Exemption Application under Investment Company Act (Form 40-APP/A)
No. 812-15512
THIRD AMENDED AND RESTATED APPLICATION FOR AN ORDER PURSUANT
TO SECTIONS 17(D) AND 57(I) OF THE INVESTMENT COMPANY ACT OF 1940
AND RULE 17D-1 UNDER THE 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
(203) 340-8500
All Communications, Notices and Orders to:
c/o
Copies to:
One
Page 1 of 66 sequentially numbered pages (including exhibits).
As filed with the
I. INTRODUCTION
A. Requested Relief
In particular, the relief requested in this third amended and restated application for an Order (the "Application") would allow one or more Regulated Funds (including one or more BDC Downstream Funds) and/or one or more Affiliated Funds (each as defined below) to participate in the same investment opportunities through a proposed co-investment program where such participation would otherwise be prohibited under Sections 17(d) or 57(a)(4) and the rules under the Act. All existing entities that currently intend to rely on the Order have been named as Applicants (defined below) and any existing or future entities that may rely on the Order in the future will comply with the terms and conditions set forth in this Application (the "Conditions").3
The Order would supersede an exemptive order issued by the Commission on
B. Applicants Seeking Relief
Each of the following entities is an applicant seeking relief pursuant to the proposed Order (collectively, the "Applicants"):
| · |
| · |
| · |
| 1 | Unless otherwise indicated, all section references herein are to the Act. |
| 2 | Unless otherwise indicated, all rule references herein are to rules under the Act. |
| 3 | |
| 4 | See |
1
| · |
| · |
| · |
| · |
| · |
| · |
| · |
| · |
| · |
| · |
| · |
| · |
| · |
| · |
| · |
| 5 | The term "successor," as applied to each of the Existing Advisers (as defined below) means an entity which results from reorganization into another jurisdiction or change in the type of business structure. |
2
| · |
| · | The investment vehicles identified in Schedule A hereto, each of which is a separate and distinct legal entity and each of which would be an investment company but for Section 3(c)(1) or 3(c)(7) of the Act (together, the "Existing Affiliated Funds"); and |
| · | The account identified in Schedule B hereto that the Advisers use to hold various financial assets in a principal capacity (the "Existing Proprietary Account" and together with any Future Proprietary Accounts (as defined below), the Proprietary Accounts (as defined below)). |
Applicants do not seek relief for transactions that would be permitted under other regulatory or interpretive guidance, including, for example, transactions effected consistent with Commission staff no-action positions.6
C. Defined Terms
"Adviser" means the Existing Advisers and any Future Adviser (defined below).
"
"BDC" means a business development company under the Act.8
"
"Board" means (i) with respect to a
| 6 | See the JT No-Action Letters (as defined below). |
| 7 | 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 certain transactions customary in CLO formations with another |
| 8 | Section 2(a)(48) defines a BDC to be any closed-end investment company that operates for the purpose of making investments in securities described in Section 55(a)(1) through 55(a)(3) and makes available significant managerial assistance with respect to the issuers of such securities. |
3
"Board-Established Criteria" means criteria that the Board of a
"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
"Co-Investment Program" means the proposed co-investment program that would permit one or more Regulated Funds and/or one or more Affiliated Funds to participate in the same investment opportunities where such participation would otherwise be prohibited under Section 57(a)(4) and Rule 17d-1 by (a) co-investing with each other in securities issued by issuers in private placement transactions in which an Adviser negotiates terms in addition to price;9 and (b) making Follow-On Investments (as defined below).
"Co-Investment Transaction" means any transaction in which a
"Disposition"means the sale, exchange or other disposition of an interest in a security of an issuer.
"Eligible Directors" means, with respect to a
"
| 9 | The term "private placement transactions" means transactions in which the offer and sale of securities by the issuer are exempt from registration under the Securities Act of 1933 (the "Securities Act"). |
4
"Future Adviser" means any future investment adviser that (i) controls, is controlled by, or is under common control with an Existing Adviser, (ii) (a) is registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the "Advisers Act"); or (b) is a relying adviser of an investment adviser that is registered under the Advisers Act and that controls, is controlled by, or is under common control with, an Existing Adviser, and (iii) is not a
"
"Future Proprietary Accounts" means any account of an Adviser or its affiliates or any company that is a direct or indirect, wholly- or majority-owned subsidiary of an Adviser or its affiliates, that is formed in the future that, from time to time, will hold various financial assets in a principal capacity.
"
"Independent Director" means a member of the Board of any relevant entity who is not an "interested person" as defined in Section 2(a)(19) of the Act. No Independent Director of a
"
"JT No-Action Letters" means
"Objectives and Strategies" means (i) with respect to any
"Potential Co-Investment Transaction" means any investment opportunity in which a
5
"Pre-Boarding Investments" are investments in an issuer held by a
(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; or
(ii) in transactions occurring at least 90 days apart and without coordination between the
"Proprietary Accounts" means, collectively, the Existing Proprietary Account and Future Proprietary Accounts.
"Regulated Funds" means the Existing Regulated Funds, the Future Regulated Funds and the BDC Downstream Funds.
"
"Remote Affiliate" means any person described in Section 57(e) in respect of any
"Required Majority" means a required majority, as defined in Section 57(o) of the Act.10
"SBIC Subsidiary" means a Wholly-Owned Investment Sub that is licensed by the
"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
| 10 | In the case of a |
6
"Wholly-Owned Investment Sub" means an entity (i) that is a wholly-owned subsidiary11 of a
II. APPLICANTS
A. The Existing Regulated Funds
ECC is an externally managed, non-diversified closed-end management investment company registered under the Act. ECC has elected to be treated, and intends to operate so as to qualify annually, as a regulated investment company ("RIC") under subchapter M of the Code, for federal income tax purposes. ECC's outstanding shares of common stock are listed on the
EIC is an externally managed, diversified closed-end management investment company registered under the Act. EIC has elected to be treated, and intends to operate so as to qualify annually, as a RIC under subchapter M of the Code, for federal income tax purposes. EIC's outstanding shares of common stock are listed on NYSE. EIC is managed by EPIM pursuant to an investment advisory agreement. EIC's primary investment objective is to generate high current income, with a secondary objective to generate capital appreciation. EIC invests primarily in junior debt tranches of CLOs that are collateralized by a portfolio consisting primarily of below investment grade
EPIIF is an externally managed, non-diversified closed-end management investment company registered under the Act. EPIIF has elected to be treated, and intends to operate so as to qualify annually, as a RIC under subchapter M of the Code, for federal income tax purposes. EPIIF is managed by EPCM pursuant to an investment advisory agreement. EPIIF provides periodic liquidity with respect to its Shares through periodic repurchase offers pursuant to Rule 13e-4 under the Exchange Act. EPIIF's primary investment objective is to generate high current income, with a secondary objective to generate capital appreciation. EPIIF invests primarily in equity and junior debt tranches of collateralized loan obligations that are collateralized by a portfolio consisting primarily of
| 11 | A "wholly-owned subsidiary" of a person is as defined in Section 2(a)(43) of the Act and means a company 95% or more of the outstanding voting securities of which are owned by such person. |
7
EPEIT is an externally managed, non-diversified closed-end management investment company registered under the Act. EPEIT has elected to be treated, and intends to operate so as to qualify annually, as a RIC under subchapter M of the Code, for federal income tax purposes. EPEIT is managed by EPEIM pursuant to an investment advisory agreement. EPEIT is structured as an interval fund pursuant to Rule 23c-3 under the Act. EPEIT's primary investment objective is to generate high current income, with a secondary objective to generate capital gains. EPEIT invests in a broad range of income-oriented assets, including portfolio debt securities, strategic credit investments, and equity and junior debt tranches of collateralized loan obligations. EPEIT's allocation to the foregoing categories of investments will vary over time.
EPDIT is an externally managed, non-diversified closed-end management investment company registered under the Act. EPDIT has elected to be treated, and intends to operate so as to qualify annually, as a RIC under subchapter M of the Code, for federal income tax purposes. EPDIT is managed by EPDIM pursuant to an investment advisory agreement. EPDIT is structured as an interval fund pursuant to Rule 23c-3 under the Act. EPDIT's primary investment objective is to generate high current income, with a secondary objective to generate capital gains. EPDIT invests primarily in portfolio debt securities, which are debt and preferred equity securities issued by funds and investment vehicles primarily to finance a portion of their underlying investment portfolios. EPDIM generally expects a majority of portfolio debt securities in which the Fund invests to be backed by portfolios of
The business and affairs of each
B. Existing Affiliated Funds
All Existing Affiliated Funds are investment vehicles, each of which is a separate and distinct legal entity and would be an investment company but for Section 3(c)(1) or 3(c)(7) of the Act. A list setting out the Existing Affiliated Funds is included on Schedule A hereto.
C. EPCM, EPIM, EPEIM and EPDIM
EPCM is organized as a limited liability company under the laws of the state of Delaware. EPCM is registered with the Commission under the Advisers Act and serves as the investment adviser to ECC and EPIIF and each of the Existing Affiliated Funds. EPCM is indirectly wholly owned (through certain intermediate holding companies) by
| 12 | As disclosed in Form ADV, such funds include |
8
EPIM is organized as a limited liability company under the laws of the state of Delaware. EPIM is registered with the Commission under the Advisers Act and serves as the investment adviser to EIC. EPIM is wholly owned by
EPEIM is organized as a limited liability company under the laws of the state of Delaware. EPEIM is registered with the Commission under the Advisers Act and serves as the investment adviser to EPEIT. EPEIM is wholly owned by
EPDIM is organized as a limited liability company under the laws of the state of Delaware. EPDIM is registered with the Commission under the Advisers Act and serves as the investment adviser to EPDIT. EPDIM is wholly owned by
| D. | ECC Sub Cayman, ECC Sub II Cayman, ECC Sub II, EIC Sub Cayman, EIC Sub, EPIIF Sub Cayman, EPIIF Sub II Cayman, EPEIT Sub Cayman, EPEIT Sub and EPEIT Sub II Cayman |
ECC Sub Cayman, ECC Sub II Cayman and ECC Sub II are each a Wholly-Owned Investment Sub of ECC, EIC Sub Cayman and EIC Sub are each a Wholly-Owned Investment Sub of EIC and EPIIF Sub Cayman and EPIIF Sub II Cayman are each a Wholly-Owned Investment Sub of EPIIF. EPEIT Sub Cayman, EPEIT Sub and EPEIT Sub II Cayman are each a Wholly-Owned Investment Sub of EPEIT.
E. Existing Proprietary Account
The Existing Proprietary Account, identified in Schedule B hereto, is an account used by the Advisers to hold various financial assets in a principal capacity.
Each Proprietary Account will be subject to oversight by an Adviser. As a result, an Adviser will ensure compliance by each Proprietary Account with the conditions of the Application in the same manner in which the Adviser will ensure compliance by each
III. ORDER REQUESTED
The Applicants respectfully request an Order of the Commission under Sections 17(d) and 57(i) of the Act and Rule 17d-1 thereunder to permit, subject to the terms and Conditions set forth below in this Application, a
The Regulated Funds and the Affiliated Funds seek relief to enter into Co-Investment Transactions because such Co-Investment Transactions would otherwise be prohibited by either or both of Section 17(d) or Section 57(a)(4) and the Rules under the Act. This Application seeks relief in order to (i) enable the Regulated Funds and Affiliated Funds to avoid, among other things, the practical commercial and/or economic difficulties of trying to structure, negotiate and persuade counterparties to enter into transactions while awaiting the granting of the relief requested in individual applications with respect to each Co-Investment Transaction that arises in the future and (ii) enable the Regulated Funds and the Affiliated Funds to avoid the significant legal and other expenses that would be incurred in preparing such individual applications.
9
In Section A.1 below, the Applicants first discuss the overall investment process that would apply to initial investments under the Order as well as subsequent transactions with issuers. In Sections A.3 and A.4 below, the Applicants discuss additional procedures that apply to Follow-On Investments and Dispositions, including the onboarding process that applies when initial investments were made without relying on the Order.
A. Overview
The Existing Advisers are specialized asset managers that focus in credit-oriented investment strategies. The three members of the Existing Advisers' senior investment team collectively have around 60 years of industry experience. EPCM currently manages ECC and EPIIF, each of the Existing Affiliated Funds, and numerous separately managed accounts, pursuant to a variety of credit-oriented investment mandates. EPIM currently manages EIC and focuses on investing in collateralized loan obligations. EPEIM currently manages EPEIT and focuses on investing in portfolio debt securities, collateralized loan obligations, and certain other credit-related investments. EPDIM currently manages EPDIT and focuses on investing in portfolio debt securities. As of
The Existing Advisers identify numerous private placement 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, and without violating the prohibitions on joint transactions included in Rule 17d-1 and Section 57(a)(4) of the Act. Such investment opportunities may necessitate or otherwise benefit from multiple clients investing jointly. In those cases, the Existing Advisers may not include a
As a result, the Regulated Funds and Affiliated Funds are limited in the types of transactions in which they can participate with each other, and in the absence of the requested relief the Regulated Funds would be required to forego certain transactions that would be beneficial to investors in the Regulated Funds. Thus, the Applicants are seeking the relief requested by the Application for certain initial investments, Follow-On Investments, and Dispositions as described below.
The Applicants discuss the need for the requested relief in greater detail in Section III.C. below. The Applicants represent that the Existing Advisers have established rigorous processes for ensuring compliance with the Order and for allocating initial investment opportunities, opportunities for subsequent investments in an issuer and dispositions of securities holdings reasonably designed to treat all clients fairly and equitably. As discussed below, 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 contained in the Order.
10
1. The Investment Process
The investment process consists of three stages: (i) the identification and consideration of investment opportunities (including follow-on investment opportunities); (ii) order placement and allocation; and (iii) consideration by each applicable
(a). Identification and Consideration of Investment Opportunities
The Advisers are organized and managed such that investment committees (or designated individuals or portfolio managers in lieu of investment committees, as applicable) (collectively, "Investment Committees")13 conduct investment review processes and approve specific investment decisions.
Opportunities for Potential Co-Investment Transactions may arise when the investment advisory personnel of an Adviser become aware of investment opportunities that may be appropriate for one or more Regulated Funds and/or one or more Affiliated Funds. 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 Co-Investment Transaction falls within the then-current Objectives and Strategies and any Board-Established Criteria of a
The Applicants represent that, if the requested Order is granted, the investment advisory personnel of the Advisers to the Regulated Funds will be charged with making sure they identify, and participate in this process with respect to, each investment opportunity that falls within the Objectives and Strategies and Board-Established Criteria of each
| 13 | Investment Committees responsible for an area of investment may include investment professionals and senior management from among one or more of the Advisers. |
| 14 | Representatives from each Adviser to a |
11
(b). Order Placement and Allocation
General. If the Adviser to a
Allocation Procedure. For each
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. 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.16 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 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; provided that, 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
Compliance. The Applicants represent that the Advisers' allocation review process is a robust process designed as part of their overall compliance policies and procedures to ensure that every client is treated fairly and that the Advisers are following their allocation policies. The entire allocation process is monitored and reviewed by the Advisers' compliance team, led by the chief compliance officer, and approved by the Board of each
| 15 | The reason for any such adjustment to a proposed order amount will be documented in writing and preserved in the records of each Adviser. |
| 16 | The 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 |
12
(c). Approval of Potential Co-Investment Transactions
A
In the case of a
Further, the Applicants believe that the existence of differing routes of approval between the BDC Downstream Funds and other Regulated Funds would not result in the Applicants investing through the BDC Downstream Funds in order to avoid obtaining the approval of a
A
13
2. Delayed Settlement
All Regulated Funds and Affiliated Funds participating in a Co-Investment 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
3. Permitted Follow-On Investments and Approval of Follow-On Investments
From time to time the Regulated Funds and Affiliated Funds may have opportunities to make Follow-On Investments in an issuer in which a
The Order would divide Follow-On Investments into two categories depending on whether the Regulated Funds and Affiliated Funds holding investments in the issuer previously participated in a Co-Investment Transaction with respect to the issuer and continue to hold any securities acquired in a Co-Investment Transaction for that issuer. If such Regulated Funds and Affiliated Funds have previously participated in a Co-Investment Transaction with respect to the issuer, then the terms and approval of the
(a). Standard Review Follow-Ons
A
A
A "
| 17 | See note 35, below. |
14
A "
The Applicants believe that these Pro Rata Follow-On Investments 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.
(b). Enhanced Review Follow-Ons
One or more Regulated Funds and/or one or more Affiliated Funds holding Pre-Boarding Investments may have the opportunity to make a
4. Dispositions
The Regulated Funds and Affiliated Funds may be presented with opportunities to sell, exchange or otherwise dispose of securities in a transaction that would be prohibited by Rule 17d-1 or Section 57(a)(4), as applicable. If the Order is granted, such Dispositions will be made in a manner that, over time, is fair and equitable to all of the Regulated Funds and Affiliated Funds and in accordance with procedures set forth in the proposed Conditions to the Order and discussed below.
The Order would divide these Dispositions into two categories: (i) if the Regulated Funds and Affiliated Funds holding investments in the issuer have previously participated in a Co-Investment Transaction with respect to the issuer and continue to hold any securities acquired in a Co-Investment Transaction for such issuer, then the terms and approval of the Disposition (hereinafter referred to as "Standard Review Dispositions") would be subject to the process discussed in Section III.A.4.a. below and governed by Condition 6; and (ii) if the Regulated Funds and Affiliated Funds have not previously participated in a Co-Investment Transaction with respect to the issuer, then the terms and approval of the Disposition (hereinafter referred to as "Enhanced Review Dispositions") would be subject to the same "onboarding process" discussed in Section III.A.4.b. below, and governed by Condition 7.
15
(a). Standard Review Dispositions
A
A
A "Pro Rata Disposition" is a Disposition (i) in which the participation of each
In the case of a Tradable Security, approval of the required majority is not required for the Disposition if: (x) the Disposition is not to the issuer or any affiliated person of the issuer;19 and (y) 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. Pro Rata Dispositions and Dispositions of a Tradable Security remain subject to the Board's periodic review in accordance with Condition 10.
(b). Enhanced Review Dispositions
One or more Regulated Funds and one or more Affiliated Funds that have not previously participated in a Co-Investment Transaction with respect to an issuer may have the opportunity to make a Disposition of Pre-Boarding Investments in a Potential Co-Investment Transaction. In these cases, the Regulated Funds and Affiliated Funds may rely on the Order to make such Disposition subject to the requirements of Condition 7. As discussed above, with respect to investment in a given issuer, the participating Regulated Funds and Affiliated Funds need only complete the onboarding process for the first Co-Investment Transaction, which may be an Enhanced Review Follow-On or an Enhanced Review Disposition.20 Subsequent Co-Investment Transactions with respect to the issuer will be governed by Condition 6 or 8 under the standard review process.
| 18 | See note 33, below. |
| 19 | In the case of a Tradable Security, Dispositions to the issuer or an affiliated person of the issuer are not permitted so that funds participating in the Disposition do not benefit to the detriment of Regulated Funds that remain invested in the issuer. For example, if a Disposition of a Tradable Security were permitted to be made to the issuer, the issuer may be reducing its short term assets (i.e., cash) to pay down long term liabilities. |
| 20 | However, with respect to an issuer, if a |
16
5. Use of Wholly-Owned Investment Subs
A
Applicants note that an entity could not be both a Wholly-Owned Investment Sub and a
B. Applicable Law
1. Section 17(d) and Section 57(a)(4)
Section 17(d) of the Act generally prohibits an affiliated person (as defined in Section 2(a)(3) of the Act), or an affiliated person of such affiliated person, of a registered investment company acting as principal, from effecting any transaction in which the registered investment company is a joint or a joint and several participant, in contravention of such rules as the Commission may prescribe for the purpose of limiting or preventing participation by the registered investment company on a basis different from or less advantageous than that of such other participant.
Similarly, with regard to BDCs, Section 57(a)(4) prohibits certain persons specified in Section 57(b) from participating in a joint transaction with the BDC, or a company controlled by the BDC, in contravention of rules as prescribed by the Commission. In particular, Section 57(a)(4) applies to:
| · | Any director, officer, employee, or member of an advisory board of a BDC or any person (other than the BDC itself) who is an affiliated person of the forgoing pursuant to Section 2(a)(3)(C); or |
| · | Any investment adviser or promoter of, general partner in, principal underwriter for, or person directly or indirectly either controlling, controlled by, or under common control with, a BDC (except the BDC itself and any person who, if it were not directly or indirectly controlled by the BDC, would not be directly or indirectly under the control of a person who controls the BDC);21 or any person who is an affiliated person of any of the forgoing within the meaning of Section 2(a)(3)(C) or (D). |
Pursuant to the foregoing application of Section 57(a)(4), BDC Downstream Funds on the one hand and other Regulated Funds and Affiliated Funds on the other, may not co-invest absent an exemptive order because the BDC Downstream Funds are controlled by a BDC and the Affiliated Funds and other Regulated Funds are included in Section 57(b).
| 21 | Also excluded from this category by Rule 57b-1 is any person who would otherwise be included (a) solely because that person is directly or indirectly controlled by a BDC, or (b) solely because that person is, within the meaning of Section 2(a)(3)(C) or (D), an affiliated person of a person described in (a) above. |
17
Section 2(a)(3)(C) defines an "affiliated person" of another person to include any person directly or indirectly controlling, controlled by, or under common control with, such other person. Section 2(a)(3)(D) defines "any officer, director, partner, copartner, or employee" of an affiliated person as an affiliated person. Section 2(a)(9) defines "control" as the power to exercise a controlling influence over the management or policies of a company, unless such power is solely the result of an official position with that company. Under Section 2(a)(9) a person who beneficially owns, either directly or through one or more controlled companies, more than 25% of the voting securities of a company is presumed to control such company. The Commission and its staff have indicated on a number of occasions their belief that an investment adviser that provides discretionary investment management services to a fund and that sponsored, selected the initial directors, and provides administrative or other non-advisory services to the fund, controls such fund, absent compelling evidence to the contrary.22
2. Rule 17d-1
Rule 17d-1 generally prohibits an affiliated person (as defined in Section 2(a)(3)), or an affiliated person of such affiliated person, of a registered investment company acting as principal, from effecting any transaction in which the registered investment company, or a company controlled by such registered company, is a joint or a joint and several participant, in contravention of such rules as the Commission may prescribe for the purpose of limiting or preventing participation by the registered investment company on a basis different from or less advantageous than that of such first or second tier affiliate. Rule 17d-1 generally prohibits participation by a registered investment company and an affiliated person (as defined in Section 2(a)(3)) or principal underwriter for that investment company, or an affiliated person of such affiliated person or principal underwriter, in any "joint enterprise or other joint arrangement or profit-sharing plan," as defined in the rule, without prior approval by the Commission by order upon application.
Rule 17d-1 was promulgated by the Commission pursuant to Section 17(d) and made applicable to persons subject to Sections 57(a) and (d) by Section 57(i) to the extent specified therein. Section 57(i) provides that, until the Commission prescribes rules under Sections 57(a) and (d), the Commission's rules under Section 17(d) applicable to registered closed-end investment companies will be deemed to apply to persons subject to the prohibitions of Section 57(a) or (d). Because the Commission has not adopted any rules under Section 57(a) or (d), Rule 17d-1 applies to persons subject to the prohibitions of Section 57(a) or (d).
The Applicants seek relief pursuant to Rule 17d-1, which permits the Commission to authorize joint transactions upon application. In passing upon applications filed pursuant to Rule 17d-1, the Commission is directed by Rule 17d-1(b) to consider whether the participation of a registered investment company or controlled company thereof in the joint enterprise or joint arrangement under scrutiny is consistent with provisions, policies and purposes of the Act and the extent to which such participation is on a basis different from or less advantageous than that of other participants.
The Commission has stated that Section 17(d), upon which Rule 17d-1 is based, and upon which Section 57(a)(4) was modeled, was designed to protect investment companies from self-dealing and overreaching by insiders. The Commission has also taken notice that there may be transactions subject to these prohibitions that do not present the dangers of overreaching.23
| 22 | See, e.g., SEC Rel. No. IC-4697 ( |
| 23 | SeeProtecting Investors: A Half-Century of Investment Company Regulation, 1504 Fed. Sec. L. Rep., |
| 24 | |
| 25 | H. Rep. No. 96-1341, 96th Cong., 2d Sess. 45 (1980) reprinted in 1980 U.S.C.C.A.N. 4827. |
18
Applicants believe that the Conditions would ensure that the conflicts of interest that Section 17(d) and Section 57(a)(4) were designed to prevent would be addressed and the standards for an order under Rule 17d-1 and Section 57(i) would be met.
C. Need for Relief
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 modified by Rule 57b-1 thereunder, as applicable, vis-à-vis each participating
Each of the participating Regulated Funds and Affiliated Funds may be deemed to be affiliated persons vis-à-vis a
In addition, because the Proprietary Accounts are controlled by an Adviser and, therefore, may be under common control with ECC, EIC, EPIIF, EPEIT, EPDIT, EPCM, EPIM, EPEIM, EPDIM, and any Future Regulated Funds, the 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 17(d) or Section 57(b) and also prohibited from participating in the Co-Investment Program.
Further, because the BDC Downstream Funds and Wholly-Owned Investment Subs are or will be controlled by the Regulated Funds, the BDC Downstream Funds and Wholly-Owned Investment Subs are subject to Section 57(a)(4) (or Section 17(d) in the case of Wholly-Owned Investment Subs controlled by Regulated Funds that are registered under the Act), and thus also subject to the provisions of Rule 17d-1, and therefore would be prohibited from participating in Co-Investment Transactions without the Order.
19
D. Precedents
The Commission has issued numerous exemptive orders under the Act permitting registered investment companies and BDCs to co-invest with affiliated persons.26 Although the various precedents involved somewhat different formulae, the Commission has accepted, as a basis for relief from the prohibitions on joint transactions, use of allocation and approval procedures to protect the interests of investors in the BDCs and registered investment companies. The relief requested in this Application with respect to Follow-On Investments is consistent with the temporary relief granted by the Commission on
The Commission also has issued orders extending co-investment relief to proprietary accounts.28
| 26 |
See, e.g., |
| 27 |
BDC Temporary Exemptive Order, Investment Company Act Rel. Nos. 33837 ( |
| 28 | See, e.g., |
20
IV. STATEMENT IN SUPPORT OF RELIEF REQUESTED
In accordance with Rule 17d-1 (made applicable to transactions subject to Section 57(a) by Section 57(i)), the Commission may grant the requested relief as to any particular joint transaction if it finds that the participation of the Regulated Funds in the joint transaction is consistent with the provisions, policies and purposes of the Act and is not on a basis different from or less advantageous than that of other participants. The Applicants submit that allowing the Co-Investment Transactions described in this Application is justified on the basis of (i) the potential benefits to the Regulated Funds and the shareholders thereof and (ii) the protections found in the Conditions.
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. 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.
A. Potential Benefits
In the absence of the relief sought hereby, in many circumstances the Regulated Funds would be limited in their ability to participate in attractive and appropriate investment opportunities. Section 17(d), Section 57(a)(4) and Rule 17d-1 should not prevent BDCs and registered closed-end investment companies from making investments that are in the best interests of their shareholders.
B. Protective Representations and Conditions
The Conditions ensure that the proposed Co-Investment Transactions are consistent with the protection of each
21
The Applicants believe that participation by the Regulated Funds in Pro Rata Follow-On Investments and Pro Rata Dispositions, as provided in Conditions 6(c)(i) and 8(b)(i), is consistent with the provisions, policies and purposes of the Act and will not be made on a basis different from or less advantageous than that of other participants. A formulaic approach, such as pro rata investment or disposition eliminates the possibility for overreaching and unnecessary prior review by the Board. The Applicants note that the Commission has adopted a similar pro rata approach in the context of Rule 23c-2, which relates to the redemption by a closed-end investment company of less than all of a class of its securities, indicating the general fairness and lack of overreaching that such approach provides.
The Applicants also believe that the participation by the Regulated Funds in Non-Negotiated Follow-On Investments and in Dispositions of
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
In sum, the Applicants believe that the Conditions would ensure that each
V. CONDITIONS
The Applicants agree that any Order granting the requested relief shall be subject to the following Conditions:
1. Identification and Referral of Potential Co-Investment Transactions
(a). The Advisers29 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 then-current Objectives and Strategies and Board-Established Criteria of any
(b). When an Adviser to a
| 29 |
22
2. Board Approvals of Co-Investment Transactions
(a). If the Adviser deems a
(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. above. Each Adviser to a participating
(c). After making the determinations required in Condition 1(b) above, each Adviser to a participating
(i) the terms of the transaction, including the consideration to be paid, are reasonable and fair to the
(ii) the transaction is consistent with:
(A) the interests of the
(B) the
(iii) the investment by any other
(A) the settlement date for another
23
(B) any other
(iv) the proposed investment by the
3. Right to Decline
4. General Limitation
Except for Follow-On Investments made in accordance with Conditions 8 and 9 below,31 a
5. Same Terms and Conditions.
A
| 30 | For example, procuring the |
| 31 | This exception applies only to Follow-On Investments by a |
24
6. Standard Review Dispositions
(a). General. If any
(i) the Adviser to such
(ii) the Adviser to each
(b). Same Terms and Conditions.
(c). No Board Approval Required. A
(i) the participation of each
(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
| 32 | Any 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). |
| 33 | In the case of any Disposition, proportionality will be measured by each participating |
25
7. Enhanced Review Dispositions
(a). General. If any
(i) the Adviser to such
(ii) the Adviser to each
(iii) the Advisers will provide to the Board of each
(b). Enhanced Board Approval. The Adviser will provide its written recommendation as to the
(i) the Disposition complies with Condition 2(c)(i), (ii), (iii)(A), and (iv); and
(ii) the making and holding of the Pre-Boarding 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.
(ii) Original Investments. All of the Affiliated Funds' and Regulated Funds' investments in the issuer are Pre-Boarding 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;
26
(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
(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
(i) the Adviser to each such
(ii) the Adviser to each
(b). No Board Approval Required. A
(i) A) the proposed participation of each
(ii) it is a
| 34 | 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. |
| 35 | To the extent that a |
27
(c). Standard Board Approval. In all other cases, the Adviser will provide its written recommendation as to the
(d). Allocation. If, with respect to any such
(i) the amount of the opportunity proposed to be made available to any
(ii) the aggregate amount recommended by the Advisers to be invested in the
then the
(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
(i) the Adviser to each such
(ii) the Adviser to each
(iii) the Advisers will provide to the Board of each
(b). Enhanced Board Approval. The Adviser will provide its written recommendation as to the
28
(c). Additional Requirements.
(i) Original Investments. All of the Affiliated Funds' and Regulated Funds' investments in the issuer are Pre-Boarding 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
(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 (within the meaning of Section 2(a)(9) of the Act).
(d). Allocation. If, with respect to any such
(i) the amount of the opportunity proposed to be made available to any
(ii) the aggregate amount recommended by the Advisers to be invested in the
(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.
29
10. Board Reporting, Compliance and Annual Re-Approval
(a). Each Adviser to a
(b). All information presented to the
(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
(d). The Independent Directors (including the non-interested members of each
11. Record Keeping
12. Director Independence
No Independent Director (including the non-interested members of any
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.
30
14. Transaction Fees36
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 eaa 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
15. Independence
If the Holders own in the aggregate more than 25 percent of the Shares of a
VI. PROCEDURAL MATTERS
A. Communications
Please address all communications concerning this Application and the Notice and Order to:
Please address any questions, and a copy of any communications, concerning this Application, the Notice and Order to:
One
| 36 | The Applicants are not requesting and the Commission is not providing any relief for transaction fees received in connection with any Co-Investment Transaction. |
31
The Applicants desire that the Commission issue an Order pursuant to Rule 0-5 without conducting a hearing.
Pursuant to Rule 0-2, each person executing the Application on behalf of an Applicant says that he or she has duly executed the Application for and on behalf of such Applicant; that he or she is authorized to execute the Application pursuant to the terms of an operating agreement, management agreement or otherwise; and that all actions by members, directors or other bodies necessary to authorize each deponent to execute and file the Application have been taken.
The verifications required by Rule 0-2(d) and the authorizations required by Rule 0-2(c) are attached hereto as Exhibit A and Exhibit B.
B. Authorization
All requirements for the execution and filing of this Application in the name and on behalf of each Applicant by the undersigned have been complied with and the undersigned is fully authorized to do so and has duly executed this Application as of this 3rd day of February, 2025.
32
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT INSTITUTIONAL INCOME FUND | |||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT ENHANCED INCOME TRUST | |||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT CREDIT COMPANY SUB II (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
33
| EAGLE POINT CREDIT COMPANY SUB (CAYMAN) LTD. | |||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT CREDIT COMPANY SUB II (CAYMAN) LTD. | |||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT INCOME COMPANY SUB (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT INCOME COMPANY SUB II (CAYMAN) LTD. | |||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EPIIF SUB (CAYMAN) LTD. | |||
| By: | /s/ |
||
| Title: | Authorized Person | ||
34
| EPIIF SUB II (CAYMAN) LTD. | |||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT CREDIT MANAGEMENT LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT INCOME MANAGEMENT LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT CREDIT PARTNERS LP | |||
| By: |
|||
|
By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT CREDIT PARTNERS SUB LLC | |||
| By: |
|||
| By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
35
| EAGLE POINT CREDIT PARTNERS SUB (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT CREDIT PARTNERS SUB III LTD. | |||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT CREDIT PARTNERS SUB IV LTD | |||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT CLO EQUITY FUND I LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT CLO EQUITY FUND I SUB LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
36
| EAGLE POINT CLO EQUITY FUND I CAYMAN SUB LTD. | |||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT CORE INCOME FUND LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT CORE SUB LLC | |||
| By: |
|||
| By: | /s / |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT CORE SUB (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME TRUST | |||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
37
| EAGLE POINT DEFENSIVE INCOME MANAGEMENT LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND US LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF DELAWARE I LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND NON-US LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF CAYMAN I LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
38
| EP DIF CAYMAN I SUB (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF CAYMAN I SUB II (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF CAYMAN I SUB III (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND II US LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND III US LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
39
| EP DIF DELAWARE II LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF DELAWARE III LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND II EP LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND III EP LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND II NON-US LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
40
| EAGLE POINT DEFENSIVE INCOME FUND III NON-US LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF CAYMAN II LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF CAYMAN III LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF CAYMAN II SUB III (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF US CAYMAN I LTD. | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
41
| EAGLE POINT DEFENSIVE INCOME FUND II NON-US SUB (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND II NON-US SUB II (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND NJ LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME M LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME M SUB US LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
42
| EAGLE POINT DEFENSIVE INCOME M SUB II (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME M SUB III US LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME PARTNERS LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME PARTNERS SUB (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME PARTNERS SUB II US LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
43
| EAGLE POINT ENHANCED INCOME MANAGEMENT LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT ENHANCED INCOME INVESTOR SUB (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT ENHANCED INCOME INVESTOR SUB (CAYMAN) LTD. | |||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT ENHANCED INCOME SUB I CAYMAN LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT ENHANCED INCOME SUB II CAYMAN LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
44
| EAGLE POINT ENHANCED INCOME TRUST SUB II CAYMAN LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: |
Authorized Person |
||
| EAGLE POINT ENHANCED INCOME TRUST SUB II (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT ENHANCED INCOME FUND LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT ENHANCED INCOME SUB (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
45
| EAGLE POINT ENHANCED INCOME SUB II (US) LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT SRT CO-INVEST I LP | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP CLO OPPORTUNITIES FUND I LP | |||
| By: EP CLO GP I LLC, its general partner | |||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| PRISM I US LLC | |||
| By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
46
Schedule A
Below is a list of the Existing Affiliated Funds other than the Existing Proprietary Account. All other Existing Affiliated Funds are advised by EPCM.
47
48
Schedule B
Below is the Existing Proprietary Account.
| · |
49
Exhibit A
Verification
The undersigned states that they have duly executed the attached Application for an Order under Sections 17(d) and 57(i) of the Investment Company Act of 1940, as amended, and Rule 17d-1 thereunder, dated
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT INSTITUTIONAL INCOME FUND | |||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT ENHANCED INCOME TRUST | |||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
50
|
EAGLE POINT CREDIT COMPANY SUB II (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT CREDIT COMPANY SUB (CAYMAN) LTD. | |||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT CREDIT COMPANY SUB II (CAYMAN) LTD. | |||
| By: | /s/ |
||
| Title: | Authorized Person | ||
|
EAGLE POINT INCOME COMPANY SUB (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT INCOME COMPANY SUB II (CAYMAN) LTD. | |||
| By: | /s/ |
||
| Title: | Authorized Person | ||
51
| EPIIF SUB (CAYMAN) LTD. | |||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EPIIF SUB II (CAYMAN) LTD. | |||
| By: | /s/ |
||
| Title: | Authorized Person | ||
|
EAGLE POINT CREDIT MANAGEMENT LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
|
EAGLE POINT INCOME MANAGEMENT LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
|
EAGLE POINT CREDIT PARTNERS LP By: By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
52
| EAGLE POINT CREDIT PARTNERS SUB LLC By: By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT CREDIT PARTNERS SUB (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT CREDIT PARTNERS SUB III LTD. | |||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT CREDIT PARTNERS SUB IV LTD | |||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT CLO EQUITY FUND I LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
53
| EAGLE POINT CLO EQUITY FUND I SUB LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT CLO EQUITY FUND I CAYMAN SUB LTD. | |||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT CORE INCOME FUND LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT CORE SUB LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT CORE SUB (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
54
| EAGLE POINT DEFENSIVE INCOME TRUST | |||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME MANAGEMENT LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND US LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF DELAWARE I LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND NON-US LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
55
| EP DIF CAYMAN I LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF CAYMAN I SUB (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF CAYMAN I SUB II (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF CAYMAN I SUB III (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND II US LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
56
| EAGLE POINT DEFENSIVE INCOME FUND III US LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF DELAWARE II LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF DELAWARE III LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND II EP LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND III EP LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
57
| EAGLE POINT DEFENSIVE INCOME FUND II NON-US LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND III NON-US LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF CAYMAN II LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF CAYMAN III LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP DIF CAYMAN II SUB III (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
58
| EP DIF US CAYMAN I LTD. By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND II NON-US SUB (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND II NON-US SUB II (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME FUND NJ LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME M LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
59
| EAGLE POINT DEFENSIVE INCOME M SUB US LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME M SUB II (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME M SUB III US LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME PARTNERS LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT DEFENSIVE INCOME PARTNERS SUB (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
60
| EAGLE POINT DEFENSIVE INCOME PARTNERS SUB II US LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT ENHANCED INCOME MANAGEMENT LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT ENHANCED INCOME INVESTOR SUB (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT ENHANCED INCOME INVESTOR SUB (CAYMAN) LTD. | |||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT ENHANCED INCOME SUB I CAYMAN LLC By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT ENHANCED INCOME SUB II CAYMAN LLC By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
61
| EAGLE POINT ENHANCED INCOME TRUST SUB II CAYMAN LLC By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT ENHANCED INCOME TRUST SUB II (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| EAGLE POINT ENHANCED INCOME FUND LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT ENHANCED INCOME SUB (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
62
| EAGLE POINT ENHANCED INCOME SUB II (US) LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EAGLE POINT SRT CO-INVEST I LP By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| EP CLO OPPORTUNITIES FUND I LP By: EP CLO GP I LLC, its general partner |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
| PRISM I US LLC By: |
|||
| By: | /s/ |
||
| Title: | Chief Financial Officer | ||
63
Exhibit B
Authorizations
RESOLUTIONS OF EACH OF THE BOARDS OF DIRECTORS/TRUSTEES (EACH, A
"BOARD") OF EAGLE POINT CREDIT COMPANY INC., EAGLE POINT INCOME INC. AND
EAGLE POINT INSTITUTIONAL INCOME FUND (EACH, A "COMPANY")
RESOLVED, that any one or more of the officers (collectively, the "Authorized Officers" and each, an "Authorized Officer") of each Company be, and each of them individually hereby is, authorized, empowered and directed, in the name and on behalf of each Company, to cause to be executed, delivered and filed with the
RESOLVED, that the Authorized Officers be, and each of them individually hereby is, authorized, empowered and directed, in the name and on behalf of each Company, to cause to be made, executed, delivered and filed with the
RESOLVED, that all acts and things previously done by any Authorized Officer, on or prior to the date hereof, in the name and on behalf of each Company in connection with the foregoing are in all respects authorized, ratified, approved, confirmed and adopted as acts and deeds by and on behalf of each Company; and
RESOLVED, that the Authorized Officers be, and each of them individually hereby is, authorized, empowered and directed, in the name and on behalf of each Company, to certify and deliver copies of these resolutions to such governmental bodies, agencies, persons, firms or corporations as any such officer may deem necessary and to identify by such officer's signature or certificate, or in such form as may be required, the documents and instruments approved herein and to furnish evidence of the approval, by an officer authorized to give such approval, of any such document, instrument or provision or any addition, deletion or change in any document, instrument or provision.
Adopted
64
RESOLUTIONS OF THE BOARD OF TRUSTEES OF EAGLE POINT ENHANCED INCOME
TRUST (THE "COMPANY")
RESOLVED, that any one or more of the officers (collectively, the "Authorized Officers" and each, an "Authorized Officer") of the Company be, and each of them individually hereby is, authorized, empowered and directed, in the name and on behalf of the Company, to cause to be executed, delivered and filed with the
RESOLVED, that the Authorized Officers be, and each of them individually hereby is, authorized, empowered and directed, in the name and on behalf of the Company, to cause to be made, executed, delivered and filed with the
RESOLVED, that all acts and things previously done by any Authorized Officer, on or prior to the date hereof, in the name and on behalf of the Company in connection with the foregoing are in all respects authorized, ratified, approved, confirmed and adopted as acts and deeds by and on behalf of the Company; and
RESOLVED, that the Authorized Officers be, and each of them individually hereby is, authorized, empowered and directed, in the name and on behalf of the Company, to certify and deliver copies of these resolutions to such governmental bodies, agencies, persons, firms or corporations as any such officer may deem necessary and to identify by such officer's signature or certificate, or in such form as may be required, the documents and instruments approved herein and to furnish evidence of the approval, by an officer authorized to give such approval, of any such document, instrument or provision or any addition, deletion or change in any document, instrument or provision.
Adopted
65
RESOLUTIONS OF THE BOARD OF TRUSTEES OF EAGLE POINT DEFENSIVE INCOME
TRUST (THE "COMPANY")
RESOLVED, that any one or more of the officers (collectively, the "Authorized Officers" and each, an "Authorized Officer") of the Company be, and each of them individually hereby is, authorized, empowered and directed, in the name and on behalf of the Fund, to cause to be executed, delivered and filed with the
RESOLVED, that the Authorized Officers be, and each of them individually hereby is, authorized, empowered and directed, in the name and on behalf of the Company, to cause to be made, executed, delivered and filed with the
RESOLVED, that all acts and things previously done by any Authorized Officer, on or prior to the date hereof, in the name and on behalf of the Company in connection with the foregoing are in all respects authorized, ratified, approved, confirmed and adopted as acts and deeds by and on behalf of the Company; and
RESOLVED, that the Authorized Officers be, and each of them individually hereby is, authorized, empowered and directed, in the name and on behalf of the Company, to certify and deliver copies of these resolutions to such governmental bodies, agencies, persons, firms or corporations as any such officer may deem necessary and to identify by such officer's signature or certificate, or in such form as may be required, the documents and instruments approved herein and to furnish evidence of the approval, by an officer authorized to give such approval, of any such document, instrument or provision or any addition, deletion or change in any document, instrument or provision.
Adopted
66
Attachments
Disclaimer
State Farm seeks 'emergency' rate hike after fires
Advisor News
- Study: Do most affluent investors prefer a single financial services provider?
- Why haven’t some friends asked to become clients?
- Is a Roth IRA conversion key to strategic tax planning?
- Regulator group aims for reinsurance asset testing guideline by June
- Bessent confirmed as Treasury secretary
Former hedge fund guru to oversee Trump's tax cuts, deregulation and trade changes
More Advisor NewsAnnuity News
Health/Employee Benefits News
- Trump’s return puts Medicaid on the chopping block
- King legislation to protect HCSM
- Moody’s 2025 health insurance outlook is negative
- Securian Financial Launches Accident and Critical Illness Insurance Products for Affinity Market
- Health plans facing Ozempic-type drug coverage, AI adoption in 2025
More Health/Employee Benefits NewsLife Insurance News
- Exemption Application under Investment Company Act (Form 40-APP/A)
- Life insurance financial ratings: a system in need of an update?
- More Older Adults Can Access Innovative Medicare Supplement Insurance
- How Technology Can Help to Transform the Insurance Industry
- Securian Financial Launches Accident and Critical Illness Insurance Products for Affinity Market
More Life Insurance News