Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Notices 1079 

95 17 CFR 200.30–3(a)(12). 

1Section 2(a)(48) of the Act defines a ‘‘BDC’’ to 

be any closed-end investment company that 

operates for the purpose of making investments in 

securities described in sections 55(a)(1) through 

55(a)(3) of the Act and makes available significant 

managerial assistance with respect to the issuers of 

such securities. 

or (b) institute proceedings to determine 

whether the proposed rule change 

should be disapproved. 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views, and 

arguments concerning the foregoing, 

including whether the proposed rule 

change is consistent with the Act. 

Comments may be submitted by any of 

the following methods: 

Electronic Comments 

• Use the Commission’s internet 

comment form (http://www.sec.gov/ 

rules/sro.shtml); or 

• Send an email to rule-comments@

sec.gov. Please include File Number SR– 

NASDAQ–2017–128 on the subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Secretary, Securities and Exchange 

Commission, 100 F Street NE, 

Washington, DC 20549–1090. 

All submissions should refer to File 

Number SR–NASDAQ–2017–128. This 

file number should be included on the 

subject line if email is used. To help the 

Commission process and review your 

comments more efficiently, please use 

only one method. The Commission will 

post all comments on the Commission’s 

internet website (http://www.sec.gov/ 

rules/sro.shtml). Copies of the 

submission, all subsequent 

amendments, all written statements 

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, 100 F Street NE, 

Washington, DC 20549, on official 

business days between the hours of 

10:00 a.m. and 3:00 p.m. Copies of the 

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–NASDAQ–2017–128 and 

should be submitted on or before 

January 30, 2018. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.95

Eduardo A. Aleman, 

Assistant Secretary. 

[FR Doc. 2018–00161 Filed 1–8–18; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

32960; File No. 812–14821] 

Guggenheim Credit Income Fund, et 

al.; Notice of Application 

January 3, 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 

(‘‘BDC’’) and closed-end management 

investment companies to co-invest in 

portfolio companies with each other and 

with affiliated investment funds. 

APPLICANTS: Guggenheim Credit Income 

Fund (the ‘‘Fund’’) (f/k/a Carey Credit 

Income Fund); Guggenheim Partners 

Investment Management, LLC 

(‘‘Guggenheim’’); Guggenheim Funds 

Distributors, LLC, Guggenheim Funds 

Investment Advisors, LLC, Security 

Investors, LLC (collectively, together 

with Guggenheim, the ‘‘Existing 

Guggenheim Advisers’’); Guggenheim 

European Credit Fund, Guggenheim 

Private Debt Fund Note Issuer, LLC, 

Guggenheim Private Debt Fund, LLC, 

Guggenheim Private Debt Fund, Ltd., 

Guggenheim Private Debt Master Fund, 

LLC, Guggenheim Private Debt Fund 

Note Issuer 2.0, LLC, Guggenheim 

Private Debt Fund 2.0, LLC, 

Guggenheim Private Debt Fund 2.0, 

Ltd., Guggenheim Private Debt Master 

Fund 2.0, LLC, Guggenheim Private 

Debt MFLTB 2.0, LLC, NZC 

Guggenheim Fund LLC, NZC 

Guggenheim Fund Limited, NZC 

Guggenheim Master Fund Limited, 

NZCG Funding Ltd., NZCG Funding 2 

Limited, South Dock Funding Limited, 

NZCG Feeder I, L.P., NZCG Funding 2, 

LLC, NZCG Funding LLC, Guggenheim 

U.S. Loan Fund, Guggenheim U.S. Loan 

Fund II, Guggenheim U.S. Loan Fund 

III, Guggenheim Opportunistic U.S. 

Loan and Bond Fund IV, GFI Fund, and 

GHY Fund (collectively, the ‘‘Existing 

Affiliated Investors’’). 

FILING DATES: The application was filed 

on September 22, 2017, and amended 

on November 22, 2017. 

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 January 29, 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: Guggenheim and the Fund: 

330 Madison Avenue, New York, NY 

10017; the Existing Guggenheim 

Advisers and the Existing Affiliated 

Investors: 100 Wilshire Boulevard, 5th 

Floor, Santa Monica, CA 90401. 

FOR FURTHER INFORMATION CONTACT: 

Hae-Sung Lee, Attorney-Adviser, at 

(202) 551–7345 or Robert H. Shapiro, 

Branch Chief, at (202) 551–6821 (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. 

Applicants’ Representations 

1. The Fund is a Delaware statutory 

trust organized as a closed-end 

management investment company that 

has elected to be regulated as a BDC 

under the Act.1 The Fund serves as the 


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1080 Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Notices 

2The existing feeder funds are Carey Credit 

Income Fund—I, Carey Credit Income Fund 2016 T, 

and Carey Credit Income Fund 2018 T. Any future 

feeder fund will be created by Guggenheim. 

3 ‘‘Objectives and Strategies’’ means a Regulated 

Entity’s (as defined below) investment objectives 

and strategies, as described in the Regulated 

Entity’s registration statement on Form N–2, other 

filings the Regulated Entity has made with the 

Commission under the Securities Act of 1933 (the 

‘‘Securities Act’’), or under the Securities Exchange 

Act of 1934, and the Regulated Entity’s reports to 

shareholders. 

4The term ‘‘Board’’ refers to the board of directors 

or trustees of any Regulated Entity. 

5The term ‘‘Independent Trustees’’ refers to the 

trustees or directors of any Regulated Entity that are 

not ‘‘interested persons’’ of the Regulated Entity 

within the meaning of section 2(a)(19) of the Act. 

6The requested order (the ‘‘Order’’) would 

supersede an exemptive order issued by the 

Commission on June 28, 2016 (the ‘‘Prior Order’’) 

that was granted pursuant to Sections 57(a)(4) and 

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. Carey Credit Income Fund, et al., 

Investment Company Act Release Nos. 32138 (June 

2, 2016) (notice) and 32164 (June 28, 2016) (order). 

All existing entities that currently intend to rely on 

the Order have been named as applicants. Any 

other existing or future entity that relies on the 

Order in the future will comply with the terms and 

conditions of the application. 

7 ‘‘Regulated Entity’’ means the Fund and any 

Future Regulated Entity. ‘‘Future Regulated Entity’’ 

means a closed-end management investment 

company (a) that is registered under the Act or has 

elected to be regulated as a BDC under the Act, (b) 

whose investment adviser is a Guggenheim Adviser. 

‘‘Guggenheim Adviser’’ means any Existing 

Guggenheim Adviser or any future investment 

adviser that (i) controls, is controlled by or is under 

common control with Guggenheim, (ii) is registered 

as an investment adviser under the Advisers Act, 

and (iii) is not a Regulated Entity or a subsidiary 

of a Regulated Entity. 

8 ‘‘Affiliated Investors’’ means the Existing 

Affiliated Investors and any Future Affiliated 

Investor. ‘‘Future Affiliated Investor’’ means an 

entity (a) whose investment adviser is a 

Guggenheim Adviser and (b) that would be an 

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

3(c)(7) of the Act. 

9The term ‘‘Wholly-Owned Investment 

Subsidiary’’ means an entity (i) that is whollyowned by a Regulated Entity (with such Regulated 

Entity at all times holding, beneficially and of 

record, 100% of the voting and economic interests); 

(ii) whose sole business purpose is to hold one or 

more investments on behalf of the Regulated Entity 

(and, in the case of an entity that is licensed by the 

Small Business Administration to operate under the 

Small Business Investment Act of 1958, as amended 

(the ‘‘SBA Act’’), as a small business investment 

company (an ‘‘SBIC’’), to maintain a license under 

the SBA Act and issue debentures guaranteed by 

the Small Business Administration); (iii) with 

respect to which the Regulated Entity’s Board has 

the sole authority to make all determinations with 

respect to the entity’s participation under the 

conditions of the application; and (iv) that would 

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

3(c)(7) of the Act. All subsidiaries participating in 

the Co-Investment Program will be Wholly-Owned 

Investment Subsidiaries and will have Objectives 

and Strategies that are either substantially the same 

as, or a subset of, their parent Regulated Entity’s 

Objectives and Strategies. A subsidiary that is an 

SBIC may be a Wholly-Owned Investment 

Subsidiary if it satisfies the conditions in this 

definition. 

master fund in a master-feeder structure 

with three feeder funds and makes 

investments with the proceeds it 

receives from the sale of shares of the 

feeder funds.2 The Fund’s Objectives 

and Strategies 3 are to provide 

shareholders with current income, 

capital preservation and, to a lesser 

extent, long-term capital appreciation. 

The Fund invests primarily in large, 

privately-negotiated loans to private 

middle market U.S. companies and in 

opportunities that are originated by 

various intermediaries where the Fund 

is able to play a differentiated role 

gaining outsized allocation, influencing 

structure, pricing, and fees compared to 

the broader market (this could include 

more broadly syndicated assets such as 

bank loans and corporate bonds). The 

Fund has a five member Board,4 of 

which three members are Independent 

Trustees.5

2. Guggenheim is a Delaware limited 

liability company and is registered as an 

investment adviser under the 

Investment Advisers Act of 1940 (the 

‘‘Advisers Act’’). Guggenheim serves as 

the investment adviser to the Fund. 

Guggenheim also provides 

administrative services to the Fund 

under an administrative services 

agreement. Guggenheim is part of the 

investment management business of 

Guggenheim Partners LLC, a privately 

held, global financial services firm. 

3. Each Existing Affiliated Investor is 

a privately-offered fund that would be 

an investment company but for section 

3(c)(1) or 3(c)(7) of the Act. An Existing 

Guggenheim Adviser serves as the 

investment adviser to each Existing 

Affiliated Investor. Each Existing 

Guggenheim Adviser is either controlled 

by Guggenheim or under common 

control with Guggenheim and is 

registered as an investment adviser 

under the Advisers Act. 

4. Applicants seek to supersede the 

Prior Order 6 to permit one or more 

Regulated Entities 7 and/or one or more 

Affiliated Investors 8 to participate in 

the same investment opportunities 

through a proposed co-investment 

program (the ‘‘Co-Investment Program’’) 

where such participation would 

otherwise be prohibited under sections 

17(d) and 57(a)(4) and the rules under 

the Act. For purposes of the application, 

‘‘Co-Investment Transaction’’ means any 

transaction in which a Regulated Entity 

(or its Wholly-Owned Investment 

Subsidiary, as defined below) 

participated together with one or more 

other Regulated Entities and/or one or 

more Affiliated Investors in reliance on 

the requested Order or the Prior Order. 

‘‘Potential Co-Investment Transaction’’ 

means any investment opportunity in 

which a Regulated Entity (or its WhollyOwned Investment Subsidiary) could 

not participate together with one or 

more Affiliated Investors and/or one or 

more other Regulated Entities without 

obtaining and relying on the Order. 

5. Applicants state that a Regulated 

Entity may, from time to time, form a 

Wholly-Owned Investment Subsidiary.9

Such a subsidiary would be prohibited 

from investing in a Co-Investment 

Transaction with any Affiliated Investor 

because it would be a company 

controlled by its parent Regulated Entity 

for purposes of section 57(a)(4) and rule 

17d–1. Applicants request that each 

Wholly-Owned Investment Subsidiary 

be permitted to participate in CoInvestment Transactions in lieu of its 

parent Regulated Entity and that the 

Wholly-Owned Investment Subsidiary’s 

participation in any such transaction be 

treated, for purposes of the requested 

Order, as though the parent Regulated 

Entity were participating directly. 

Applicants represent that this treatment 

is justified because a Wholly-Owned 

Investment Subsidiary would have no 

purpose other than serving as a holding 

vehicle for the Regulated Entity’s 

investments and, therefore, no conflicts 

of interest could arise between the 

Regulated Entity and the Wholly-Owned 

Investment Subsidiary. The Regulated 

Entity’s Board would make all relevant 

determinations under the conditions 

with regard to a Wholly-Owned 

Investment Subsidiary’s participation in 

a Co-Investment Transaction, and the 

Regulated Entity’s Board would be 

informed of, and take into 

consideration, any proposed use of a 

Wholly-Owned Investment Subsidiary 

in the Regulated Entity’s place. If the 

Regulated Entity proposes to participate 

in the same Co-Investment Transaction 

with any of its Wholly-Owned 

Investment Subsidiaries, the Board will 

also be informed of, and take into 

consideration, the relative participation 

of the Regulated Entity and the WhollyOwned Investment Subsidiary. 

6. It is anticipated that a Guggenheim 

Adviser will periodically determine that 

certain investments the Guggenheim 

Adviser recommends for a Regulated 

Entity would also be appropriate 

investments for one or more other 

Regulated Entities and/or one or more 

Affiliated Investors. Such a 

determination may result in the 

Regulated Entity, one or more other 

Regulated Entities and/or one or more 

Affiliated Investors co-investing in 

certain investment opportunities. For 

each such investment opportunity, the 

Guggenheim Adviser to each Regulated 

Entity will independently analyze and 


sradovich on DSK3GMQ082PROD with NOTICES
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10 ‘‘Eligible Trustees’’ means the trustees or 

directors of a Regulated Entity that are eligible to 

vote under section 57(o) of the Act. 

11 In the case of a Regulated Entity that is a 

registered closed-end fund, the trustees or directors 

that make up the Required Majority will be 

determined as if the Regulated Entity were a BDC 

subject to section 57(o). As defined in section 57(o), 

‘‘required majority’’ means ‘‘both a majority of a 

business development company’s directors or 

general partners who have no financial interest in 

such transaction, plan, or arrangement and a 

majority of such directors or general partners who 

are not interested persons of such company.’’ 

evaluate the investment opportunity as 

to its appropriateness for such 

Regulated Entity taking into 

consideration the Regulated Entity’s 

Objectives and Strategies. 

7. Applicants state that Guggenheim 

serves as the Fund’s investment adviser 

and administrator and either it or 

another Guggenheim Adviser will serve 

in the same capacity to any Future 

Regulated Entity. Applicants represent 

that a Guggenheim Adviser will identify 

and recommend investments for each 

Regulated Entity and will have the 

authority to approve or reject all 

investments proposed for the Regulated 

Entity. 

8. Applicants state that each 

Guggenheim Adviser has (or will have, 

in the case of future advisers) an 

investment committee through which it 

will carry out its obligation under 

condition 1 to make a determination as 

to the appropriateness of a Potential CoInvestment Transaction for each 

Regulated Entity. Applicants represent 

that each Guggenheim Adviser, as a 

registered investment adviser, has (or 

will have, in the case of future advisers) 

developed a robust allocation process 

that is designed to allocate investment 

opportunities fairly and equitably 

among its clients over time. Applicants 

state that, in the case of a Potential CoInvestment Transaction, the applicable 

Guggenheim Adviser would apply its 

allocation policies and procedures in 

determining the proposed allocation for 

the Regulated Entity consistent with the 

requirements of condition 2(a). 

9. Applicants state that, once the 

applicable Guggenheim Adviser’s 

investment committee approves a 

transaction, the Guggenheim Adviser 

would present the Potential CoInvestment Transaction and proposed 

allocation to the Regulated Entity’s 

Board for its approval in accordance 

with the conditions to the application. 

10. If the applicable Guggenheim 

Adviser to a Regulated Entity 

determines that a Potential CoInvestment Transaction is appropriate 

for the Regulated Entity, and one or 

more other Regulated Entities and/or 

one or more Affiliated Investors may 

also participate, the Guggenheim 

Adviser will present the investment 

opportunity to the Eligible Trustees 10 of 

the Regulated Entity prior to the actual 

investment by the Regulated Entity. As 

to any Regulated Entity, a CoInvestment Transaction will be 

consummated only upon approval by a 

required majority of the Eligible 

Trustees of such Regulated Entity 

within the meaning of section 57(o) of 

the Act (‘‘Required Majority’’).11

11. With respect to the pro rata 

dispositions and follow-on Investments 

provided in conditions 7 and 8, a 

Regulated Entity may participate in a 

pro rata disposition or follow-on 

investment without obtaining prior 

approval of the Required Majority if, 

among other things: (i) The proposed 

participation of each Regulated Entity 

and Affiliated Investor in such 

disposition is proportionate to its 

outstanding investments in the issuer 

immediately preceding the disposition 

or follow-on investment, as the case 

may be; and (ii) each Regulated Entity’s 

Board has approved that Regulated 

Entity’s participation in pro rata 

dispositions and follow-on investments 

as being in the best interests of the 

Regulated Entity. If the Board does not 

so approve, any such disposition or 

follow-on investment will be submitted 

to the Regulated Entity’s Eligible 

Trustees. The Board of any Regulated 

Entity may at any time rescind, suspend 

or qualify its approval of pro rata 

dispositions and follow-on investments 

with the result that all dispositions and/ 

or follow-on investments must be 

submitted to the Eligible Trustees. 

12. No Independent Trustee of a 

Regulated Entity will have a financial 

interest in any Co-Investment 

Transaction. 

13. Under condition 15, if a 

Guggenheim Adviser or its principals, 

or any person controlling, controlled by, 

or under common control with the 

Guggenheim Adviser or its principals, 

and any Affiliated Investors 

(collectively, the ‘‘Holders’’) own in the 

aggregate more than 25% of the 

outstanding voting securities of a 

Regulated Entity (‘‘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 Trustees will act 

independently in evaluating the CoInvestment Program, because the ability 

of the Guggenheim Adviser or its 

principals to influence the Independent 

Trustees by a suggestion, explicit or 

implied, that the Independent Trustees 

can be removed will be limited 

significantly. Applicants represent that 

the Independent Trustees shall evaluate 

and approve any such independent 

third 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 Entities that are 

registered closed-end investment 

companies. Similarly, with regard to 

BDCs, section 57(a)(4) of the Act makes 

it unlawful for any person who is 

related to a BDC in a manner described 

in section 57(b), acting as principal, 

knowingly to effect any transaction in 

which the BDC (or a company 

controlled by such BDC) is a joint or a 

joint and several participant with that 

person in contravention of rules as 

prescribed by the Commission. Because 

the Commission has not adopted any 

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

section 57(i) provides that the rules 

under section 17(d) applicable to 

registered closed-end investment 

companies (e.g., rule 17d–1) are, in the 

interim, deemed to apply to transactions 

subject to section 57(a). Rule 17d–1, as 

made applicable to BDCs by section 

57(i), prohibits any person who is 

related to a BDC in a manner described 

in section 57(b), as modified by rule 

57b–1, from acting as principal, from 

participating in, or effecting any 

transaction in connection with, any 

joint enterprise or other joint 

arrangement or profit-sharing plan in 

which the BDC (or a company 

controlled by such BDC) is a participant, 

unless an application regarding the joint 

enterprise, arrangement, or profitsharing plan has been filed with the 

Commission and has been granted by an 

order entered prior to the submission of 

the plan or any modification thereof, to 

security holders for approval, or prior to 

its adoption or modification if not so 

submitted. 

2. 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 


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12 ‘‘Available Capital’’ means (a) for each 

Regulated Entity, the amount of capital available for 

investment determined based on the amount of cash 

on hand, existing commitments and reserves, if any, 

the targeted leverage level, targeted asset mix and 

other investment policies and restrictions set from 

time to time by the Board of the applicable 

Regulated Entity or imposed by applicable laws, 

rules, regulations or interpretations and (b) for each 

Affiliated Investor, the amount of capital available 

for investment determined based on the amount of 

cash on hand, existing commitments and reserves, 

if any, the targeted leverage level, targeted asset mix 

and other investment policies and restrictions set 

by the Affiliated Investor’s directors, general 

partners or adviser or imposed by applicable laws, 

rules, regulations or interpretations. 

or less advantageous than that of other 

participants. 

3. Applicants submit that each 

Regulated Entity may be deemed to be 

an ‘‘affiliated person’’ of each other 

Regulated Entity within the meaning of 

section 2(a)(3) of the Act. Applicants 

state that the Regulated Entities, by 

virtue of each having a Guggenheim 

Adviser, may be deemed to be under 

common control, and thus affiliated 

persons of each other under section 

2(a)(3)(C) of the Act. Section 17(d) and 

section 57(b) apply to any investment 

adviser to a closed-end fund or a BDC, 

respectively. Thus, a Guggenheim 

Adviser and any Affiliated Investors 

that it advises could be deemed to be 

persons related to Regulated Entities in 

a manner described by sections 17(d) 

and 57(b) and therefore prohibited by 

sections 17(d) and 57(a)(4) and rule 

17d–1 from participating in the CoInvestment Program. Applicants further 

submit that, because the Guggenheim 

Advisers are ‘‘affiliated persons’’ of 

other Guggenheim Advisers, Affiliated 

Investors advised by any of them could 

be deemed to be persons related to 

Regulated Entities (or a company 

controlled by a Regulated Entity) in a 

manner described by sections 17(d) and 

57(b) and also prohibited from 

participating in the Co-Investment 

Program. 

4. Applicants state that they expect 

that that co-investment in portfolio 

companies by a Regulated Entity, one or 

more other Regulated Entities and/or 

one or more Affiliated Investors will 

increase favorable investment 

opportunities for each Regulated Entity. 

5. Applicants submit that the fact that 

the Required Majority will approve each 

Co-Investment Transaction before 

investment (except for certain 

dispositions or follow-on investments, 

as described in the conditions), and 

other protective conditions set forth in 

the application, will ensure that each 

Regulated Entity will be treated fairly. 

Applicants state that each Regulated 

Entity’s participation in the CoInvestment Transactions will be 

consistent with the provisions, policies 

and purposes of the Act and on a basis 

that is not different from or less 

advantageous than that of other 

participants. Applicants further state 

that the terms and conditions proposed 

herein will ensure that all such 

transactions are reasonable and fair to 

each Regulated Entity and the Affiliated 

Investors and do not involve 

overreaching by any person concerned, 

including Guggenheim. 

Applicants’ Conditions 

Applicants agree that the Order will 

be subject to the following conditions: 

1. Each time a Guggenheim Adviser 

considers a Potential Co-Investment 

Transaction for an Affiliated Investor or 

another Regulated Entity that falls 

within a Regulated Entity’s then-current 

Objectives and Strategies, the 

Guggenheim Adviser to the Regulated 

Entity will make an independent 

determination of the appropriateness of 

the investment for the Regulated Entity 

in light of the Regulated Entity’s thencurrent circumstances. 

2. a. If the Guggenheim Adviser to a 

Regulated Entity deems participation in 

any Potential Co-Investment 

Transaction to be appropriate for the 

Regulated Entity, the Guggenheim 

Adviser will then determine an 

appropriate level of investment for such 

Regulated Entity. 

b. If the aggregate amount 

recommended by the Guggenheim 

Adviser to a Regulated Entity to be 

invested by the Regulated Entity in the 

Potential Co-Investment Transaction, 

together with the amount proposed to be 

invested by the other participating 

Regulated Entities and Affiliated 

Investors, collectively, in the same 

transaction, exceeds the amount of the 

investment opportunity, the amount of 

the investment opportunity will be 

allocated among the Regulated Entities 

and such Affiliated Investors, pro rata 

based on each participant’s Available 

Capital 12 for investment in the asset 

class being allocated, up to the amount 

proposed to be invested by each. The 

Advisers to each participating Regulated 

Entity will provide the Eligible Trustees 

of each participating Regulated Entity 

with information concerning each 

participating party’s Available Capital to 

assist the Eligible Trustees with their 

review of the Regulated Entity’s 

investments for compliance with these 

allocation procedures. 

c. After making the determinations 

required in conditions 1 and 2(a) above, 

the Advisers to the Regulated Entity will 

distribute written information 

concerning the Potential Co-Investment 

Transaction, including the amount 

proposed to be invested by each 

Regulated Entity and any Affiliated 

Investor, to the Eligible Trustees of each 

participating Regulated Entity for their 

consideration. A Regulated Entity will 

co-invest with one or more other 

Regulated Entities and/or an Affiliated 

Investor only if, prior to the Regulated 

Entities’ and the Affiliated Investors’ 

participation in the Potential CoInvestment Transaction, a Required 

Majority concludes that: 

(i) The terms of the Potential CoInvestment Transaction, including the 

consideration to be paid, are reasonable 

and fair to the Regulated Entity and its 

shareholders and do not involve 

overreaching in respect of the Regulated 

Entity or its shareholders on the part of 

any person concerned; 

(ii) the Potential Co-Investment 

Transaction is consistent with: 

(a) The interests of the Regulated 

Entity’s shareholders; and 

(b) the Regulated Entity’s then-current 

Objectives and Strategies; 

(iii) the investment by any other 

Regulated Entity or an Affiliated 

Investor would not disadvantage the 

Regulated Entity, and participation by 

the Regulated Entity would not be on a 

basis different from or less advantageous 

than that of any other Regulated Entity 

or Affiliated Investor; provided, that if 

another Regulated Entity or Affiliated 

Investor, but not the Regulated Entity 

itself, gains the right to nominate a 

director for election to a portfolio 

company’s board of directors or the 

right to have a board observer, or any 

similar right to participate in the 

governance or management of the 

portfolio company, such event shall not 

be interpreted to prohibit a Required 

Majority from reaching the conclusions 

required by this condition 2(c)(iii), if: 

(a) The Eligible Trustees will have the 

right to ratify the selection of such 

director or board observer, if any; and 

(b) the Guggenheim Adviser to the 

Regulated Entity agree to, and do, 

provide periodic reports to the 

Regulated Entity’s Board with respect to 

the actions of such director or the 

information received by such board 

observer or obtained through the 

exercise of any similar right to 

participate in the governance or 

management of the portfolio company; 

and 

(c) any fees or other compensation 

that any other Regulated Entity or any 

Affiliated Investor or any affiliated 

person of any other Regulated Entity or 

an Affiliated Investor receives in 

connection with the right of one or more 

Regulated Entities or Affiliated Investors 


sradovich on DSK3GMQ082PROD with NOTICES
Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Notices 1083 

13This exception applies only to follow-on 

investments by a Regulated Entity in issuers in 

which that Regulated Entity already holds 

investments. 

to nominate a director or appoint a 

board observer or otherwise to 

participate in the governance or 

management of the portfolio company 

will be shared proportionately among 

the participating Affiliated Investors 

(who may, in turn, share their portion 

with their affiliated persons) and any 

participating Regulated Entity in 

accordance with the amount of each 

party’s investment; and 

(iv) the proposed investment by the 

Regulated Entity will not benefit the 

Guggenheim Adviser, any other 

Regulated Entity or the Affiliated 

Investors or any affiliated person of any 

of them (other than the parties to the CoInvestment Transaction), except (A) to 

the extent permitted by condition 13, 

(B) to the extent permitted under 

sections 17(e) and 57(k) of the Act, as 

applicable, (C) in the case of fees or 

other compensation described in 

condition 2(c)(iii)(c), or (D) indirectly, 

as a result of an interest in the securities 

issued by one of the parties to the CoInvestment Transaction. 

3. Each Regulated Entity will have the 

right to decline to participate in any 

Potential Co-Investment Transaction or 

to invest less than the amount proposed. 

4. The Guggenheim Adviser will 

present to the Board of each Regulated 

Entity, on a quarterly basis, a record of 

all investments in Potential CoInvestment Transactions made by any of 

the other Regulated Entities or any of 

the Affiliated Investors during the 

preceding quarter that fell within the 

Regulated Entity’s then-current 

Objectives and Strategies that were not 

made available to the Regulated Entity, 

and an explanation of why the 

investment opportunities were not 

offered to the Regulated Entity. All 

information presented to the Board 

pursuant to this condition will be kept 

for the life of the Regulated Entity and 

at least two years thereafter, and will be 

subject to examination by the 

Commission and its staff. 

5. Except for follow-on investments 

made in accordance with condition 8,13

a Regulated Entity will not invest in 

reliance on the Order in any issuer in 

which another Regulated Entity or an 

Affiliated Investor or any affiliated 

person of another Regulated Entity or an 

Affiliated Investor is an existing 

investor. 

6. A Regulated Entity will not 

participate in any Potential CoInvestment Transaction unless the 

terms, conditions, price, class of 

securities to be purchased, settlement 

date, and registration rights will be the 

same for each participating Regulated 

Entity and Affiliated Investor. The grant 

to one or more Regulated Entities or 

Affiliated Investors, but not the 

Regulated Entity itself, of the right to 

nominate a director for election to a 

portfolio company’s board of directors, 

the right to have an observer on the 

board of directors or similar rights to 

participate in the governance or 

management of the portfolio company 

will not be interpreted so as to violate 

this condition 6, if conditions 

2(c)(iii)(a), (b) and (c) are met. 

7. a. If any Regulated Entity or 

Affiliated Investor elects to sell, 

exchange or otherwise dispose of an 

interest in a security that was acquired 

by one or more Regulated Entities and/ 

or Affiliated Investors in a CoInvestment Transaction, the 

Guggenheim Adviser will: 

(i) Notify each Regulated Entity that 

participated in the Co-Investment 

Transaction of the proposed disposition 

at the earliest practical time; and 

(ii) formulate a recommendation as to 

participation by each Regulated Entity 

in the disposition. 

b. Each Regulated Entity 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 Investors and any other 

Regulated Entity. 

c. A Regulated Entity may participate 

in such disposition without obtaining 

prior approval of the Required Majority 

if: (i) The proposed participation of each 

Regulated Entity and each Affiliated 

Investor in such disposition is 

proportionate to its outstanding 

investments in the issuer immediately 

preceding the disposition; (ii) the 

Regulated Entity’s Board has approved 

as being in the best interests of the 

Regulated Entity the ability to 

participate in such dispositions on a pro 

rata basis (as described in greater detail 

in the application); and (iii) the 

Regulated Entity’s Board is provided on 

a quarterly basis with a list of all 

dispositions made in accordance with 

this condition. In all other cases, the 

Guggenheim Adviser will provide its 

written recommendation as to the 

Regulated Entity’s participation to the 

Eligible Trustees, and the Regulated 

Entity will participate in such 

disposition solely to the extent that a 

Required Majority determines that it is 

in the Regulated Entity’s best interests. 

d. Each Regulated Entity and each 

Affiliated Investor will bear its own 

expenses in connection with the 

disposition. 

8. a. If any Regulated Entity or 

Affiliated Investor desires to make a 

‘‘follow-on investment’’ (i.e., an 

additional investment in the same 

entity, including through the exercise of 

warrants or other rights to purchase 

securities of the issuer) in a portfolio 

company whose securities were 

acquired by the Regulated Entity and 

the Affiliated Investor in a CoInvestment Transaction, the Advisers 

will: 

(i) Notify each Regulated Entity of the 

proposed transaction at the earliest 

practical time; and 

(ii) formulate a recommendation as to 

the proposed participation, including 

the amount of the proposed follow-on 

investment, by each Regulated Entity. 

b. A Regulated Entity may participate 

in such follow-on investment without 

obtaining prior approval of the Required 

Majority if: (i) The proposed 

participation of each Regulated Entity 

and each Affiliated Investor in such 

investment is proportionate to its 

outstanding investments in the issuer 

immediately preceding the follow-on 

investment; and (ii) the Regulated 

Entity’s Board has approved as being in 

the best interests of such Regulated 

Entity the ability to participate in 

follow-on investments on a pro rata 

basis (as described in greater detail in 

the application). In all other cases, the 

Guggenheim Adviser will provide its 

written recommendation as to such 

Regulated Entity’s participation to the 

Eligible Trustees, and the Regulated 

Entity will participate in such follow-on 

investment solely to the extent that the 

Required Majority determines that it is 

in such Regulated Entity’s best interests. 

c. If, with respect to any follow-on 

investment: 

(i) The amount of a follow-on 

investment is not based on the 

Regulated Entities’ and the Affiliated 

Investors’ outstanding investments 

immediately preceding the follow-on 

investment; and 

(ii) the aggregate amount 

recommended by the Guggenheim 

Adviser to be invested by the Regulated 

Entity in the follow-on investment, 

together with the amount proposed to be 

invested by the other participating 

Regulated Entities and the Affiliated 

Investors in the same transaction, 

exceeds the amount of the opportunity; 

then the amount invested by each such 

party will be allocated among them pro 

rata based on each participant’s 

Available Capital for investment in the 

asset class being allocated, up to the 

amount proposed to be invested by 

each. 

d. The acquisition of follow-on 

investments as permitted by this 


sradovich on DSK3GMQ082PROD with NOTICES
1084 Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Notices 

14Applicants are not requesting and the 

Commission is not providing any relief for 

transaction fees received in connection with any 

Co-Investment Transaction. 

1 15 U.S.C. 78k–1. 

2 17 CFR 242.608. 

3The Participants are: Cboe BYX Exchange, Inc.; 

Cboe BZX Exchange, Inc.; Cboe EDGA Exchange, 

Inc.; Cboe EDGX Exchange, Inc.; Cboe Exchange, 

Inc.; Chicago Stock Exchange, Inc.; Financial 

Industry Regulatory Authority, Inc.; Investors 

Exchange LLC; Nasdaq BX, Inc.; Nasdaq ISE, LLC; 

Nasdaq PHLX LLC; The Nasdaq Stock Market LLC; 

New York Stock Exchange LLC; NYSE Arca, Inc.; 

NYSE American LLC; and NYSE National, Inc. 

(collectively, the ‘‘Participants’’). 

4The Plan governs the collection, processing, and 

dissemination on a consolidated basis of quotation 

information and transaction reports in Eligible 

Securities for each of its Participants. This 

consolidated information informs investors of the 

current quotation and recent trade prices of Nasdaq 

securities. It enables investors to ascertain from one 

data source the current prices in all the markets 

trading Nasdaq securities. The Plan serves as the 

required transaction reporting plan for its 

Participants, which is a prerequisite for their 

trading Eligible Securities. See Securities Exchange 

Act Release No. 55647 (April 19, 2007), 72 FR 

20891 (April 26, 2007). 

5See Letter from Emily Kasparov to Brent J. 

Fields, Secretary, Commission, dated December 13, 

2017 (‘‘Transmittal Letter’’). 

condition will be considered a CoInvestment Transaction for all purposes 

and be subject to the other conditions 

set forth in the application. 

9. The Independent Trustees of each 

Regulated Entity will be provided 

quarterly for review all information 

concerning Potential Co-Investment 

Transactions and Co-Investment 

Transactions, including investments 

made by other Regulated Entities or 

Affiliated Investors that a Regulated 

Entity considered but declined to 

participate in, so that the Independent 

Trustees may determine whether all 

investments made during the preceding 

quarter, including those investments 

which the Regulated Entity considered 

but declined to participate in, comply 

with the conditions of the Order. In 

addition, the Independent Trustees will 

consider at least annually the continued 

appropriateness for such Regulated 

Entity of participating in new and 

existing Co-Investment Transactions. 

10. Each Regulated Entity will 

maintain the records required by section 

57(f)(3) of the Act as if each of the 

Regulated Entities were a BDC and each 

of the investments permitted under 

these conditions were approved by a 

Required Majority under section 57(f). 

11. No Independent Trustee of a 

Regulated Entity will also be a trustee, 

director, general partner, managing 

member or principal, or otherwise an 

‘‘affiliated person’’ (as defined in the 

Act) of any Affiliated Investor. 

12. The expenses, if any, associated 

with acquiring, holding or disposing of 

any securities acquired in a CoInvestment Transaction (including, 

without limitation, the expenses of the 

distribution of any such securities 

registered for sale under the Securities 

Act) shall, to the extent not payable by 

the Guggenheim Advisers under their 

respective advisory agreements with the 

Regulated Entities and the Affiliated 

Investors, be shared by the Regulated 

Entities and the Affiliated Investors in 

proportion to the relative amounts of the 

securities held or to be acquired or 

disposed of, as the case may be. 

13. Any transaction fee (including 

break-up or commitment fees but 

excluding brokers’ fees contemplated by 

section 17(e) or 57(k) of the Act, as 

applicable) 14 received in connection 

with a Co-Investment Transaction will 

be distributed to the participating 

Regulated Entities and Affiliated 

Investors on a pro rata basis based on 

the amount they invested or committed, 

as the case may be, in such CoInvestment Transaction. If any 

transaction fee is to be held by a 

Guggenheim Adviser pending 

consummation of the transaction, the 

fee will be deposited into an account 

maintained by the Guggenheim Adviser 

at a bank or banks having the 

qualifications prescribed in section 

26(a)(1) of the Act, and the account will 

earn a competitive rate of interest that 

will also be divided pro rata among the 

participating Regulated Entities and 

Affiliated Investors based on the amount 

they invest in the Co-Investment 

Transaction. None of the other 

Regulated Entities, Affiliated Investors, 

the Guggenheim Advisers nor any 

affiliated person of the Regulated 

Entities or the Affiliated Investors will 

receive additional compensation or 

remuneration of any kind as a result of 

or in connection with a Co-Investment 

Transaction (other than (a) in the case 

of the Regulated Entities and the 

Affiliated Investors, the pro rata 

transaction fees described above and 

fees or other compensation described in 

condition 2(c)(iii)(c) and (b) in the case 

of the Guggenheim Advisers, investment 

advisory fees paid in accordance with 

the Regulated Entities’ and the 

Affiliated Investors’ investment 

advisory agreements). 

14. If the Holders own in the aggregate 

more than 25 percent of the shares of a 

Regulated Entity, then the Holders will 

vote such shares as directed by an 

independent third party when voting on 

(1) the election of directors or trustees; 

(2) the removal of one or more directors 

or trustees; or (3) any matters requiring 

approval by the vote of a majority of the 

outstanding voting securities, as defined 

in section 2(a)(42) of the Act. 

15. Each Regulated Entity’s chief 

compliance officer, as defined in Rule 

38a–1(a)(4), will prepare an annual 

report for its Board that evaluates (and 

documents the basis of that evaluation) 

the Regulated Entity’s compliance with 

the terms and conditions of the 

application and the procedures 

established to achieve such compliance. 

For the Commission, by the Division of 

Investment Management, under delegated 

authority. 

Eduardo A. Aleman, 

Assistant Secretary. 

[FR Doc. 2018–00162 Filed 1–8–18; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–82440; File No. S7–24–89] 

Joint Industry Plan; Notice of Filing 

and Immediate Effectiveness of the 

Forty-First Amendment to the Joint 

Self-Regulatory Organization Plan 

Governing the Collection, 

Consolidation and Dissemination of 

Quotation and Transaction Information 

for Nasdaq-Listed Securities Traded on 

Exchanges on an Unlisted Trading 

Privileges Basis 

January 3, 2018. 

Pursuant to Section 11A of the 

Securities Exchange Act of 1934 

(‘‘Act’’),1 and Rule 608 thereunder,2

notice is hereby given that on December 

14, 2017, the Participants 3 in the Joint 

Self-Regulatory Organization Plan 

Governing the Collection, Consolidation 

and Dissemination of Quotation and 

Transaction Information for NasdaqListed Securities Traded on Exchanges 

on an Unlisted Trading Privileges Basis 

(‘‘NASDAQ/UTP Plan’’ or ‘‘Plan’’) filed 

with the Securities and Exchange 

Commission (‘‘Commission’’) a proposal 

to amend the NASDAQ/UTP Plan.4 The 

amendment is the 41st Amendment to 

the NASDAQ/UTP Plan 

(‘‘Amendment’’).5

The Amendment proposes to modify 

the text of the fee schedule of the Plan 

to adopt a ‘‘Multiple Instance, Single 

User’’ (‘‘MISU’’) Program that aligns 

with the MISU Program used by the 

CTA and CQ Plans. As explained in 

greater detail below, the Participants 

state that the Amendment moves 

towards harmonizing the fees under the 

Plan with the fees under the CTA and 


sradovich on DSK3GMQ082PROD with NOTICES