment Transaction considers the interest in the Transaction of any participating Regulated Fund. The Co-Investment Policies will require an Adviser to make an independent determination of the appropriateness of a Co-Investment Transaction and the proposed allocation size based on each Participant’s specific investment profile and other relevant characteristics.

 

V.           PRECEDENTS

 

The Commission has previously issued orders permitting certain investment companies subject to regulation under the 1940 Act and their affiliated persons to be able to participate in Co-Investment Transactions (the “Existing Orders”).²¹ Similar to the Existing Orders, the Conditions described herein are designed to mitigate the possibility for overreaching and to promote fair and equitable treatment of the Regulated Funds. Accordingly, the Applicants submit that the scope of investor protections contemplated by the Conditions are consistent with those found in the Existing Orders.

 

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If a Regulated Fund enters into a transaction that would be a Co-Investment Transaction pursuant to this Order in reliance on another exemptive order instead of this Order, the information presented to the Board and records maintained by the Regulated Fund will expressly indicate the order relied upon by the Regulated Fund to enter into such transaction.

 

 

VI.         PROCEDURAL MATTERS

 

 

Please address all communications concerning this Application, the Notice and the Order to:

 

Gregory S. Rubin

Vice President

1 Vanderbilt, 16th Floor

New York, New York 10017-3978

Telephone: (212) 326-1500

Please address any questions, and a copy of any communications, concerning this Application, the Notice, and the Order to:

 

Richard Horowitz, Esq.

Nadeea Zakaria, Esq.

Dechert LLP

1095 Avenue of the Americas

New York, NY 10036

Telephone: (212) 698-3500

 

The filing of this Application for the Order sought hereby and the taking of all acts reasonably necessary to obtain the relief requested herein was authorized by the Board of each Existing Regulated Fund pursuant to resolutions duly adopted by the Board.  Copies of the resolutions are provided below.

 

Pursuant to Rule 0-2(c), Applicants hereby state that each Existing Regulated Fund and Existing Affiliated Fund have authorized to cause to be prepared and to execute and file with the Commission this Application and any amendment thereto for an order pursuant to Section 57(i) and Rule 17d-1 permitting certain joint transactions otherwise prohibited by Sections 17(d) and 57(a)(4) and Rule 17d-1. The person executing the Application on behalf of the Applicants being duly sworn deposes and says that he has duly executed the Application for and on behalf of the applicable entity listed; that he is authorized to execute the Application pursuant to the terms of an operating agreement, management agreement or otherwise; and that all actions by members, directors or other bodies necessary to authorize each such deponent to execute and file the Application have been taken.

 

The Applicants have caused this Application to be duly signed on their behalf on the 7^th day of May, 2025.