44322 Federal Register / Vol. 83, No. 169 / Thursday, August 30, 2018 / Notices 

8 17 CFR 200.30–3(a)(12). 

1 ‘‘Regulated Funds’’ means TCRD, the Future 

Regulated Funds and the BDC Downstream Funds 

(defined below). ‘‘Future Regulated Fund’’ means a 

closed-end management investment company (a) 

that is registered under the Act or has elected to be 

regulated as a BDC, (b) whose investment adviser 

is an Adviser, and (c) intends to participate in the 

Co-investment Program. 

‘‘Adviser’’ means THLCA and SLS, together with 

any future investment adviser that (i) controls, is 

controlled by or is under common control with 

THLCA or SLS, as applicable, (ii) is registered as 

an investment adviser under the Investment 

Advisers Act of 1940 (‘‘Advisers Act’’), and (iii) is 

not a Regulated Fund or a subsidiary of a Regulated 

Fund. 

2 ‘‘Affiliated Fund’’ means any Existing Affiliated 

Fund (identified in Appendix A to the application), 

Existing THL Proprietary Accounts (as defined 

below), Future THL Proprietary Accounts, and any 

entity (a) whose investment adviser is an Adviser, 

(b) that either (i) would be an investment company 

but for section 3(c)(1), 3(c)(5)(C) or 3(c)(7) of the Act 

or (ii) relies on rule 3a–7 under the Act, (c) that 

intends to participate in the Co-Investment 

Program, and (d) that is not a BDC Downstream 

Fund. Applicants represent that no Existing 

Affiliated Fund is a BDC Downstream Fund. 

‘‘Future THL Proprietary Account’’ means any 

direct or indirect, wholly- or majority-owned 

subsidiary of THLCA, or any other Adviser, that is 

formed in the future that, from time to time, may 

hold various financial assets in a principal capacity. 

‘‘BDC Downstream Fund’’ means, with respect to 

any Regulated Fund that is a BDC, an entity (i) that 

the BDC directly or indirectly controls, (ii) that is 

not controlled by any person other than the BDC 

(except a person that indirectly controls the entity 

solely because it controls the BDC), (iii) that would 

be an investment company but for section 3(c)(1) or 

3(c)(7) of the Act, (iv) whose investment adviser is 

an Adviser, (v) that is not a Wholly-Owned 

Investment Sub and (vi) is not a Greenway Entity 

or Logan JV (each defined below). 

Affiliated Funds may include funds that are 

ultimately structured as collateralized loan 

obligation funds (‘‘CLOs’’). Such CLOs would be 

investment companies but for the exception 

provided in section 3(c)(7) of the Act or their ability 

to rely on rule 3a–7 of the Act. During the 

investment period of a CLO, the CLO may engage 

in customary transactions with another Affiliated 

Fund on a secondary basis at fair market value. For 

purposes of the Order, any securities that were 

with respect to the proposed rule 

change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for website viewing and 

printing in the Commission’s Public 

Reference Room, on official business 

days between the hours of 10:00 a.m. 

and 3:00 p.m., located at 100 F Street 

NE, Washington, DC 20549. Copies of 

such filing also will be available for 

inspection and copying at the principal 

office of the Exchange. All comments 

received will be posted without change. 

Persons submitting comments are 

cautioned that we do not redact or edit 

personal identifying information from 

comment submissions. You should 

submit only information that you wish 

to make available publicly. All 

submissions should refer to File 

Number SR–BOX–2018–25 and should 

be submitted on or before September 20, 

2018. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.8

Eduardo A. Aleman, 

Assistant Secretary. 

[FR Doc. 2018–18785 Filed 8–29–18; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

33213; File No. 812–14807] 

THL Credit, Inc., et al. 

August 24, 2018. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice. 

Notice of application for an order 

under sections 17(d) and 57(i) of the 

Investment Company Act of 1940 (the 

‘‘Act’’) and rule 17d–1 under the Act to 

permit certain joint transactions 

otherwise prohibited by sections 17(d) 

and 57(a)(4) of the Act and rule 17d–1 

under the Act. 

SUMMARY OF APPLICATION: Applicants 

request an order to permit certain 

business development companies 

(‘‘BDCs’’) and closed-end management 

investment companies to co-invest in 

portfolio companies with each other and 

with certain affiliated investment funds 

and accounts. 

APPLICANTS: THL Credit, Inc. (‘‘TCRD’’), 

THL Credit Advisors LLC (‘‘THLCA’’), 

THL Credit Senior Loan Strategies LLC 

(‘‘SLS,’’ together with THLCA, the ‘‘THL 

Advisers’’), THL Credit Holdings, Inc. 

(‘‘TCRD Subsidiary’’), THL Credit Bank 

Loan Select Fund, THL Credit Wind 

River 2012–1 CLO Ltd., THL Credit 

Wind River 2013–1 CLO Ltd., THL 

Credit Wind River 2013–2 CLO Ltd., 

THL Credit Wind River 2014–1 CLO 

Ltd., THL Credit Wind River 2014–2 

CLO Ltd., THL Credit Wind River 2014– 

3 CLO Ltd., THL Credit Wind River 

2015–1 CLO Ltd., THL Credit Wind 

River 2015–2 CLO Ltd., THL Credit 

Wind River 2016–1 CLO Ltd., THL 

Credit Wind River 2016–2 CLO Ltd., 

THL Credit Wind River 2017–1 CLO 

Ltd., THL Credit Wind River 2017–2 

CLO Ltd., THL Credit Wind River 2017– 

3 CLO Ltd., THL Credit Wind River 

2017–4 CLO Ltd., THL Credit Wind 

River 2018–1 CLO Ltd., THL Credit Lake 

Shore MM CLO 2017–1, Ltd., THL 

Credit Direct Lending Fund III LLC, 

THL Credit Direct Lending Co-Invest III 

(E) LLC, THL Credit Direct Lending CoInvest III LLC, THL Credit Direct 

Lending Fund III (A) LLC, THL Credit 

Bank Loan Select Fund (Offshore), THL 

Credit Wind River 2018–2 CLO Ltd., 

THL Credit Wind River 2018–3 CLO 

Ltd., THL Credit Lake Shore MM CLO 

II, Ltd., and THL Credit Strategic 

Funding LLC. 

FILING DATES: The application was filed 

on August 9, 2017, and amended on July 

23, 2018, and August 20, 2018. 

HEARING OR NOTIFICATION OF HEARING: An 

order granting the requested relief will 

be issued unless the Commission orders 

a hearing. Interested persons may 

request a hearing by writing to the 

Commission’s Secretary and serving 

applicants with a copy of the request, 

personally or by mail. Hearing requests 

should be received by the Commission 

by 5:30 p.m. on September 18, 2018, 

and should be accompanied by proof of 

service on applicants, in the form of an 

affidavit or, for lawyers, a certificate of 

service. Pursuant to rule 0–5 under the 

Act, hearing requests should state the 

nature of the writer’s interest, any facts 

bearing upon the desirability of a 

hearing on the matter, the reason for the 

request, and the issues contested. 

Persons who wish to be notified of a 

hearing may request notification by 

writing to the Commission’s Secretary. 

ADDRESSES: Secretary, U.S. Securities 

and Exchange Commission, 100 F St. 

NE, Washington, DC 20549–1090. 

Applicants: 100 Federal Street, 31st 

Floor, Boston, MA 02110. 

FOR FURTHER INFORMATION CONTACT: 

Bruce R. MacNeil, Senior Counsel, at 

(202) 551–6817 or Kaitlin C. Bottock, 

Branch Chief, at (202) 551–6825 (Chief 

Counsel’s Office, Division of Investment 

Management). 

SUPPLEMENTARY INFORMATION: The 

following is a summary of the 

application. The complete application 

may be obtained via the Commission’s 

website by searching for the file 

number, or for an applicant using the 

Company name box, at http://

www.sec.gov/search/search.htm or by 

calling (202) 551–8090. 

Introduction 

1. The applicants request an order of 

the Commission under sections 17(d) 

and 57(i) and rule 17d–1 thereunder 

(the ‘‘Order’’) to permit, subject to the 

terms and conditions set forth in the 

application (the ‘‘Conditions’’), a 

Regulated Fund 1 and one or more other 

Regulated Funds and/or one or more 

Affiliated Funds 2 to enter into CoVerDate Sep<11>2014 17:25 Aug 29, 2018 Jkt 244001 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\30AUN1.SGM 30AUN1

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acquired by an Affiliated Fund in a Co-Investment 

Transaction that are then transferred to an Affiliated 

Fund that is or will become a CLO (an ‘‘Affiliated 

Fund CLO’’) will be treated as if the Affiliated Fund 

CLO acquired such securities in a Co-Investment 

Transaction and such securities will remain subject 

to the Order. 

3All existing entities that currently intend to rely 

on the Order have been named as applicants and 

any existing or future entities that may rely on the 

Order in the future will comply with its terms and 

Conditions set forth in the application. TCRD 

manages two limited term investment funds, THL 

Credit Greenway Fund LLC and THL Credit 

Greenway Fund II LLC (each, a ‘‘Greenway Entity,’’ 

and together, the ‘‘Greenway Entities’’). TCRD and 

the Greenway Entities previously agreed to 

conditions that would apply to any co-investment 

transactions between them, but the Greenway 

Entities are not applicants to the Order. 

Accordingly, the Greenway Entities would not be 

able to rely on the requested Order to participate 

in Co-Investment Transactions pursuant to the 

Order. Moreover, the Greenway Entities will not be 

making any new or follow-on co-investments with 

TCRD because the Greenway Entities are fully 

invested and do not, and will not at any point, have 

any capital to invest. No Greenway Entity will have 

an interest in any issuer that is the subject of a CoInvestment Transaction completed pursuant to the 

Order, and TCRD will not form or manage another 

entity structured in the same manner as the 

Greenway Entities. Additionally, THL Credit Logan 

JV LLC (‘‘Logan JV’’), a joint venture with TCRD and 

Perspecta Trust LLC, would not be able to rely on 

the requested Order and, accordingly, would not 

participate in Co-Investment Transactions pursuant 

to the Order. No entity that holds an interest in 

Logan JV is or would be an affiliated person, or an 

affiliated person of an affiliated person, of TCRD 

within the meaning of section 2(a)(3) of the Act, 

other than by virtue of its ownership interest in 

Logan JV. 

4Section 2(a)(48) defines a BDC to be any closedend investment company that operates for the 

purpose of making investments in securities 

described in section 55(a)(1) through 55(a)(3) and 

makes available significant managerial assistance 

with respect to the issuers of such securities. 

5 ‘‘Board’’ means (i) with respect to a Regulated 

Fund other than a BDC Downstream Fund, the 

board of directors (or the equivalent) of the 

Regulated Fund and (ii) with respect to a BDC 

Downstream Fund, the Independent Party of the 

BDC Downstream Fund. 

‘‘Independent Party’’ means, with respect to a 

BDC Downstream Fund, (i) if the BDC Downstream 

Fund has a board of directors (or the equivalent), 

the board or (ii) if the BDC Downstream Fund does 

not have a board of directors (or the equivalent), a 

transaction committee or advisory committee of the 

BDC Downstream Fund. 

6 ‘‘Independent Director’’ means a member of the 

Board of any relevant entity who is not an 

‘‘interested person’’ as defined in 2(a)(19) of the 

Act. No Independent Director of a Regulated Fund 

(including any non-interested member of an 

Independent Party) will have a financial interest in 

any Co-Investment Transaction, other than 

indirectly through share ownership in one of the 

Regulated Funds. 

7 ‘‘Wholly-Owned Investment Sub’’ means an 

entity (i) that is wholly-owned by TCRD or a Future 

Regulated Fund (with such 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 such Regulated Fund; (iii) 

with respect to which such Regulated Fund’s Board 

has the sole authority to make all determinations 

with respect to the entity’s participation under the 

Conditions; and (iv) that would be an investment 

company but for section 3(c)(1) or 3(c)(7) of the Act. 

Investment Transactions with each 

other. ‘‘Co-Investment Transaction’’ 

means any transaction in which a 

Regulated Fund (or its Wholly-Owned 

Investment Sub) participated together 

with one or more Affiliated Funds and/ 

or one or more other Regulated Funds 

in reliance on the Order. Potential CoInvestment 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.3

Applicants 

2. TCRD is a closed-end management 

investment company incorporated in 

Delaware that has elected to be 

regulated as a BDC under the Act.4

TCRD’s Board 5 currently consists of 

seven directors, five of whom are 

Independent Directors.6 TCRD 

Subsidiary, a Delaware corporation, is a 

wholly-owned subsidiary of TCRD and 

holds equity or equity-like investments 

in portfolio companies organized as 

limited liability companies (or other 

forms of pass-through entities). TCRD 

Subsidiary is excluded from the 

definition of ‘‘investment company’’ by 

section 3(c)(7) of the Act. 

3. THLCA, a Delaware limited 

liability company that is registered 

under the the Advisers Act, serves as 

the investment adviser to TCRD and to 

certain Existing Affiliated Funds. SLS, a 

Delaware limited liability company that 

is registered as an investment adviser 

under the Advisers Act, serves as 

investment adviser to certain Existing 

Affiliated Funds. SLS is a whollyowned subsidiary of THLCA. THLCA 

and its direct and indirect whollyowned subsidiaries may hold various 

financial assets in a principal capacity 

(the ‘‘Existing THL Proprietary 

Accounts’’ and together with any Future 

THL Proprietary Account, the ‘‘THL 

Proprietary Accounts’’). 

4. The Existing Affiliated Funds are 

the investment funds identified in 

Appendix A to the application. 

Applicants represent that each Existing 

Affiliated Fund is a separate and 

distinct legal entity and each would be 

an investment company but for section 

3(c)(1), 3(c)(5)(C) or 3(c)(7) of the Act. 

5. Each of the applicants may be 

deemed to be controlled by THLP Debt 

Partners L.P. (‘‘THLP’’). THLP owns 

controlling interests in the Advisers 

and, thus, may be deemed to control the 

Regulated Funds and the Affiliated 

Funds. Applicants state that THLP does 

not currently offer investment advisory 

services to any person and is not 

expected to do so in the future. 

Applicants state that as a result, THLP 

has not been included as an applicant. 

6. Applicants state that a Regulated 

Fund may, from time to time, form one 

or more Wholly-Owned Investment 

Subs.7 Such a subsidiary may be 

prohibited from investing in a CoInvestment Transaction with a 

Regulated Fund (other than its parent) 

or any Affiliated Fund because it would 

be a company controlled by its parent 

Regulated Fund for purposes of section 

57(a)(4) and rule 17d–1. Applicants 

request that each Wholly-Owned 

Investment Sub be permitted to 

participate in Co-Investment 

Transactions in lieu of the Regulated 

Fund that owns it and that the WhollyOwned 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 parent Regulated 

Fund and the Wholly-Owned 

Investment Sub. The Board of the parent 

Regulated Fund would make all relevant 

determinations under the Conditions 

with regard to a Wholly-Owned 

Investment Sub’s participation in a CoInvestment Transaction, and the 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 parent 

Regulated Fund proposes to participate 

in the same Co-Investment Transaction 

with any of its Wholly-Owned 

Investment Subs, the Board of the 

parent Regulated Fund will also be 

informed of, and take into 

consideration, the relative participation 

of the Regulated Fund and the WhollyOwned Investment Sub. 

Applicants’ Representations 

A. Allocation Process 

7. Applicants state that the Advisers 

are presented with thousands of 

investment opportunities each year on 

behalf of their clients and must 

determine how to allocate those 

opportunities in a manner that, over 

time, is fair and equitable to all of their 

clients. Such investment opportunities 

may be Potential Co-Investment 

Transactions. 

8. Applicants represent that they have 

established processes for allocating 


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8 ‘‘Objectives and Strategies’’ means (i) with 

respect to any Regulated Fund other than a BDC 

Downstream Fund, its investment objectives and 

strategies, as described in its most current 

registration statement on Form N–2, other current 

filings with the Commission under the Securities 

Act of 1933 (the ‘‘Securities Act’’) or under the 

Securities Exchange Act of 1934, as amended, and 

its most current report to stockholders, and (ii) with 

respect to any BDC Downstream Fund, those 

investment objectives and strategies described in its 

disclosure documents (including private placement 

memoranda and reports to equity holders) and 

organizational documents (including operating 

agreements). 

9 ‘‘Board-Established Criteria’’ means criteria that 

the Board of a Regulated Fund may establish from 

time to time to describe the characteristics of 

Potential Co-Investment Transactions regarding 

which the Adviser to the Regulated Fund should be 

notified under Condition 1. The Board-Established 

Criteria will be consistent with the Regulated 

Fund’s Objectives and Strategies. If no BoardEstablished Criteria are in effect, then the Regulated 

Fund’s Adviser will be notified of all Potential CoInvestment Transactions that fall within the 

Regulated Fund’s then-current Objectives and 

Strategies. Board-Established Criteria will be 

objective and testable, meaning that they will be 

based on observable information, such as industry/ 

sector of the issuer, minimum EBITDA of the issuer, 

asset class of the investment opportunity or 

required commitment size, and not on 

characteristics that involve a discretionary 

assessment. The Adviser to the Regulated Fund may 

from time to time recommend criteria for the 

Board’s consideration, but Board-Established 

Criteria will only become effective if approved by 

a majority of the Independent Directors. The 

Independent Directors of a Regulated Fund may at 

any time rescind, suspend or qualify its approval 

of any Board-Established Criteria, though applicants 

anticipate that, under normal circumstances, the 

Board would not modify these criteria more often 

than quarterly. 

10The reason for any such adjustment to a 

proposed order amount will be documented in 

writing and preserved in the records of the 

Advisers. 

11 ‘‘Required Majority’’ means a required 

majority, as defined in section 57(o) of the Act. 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). 

In the case of a BDC Downstream Fund with a board 

of directors (or the equivalent), the members that 

make up the Required Majority will be determined 

as if the BDC Downstream Fund were a BDC subject 

to section 57(o). In the case of a BDC Downstream 

Fund with a transaction committee or advisory 

committee, the committee members that make up 

the Required Majority will be determined as if the 

BDC Downstream Fund were a BDC subject to 

section 57(o) and as if the committee members were 

directors of the fund. 

12The Advisers will maintain records of all 

proposed order amounts, Internal Orders and 

External Submissions in conjunction with Potential 

Co-Investment Transactions. Each applicable 

Adviser will provide the Eligible Directors with 

information concerning the Affiliated Funds’ and 

Regulated Funds’ order sizes to assist the Eligible 

Directors with their review of the applicable 

Regulated Fund’s investments for compliance with 

the Conditions. 

‘‘Eligible Directors’’ means, with respect to a 

Regulated Fund and a Potential Co-Investment 

Transaction, the members of the Regulated Fund’s 

Board eligible to vote on that Potential CoInvestment Transaction under section 57(o) of the 

Act. 

initial investment opportunities, 

opportunities for subsequent 

investments in an issuer and 

dispositions of securities holdings 

reasonably designed to treat all clients 

fairly and equitably. Further, applicants 

represent that these processes will be 

extended and modified in a manner 

reasonably designed to ensure that the 

additional transactions permitted under 

the Order will both (i) be fair and 

equitable to the Regulated Funds and 

the Affiliated Funds and (ii) comply 

with the Conditions. 

9. Specifically, applicants state that 

the Advisers are organized and managed 

such that teams and investment 

committees (‘‘Investment Teams’’ and 

‘‘Investment Committees’’), responsible 

for evaluating investment opportunities 

and making investment decisions on 

behalf of clients are promptly notified of 

the opportunities. If the requested Order 

is granted, the Advisers will establish, 

maintain and implement policies and 

procedures reasonably designed to 

ensure that, when such opportunities 

arise, the Advisers to the relevant 

Regulated Funds are promptly notified 

and receive the same information about 

the opportunity as any other Advisers 

considering the opportunity for their 

clients. In particular, consistent with 

Condition 1, if a Potential CoInvestment Transaction falls within the 

then-current Objectives and Strategies 8

and any Board-Established Criteria 9 of a 

Regulated Fund, the policies and 

procedures will require that the relevant 

Investment Teams and Investment 

Committees responsible for that 

Regulated Fund receive sufficient 

information to allow the Regulated 

Fund’s Adviser to make its independent 

determination and recommendations 

under the Conditions. 

10. The Adviser to each applicable 

Regulated Fund will then make an 

independent determination of the 

appropriateness of the investment for 

the Regulated Fund in light of the 

Regulated Fund’s then-current 

circumstances. If the Adviser to a 

Regulated Fund deems the Regulated 

Fund’s participation in such Potential 

Co-Investment Transaction to be 

appropriate, then it will formulate a 

recommendation regarding the proposed 

order amount for the Regulated Fund. 

11. Applicants state that, for each 

Regulated Fund and Affiliated Fund 

whose Adviser recommends 

participating in a Potential CoInvestment Transaction, the applicable 

Investment Committee will approve the 

investment and the investment amount. 

Applicants state further that the 

applicable Investment Committee will 

notify the allocation committee that 

coordinates and facilitates an order 

submission process with a designated 

representative of each applicable 

investment committee of a Regulated 

Fund and Affiliated Fund to the extent 

such investment is consistent with its 

Board-Established Criteria and/or falls 

within its then-current Objectives and 

Strategies. Prior to the External 

Submission (as defined below), each 

proposed order or investment amount 

may be reviewed and adjusted, in 

accordance with the applicable 

Advisers’ written allocation policies and 

procedures, by both the allocation 

committee, consisting of legal, 

compliance, and operations personnel 

and/or applicable investment committee 

of the Adviser (e.g., tradable credit, or 

direct lending).10 The order of a 

Regulated Fund or Affiliated Fund 

resulting from this process is referred to 

as its ‘‘Internal Order.’’ The Internal 

Order will be submitted for approval by 

the Required Majority of any 

participating Regulated Funds in 

accordance with the Conditions.11

12. Applicants acknowledge that 

some of the Affiliated Funds may not be 

funds advised by Advisers to Affiliated 

Funds because they are THL Proprietary 

Accounts. Applicants do not believe 

these THL Proprietary Accounts should 

raise issues under the Conditions 

because the allocation policies and 

procedures of the Advisers provide that 

investment opportunities are offered to 

client accounts before they are offered to 

THL Proprietary Accounts. 

13. If the aggregate Internal Orders for 

a Potential Co-Investment Transaction 

do not exceed the size of the investment 

opportunity immediately prior to the 

submission of the orders to the 

underwriter, broker, dealer or issuer, as 

applicable (the ‘‘External Submission’’), 

then each Internal Order will be 

fulfilled as placed and to the extent 

there is excess amount available to 

invest, the THL Proprietary Accounts 

will be permitted to invest. If, on the 

other hand, the aggregate Internal 

Orders for a Potential Co-Investment 

Transaction exceed the size of the 

investment opportunity immediately 

prior to the External Submission, then 

the allocation of the opportunity will be 

made pro rata on the basis of the size 

of the Internal Orders and the THL 

Proprietary Accounts will not be 

permitted to invest.12 If, subsequent to 

such External Submission, the size of 

the opportunity is increased or 

decreased, or if the terms of such 

opportunity, or the facts and 

circumstances applicable to the 


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13However, if the size of the opportunity is 

decreased such that the aggregate of the original 

Internal Orders would exceed the amount of the 

remaining investment opportunity, then upon 

submitting any revised order amount to the Board 

of a Regulated Fund for approval, the Adviser to the 

Regulated Fund will also notify the Board promptly 

of the amount that the Regulated Fund would 

receive if the remaining investment opportunity 

were allocated pro rata on the basis of the size of 

the original Internal Orders. The Board of the 

Regulated Fund will then either approve or 

disapprove of the investment opportunity in 

accordance with Condition 2, 6, 7, 8 or 9, as 

applicable. 

14 ‘‘Follow-On Investment’’ means an additional 

investment in the same issuer, including, but not 

limited to, through the exercise of warrants, 

conversion privileges or other rights to purchase 

securities of the issuer. 

15 ‘‘Pre-Boarding Investments’’ are investments in 

an issuer held by a Regulated Fund as well as one 

or more Affiliated Funds and/or one or more other 

Regulated Funds that were acquired prior to 

participating in any Co-Investment Transaction: (i) 

In transactions in which the only term negotiated 

by or on behalf of such funds was price in reliance 

on one of the JT No-Action Letters (defined below); 

or (ii) in transactions occurring at least 90 days 

apart and without coordination between the 

Regulated Fund and any Affiliated Fund or other 

Regulated Fund. 

16A ‘‘Pro Rata Follow-On Investment’’ is a 

Follow-On Investment (i) in which the participation 

of each Affiliated Fund and each Regulated Fund 

is proportionate to its outstanding investments in 

the issuer or security, as appropriate, immediately 

preceding the Follow-On Investment, and (ii) in the 

case of a Regulated Fund, a majority of the Board 

has approved the Regulated Fund’s participation in 

the pro rata Follow-On Investments as being in the 

best interests of the Regulated Fund. The Regulated 

Fund’s Board may refuse to approve, or at any time 

rescind, suspend or qualify, its approval of Pro Rata 

Follow-On Investments, in which case all 

subsequent Follow-On Investments will be 

submitted to the Regulated Fund’s Eligible Directors 

in accordance with Condition 8(c). 

17A ‘‘Non-Negotiated Follow-On Investment’’ is a 

Follow-On Investment in which a Regulated Fund 

participates together with one or more Affiliated 

Funds and/or one or more other Regulated Funds 

(i) in which the only term negotiated by or on behalf 

of the funds is price and (ii) with respect to which, 

if the transaction were considered on its own, the 

funds would be entitled to rely on one of the JT NoAction Letters. 

‘‘JT No-Action Letters’’ means SMC Capital, Inc., 

SEC No-Action Letter (pub. avail. Sept. 5, 1995) and 

Massachusetts Mutual Life Insurance Company, 

SEC No-Action Letter (pub. avail. June 7, 2000). 

18 ‘‘Disposition’’ means the sale, exchange or 

other disposition of an interest in a security of an 

issuer. 

19However, with respect to an issuer, if a 

Regulated Fund’s first Co-Investment Transaction is 

an Enhanced Review Disposition, and the Regulated 

Fund does not dispose of its entire position in the 

Enhanced Review Disposition, then before such 

Regulated Fund may complete its first Standard 

Review Follow-On in such issuer, the Eligible 

Directors must review the proposed Follow-On 

Investment not only on a stand-alone basis but also 

in relation to the total economic exposure in such 

issuer (i.e., in combination with the portion of the 

Pre-Boarding Investment not disposed of in the 

Enhanced Review Disposition), and the other terms 

of the investments. This additional review would be 

required because such findings would not have 

been required in connection with the prior 

Enhanced Review Disposition, but they would have 

been required had the first Co-Investment 

Transaction been an Enhanced Review Follow-On. 

20A ‘‘Pro Rata Disposition’’ is a Disposition (i) in 

which the participation of each Affiliated Fund and 

each Regulated Fund is proportionate to its 

outstanding investment in the security subject to 

Disposition immediately preceding the Disposition; 

and (ii) in the case of a Regulated Fund, a majority 

of the Board has approved the Regulated Fund’s 

participation in pro rata Dispositions as being in the 

best interests of the Regulated Fund. The Regulated 

Fund’s Board may refuse to approve, or at any time 

rescind, suspend or qualify, its approval of Pro Rata 

Dispositions, in which case all subsequent 

Dispositions will be submitted to the Regulated 

Fund’s Eligible Directors. 

21 ‘‘Tradable Security’’ means a security that 

meets the following criteria at the time of 

Disposition: (i) It trades on a national securities 

exchange or designated offshore securities market 

as defined in rule 902(b) under the Securities Act; 

(ii) it is not subject to restrictive agreements with 

the issuer or other security holders; and (iii) it 

trades with sufficient volume and liquidity 

(findings as to which are documented by the 

Advisers to any Regulated Funds holding 

investments in the issuer and retained for the life 

of the Regulated Fund) to allow each Regulated 

Fund to dispose of its entire position remaining 

after the proposed Disposition within a short period 

of time not exceeding 30 days at approximately the 

value (as defined by section 2(a)(41) of the Act) at 

which the Regulated Fund has valued the 

investment. 

Regulated Funds’ or the Affiliated 

Funds’ consideration of the opportunity, 

change, the participants will be 

permitted to submit revised Internal 

Orders in accordance with written 

allocation policies and procedures that 

the Advisers will establish, implement 

and maintain.13

B. Follow-On Investments 

14. Applicants state that from time to 

time the Regulated Funds and Affiliated 

Funds may have opportunities to make 

Follow-On Investments 14 in an issuer in 

which a Regulated Fund and one or 

more other Regulated Funds and/or 

Affiliated Funds previously have 

invested. 

15. Applicants propose that FollowOn Investments would be divided into 

two categories depending on whether 

the prior investment was a CoInvestment Transaction or a PreBoarding Investment.15 If the Regulated 

Funds and Affiliated Funds had 

previously participated in a CoInvestment Transaction with respect to 

the issuer, then the terms and approval 

of the Follow-On Investment would be 

subject to the Standard Review FollowOns described in Condition 8. If the 

Regulated Funds and Affiliated Funds 

have not previously participated in a 

Co-Investment Transaction with respect 

to the issuer but hold a Pre-Boarding 

Investment, then the terms and approval 

of the Follow-On Investment would be 

subject to the Enhanced-Review FollowOns described in Condition 9. All 

Enhanced Review Follow-Ons require 

the approval of the Required Majority. 

For a given issuer, the participating 

Regulated Funds and Affiliated Funds 

would need to comply with the 

requirements of Enhanced-Review 

Follow-Ons only for the first CoInvestment Transaction. Subsequent CoInvestment Transactions with respect to 

the issuer would be governed by the 

requirements of Standard Review 

Follow-Ons. 

16. A Regulated Fund would be 

permitted to invest in Standard Review 

Follow-Ons either with the approval of 

the Required Majority under Condition 

8(c) or without Board approval under 

Condition 8(b) if it is (i) a Pro Rata 

Follow-On Investment 16 or (ii) a NonNegotiated Follow-On Investment.17

Applicants believe that these Pro Rata 

and Non-Negotiated Follow-On 

Investments do not present a significant 

opportunity for overreaching on the part 

of any Adviser and thus do not warrant 

the time or the attention of the Board. 

Pro Rata Follow-On Investments and 

Non-Negotiated Follow-On Investments 

remain subject to the Board’s periodic 

review in accordance with Condition 

10. 

C. Dispositions 

17. Applicants propose that 

Dispositions 18 would be divided into 

two categories. If the Regulated Funds 

and Affiliated Funds holding 

investments in the issuer had previously 

participated in a Co-Investment 

Transaction with respect to the issuer, 

then the terms and approval of the 

Disposition would be subject to the 

Standard Review Dispositions described 

in Condition 6. If the Regulated Funds 

and Affiliated Funds have not 

previously participated in a CoInvestment Transaction with respect to 

the issuer but hold a Pre-Boarding 

Investment, then the terms and approval 

of the Disposition would be subject to 

the Enhanced Review Dispositions 

described in Condition 7. Subsequent 

Dispositions with respect to the same 

issuer would be governed by Condition 

6 under the Standard Review 

Dispositions.19

18. A Regulated Fund may participate 

in a Standard Review Disposition either 

with the approval of the Required 

Majority under Condition 6(d) or 

without Board approval under 

Condition 6(c) if (i) the Disposition is a 

Pro Rata Disposition 20 or (ii) the 

securities are Tradable Securities 21 and 

the Disposition meets the other 

requirements of Condition 6(c)(ii). Pro 

Rata Dispositions and Dispositions of a 

Tradable Security remain subject to the 

Board’s periodic review in accordance 

with Condition 10. 


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22Applicants state this may occur for two 

reasons. First, when the Affiliated Fund or 

Regulated Fund is not yet fully funded because, 

when the Affiliated Fund or Regulated Fund desires 

to make an investment, it must call capital from its 

investors to obtain the financing to make the 

investment, and in these instances, the notice 

requirement to call capital could be as much as ten 

business days. Second, where, for tax or regulatory 

reasons, an Affiliated Fund or Regulated Fund does 

not purchase new issuances immediately upon 

issuance but only after a short seasoning period of 

up to ten business days. 

D. Delayed Settlement 

19. Applicants represent that under 

the terms and Conditions of the 

application, all Regulated Funds and 

Affiliated Funds participating in a CoInvestment Transaction 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. 

However, the settlement date for an 

Affiliated Fund in a Co-Investment 

Transaction may occur up to ten 

business days after the settlement date 

for the Regulated Fund, and vice 

versa.22 Nevertheless, in all cases, (i) the 

date on which the commitment of the 

Affiliated Funds and Regulated Funds is 

made will be the same even where the 

settlement date is not and (ii) the 

earliest settlement date and the latest 

settlement date of any Affiliated Fund 

or Regulated Fund participating in the 

transaction will occur within ten 

business days of each other. 

E. Holders 

20. Under Condition 15, if an Adviser, 

its principals, or any person controlling, 

controlled by, or under common control 

with the Adviser or its 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 directed by an 

independent third party when voting on 

matters specified in the Condition. 

Applicants believe that this Condition 

will ensure that the Independent 

Directors will act independently in 

evaluating Co-Investment Transactions, 

because the ability of the Adviser or its 

principals to influence the Independent 

Directors by a suggestion, explicit or 

implied, that the Independent Directors 

can be removed will be limited 

significantly. The Independent Directors 

shall evaluate and approve any 

independent party, taking into account 

its qualifications, reputation for 

independence, cost to the shareholders, 

and other factors that they deem 

relevant. 

Applicants’ Legal Analysis 

1. Section 17(d) of the Act and rule 

17d–1 under the Act prohibit 

participation by a registered investment 

company and an affiliated person 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. Section 17(d) of the 

Act and rule 17d–1 under the Act are 

applicable to Regulated Funds that are 

registered closed-end investment 

companies. 

2. Similarly, with regard to BDCs, 

section 57(a)(4) of the Act generally 

prohibits certain persons specified in 

section 57(b) from participating in joint 

transactions with the BDC or a company 

controlled by the BDC in contravention 

of rules as prescribed by the 

Commission. Section 57(i) of the Act 

provides that, until the Commission 

prescribes rules under section 57(a)(4), 

the Commission’s rules under section 

17(d) of the Act applicable to registered 

closed-end investment companies will 

be deemed to apply to transactions 

subject to section 57(a)(4). Because the 

Commission has not adopted any rules 

under section 57(a)(4), rule 17d–1 also 

applies to joint transactions with 

Regulated Funds that are BDCs. 

3. Co-Investment Transactions are 

prohibited by either or both of rule 17d– 

1 and section 57(a)(4) without a prior 

exemptive order of the Commission to 

the extent that the Affiliated Funds and 

the Regulated Funds participating in 

such transactions fall within the 

category of persons described by rule 

17d–1 and/or section 57(b), as 

applicable, vis-a`-vis each participating 

Regulated Fund. Each of the 

participating Regulated Funds and 

Affiliated Funds may be deemed to be 

affiliated persons vis-a`-vis a Regulated 

Fund within the meaning of section 

2(a)(3) by reason of common control 

because (i) the THL Advisers to 

Affiliated Funds manage, and may be 

deemed to control, each of the Existing 

Affiliated Funds and any other 

Affiliated Fund will be managed by, and 

may be deemed to be controlled by an 

Adviser to Affiliated Funds; (ii) THLCA 

is the investment adviser to, and may be 

deemed to control, TCRD and an 

Adviser to Regulated Funds will be the 

investment adviser to, and may be 

deemed to control, any Future 

Regulated Fund, (iii) each BDC 

Downstream Fund will be deemed to be 

controlled by its BDC parent and/or its 

BDC parent’s investment adviser; and 

(iv) the Advisers to Affiliated Funds and 

the Advisers to Regulated Funds are 

under common control. Thus, each of 

the Affiliated Funds could be deemed to 

be a person related to the Regulated 

Funds, including any BDC Downstream 

Fund, in a manner described by section 

57(b) and related to the other Regulated 

Funds in a manner described by rule 

17d–1; and therefore the prohibitions of 

rule 17d–1 and section 57(a)(4) would 

apply respectively to prohibit the 

Affiliated Funds from participating in 

Co-Investment Transactions with the 

Regulated Funds. In addition, because 

the THL Proprietary Accounts are 

controlled by THLCA and, therefore, 

may be under common control with 

TCRD, SLS, any future Advisers, and 

any Future Regulated Funds, the THL 

Proprietary Accounts could be deemed 

to be persons related to the Regulated 

Funds (or a company controlled by the 

Regulated Funds) in a manner described 

by section 57(b) and also prohibited 

from participating in the Co-Investment 

Program. 

4. In passing upon applications under 

rule 17d–1, the Commission considers 

whether the company’s participation in 

the joint transaction is consistent with 

the provisions, policies, and purposes of 

the Act and the extent to which such 

participation is on a basis different from 

or less advantageous than that of other 

participants. 

5. Applicants state that in the absence 

of the requested relief, in many 

circumstances the Regulated Funds 

would be limited in their ability to 

participate in attractive and appropriate 

investment opportunities. Applicants 

state that, as required by rule 17d–1(b), 

the Conditions ensure that the terms on 

which Co-Investment Transactions may 

be made will be consistent with the 

participation of the Regulated Funds 

being on a basis that it is neither 

different from nor less advantageous 

than other participants, thus protecting 

the equity holders of any participant 

from being disadvantaged. Applicants 

further state that the Conditions ensure 

that all Co-Investment Transactions are 

reasonable and fair to the Regulated 

Funds and their shareholders and do 

not involve overreaching by any person 

concerned, including the Advisers. 

Applicants state that the Regulated 

Funds’ participation in the CoInvestment Transactions in accordance 

with the Conditions will be consistent 

with the provisions, policies, and 

purposes of the Act and would be done 

in a manner that is not different from, 

or less advantageous than, that of other 

participants. 

Applicants’ Conditions 

Applicants agree that the Order will 

be subject to the following Conditions: 


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23For example, procuring the Regulated Fund’s 

investment in a Potential Co-Investment 

Transaction to permit an affiliate to complete or 

obtain better terms in a separate transaction would 

constitute an indirect financial benefit. 

24This exception applies only to Follow-On 

Investments by a Regulated Fund in issuers in 

which that Regulated Fund already holds 

investments. 

25 ‘‘Related Party’’ means (i) any Close Affiliate 

and (ii) in respect of matters as to which any 

Adviser has knowledge, any Remote Affiliate. 

‘‘Close Affiliate’’ means the Advisers, the Regulated 

Funds, the Affiliated Funds and any other person 

described in Section 57(b) (after giving effect to 

Rule 57b–1) in respect of any Regulated Fund 

(treating any registered investment company or 

series thereof as a BDC for this purpose) except for 

limited partners included solely by reason of the 

reference in Section 57(b) to Section 2(a)(3)(D). 

‘‘Remote Affiliate’’ means any person described in 

Section 57(e) in respect of any Regulated Fund 

(treating any registered investment company or 

series thereof as a BDC for this purpose) and any 

limited partner holding 5% or more of the relevant 

limited partner interests that would be a Close 

Affiliate but for the exclusion in that definition. 

1. Identification and Referral of 

Potential Co-Investment Transactions. 

(a) The Advisers will establish, 

maintain and implement policies and 

procedures reasonably designed to 

ensure that each Adviser is promptly 

notified of all Potential Co-Investment 

Transactions that fall within the thencurrent Objectives and Strategies and 

Board-Established Criteria of any 

Regulated Fund the Adviser manages. 

(b) When an Adviser to a Regulated 

Fund is notified of a Potential CoInvestment Transaction under 

Condition 1(a), the Adviser will make 

an independent determination of the 

appropriateness of the investment for 

the Regulated Fund in light of the 

Regulated Fund’s then-current 

circumstances. 

2. Board Approvals of Co-Investment 

Transactions. 

(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 Advisers to be 

invested in the Potential Co-Investment 

Transaction by the participating 

Regulated Funds and any participating 

Affiliated Funds, collectively, exceeds 

the amount of the investment 

opportunity, the investment opportunity 

will be allocated among them pro rata 

based on the size of the Internal Orders, 

as described in section III.A.1.b. of the 

application. Each Adviser to a 

participating Regulated Fund will 

promptly notify and provide the Eligible 

Directors with information concerning 

the Affiliated Funds’ and Regulated 

Funds’ order sizes to assist the Eligible 

Directors with their review of the 

applicable Regulated Fund’s 

investments for compliance with these 

Conditions. 

(c) After making the determinations 

required in Condition 1(b) above, each 

Adviser to a participating Regulated 

Fund will distribute written information 

concerning the Potential Co-Investment 

Transaction (including the amount 

proposed to be invested by each 

participating Regulated Fund and each 

participating Affiliated Fund) to the 

Eligible Directors of its participating 

Regulated Fund(s) for their 

consideration. A Regulated Fund will 

enter into a Co-Investment Transaction 

with one or more other Regulated Funds 

or 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 transaction, 

including the consideration to be paid, 

are reasonable and fair to the Regulated 

Fund and its equity holders and do not 

involve overreaching in respect of the 

Regulated Fund or its equity holders on 

the part of any person concerned; 

(ii) the transaction is consistent with: 

(A) The interests of the Regulated 

Fund’s equity holders; and 

(B) the Regulated Fund’s then-current 

Objectives and Strategies; 

(iii) the investment by any other 

Regulated Fund(s) or Affiliated Fund(s) 

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 any other Regulated 

Fund(s) or Affiliated Fund(s) 

participating in the transaction; 

provided that the Required Majority 

shall not be prohibited from reaching 

the conclusions required by this 

Condition 2(c)(iii) if: 

(A) The settlement date for another 

Regulated Fund or an Affiliated Fund in 

a Co-Investment Transaction is later 

than the settlement date for the 

Regulated Fund by no more than ten 

business days or earlier than the 

settlement date for the Regulated Fund 

by no more than ten business days, in 

either case, so long as: (x) The date on 

which the commitment of the Affiliated 

Funds and Regulated Funds is made is 

the same; and (y) the earliest settlement 

date and the latest settlement date of 

any Affiliated Fund or Regulated Fund 

participating in the transaction will 

occur within ten business days of each 

other; or 

(B) 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, the right 

to have a board observer or any similar 

right to participate in the governance or 

management of the portfolio company 

so long as: (x) The Eligible Directors will 

have the right to ratify the selection of 

such director or board observer, if any; 

(y) the 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 (z) any fees or other compensation 

that any other Regulated Fund or 

Affiliated Fund or any affiliated person 

of any other Regulated Fund or 

Affiliated Fund receives in connection 

with the right of one or more Regulated 

Funds or Affiliated Funds 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 any participating 

Affiliated Funds (who may, in turn, 

share their portion with their affiliated 

persons) and any participating 

Regulated Fund(s) in accordance with 

the amount of each such party’s 

investment; and 

(iv) the proposed investment by the 

Regulated Fund will not involve 

compensation, remuneration or a direct 

or indirect 23 financial benefit to the 

Advisers, any other Regulated Fund, the 

Affiliated 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 

14, (B) to the extent permitted by 

section 17(e) or 57(k), 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)(B)(z). 

3. Right to Decline. Each Regulated 

Fund has the right to decline to 

participate in any Potential CoInvestment Transaction or to invest less 

than the amount proposed. 

4. General Limitation. Except for 

Follow-On Investments made in 

accordance with Conditions 8 and 9 

below,24 a Regulated Fund will not 

invest in reliance on the Order in any 

issuer in which a Related Party has an 

investment.25

5. Same Terms and Conditions. A 

Regulated Fund will not participate in 

any Potential Co-Investment 

Transaction unless (i) the terms, 

conditions, price, class of securities to 

be purchased, date on which the 

commitment is entered into and 

registration rights (if any) will be the 


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26Any THL Proprietary Account that is not 

advised by an Adviser is itself deemed to be an 

Adviser for purposes of Conditions 6(a)(i), 7(a)(i), 

8(a)(i) and 9(a)(i). 

27 In the case of any Disposition, proportionality 

will be measured by each participating Regulated 

Fund’s and Affiliated Fund’s outstanding 

investment in the security in question immediately 

preceding the Disposition. 

28 In determining whether a holding is 

‘‘immaterial’’ for purposes of the Order, the 

Required Majority will consider whether the nature 

and extent of the interest in the transaction or 

arrangement is sufficiently small that a reasonable 

person would not believe that the interest affected 

the determination of whether to enter into the 

transaction or arrangement or the terms of the 

transaction or arrangement. 

same for each participating Regulated 

Fund and Affiliated Fund and (ii) the 

earliest settlement date and the latest 

settlement date of any participating 

Regulated Fund or Affiliated Fund will 

occur as close in time as practicable and 

in no event more than ten business days 

apart. The grant to one or more 

Regulated Funds or Affiliated Funds, 

but not the respective 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 5, if Condition 2(c)(iii)(B) is 

met. 

6. Standard Review Dispositions. 

(a) General. If any Regulated Fund or 

Affiliated Fund elects to sell, exchange 

or otherwise dispose of an interest in a 

security and one or more Regulated 

Funds and Affiliated Funds have 

previously participated in a CoInvestment Transaction with respect to 

the issuer, then: 

(i) The Adviser to such Regulated 

Fund or Affiliated Fund 26 will notify 

each Regulated Fund that holds an 

investment in the issuer of the proposed 

Disposition at the earliest practical time; 

and 

(ii) the Adviser to each Regulated 

Fund that holds an investment in the 

issuer will formulate a recommendation 

as to participation by such Regulated 

Fund in the Disposition. 

(b) Same Terms and Conditions. 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 Affiliated 

Funds and any other Regulated Fund. 

(c) No Board Approval Required. A 

Regulated Fund may participate in such 

a Disposition without obtaining prior 

approval of the Required Majority if: 

(i) (A) The participation of each 

Regulated Fund and Affiliated Fund in 

such Disposition is proportionate to its 

then-current holding of the security (or 

securities) of the issuer that is (or are) 

the subject of the Disposition; 27 (B) 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 the application); and (C) the Board of 

the Regulated Fund is provided on a 

quarterly basis with a list of all 

Dispositions made in accordance with 

this Condition; or 

(ii) each security is a Tradable 

Security and (A) the Disposition is not 

to the issuer or any affiliated person of 

the issuer; and (B) the security is sold 

for cash in a transaction in which the 

only term negotiated by or on behalf of 

the participating Regulated Funds and 

Affiliated Funds is price. 

(d) Standard Board Approval. 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. 

7. Enhanced Review Dispositions. 

(a) General. If any Regulated Fund or 

Affiliated Fund elects to sell, exchange 

or otherwise dispose of a Pre-Boarding 

Investment in a Potential Co-Investment 

Transaction and the Regulated Funds 

and Affiliated Funds have not 

previously participated in a CoInvestment Transaction with respect to 

the issuer: 

(i) The Adviser to such Regulated 

Fund or Affiliated Fund will notify each 

Regulated Fund that holds an 

investment in the issuer of the proposed 

Disposition at the earliest practical time; 

(ii) the Adviser to each Regulated 

Fund that holds an investment in the 

issuer will formulate a recommendation 

as to participation by such Regulated 

Fund in the Disposition; and 

(iii) the Advisers will provide to the 

Board of each Regulated Fund that 

holds an investment in the issuer all 

information relating to the existing 

investments in the issuer of the 

Regulated Funds and Affiliated Funds, 

including the terms of such investments 

and how they were made, that is 

necessary for the Required Majority to 

make the findings required by this 

Condition. 

(b) Enhanced Board Approval. 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: 

(i) The Disposition complies with 

Condition 2(c)(i), (ii), (iii)(A), and (iv). 

(ii) the making and holding of the PreBoarding Investments were not 

prohibited by section 57 or rule 17d–1, 

as applicable, and records the basis for 

the finding in the Board minutes. 

(c) Additional Requirements: The 

Disposition may only be completed in 

reliance on the Order if: 

(i) Same Terms and Conditions. Each 

Regulated Fund has 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 Affiliated 

Funds and any other Regulated Fund; 

(ii) Original Investments. All of the 

Affiliated Funds’ and Regulated Funds’ 

investments in the issuer are PreBoarding Investments; 

(iii) Advice of counsel. Independent 

counsel to the Board advises that the 

making and holding of the investments 

in the Pre-Boarding Investments were 

not prohibited by section 57 (as 

modified by rule 57b–1) or rule 17d–1, 

as applicable; 

(iv) Multiple Classes of Securities. All 

Regulated Funds and Affiliated Funds 

that hold Pre-Boarding Investments in 

the issuer immediately before the time 

of completion of the Co-Investment 

Transaction hold the same security or 

securities of the issuer. For the purpose 

of determining whether the Regulated 

Funds and Affiliated Funds hold the 

same security or securities, they may 

disregard any security held by some but 

not all of them if, prior to relying on the 

Order, the Required Majority is 

presented with all information 

necessary to make a finding, and finds, 

that: (x) Any Regulated Fund’s or 

Affiliated Fund’s holding of a different 

class of securities (including for this 

purpose a security with a different 

maturity date) is immaterial 28 in 

amount, including immaterial relative to 

the size of the issuer; and (y) the Board 

records the basis for any such finding in 

its minutes. In addition, securities that 

differ only in respect of issuance date, 

currency, or denominations may be 

treated as the same security; and 

(v) No control. The Affiliated Funds, 

the other Regulated Funds and their 

affiliated persons (within the meaning 

of section 2(a)(3)(C) of the Act), 

individually or in the aggregate, do not 

control the issuer of the securities 

(within the meaning of section 2(a)(9) of 

the Act). 

8. Standard Review Follow-Ons. 

(a) General. If any Regulated Fund or 

Affiliated Fund desires to make a 


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29To the extent that a Follow-On Investment 

opportunity is in a security or arises in respect of 

a security held by the participating Regulated 

Funds and Affiliated Funds, proportionality will be 

measured by each participating Regulated Fund’s 

and Affiliated Fund’s outstanding investment in the 

security in question immediately preceding the 

Follow-On Investment using the most recent 

available valuation thereof. To the extent that a 

Follow-On Investment opportunity relates to an 

opportunity to invest in a security that is not in 

respect of any security held by any of the 

participating Regulated Funds or Affiliated Funds, 

proportionality will be measured by each 

participating Regulated Fund’s and Affiliated 

Fund’s outstanding investment in the issuer 

immediately preceding the Follow-On Investment 

using the most recent available valuation thereof. 

Follow-On Investment in an issuer and 

the Regulated Funds and Affiliated 

Funds holding investments in the issuer 

previously participated in a CoInvestment Transaction with respect to 

the issuer: 

(i) The Adviser to each such 

Regulated Fund or Affiliated Fund will 

notify each Regulated Fund that holds 

securities of the portfolio company of 

the proposed transaction at the earliest 

practical time; and 

(ii) the Adviser to each Regulated 

Fund that holds an investment in the 

issuer will formulate a recommendation 

as to the proposed participation, 

including the amount of the proposed 

investment, by such Regulated Fund. 

(b) No Board Approval Required. A 

Regulated Fund may participate in the 

Follow-On Investment without 

obtaining prior approval of the Required 

Majority if: 

(i) (A) The proposed participation of 

each Regulated Fund and each 

Affiliated Fund in such investment is 

proportionate to its outstanding 

investments in the issuer or the security 

at issue, as appropriate,29 immediately 

preceding the Follow-On Investment; 

and (B) 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 the 

application); or 

(ii) it is a Non-Negotiated Follow-On 

Investment. 

(c) Standard Board Approval. 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 makes the 

determinations set forth in Condition 

2(c). If the only previous Co-Investment 

Transaction with respect to the issuer 

was an Enhanced Review Disposition 

the Eligible Directors must complete 

this review of the proposed Follow-On 

Investment both on a stand-alone basis 

and together with the Pre-Boarding 

Investments in relation to the total 

economic exposure and other terms of 

the investment. 

(d) Allocation. If, with respect to any 

such Follow-On Investment: 

(i) The amount of the opportunity 

proposed to be made available to any 

Regulated Fund is not based on the 

Regulated Funds’ and the Affiliated 

Funds’ outstanding investments in the 

issuer or the security at issue, as 

appropriate, immediately preceding the 

Follow-On Investment; and 

(ii) the aggregate amount 

recommended by the Advisers to be 

invested in the Follow-On Investment 

by the participating Regulated Funds 

and any participating Affiliated Funds, 

collectively, exceeds the amount of the 

investment opportunity, then the 

Follow-On Investment opportunity will 

be allocated among them pro rata based 

on the size of the Internal Orders, as 

described in section III.A.1.b. of the 

application. 

(e) Other Conditions. 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. Enhanced Review Follow-Ons. 

(a) General. If any Regulated Fund or 

Affiliated Fund desires to make a 

Follow-On Investment in an issuer that 

is a Potential Co-Investment Transaction 

and the Regulated Funds and Affiliated 

Funds holding investments in the issuer 

have not previously participated in a 

Co-Investment Transaction with respect 

to the issuer: 

(i) The Adviser to each such 

Regulated Fund or Affiliated Fund will 

notify each Regulated Fund that holds 

securities of the portfolio company of 

the proposed transaction at the earliest 

practical time; 

(ii) the Adviser to each Regulated 

Fund that holds an investment in the 

issuer will formulate a recommendation 

as to the proposed participation, 

including the amount of the proposed 

investment, by such Regulated Fund; 

and 

(iii) the Advisers will provide to the 

Board of each Regulated Fund that 

holds an investment in the issuer all 

information relating to the existing 

investments in the issuer of the 

Regulated Funds and Affiliated Funds, 

including the terms of such investments 

and how they were made, that is 

necessary for the Required Majority to 

make the findings required by this 

Condition. 

(b) Enhanced Board Approval. 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 reviews the proposed 

Follow-On Investment both on a standalone basis and together with the PreBoarding Investments in relation to the 

total economic exposure and other 

terms and makes the determinations set 

forth in Condition 2(c). In addition, the 

Follow-On Investment may only be 

completed in reliance on the Order if 

the Required Majority of each 

participating Regulated Fund 

determines that the making and holding 

of the Pre-Boarding Investments were 

not prohibited by section 57 (as 

modified by rule 57b–1) or rule 17d–1, 

as applicable. The basis for the Board’s 

findings will be recorded in its minutes. 

(c) Additional Requirements. The 

Follow-On Investment may only be 

completed in reliance on the Order if: 

(i) Original Investments. All of the 

Affiliated Funds’ and Regulated Funds’ 

investments in the issuer are PreBoarding Investments; 

(ii) Advice of counsel. Independent 

counsel to the Board advises that the 

making and holding of the investments 

in the Pre-Boarding Investments were 

not prohibited by section 57 (as 

modified by rule 57b–1) or rule 17d–1, 

as applicable; 

(iii) Multiple Classes of Securities. All 

Regulated Funds and Affiliated Funds 

that hold Pre-Boarding Investments in 

the issuer immediately before the time 

of completion of the Co-Investment 

Transaction hold the same security or 

securities of the issuer. For the purpose 

of determining whether the Regulated 

Funds and Affiliated Funds hold the 

same security or securities, they may 

disregard any security held by some but 

not all of them if, prior to relying on the 

Order, the Required Majority is 

presented with all information 

necessary to make a finding, and finds, 

that: (x) Any Regulated Fund’s or 

Affiliated Fund’s holding of a different 

class of securities (including for this 

purpose a security with a different 

maturity date) is immaterial in amount, 

including immaterial relative to the size 

of the issuer; and (y) the Board records 

the basis for any such finding in its 

minutes. In addition, securities that 

differ only in respect of issuance date, 

currency, or denominations may be 

treated as the same security; and 

(iv) No control. The Affiliated Funds, 

the other Regulated Funds and their 

affiliated persons (within the meaning 

of section 2(a)(3)(C) of the Act), 

individually or in the aggregate, do not 

control the issuer of the securities 


amozie on DSK3GDR082PROD with NOTICES1
44330 Federal Register / Vol. 83, No. 169 / Thursday, August 30, 2018 / Notices 

30Applicants are not requesting and the 

Commission is not providing any relief for 

transaction fees received in connection with any 

Co-Investment Transaction. 

(within the meaning of section 2(a)(9) of 

the Act). 

(d) Allocation. If, with respect to any 

such Follow-On Investment: 

(i) The amount of the opportunity 

proposed to be made available to any 

Regulated Fund is not based on the 

Regulated Funds’ and the Affiliated 

Funds’ outstanding investments in the 

issuer or the security at issue, as 

appropriate, immediately preceding the 

Follow-On Investment; and 

(ii) the aggregate amount 

recommended by the Advisers to be 

invested in the Follow-On Investment 

by the participating Regulated Funds 

and any participating Affiliated Funds, 

collectively, exceeds the amount of the 

investment opportunity, then the 

Follow-On Investment opportunity will 

be allocated among them pro rata based 

on the size of the Internal Orders, as 

described in section III.A.1.b. of the 

application. 

(e) Other Conditions. 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 the application. 

10. Board Reporting, Compliance and 

Annual Re-Approval. 

(a) Each Adviser to a Regulated Fund 

will present to the Board of each 

Regulated Fund, on a quarterly basis, 

and at such other times as the Board 

may request, (i) a record of all 

investments in Potential Co-Investment 

Transactions made by any of the other 

Regulated Funds or any of the Affiliated 

Funds during the preceding quarter that 

fell within the Regulated Fund’s thencurrent Objectives and Strategies and 

Board-Established Criteria that were not 

made available to the Regulated Fund, 

and an explanation of why such 

investment opportunities were not made 

available to the Regulated Fund; (ii) a 

record of all Follow-On Investments in 

and Dispositions of investments in any 

issuer in which the Regulated Fund 

holds any investments by any Affiliated 

Fund or other Regulated Fund during 

the prior quarter; and (iii) all 

information concerning Potential CoInvestment Transactions and CoInvestment Transactions, including 

investments made by other Regulated 

Funds or Affiliated Funds that the 

Regulated Fund considered but declined 

to participate in, so that the 

Independent Directors, may determine 

whether all Potential Co-Investment 

Transactions and Co-Investment 

Transactions during the preceding 

quarter, including those investments 

that the Regulated Fund considered but 

declined to participate in, comply with 

the Conditions. 

(b) All information presented to the 

Regulated Fund’s 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. 

(c) Each Regulated Fund’s chief 

compliance officer, as defined in rule 

38a–1(a)(4), will prepare an annual 

report for its Board each year that 

evaluates (and documents the basis of 

that evaluation) the Regulated Fund’s 

compliance with the terms and 

Conditions of the application and the 

procedures established to achieve such 

compliance. In the case of a BDC 

Downstream Fund that does not have a 

chief compliance officer, the chief 

compliance officer of the BDC that 

controls the BDC Downstream Fund will 

prepare the report for the relevant 

Independent Party. 

(d) The Independent Directors 

(including the non-interested members 

of each Independent Party) will 

consider at least annually whether 

continued participation in new and 

existing Co-Investment Transactions is 

in the Regulated Fund’s best interests. 

11. Record Keeping. Each Regulated 

Fund will maintain the records required 

by section 57(f)(3) of the 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). 

12. Director Independence. No 

Independent Director (including the 

non-interested members of any 

Independent Party) of a Regulated Fund 

will also be a director, general partner, 

managing member or principal, or 

otherwise be an ‘‘affiliated person’’ (as 

defined in the Act) of any Affiliated 

Fund. 

13. Expenses. 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 Securities 

Act) will, to the extent not payable by 

the Advisers under their respective 

advisory agreements with the Regulated 

Funds and the Affiliated Funds, be 

shared by the Regulated Funds and the 

participating Affiliated Funds in 

proportion to the relative amounts of the 

securities held or being acquired or 

disposed of, as the case may be. 

14. Transaction Fees.30 Any 

transaction fee (including break-up, 

structuring, monitoring or commitment 

fees but excluding brokerage or 

underwriting compensation permitted 

by section 17(e) or 57(k)) received in 

connection with any 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), and the account will earn a 

competitive rate of interest that will also 

be divided pro rata among the 

participants. None of the Advisers, the 

Affiliated Funds, the other Regulated 

Funds or any affiliated person of the 

Affiliated Funds or the Regulated Funds 

will receive any additional 

compensation or remuneration of any 

kind as a result of or in connection with 

a Co-Investment Transaction other than 

(i) 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)(B)(z), (ii) brokerage or 

underwriting compensation permitted 

by section 17(e) or 57(k) or (iii) in the 

case of the Advisers, investment 

advisory compensation paid in 

accordance with investment advisory 

agreements between the applicable 

Regulated Fund(s) or Affiliated Fund(s) 

and its Adviser. 

15. Independence. If the Holders own 

in the aggregate more than 25 percent 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 Act or applicable State law 

affecting the Board’s composition, size 

or manner of election. 

16. Proprietary Accounts. The THL 

Proprietary Accounts will not be 

permitted to invest in a Potential CoInvestment Transaction except to the 

extent the aggregate demand from the 

Regulated Funds and the other 

Affiliated Funds is less than the total 

investment opportunity. 

For the Commission, by the Division of 

Investment Management, under delegated 

authority. 

Eduardo A. Aleman, 

Assistant Secretary. 

[FR Doc. 2018–18780 Filed 8–29–18; 8:45 am] 

BILLING CODE 8011–01–P 


amozie on DSK3GDR082PROD with NOTICES1