Exemption Application under Investment Company Act (Form 40-APP/A)
No. 812-15483
FOURTH 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-l UNDER THE ACT
All Communications, Notices and Orders to:
| Michael J Arougheti Chief Executive Officer (310) 201-4100 |
Naseem Sagati Aghili General Counsel (310) 201-4100 |
Copies to:
(212) 446-4800 nicole.runyan@kirkland.com |
I. INTRODUCTION
| A. | Requested Relief |
In particular, the relief requested in this application (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 where such participation would otherwise be prohibited under Section 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 its terms and Conditions (defined below) set forth in this Application.
The Order would supersede an exemptive order issued by the Commission on
| B. | Applicants Seeking Relief |
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| 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 | See |
| · | The investment advisers to the Existing Affiliated Funds (defined below) that are identified in Appendix A ("Existing Advisers to Affiliated Funds," and together with the Existing Advisers to Regulated Funds and Ivy Hill, the "Existing Advisers"), each of which is registered as an investment adviser under the Advisers Act; |
| · | The investment vehicles identified in Appendix A, each of which is a separate and distinct legal entity (i) whose investment adviser (and sub-adviser(s), if any) is an Adviser, (ii) each of which, other than |
| · | The investment vehicles identified in Appendix B, each of which is a separate and distinct legal entity (i) whose investment adviser (and sub-adviser(s), if any) is an Adviser, (ii) that would be an investment company but for Section 3(c)(1) or 3(c)(7) of the Act, (iii) for each of which Ivy Hill serves as the investment adviser and (iv) that intends to participate in the Co-Investment Program (the "Existing Downstream Ivy Hill Funds"); and |
| · | The affiliate of the Adviser identified in Appendix A that may, from time to time, hold various financial assets in a principal capacity and that currently intends to participate in the Co-Investment Program (in such capacity, the "Existing Proprietary Account," together with the Existing Affiliated Funds, the Existing Advisers to Affiliated Funds, the Existing Regulated Funds, the Existing Advisers to Regulated Funds, Ivy Hill, |
| C. | Defined Terms |
"Adviser" means the Existing Advisers and any Future Adviser (defined below).
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| 5 | 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 |
"BDC" means a business development company under the Act.6
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"Board" means (i) with respect to a
"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;7 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.
"Downstream Ivy Hill Funds" means any
"Eligible Directors" means, with respect to a
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| 6 | 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. |
| 7 | The term "private placement transactions" means transactions in which the offer and sale of securities by the issuer are exempt from registration under the Securities Act of 1933, as amended (the "Securities Act"). |
"Future Adviser" means any future investment adviser that (i) controls, is controlled by, or is under common control with any of the Existing Advisers (other than Ivy Hill), (ii) (a) is registered as an investment adviser under 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 any of the Existing Advisers (other than Ivy Hill), and (iii) is not a
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"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
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"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
"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 Account" means the Existing Proprietary Account and any account of an Adviser or its affiliates or any direct or indirect wholly- or majority-owned subsidiary of an Adviser or its affiliates that (i) from time to time, may hold various financial assets in a principal capacity and (ii) intends to participate in the Co-Investment Program.
"Regulated Funds" means the Existing Regulated Funds, the Future Regulated Funds and the BDC Downstream Funds.
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"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.8
| 8 | In the case of a |
"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 |
"Wholly-Owned Investment Sub" means an entity (i) that is a wholly-owned subsidiary9 of a
II. APPLICANTS
Each Applicant below may be deemed to be directly or indirectly controlled by
| A. |
ARCC, a
ARCC's business and affairs are managed under the direction of a Board, which currently consists of ten members, six of whom are Independent Directors. ARCC's Board has delegated daily management and investment authority to ACM pursuant to an investment advisory and management agreement.
| B. |
CADEX, a
CADEX's business and affairs are managed under the direction of a Board, which currently consists of nine members, five of whom are Independent Directors. CAM serves as CADEX's investment adviser and
| 9 | 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. |
| C. |
ARDC, a
ARDC's business and affairs are managed under the direction of a Board, which currently consists of five members, three of whom are Independent Directors.
| D. |
ASIF, a
ASIF's business and affairs are managed under the direction of a Board, which currently consists of seven members, four of whom are Independent Directors. ACM serves as ASIF's investment adviser pursuant to an investment advisory and management agreement.
| E. |
APMF, a
APMF's business and affairs are managed under the direction of a Board, which currently consists of eight members, five of whom are Independent Directors.
| F. |
ACI, a
ACI's business and affairs are managed under the direction of a Board, which currently consists of five members, three of whom are Independent Directors.
| F. | Ivy Hill and the Existing Downstream Ivy Hill Funds |
Ivy Hill is ARCC's indirect wholly owned portfolio company that manages the investment and reinvestment of the assets of the Existing Downstream Ivy Hill Funds. Ivy Hill is a
Each of the Existing Downstream Ivy Hill Funds would be an investment company but for Section 3(c)(1) or 3(c)(7) of the Act. As of
In
Applicants believe that the 12(d)(3) Restrictions do not interfere with the Applicants' ability to comply with the Conditions of this Application because the terms of the Order would not modify the restrictions in the 12(d)(3) Order and Ivy Hill would comply in all respects with both the Order and the 12(d)(3) Order. Applicants acknowledge that the requested Order does not grant relief from Sections 17(a)(1), 17(a)(2), 57(a)(1) or 57(a)(2) of the Act.
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ACM, a
| H. |
| 10 | See |
| I. | CION |
CAM, a
| J. | Existing Advisers to Affiliated Funds, Existing Affiliated Funds and Existing Proprietary Account |
The Existing Advisers to Affiliated Funds are the investment advisers to the Existing Affiliated Funds. Each of the Existing Advisers to Affiliated Funds is registered as an investment adviser under the Advisers Act. A complete list of the Existing Affiliated Funds and the Existing Advisers to Affiliated Funds is included in Appendix A.
The Existing Proprietary Account holds various financial assets in a principal capacity.
III. ORDER REQUESTED
The Applicants respectfully request an Order of the Commission under Sections 17(d) and 57(i) and Rule 17d-1 thereunder to permit, subject to the terms and conditions set forth below in this Application (the "Conditions"), 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. |
| A. | Overview |
Each Adviser manages the assets entrusted to it by its clients in accordance with its fiduciary duty to those clients and, in the case of the BDCs and the registered investment companies, the Act.
The Advisers have established rigorous processes 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 required by the Prior Order, and as discussed below, these processes were extended and modified in a manner reasonably designed to ensure that the additional transactions permitted under the requested 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.
| 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 the individual portfolio managers and investment teams responsible for identifying and evaluating investment opportunities and making investment decisions on behalf of clients are promptly notified of the opportunities. Investment teams are constructed and are typically led by senior investment professionals and supported by one or more junior investment professionals. Members of the investment team are selected primarily based on existing relationships with equity sponsors or industry experience. Investment teams lead the due diligence and structuring processes for new investments and make recommendations to the investment committee. Opportunities for Potential Co-Investment Transactions may arise when investment advisory personnel of an Adviser become aware of investment opportunities that may be appropriate for one or more Regulated Funds and one or more Affiliated Funds. The Advisers previously established and will continue to 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
Applicants represent that the investment advisory personnel of the Advisers to the Regulated Funds are 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
| (b) | Order Placement and Allocation |
The Advisers have each adopted and are all subject to the "Investment Allocation, Aggregation of Orders and Co-Investments" Policy included in the Ares Management Global Compliance and Ethics Manual (the "Allocation Policy"), which provides that all investment opportunities will be allocated among their respective client accounts on a basis that over a period of time is fair and equitable to each client account relative to other clients consistent with any fiduciary duties owed to clients and in an effort to avoid favoring one client over another, taking into account all relevant facts and circumstances.
General. If the Adviser to a
| 11 | Representatives from each Adviser to a |
Allocation Procedure. For each
At this stage, each proposed allocation may be reviewed and adjusted, in accordance with the Allocation Policy.12 Prior to the External Submission (as defined below), the proposed allocation will be submitted to the internal investment operations and trading functions, which are comprised of a group of operations professionals and individual traders who collect and execute trades. The proposed allocation to a
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 counterparty, 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.13 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 the Allocation Policy; 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 the Allocation Policy. The entire allocation process is monitored and reviewed by the compliance team, including the chief compliance officer, of the applicable Adviser, and approved by the Board of each
| (c) | Approval of Potential Co-Investment Transactions |
A
| 12 | The reason for any such adjustment to a proposed allocation will be documented in writing and preserved for the records of the Advisers. |
| 13 | The Advisers will maintain records of all proposed allocations, 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 |
In the case of a
Further, Applicants believe that the existence of differing routes of approval between the BDC Downstream Funds and other Regulated Funds would not result in Applicants investing through the BDC Downstream Funds in order to avoid obtaining the approval of a
A
| 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 "
| 14 | See footnote 30 below. |
A "
Applicants believe that these Pro Rata and Non-Negotiated Follow-On Investments do not present a significant opportunity for overreaching on the part of any Adviser and thus do not warrant the time or the attention of the Board.
Pro Rata Follow-On Investments and Non-Negotiated Follow-On Investments remain subject to the Board's periodic review in accordance with Condition 10.
| (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 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.
| (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;16 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.
| 15 | See footnote 28 below. |
| 16 | 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. |
| (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.17 Subsequent Co-Investment Transactions with respect to the issuer will be governed by Condition 6 or 8 under the standard review process.
| 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);18 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).
| 17 | However, with respect to an issuer, if a |
| 18 | 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 business development company, 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. |
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.19
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).
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.20
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 Rule 17d-1 and either or both of Sections 17(d) and 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, Section 17(d) and/or Section 57(b), as modified by Rule 57b-1 thereunder, as applicable, vis-à-vis each participating
| 19 | See, e.g., SEC Rel. No. IC-4697 ( |
| 20 | |
| 21 | |
| 22 | H.Rep. No. 96-1341, 96th Cong., 2d Sess. 45 (1980) reprinted in 1980 U.S.C.C.A.N. 4827. |
Each of the participating Regulated Funds and Affiliated Funds may be deemed to be affiliated persons vis-à-vis a
Further, because the BDC Downstream Funds and Wholly-Owned Investment Subs are 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.
In addition, because the Proprietary Accounts are controlled by an Adviser and, therefore, may be under common control with the Existing Regulated Funds, the Existing Advisers 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.
| D. | Precedents |
The Commission has issued numerous exemptive orders under the Act permitting registered investment companies and BDCs to co-invest with affiliated persons, including precedents involving proprietary accounts.23 The relief requested in this Application with respect to Follow-On Investments is based on the temporary relief granted by the Commission on
| 23 | See, e.g., |
| 24 | BDC Temporary Exemptive Order, Investment Company Act Rel. Nos. 33837 ( |
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. 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 |
Prior to obtaining the Prior Order, 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
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. 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.
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
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) Each Adviser (other than Ivy Hill) 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
| 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
(B) any other
(iv) the proposed investment by the
3. Right to Decline.
| 4. | General Limitation. |
(a) Except for Follow-On Investments made in accordance with Conditions 8 and 9 below,26 a
5. Same Terms and Conditions. A
| 25 | For example, procuring the |
| 26 | This exception applies only to Follow-On Investments by a |
| 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) (A) 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
| 27 | 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). |
| 28 | In the case of any Disposition, proportionality will be measured by each participating |
| 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;
(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
| 29 | 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. |
(b) No Board Approval Required. A
(i) (A) the proposed participation of each
(ii) it is a
(c) Standard Board Approval. In all other cases, the Adviser will provide its written recommendation as to the
If the only previous Co-Investment Transaction with respect to the issuer was an Enhanced Review Disposition, the Eligible Directors must complete this review of the proposed
(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.
| 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
| 30 | To the extent that a |
(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.
| 10. | Board Reporting, Compliance and Annual Re-Approval |
(a) Each Adviser to a
(b) All information presented to the
(c)
(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.
14. Transaction Fees31. 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:
| Michael J Arougheti Chief Executive Officer (310) 201-4100 |
Naseem Sagati Aghili General Counsel (310) 201-4100 |
Please address any questions, and a copy of any communications, concerning this Application, the Notice and Order to:
(212) 446-4800 nicole.runyan@kirkland.com |
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 below.
| 31 | Applicants are not requesting and the Commission is not providing any relief for transaction fees received in connection with any Co-Investment Transaction. |
| 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 4th day of
| By: | /s/ |
|
| Title: General Counsel, Vice President and Secretary | ||
| ARES CORE INFRASTRUCTURE FUND | ||
| By: | /s/ |
|
| Title: Vice President and Assistant Secretary | ||
| By: | /s/ |
|
| Title: General Counsel and Secretary | ||
| ARES PRIVATE MARKETS FUND | ||
| By: | /s/ |
|
| Title: Vice President and Assistant Secretary | ||
| By: | /s/ |
|
| Title: General Counsel and Secretary | ||
| By: | /s/ |
|
| Title: General Counsel and Secretary | ||
| By: | /s/ |
||
| Title: | Authorized Person | ||
| By: | /s/ |
||
| Title: | Chief Operating Officer | ||
Verification
The undersigned states that he has duly executed the attached application dated as of
| By: | /s/ |
|
| Title: General Counsel, Vice President and Secretary | ||
Verification
The undersigned states that he has duly executed the attached application dated as of
| ARES CORE INFRASTUCTURE FUND | ||
| By: | /s/ |
|
| Title: Vice President and Assistant Secretary | ||
Verification
The undersigned states that he has duly executed the attached application dated as of
| By: | /s/ |
|
| Title: General Counsel and Secretary | ||
Verification
The undersigned states that he has duly executed the attached application dated as of
| ARES PRIVATE MARKETS FUND | ||
| By: | /s/ |
|
| Title: Vice President and Assistant Secretary | ||
Verification
The undersigned states that he has duly executed the attached application dated as of
| By: | /s/ |
|
| Title: General Counsel and Secretary | ||
Verification
The undersigned states that he has duly executed the attached application dated as of
| By: | /s/ |
|
| Title: General Counsel and Secretary | ||
Verification
The undersigned states that she has duly executed the attached application dated as of
Ares European Property Enhancement Partners III SCSp, Ares European Property Enhancement Partners
| By: | /s/ |
||
| Title: | Authorized Person | ||
Verification
The undersigned states that she has duly executed the attached application dated as of
| By: | /s/ |
||
| Title: | Chief Operating Officer | ||
APPENDIX A
The Existing Advisers to Affiliated Funds are comprised of the following investment advisers:
| a) | |
| b) | |
| c) | |
| d) | |
| e) | |
| f) | ACOF Operating Manager, L.P. |
| g) | |
| h) | |
| i) | |
| j) | |
| k) | |
| l) | |
| m) | |
| n) | Ares Cactus Operating Manager, L.P. |
| o) | |
| p) | |
| q) | |
| r) | |
| s) | |
| t) | |
| u) | |
| v) | |
| w) | |
| x) | |
| y) | |
| z) | |
| aa) | |
| bb) | |
| cc) | |
| dd) | |
| ee) | |
| ff) | |
| gg) | |
| hh) | |
| ii) | |
| jj) | |
| kk) | |
| ll) | |
| mm) | |
| nn) | |
| oo) | |
| pp) | |
| qq) | Ares HICOF Operating Manager, L.P. |
| rr) | |
| ss) | |
| tt) | |
| uu) | |
| vv) | |
| ww) | |
| xx) | |
| yy) | |
| zz) | |
| aaa) | |
| bbb) | |
| ccc) |
| ddd) | |
| eee) | |
| fff) | |
| ggg) | |
| hhh) | |
| iii) | Ares Management Luxembourg S.a.r.l. |
| jjj) | |
| kkk) | |
| lll) | |
| mmm) | |
| nnn) | |
| ooo) | |
| ppp) | |
| qqq) | |
| rrr) | |
| sss) | |
| ttt) | |
| uuu) | |
| vvv) | |
| www) | |
| xxx) | |
| yyy) | |
| zzz) | |
| aaaa) | |
| bbbb) | |
| cccc) | |
| dddd) | |
| eeee) | |
| ffff) | |
| gggg) |
The Existing Affiliated Funds are comprised of the following groups, and all Existing Affiliated Funds are managed by Existing Advisers to Affiliated Funds:
1. Credit:
| (i) | The direct lending strategy includes, among other entities that are currently in existence but that are not currently expected to participate in the Co-Investment Transactions, the following Existing Affiliated Funds: |
| a) | |
| b) | |
| c) | ACE III MASTER FUND, L.P. |
| d) | |
| e) | Ares Capital Europe IV (E) Levered |
| f) | Ares Capital Europe IV (E) Unlevered |
| g) | Ares Capital Europe IV (G) Levered |
| h) | Ares Capital Europe IV (G) Unlevered |
| i) | Ares Capital Europe V (E) Levered |
| j) | Ares Capital Europe V (E) Unlevered |
| k) | Ares Capital Europe V (G) Levered |
| l) | Ares Capital Europe V (G) Unlevered |
| m) | Ares Capital Europe VI (E) Levered |
| n) | Ares Capital Europe VI (E) Unlevered |
| o) |
| p) | |
| q) | Ares Capital Europe VI (G) Levered |
| r) | Ares Capital Europe VI (G) Unlevered |
| s) | |
| t) | |
| u) | ARES COMMERCIAL FINANCE LP |
| v) | |
| w) | |
| x) | |
| y) | |
| z) | |
| aa) | |
| bb) | ARES CREDIT STRATEGIES FUND I, L.P. |
| cc) | ARES CREDIT STRATEGIES FUND III, L.P. |
| dd) | |
| ee) | ARES CUSTOMIZED CREDIT FUND L.P. |
| ff) | |
| gg) | |
| hh) | |
| ii) | |
| jj) | |
| kk) | |
| ll) | |
| mm) | |
| nn) | |
| oo) | |
| pp) | |
| qq) | |
| rr) | |
| ss) | |
| tt) | |
| uu) | ARES EUROPEAN CREDIT STRATEGIES FUND II (B), L.P. |
| vv) | ARES EUROPEAN CREDIT STRATEGIES FUND III (A), L.P. |
| ww) | |
| xx) | |
| yy) | |
| zz) | |
| aaa) | Ares European Credit Strategies Fund VII ( |
| bbb) | |
| ccc) | |
| ddd) | Ares European Credit Strategies Fund XII (Z), SCSp RAIF - |
| eee) | Ares European Credit Strategies Fund XII (Z), SCSp RAIF - |
| fff) | |
| ggg) | ARES MEZZANINE PARTNERS, L.P. |
| hhh) | |
| iii) | |
| jjj) | |
| kkk) | |
| lll) | |
| mmm) | |
| nnn) | |
| ooo) | |
| ppp) | |
| qqq) | |
| rrr) | |
| sss) | |
| ttt) | |
| uuu) | |
| vvv) |
| www) | |
| xxx) | |
| yyy) | |
| zzz) |
| aaaa) | |
| bbbb) | |
| cccc) | |
| dddd) | |
| eeee) | |
| ffff) | |
| gggg) | |
| hhhh) | ARES |
| iiii) | |
| jjjj) | |
| kkkk) | MC Investments Parent L.P |
| llll) | |
| mmmm) | |
| nnnn) | |
| oooo) |
| (ii) | The alternative credit strategy includes, among other entities that are currently in existence but that are not currently expected to participate in Co-Investment Transactions, the following Existing Affiliated Funds: |
| a) | |
| b) | |
| c) | |
| d) | |
| e) | |
| f) | |
| g) | |
| h) | |
| i) | |
| j) | |
| k) | |
| l) | |
| m) | |
| n) | |
| o) | |
| p) | |
| q) | |
| r) | |
| s) |
| (iii) |
The opportunistic credit strategy includes, among other entities that are currently in existence but that are not currently expected to participate in Co-Investment Transactions, the following Existing Affiliated Funds: |
| a) | |
| b) | |
| c) | |
| d) | |
| e) | Ares Special Opportunities Fund II (Jersey A) L.P. |
| f) | |
| g) | |
| h) | |
| i) | |
| j) | |
| k) | Ares Special Opportunities Fund III Offshore (L) SCSp |
| l) | ARES SPECIAL SITUATIONS FUND III, L.P. |
| m) | |
| n) | |
| o) | |
| p) | |
| q) | |
| r) |
| (iv) | The liquid credit strategy includes, among other entities that are currently in existence but that are not currently expected to participate in Co-Investment Transactions, the following Existing Affiliated Funds: |
| a) | |
| b) | |
| c) | |
| d) | |
| e) | |
| f) | |
| g) | |
| h) | |
| i) | |
| j) | |
| k) | |
| l) | |
| m) | |
| n) | |
| o) | |
| p) | |
| q) | |
| r) | |
| s) | |
| t) | |
| u) | |
| v) | |
| w) | |
| x) | |
| y) | |
| z) | Ares Global Credit Fund S.C.A., SICAV-RAIF - |
| aa) | Ares Global Credit Fund S.C.A., SICAV-RAIF - |
| bb) | |
| cc) | |
| dd) | |
| ee) | ARES INCOME OPPORTUNITY FUND, L.P. |
| ff) | ARES INSTITUTIONAL CREDIT FUND L.P. |
| gg) | |
| hh) | |
| ii) | |
| jj) | |
| kk) | |
| ll) | |
| mm) | |
| nn) | |
| oo) | Ares |
| pp) | |
| qq) | |
| rr) | |
| ss) | |
| tt) | |
| uu) | |
| vv) | |
| ww) |
| xx) | |
| yy) | |
| zz) | |
| aaa) | |
| bbb) | |
| ccc) | |
| ddd) | |
| eee) | |
| fff) | |
| ggg) | |
| hhh) | |
| iii) | |
| jjj) | |
| kkk) | |
| lll) | |
| mmm) | |
| nnn) | |
| ooo) | |
| ppp) | |
| qqq) | ARES SENIOR LOAN TRUST |
| rrr) | ARES STRATEGIC INVESTMENT PARTNERS IV |
| sss) | |
| ttt) | |
| uuu) | |
| vvv) | |
| www) | |
| xxx) | |
| yyy) | |
| zzz) | |
| aaaa) | |
| bbbb) | |
| cccc) | |
| dddd) | |
| eeee) | |
| ffff) | |
| gggg) | ARES XX CLO LTD |
| hhhh) | |
| iiii) | |
| jjjj) | |
| kkkkl) | |
| llll) | |
| mmmm) | |
| nnnn) | |
| oooo) | |
| pppp) | |
| qqqq) | |
| rrrr) | |
| ssss) | |
| tttt) | |
| uuuu) | |
| vvvv) | |
| wwww) | |
| xxxx) | |
| yyyy) |
2. Private Equity:
| a) | |
| b) | |
| c) | |
| d) | ARES CORPORATE OPPORTUNITIES FUND |
| e) | |
| f) | ARES CORPORATE OPPORTUNITIES FUND IV, L.P. |
| g) | ARES CORPORATE OPPORTUNITIES FUND V, L.P. |
| h) | |
| i) | |
| j) | |
| k) | |
| l) | |
| m) | Ares Corporate Opportunities Fund VII Parallel (Lux Foreign), SCSp |
| n) | |
| o) | |
| p) | |
| q) | |
| r) | |
| s) | |
| t) | |
| u) | |
| v) | |
| w) | |
| x) | |
| y) | |
| z) | |
| aa) | |
| bb) | |
| cc) | |
| dd) | Ares Private Opportunities 2020 (C) |
| ee) | |
| ff) | |
| gg) | |
| hh) | |
| ii) | |
| jj) | |
| kk) | ARES SSG SECURED LENDING OPPORTUNITIES III, L.P. |
| ll) | |
| mm) | |
| nn) | SSG CAPITAL PARTNERS I SIDE POCKET, L.P. |
| oo) | SSG CAPITAL PARTNERS II, L.P. |
| pp) | SSG CAPITAL PARTNERS III, LP |
| qq) | SSG CAPITAL PARTNERS IV SIDECAR, L.P. |
| rr) | SSG CAPITAL PARTNERS IV, L.P. |
| ss) | SSG CAPITAL PARTNERS V SIDECAR, L.P. |
| tt) | SSG CAPITAL PARTNERS V, L.P. |
| uu) | SSG SECURED LENDING OPPORTUNITIES I-A, L.P. |
| vv) | SSG SECURED LENDING OPPORTUNITIES II, L.P. |
3. Real Assets:
| a) | |
| b) | |
| c) | |
| d) | |
| e) | |
| f) | |
| g) | |
| h) | AREG Iberian Residential Co-Invest Vehicle SCSp |
| i) | AREG Iberian Residential Vehicle II SCSp |
| j) | AREG Kennedy Co-Invest S.C.A. |
| k) | AREG Leopard Partners SCSp |
| l) | |
| m) | |
| n) | |
| o) | |
| p) | |
| q) | |
| r) | |
| s) | |
| t) | |
| u) | |
| v) | ARES ENERGY INVESTORS FUND V, L.P. |
| w) | Ares European Property Enhancement Parallel Partners III SCSp |
| x) | |
| y) | Ares European Property Enhancement Partners III SCSp |
| z) | Ares European Property Enhancement Partners |
| aa) | Ares European Real Estate Fund VI SCSp |
| bb) | |
| cc) | |
| dd) | |
| ee) | |
| ff) | |
| gg) | Ares Infrastructure Debt Fund VI (Ontario USD U) LP |
| hh) | Ares Infrastructure Debt Fund VI (USD L) LP |
| ii) | Ares Infrastructure Debt Fund VI (USD O U) LP |
| jj) | Ares Infrastructure Debt Fund VI (USD U) LP |
| kk) | |
| ll) | |
| mm) | |
| nn) | |
| oo) | |
| pp) | |
| qq) | |
| rr) | |
| ss) | |
| tt) | |
| uu) | |
| vv) | |
| ww) | |
| xx) | |
| yy) | |
| zz) |
| aaa) | |
| bbb) | |
| ccc) | |
| ddd) | |
| eee) | |
| fff) | |
| ggg) | |
| hhh) | |
| iii) | |
| jjj) | |
| kkk) | |
| lll) | |
| mmm) | |
| nnn) | |
| ooo) | Ares Infrastructure Debt Fund V (GBP Hedged), L.P. |
| ppp) | |
| qqq) | Ares Infrastructure Debt Fund V (Tranche SMA), L.P. |
| rrr) | Ares Infrastructure Debt Fund V (USD Hedged), L.P. |
| sss) | Ares Infrastructure Debt Asia (ELP No. 1) L.P. |
| ttt) | Ares Infrastructure Debt Asia (ELP No. 2) L.P. |
| uuu) | |
| vvv) | EIF CHANNELVIEW BLOCKER, LLC |
| www) | |
| xxx) | Hush Lux S.a.r.l. |
| yyy) | |
| zzz) | MC EUROPEAN REAL ESTATE DEBT PARENT LP |
| aaaa) | |
| bbbb) |
4. Secondaries:
| a) | |
| b) | Ares Credit Secondaries (Lux) SCSp |
| c) | |
| d) | |
| e) | |
| f) | |
| g) | |
| h) | |
| i) | |
| j) | |
| k) | |
| l) | |
| m) | |
| n) | Ares Secondaries Infrastructure Solutions III |
| o) | |
| p) | Landmark - |
| q) | |
| r) | |
| s) | |
| t) | |
| u) | |
| v) | |
| w) | |
| x) | |
| y) | Landmark Equity Partners XVII, L.P |
| z) | |
| aa) | |
| bb) | |
| cc) | |
| dd) | |
| ee) | |
| ff) | |
| gg) | |
| hh) | |
| ii) | |
| jj) | |
| kk) | |
| ll) | |
| mm) | Landmark Partners Insurance Fund Series Interests of the |
| nn) | Landmark Private Opportunities (FG) 2021, L.P. |
| oo) | |
| pp) | |
| qq) | |
| rr) | |
| ss) | |
| tt) | |
| uu) | |
| vv) | |
| ww) | |
| xx) | |
| yy) | |
| zz) | |
| aaa) | |
| bbb) | |
| ccc) | |
| ddd) | |
| eee) | |
| fff) | |
| ggg) | |
| hhh) | |
| iii) | |
| jjj) | LWFB CO-INVESTMENT FUND I, L.P. |
| kkk) | NCL III - Outside Opportunities B |
| lll) | NCL INVESTMENTS II - OUTSIDE OPPORTUNITIES SERIES A |
| mmm) | NCL INVESTMENTS II - OUTSIDE OPPORTUNITIES SERIES B |
| nnn) | NCL Investments II - PE Series |
| ooo) | NCL Investments II - RA Series |
| ppp) | NCL Investments II - RE Series |
| qqq) | NCL Investments III PE Series |
| rrr) | NCL Investments III RA Series |
| sss) | NCL Investments III RE Series |
| ttt) | |
| uuu) | |
| vvv) | |
| www) | |
| xxx) | |
| yyy) | PASSERO 18, L.P. |
| zzz) | SPRING |
| aaaa) | SPRING |
| bbbb) | SPRING |
| cccc) | Wafra Venture Master Fund I |
5. Aspida:
| a) | |
| b) | |
| c) | |
| d) | |
| e) | |
| f) |
The Existing Proprietary Account holds various financial assets in a principal capacity.
Existing Proprietary Account:
| a) |
APPENDIX B
1. The Existing Downstream Ivy Hill Funds are each managed by Ivy Hill and include, among other entities that are currently in existence but that are not currently expected to participate in Co-Investment Transactions, the following entities:
| a) | ARES PRIVATE DEBT STRATEGIES FUND II, L.P. |
| b) | COLTS 2005-2 LTD. |
| c) | IVY HILL INVESTMENT HOLDINGS, LLC |
| d) | IVY HILL MIDDLE MARKET CREDIT FUND IV, LTD. |
| e) | IVY HILL MIDDLE MARKET CREDIT FUND IX, LTD |
| f) | IVY HILL MIDDLE MARKET CREDIT FUND V, LTD. |
| g) | IVY HILL MIDDLE MARKET CREDIT FUND VII, LTD. |
| h) | IVY HILL MIDDLE MARKET CREDIT FUND VIII, LTD. |
| i) | IVY HILL MIDDLE MARKET CREDIT FUND XII, LTD |
| j) | |
| k) | |
| l) | |
| m) | |
| n) | |
| o) | |
| p) | |
| q) | |
| r) | |
| s) | PRIVATE DEBT STRATEGIES FUND III, L.P. |
| t) | PRIVATE DEBT STRATEGIES FUND IV, L.P. |
| u) | PRIVATE DEBT STRATEGIES FUND V, L.P. |
APPENDIX C
Resolutions of the Board of Directors of
NOW, THEREFORE, BE IT RESOLVED, that the officers (the "Officers") of
RESOLVED FURTHER, that the Co-Investment Policy of the Corporation will be amended, substantially in a form restating the conditions set forth in Section V of the Application and as finally approved by the Commission, upon final approval of the Application by the Commission, in all respects as a policy of the Corporation and the Officers be, and they hereby are, authorized, empowered and directed, in the name and on behalf of the Corporation, to take such action as they shall deem necessary or desirable to formalize such amended policies and procedures, in such form as the Officer or Officers preparing the same shall approve, such approval to be conclusively evidenced by the taking of any such action;
RESOLVED FURTHER, that the Officers be, and each of them acting alone hereby is, authorized and directed to file such additional Applications as such officers, in their sole discretion, shall deem necessary or desirable in order for the Corporation to accomplish its investment objective; and
RESOLVED FURTHER, that the Officers be, and each of them hereby is, authorized, empowered and directed, in the name and on behalf of the Corporation, to perform all of the agreements and obligations of the Corporation in connection with the foregoing resolutions and to consummate the transactions contemplated thereby, to take or cause to be taken any and all further actions, to execute and deliver, or cause to be executed and delivered, all other documents, instruments, agreements, undertakings, and certificates of any kind and nature whatsoever, to incur and pay all fees and expenses and to engage such persons as the Officer or Officers may determine to be necessary, advisable or appropriate to effectuate or carry out the purposes and intent of the foregoing resolutions, and the execution by the Officer or Officers of any such documents, instruments, agreements, undertakings and certificates, the payment of any fees and expenses or the engagement of such persons or the taking by them of any action in connection with the foregoing matters shall conclusively establish the Officer's or Officers' authority therefor and the authorization, acceptance, adoption, ratification, approval and confirmation by the Corporation thereof.
(Adopted at a meeting held on
Resolutions of the
NOW, THEREFORE, BE IT RESOLVED, that filing by the Fund of the application for amended and restated Co-Investment Exemptive Relief, as filed on
RESOLVED FURTHER, that the officers of the Fund are, and each of them acting individually hereby is, authorized to execute and file on behalf of the Fund any amendment to such application for amended and restated Co-Investment Exemptive Relief that may be required or desirable from time to times, such amendment to be in form and substance satisfactory to counsel for the Fund, the execution and filing of any such amendment to be conclusive evidence of its authorization hereby; and
RESOLVED FURTHER, that the officers of the Fund be, and each of them hereby is, authorized, empowered and directed, in the name and on behalf of the Fund, to perform all of the agreements and obligations of the Fund in connection with the foregoing resolutions and to consummate the implementation thereof, to take or cause to be taken any and all further actions, to execute and deliver, or cause to be executed and delivered, all other documents, instruments, agreements, undertakings and certificates of any kind and nature whatsoever, to incur and pay all fees and expenses and to engage such persons as the officer or officers of the Fund may determine to be necessary, advisable or appropriate to effectuate or carry out the purposes and intent of the foregoing resolutions, and the execution by the officer or officers of the Fund of any such documents, instruments, agreements, undertakings and certificates, the payment of any such fees and expenses or the engagement of any such persons or the taking by them of any action in connection with the foregoing matters shall conclusively establish the officer's or officers' authority therefor and the authorization, acceptance, adoption, ratification, approval and confirmation by the Fund thereof.
(Adopted at a meeting held on
Resolutions of the Board of Directors of
NOW, THEREFORE, BE IT RESOLVED, that the officers (the "Officers") of
RESOLVED FURTHER, that a Co-Investment Policy substantially in a form restating the conditions set forth in Section V of the Application as finally approved by the Commission is hereby approved and will be adopted, upon final approval of the Application by the Commission, in all respects as a policy of the Fund and the Officers be, and they hereby are, authorized, empowered and directed, in the name and on behalf of the Fund, to take such action as they shall deem necessary or desirable to formalize such policies and streamline the approval process for co-investment transactions with affiliates of the Fund, in such form as the Officer or Officers preparing the same shall approve, such approval to be conclusively evidenced by the taking of any such action;
RESOLVED FURTHER, that the Officers be, and each of them acting alone hereby is, authorized and directed to file such additional Applications as such officers, in their sole discretion, shall deem necessary or desirable in order for the Fund to accomplish its investment objective; and
RESOLVED FURTHER, that the Officers be, and each of them hereby is, authorized, empowered and directed, in the name and on behalf of the Fund, to perform all of the agreements and obligations of the Fund in connection with the foregoing resolutions and to consummate the transactions contemplated thereby, to take or cause to be taken any and all further actions, to execute and deliver, or cause to be executed and delivered, all other documents, instruments, agreements, undertakings, and certificates of any kind and nature whatsoever, to incur and pay all fees and expenses and to engage such persons as the Officer or Officers may determine to be necessary, advisable or appropriate to effectuate or carry out the purposes and intent of the foregoing resolutions, and the execution by the Officer or Officers of any such documents, instruments, agreements, undertakings and certificates, the payment of any fees and expenses or the engagement of such persons or the taking by them of any action in connection with the foregoing matters shall conclusively establish the Officer's or Officers' authority therefor and the authorization, acceptance, adoption, ratification, approval and confirmation by the Fund thereof.
(Adopted at a meeting held on
Resolutions of the
NOW, THEREFORE, BE IT RESOLVED, that the officers (the "Officers") of
RESOLVED FURTHER, that the Co-Investment Policy of the Fund will be amended, substantially in a form restating the conditions set forth in Section V of the Application and as finally approved by the Commission, upon final approval of the Application by the Commission, in all respects as a policy of the Fund and the Officers be, and they hereby are, authorized, empowered and directed, in the name and on behalf of the Fund, to take such action as they shall deem necessary or desirable to formalize such amended policies and procedures, in such form as the Officer or Officers preparing the same shall approve, such approval to be conclusively evidenced by the taking of any such action;
RESOLVED FURTHER, that the Officers be, and each of them acting alone hereby is, authorized and directed to file such additional Applications as such officers, in their sole discretion, shall deem necessary or desirable in order for the Fund to accomplish its investment objective; and
RESOLVED FURTHER, that the Officers be, and each of them hereby is, authorized, empowered and directed, in the name and on behalf of the Fund, to perform all of the agreements and obligations of the Fund in connection with the foregoing resolutions and to consummate the transactions contemplated thereby, to take or cause to be taken any and all further actions, to execute and deliver, or cause to be executed and delivered, all other documents, instruments, agreements, undertakings, and certificates of any kind and nature whatsoever, to incur and pay all fees and expenses and to engage such persons as the Officer or Officers may determine to be necessary, advisable or appropriate to effectuate or carry out the purposes and intent of the foregoing resolutions, and the execution by the Officer or Officers of any such documents, instruments, agreements, undertakings and certificates, the payment of any fees and expenses or the engagement of such persons or the taking by them of any action in connection with the foregoing matters shall conclusively establish the Officer's or Officers' authority therefor and the authorization, acceptance, adoption, ratification, approval and confirmation by the Fund thereof.
(Adopted at a meeting held on February 28, 2023)
Resolutions of the Board of Trustees of
Ares Private Markets Fund
NOW, THEREFORE, BE IT RESOLVED, that the officers (the "Officers") of Ares Private Markets Fund (the "Fund") be, and they hereby are, authorized, empowered and directed, in the name and on behalf of the Fund, to cause to be prepared, executed, delivered and filed with the Securities and Exchange Commission (the "Commission") an application for an order pursuant to Section 57(i) of the Investment Company Act and Rule 17d-l promulgated under the Investment Company Act of 1940 (an "Application"), to authorize the entering into of certain joint transactions and co-investments by the Fund with certain entities which may be deemed to be "affiliates" of the Fund pursuant to the provisions of the Investment Company Act of 1940, which such joint transactions and co-investments would otherwise be prohibited by Section 57(a)(4) of the Investment Company Act of 1940, and to do such other acts or things and execute such other documents as they deem necessary or desirable to cause such application to comply with the Investment Company Act of 1940 and the rules and regulations promulgated thereunder, in such form and accompanied by such exhibits and other documents, as the Officer or Officers preparing the same shall approve, such approval to be conclusively evidenced by the filing of the Application;
RESOLVED FURTHER, that the Co-Investment Policy of the Fund will be amended, substantially in a form restating the conditions set forth in Section V of the Application and as finally approved by the Commission, upon final approval of the Application by the Commission, in all respects as a policy of the Fund and the Officers be, and they hereby are, authorized, empowered and directed, in the name and on behalf of the Fund, to take such action as they shall deem necessary or desirable to formalize such amended policies and procedures, in such form as the Officer or Officers preparing the same shall approve, such approval to be conclusively evidenced by the taking of any such action;
RESOLVED FURTHER, that the Officers be, and each of them acting alone hereby is, authorized and directed to file such additional Applications as such officers, in their sole discretion, shall deem necessary or desirable in order for the Fund to accomplish its investment objective; and
RESOLVED FURTHER, that the Officers be, and each of them hereby is, authorized, empowered and directed, in the name and on behalf of the Fund, to perform all of the agreements and obligations of the Fund in connection with the foregoing resolutions and to consummate the transactions contemplated thereby, to take or cause to be taken any and all further actions, to execute and deliver, or cause to be executed and delivered, all other documents, instruments, agreements, undertakings, and certificates of any kind and nature whatsoever, to incur and pay all fees and expenses and to engage such persons as the Officer or Officers may determine to be necessary, advisable or appropriate to effectuate or carry out the purposes and intent of the foregoing resolutions, and the execution by the Officer or Officers of any such documents, instruments, agreements, undertakings and certificates, the payment of any fees and expenses or the engagement of such persons or the taking by them of any action in connection with the foregoing matters shall conclusively establish the Officer's or Officers' authority therefor and the authorization, acceptance, adoption, ratification, approval and confirmation by the Fund thereof.
(Adopted at a meeting held on February 27, 2023)
Resolutions of the Board of Trustees of
NOW, THEREFORE, BE IT RESOLVED, that the officers (the "Officers") of
RESOLVED FURTHER, that the Co-Investment Policy of the Fund will be amended, substantially in a form restating the conditions set forth in Section V of the Application and as finally approved by the Commission, upon final approval of the Application by the Commission, in all respects as a policy of the Fund and the Officers be, and they hereby are, authorized, empowered and directed, in the name and on behalf of the Fund, to take such action as they shall deem necessary or desirable to formalize such amended policies and procedures, in such form as the Officer or Officers preparing the same shall approve, such approval to be conclusively evidenced by the taking of any such action;
RESOLVED FURTHER, that the Officers be, and each of them acting alone hereby is, authorized and directed to file such additional Applications as such officers, in their sole discretion, shall deem necessary or desirable in order for the Fund to accomplish its investment objective; and
RESOLVED FURTHER, that the Officers be, and each of them hereby is, authorized, empowered and directed, in the name and on behalf of the Fund, to perform all of the agreements and obligations of the Fund in connection with the foregoing resolutions and to consummate the transactions contemplated thereby, to take or cause to be taken any and all further actions, to execute and deliver, or cause to be executed and delivered, all other documents, instruments, agreements, undertakings, and certificates of any kind and nature whatsoever, to incur and pay all fees and expenses and to engage such persons as the Officer or Officers may determine to be necessary, advisable or appropriate to effectuate or carry out the purposes and intent of the foregoing resolutions, and the execution by the Officer or Officers of any such documents, instruments, agreements, undertakings and certificates, the payment of any fees and expenses or the engagement of such persons or the taking by them of any action in connection with the foregoing matters shall conclusively establish the Officer's or Officers' authority therefor and the authorization, acceptance, adoption, ratification, approval and confirmation by the Fund thereof.
(Adopted at a meeting held on February 10, 2023)
Attachments
Disclaimer
Proxy Statement (Form DEF 14A)
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