TCW Direct Lending LLC, et al.;, 22560-22563 [2018-10246]

Download as PDF 22560 Federal Register / Vol. 83, No. 94 / Tuesday, May 15, 2018 / Notices Paper Comments ACTION: • Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090. All submissions should refer to File Number SR–NYSEAMER–2018–20. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s internet website (https://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission’s Public Reference Room, 100 F Street NE, Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–NYSEAMER–2018–20 and should be submitted on or before June 5, 2018. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.14 Eduardo A. Aleman, Assistant Secretary. [FR Doc. 2018–10263 Filed 5–14–18; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION daltland on DSKBBV9HB2PROD with NOTICES [Investment Company Act Release No. 33094; File No. 812–14765] TCW Direct Lending LLC, et al.; May 9, 2018. Securities and Exchange Commission (‘‘Commission’’). AGENCY: 14 17 CFR 200.30–3(a)(12). VerDate Sep<11>2014 20:27 May 14, 2018 Jkt 244001 Notice. Notice of an application for an order under sections 12(d)(1)(J), 57(c), 57(i) and 60 of Investment Company Act of 1940 (the ‘‘Act’’) and rule 17d–1 under the Act to permit certain joint transactions otherwise prohibited by sections 12(d)(1)(A), 12(d)(1)(C), 57(a)(1), 57(a)(2) and 57(a)(4) of the Act and rule 17d–1 under the Act. APPLICANTS: TCW Direct Lending LLC (the ‘‘Fund’’), TCW Middle Market Lending Opportunities BDC, Inc. (the ‘‘Extension Fund’’), and TCW Asset Management Company (the ‘‘Adviser’’). SUMMARY OF APPLICATION: Applicants seek an order to permit the Fund (i) to conduct an exchange offer pursuant to which investors in the Fund (‘‘Unitholders’’), including certain directors and officers of the Fund and employees of the Adviser (collectively, the ‘‘TCW Directors, Officers and Employees’’), may elect to exchange all or a portion of their units in the Fund (‘‘Units’’) for an equivalent number of shares (‘‘Shares’’) in the Extension Fund (each such Unitholder, an ‘‘Electing Unitholder’’), and (ii) to transfer to the Extension Fund a pro rata portion of the Fund’s assets and liabilities, including a pro rata portion of each of the Fund’s portfolio investments, in proportion to the percentage of Units tendered and accepted for exchange. FILING DATES: The application was filed on April 20, 2017, and amended on October 16, 2017, May 3, 2018, and May 9, 2018. HEARING OR NOTIFICATION OF HEARING: An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission’s Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on May 30, 2018 and should be accompanied by proof of service on the applicants, in the form of an affidavit, or, for lawyers, a certificate of service. Pursuant to section 0–5 under the Act, hearing requests should state the nature of the writer’s interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission’s Secretary. ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090. The Applicants: c/o Adrian Rae Leipsic, Esq., and Adam E. Fleisher, Esq., Cleary Gottlieb Steen & Hamilton LLP, One PO 00000 Frm 00120 Fmt 4703 Sfmt 4703 Liberty Plaza, New York, New York 10006. FOR FURTHER INFORMATION CONTACT: Asen Parachkevov, Senior Counsel, or David J. Marcinkus, Branch Chief, at (202) 551–6821 (Division of Investment Management, Chief Counsel’s Office). SUPPLEMENTARY INFORMATION: The following is a summary of the application. The complete application may be obtained via the Commission’s website by searching for the file number, or an applicant using the Company name box, at https:// www.sec.gov/search/search.htm or by calling (202) 551–8090. Applicants’ Representations 1. The Fund, a Delaware limited liability company, is a closed-end management investment company that has elected to be regulated as a business development company (‘‘BDC’’) under the Act. On April 18, 2014, the Fund filed a registration statement on Form 10 to register Units pursuant to section 12(g) of the Exchange Act of 1934 (the ‘‘Exchange Act’’). The Fund commenced operations on September 19, 2014. The Fund operates as a direct lending company that seeks to generate riskadjusted returns primarily through direct investments in senior secured loans made to middle-market companies or other companies that are engaged in various businesses. 2. The Fund conducted a private offering of its Units to investors in reliance on the exemption from registration provided by section 506 of Regulation D under the Securities Act of 1933 (the ‘‘Securities Act’’). The Fund entered into subscription agreements with its Unitholders, pursuant to which the Unitholders made capital commitments to the Fund. The Units are not traded on an exchange and are not freely transferable. 3. The Extension Fund, a Delaware corporation and a wholly-owned subsidiary of the Fund, intends to elect to be regulated as a BDC. Applicants state that the Extension Fund will have investment objectives and investment policies that are substantially similar to the Fund’s. Applicants state that the Extension Fund intends to conduct an initial public offering or listing of its Shares immediately following the completion of the Proposed Transactions. 4. The Adviser, a Delaware limited liability company, is registered as an investment adviser under the Investment Advisers Act of 1940 (the ‘‘Advisers Act’’). The Adviser serves as investment adviser to the Fund pursuant to an investment advisory E:\FR\FM\15MYN1.SGM 15MYN1 daltland on DSKBBV9HB2PROD with NOTICES Federal Register / Vol. 83, No. 94 / Tuesday, May 15, 2018 / Notices agreement, and intends to serve as investment adviser to the Extension Fund. 5. Applicants state that the Fund’s legal interest in each of its existing portfolio investments is capable of being proportionally assigned or similarly transferred on a pro rata basis. Applicants further state that each of the credit agreements and loan documents governing the terms of the Fund’s assets, which primarily consist of loans and other private investments in middle market companies, permits an assignment, participation or similar transfer by the Fund without the need for the written consent of any administrative or collateral agent, borrower or other party. 6. Applicants state that the Fund’s limited liability company operating agreement (the ‘‘LLC Agreement’’) provides that the Fund will be dissolved upon the expiration of its six-year term on September 19, 2020 (subject to any extensions of the term in accordance with the procedures set forth in the LLC Agreement), whereupon the Fund’s assets will be liquidated in an orderly manner, capital will be returned to the Unitholders, and the Fund will wind up. Applicants state that the Fund’s organizational documents do not permit the Fund to conduct an initial public offering of its Units, and the Fund has agreed that no Unitholder will be required to participate in a publicly traded vehicle without such Unitholder’s consent. 7. Applicants state that the Fund’s LLC Agreement provides for the ability of the Fund to engage in a ‘‘split-off’’ transaction, which, as described below and in greater detail in the application, would be implemented through the Exchange Offer, the Refinancing, the Contribution Transaction and the Share Issuance (each defined below, and, collectively, the ‘‘Proposed Transactions’’). The costs and expenses of the Proposed Transactions will be borne by the Adviser.1 8. If the requested order is granted, the Applicants propose to conduct an exchange offer, pursuant to which each Unitholder may elect to exchange a number of Units for an equivalent number of Shares (the ‘‘Exchange Offer’’). The Exchange Offer will be conducted as a private placement pursuant to Regulation D and made in compliance with rule 13e–4 under the Exchange Act and section 23(c)(2) of the Act. 1 All costs and expenses relating to the organization and operation of the Extension Fund will be borne by the Extension Fund as fully disclosed to investors prior to their decision to participate in the Exchange Offer. VerDate Sep<11>2014 20:27 May 14, 2018 Jkt 244001 9. Applicants state that the Exchange Offer will not commence unless and until (1) the boards of the Fund and the Extension Fund (the ‘‘Fund Board’’ and the ‘‘Extension Fund Board’’, and collectively, the ‘‘Boards’’), including a ‘‘required majority’’ (as defined in section 57(o) of the Act (‘‘Required Majority’’)) of the directors of each Board, authorize and approve the Proposed Transactions, and make all necessary determinations, including among other things, that: (i) The Proposed Transactions are in the best interests of the Fund or the Extension Fund, as applicable, (ii) the interests of Unitholders who elect to remain invested in the Fund and the interests of the Electing Unitholders will not be diluted as a result of effecting the Proposed Transactions, and (iii) following the Proposed Transactions, all Unitholders, including the Electing Unitholders, will hold the same pro rata interest in the same underlying portfolio investments as immediately prior to the Exchange; (2) the Fund Board, including a Required Majority, approves the participation in the Exchange by any ‘‘remote’’ affiliate of the Fund, as described in Section 57(d) of the Act and as required under section 57(f) of the Act; and (3) the Extension Fund Board, including a Required Majority, and the Fund, in its capacity as initial shareholder of the Extension Fund, each approve the investment advisory agreement between the Extension Fund and the Adviser. 10. Applicants state that simultaneously with the Share Issuance (as defined below), the Fund will transfer to the Extension Fund a pro rata portion of each of the Fund’s assets and liabilities, including each of the Fund’s portfolio investments, in proportion to the percentage of Units tendered by Electing Unitholders and accepted for exchange (the ‘‘Contribution Transaction’’). Applicants state that such computation will be objective and formulaic and determined solely on the basis of the percentage of Electing Unitholders, and will not be impacted by the valuation of the Fund’s assets or any other factor that would impart an element of discretion. Applicants further state that material liabilities (other than those arising under the Fund’s credit facility) will also be proportionally transferred or transferred on a pro rata basis by the Fund to the Extension Fund. 11. Applicants state that simultaneously with the Contribution Transaction, the Extension Fund will issue the applicable number of Shares to each Electing Unitholder in exchange for the corresponding number of Units PO 00000 Frm 00121 Fmt 4703 Sfmt 4703 22561 accepted by the Fund from such Electing Unitholder in the Exchange Offer (the ‘‘Share Issuance’’). 12. Immediately prior to (and effectively contemporaneously with) the closing of the Exchange, the Contribution Transaction and the Share Issuance, (a) the Extension Fund will enter into a new credit facility and draw down an amount equal to the pro rata portion of the Fund’s existing indebtedness immediately prior to the closing of the Exchange Offer attributable to the Units that have been validly tendered by Electing Unitholders and accepted for exchange, which amount will be distributed to the Fund and will be used to pay down the Fund’s current outstanding senior secured revolving credit facility, and (b) the Fund will enter into a new credit facility to drawn down an amount to pay down the remainder of its existing credit facility (together, the ‘‘Refinancing’’). 13. Applicants believe that the Proposed Transactions will result in a number of benefits to Unitholders. Applicants state that the Proposed Transactions will provide Unitholders with the optionality that was negotiated for and was disclosed at the time of their investment in the Fund and will enable Unitholders to participate in the Extension Fund in a manner that promotes capital formation. Applicants state that the Proposed Transactions will position the Extension Fund to continue operations as a BDC with the goals of achieving greater economies of scale and completing an initial public offering or listing of its Shares. Applicants further state that by allowing the Unitholders to elect to participate in the Extension Fund, the Proposed Transactions will enable potential future retail investors to benefit from alignment with sophisticated institutional investors who elect to participate in the Extension Fund. Legal Analysis Section 57(a)(1) and 57(a)(2) of the Act 1. The Applicants are requesting an exemption pursuant to section 57(c) from the provisions of sections 57(a)(1) and 57(a)(2), in order to permit the Applicants to effect the Contribution Transaction and the Share Issuance. 2. Sections 57(a)(1) provides that it shall be unlawful for any person who is related to a BDC in a manner described in section 57(b) 2, acting as principal, to sell to such BDC, or to a company controlled by such BDC, any securities 2 Section 57(b) specifies the persons to whom the prohibitions of sections 57(a)(1), (a)(2) and (a)(4) apply. E:\FR\FM\15MYN1.SGM 15MYN1 22562 Federal Register / Vol. 83, No. 94 / Tuesday, May 15, 2018 / Notices daltland on DSKBBV9HB2PROD with NOTICES or other property unless such sale involves solely (emphasis added) (i) securities of which the buyer is the issuer or (ii) securities of which the seller is the issuer and which are part of a general offering to the holders of a class of its securities. 3. Section 57(a)(2) provides that it shall be unlawful for any person who is related to a BDC in a manner described in section 57(b), acting as principal, to purchase from such BDC, or from a company controlled by such BDC, any securities or other property except for securities of which the seller is the issuer. 4. Rule 57b–1 does not exempt the Fund and the Extension Fund from being subject to the prohibitions of section 57(a).3 In addition, the TCW Directors, Officers and Employees may be prohibited by section 57(a)(1) and (2) from participating in the Share Issuance as a result of tendering their Units in the Exchange. 5. Section 57(c) authorizes the Commission to issue an exemptive order if (i) the terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching of the BDC or its shareholders or partners on the part of any person concerned, (ii) the proposed transaction is consistent with the policy of the BDC, as recited in the filings made by such company with the Commission under the Securities Act, its registration statement and reports filed under the Exchange Act, and its reports to shareholders or partners; and, and (iii) the proposed transaction is consistent with the general purposes of the Act. 6. The Applicants submit that the request for an exemption from the provisions of section 57(a)(1) and (a)(2) meets the standards for an order set forth in section 57(c). First, Applicants state that the terms of the Contribution Transaction, including the consideration to be paid or received, are fair and reasonable and involve no element of overreaching, since the transfer by the Fund of a pro rata portion of each of its assets and liabilities to the Extension Fund will be determined solely on the basis of the 3 Rule 57b–1 exempts certain persons otherwise related to a BDC in a manner described in section 57(b)(2) from being subject to the prohibitions of section 57(a). Specifically, this rule states that the provisions of section 57(a) shall not apply to any person: (a) Solely because that person is directly or indirectly controlled by a BDC; or (b) solely because that person is directly or indirectly controlling, controlled by, or under common control with, a person described in (a) of the rule or is an officer, director, partner, copartner, or employee of a person described in (a) of the rule (emphasis added). VerDate Sep<11>2014 20:27 May 14, 2018 Jkt 244001 percentage of Electing Unitholders, which is purely an objective and formulaic exercise. Second, the Applicants state that the Contribution Transaction and the Share Issuance are consistent with the stated investment policies of the Fund as fully disclosed to Unitholders. Finally, the Applicants submit that the Boards, including a Required Majority of each, will have approved and authorized, as well as made all required determinations with respect to, the Proposed Transactions. Section 57(a)(4) and Rule 17d–1, as Made Applicable to BDCs by Section 57(i) of the Act 7. The Applicants are also requesting an Order pursuant to section 57(i) and rule 17d–1, to permit certain joint transactions that may be otherwise prohibited by Section 57(a)(4) and rule 17d–1. 8. Section 57(a)(4) makes it unlawful for any person who is related to a BDC in a manner described in section 57(b), acting as principal, knowingly to effect any transaction in which the BDC or a company controlled by such BDC is a joint or a joint and several participant. Section 57(i) provides that the rules under section 17(d) applicable to registered closed-end investment companies are deemed to apply to transactions subject to section 57(a). In relevant part, rule 17d–1 prohibits any person who is related to a BDC in a manner described in section 57(b), acting as principal, from participating in, or effecting any transaction in connection with, any joint enterprise or other joint arrangement in which the BDC or a company controlled by such BDC is a participant, unless an application has been filed with the Commission and an order has been granted. 9. The Fund and the Extension Fund may be viewed as affiliated persons of each other in a manner described in section 57(b). Considered together, the Proposed Transactions will require a considerable degree of coordination among the Fund, the Extension Fund and the Adviser that may indicate the existence of a ‘‘joint arrangement’’ as described in rule 17d–1. Further, certain TCW Directors, Officers and Employees who have invested in the Fund are affiliated persons of the Fund pursuant to section 57(b). 10. Rule 17d–1(b) provides that in determining whether to grant such an order, the Commission will consider whether the participation of the investment company in the joint transaction ‘‘is consistent with the provisions, policies and purposes of the Act and the extent to which such PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 participation is on a basis different from or less advantageous than that of other participants.’’ 11. The Applicants submit that the request for an order under section 57(a)(4) and rule 17d–1 meets the standards set forth to rule 17d–1 for the same reasons as discussed above with respect to the request for exemption from sections 57(a)(1) and (a)(2). The Applicants state that TCW Directors, Officers and Employees will participate in the Exchange pursuant to the same terms and documentation as all other Unitholders, and the Proposed Transactions will not place any of the Fund, the Extension Fund or existing Unitholders of the Fund in a position less advantageous than that of any other of such persons. The Applicants further submit that the terms of the investment advisory agreement between the Extension Fund and the Adviser will be comprehensively disclosed to all Unitholders in the Offer to Exchange, the Fund and the Extension Fund will pay comparable management fees in respect of overlapping investments transferred by the Fund to the Extension Fund, and each Unitholder who wishes to remain invested in the Fund will be subject to the Fund’s existing fee structure without any modification. Sections 12(d)(1)(A) and 12(d)(1)(C), as Made Applicable to BDCs by Section 60 of the Act 12. The Applicants are requesting an exemption pursuant to section 12(d)(1)(J) from the provisions of section 12(d)(1)(A) and section 12(d)(1)(C), to permit the Applicants to effect the Proposed Transactions. 13. Sections 12(d)(1)(A) and 12(d)(1)(C) are made applicable to BDCs by section 60 to the same extent as if they were registered closed-end investment companies. The Proposed Transactions may be viewed as violating sections 12(d)(1)(A) 4 and 12(d)(1)(C) 5 because prior to the Exchange, the Fund will own 100% of the newly issued Shares of the Extension Fund, even 4 Section 12(d)(1)(A) provides that no registered investment company (‘‘acquiring company’’) may acquire securities of any other investment company (‘‘acquired company’’) if such securities represent more than 3% of the acquired company’s outstanding voting stock or more than 5% of the acquiring company’s total assets, or if such securities, together with the securities of other investment companies, represent more than 10% of the acquiring company’s total assets. 5 Section 12(d)(1)(C) provides that no investment company (‘‘acquiring company’’) may acquire any securities issued by a registered closed-end investment company, if the acquiring company owns more than 10% of the total outstanding voting stock of such closed-end company. E:\FR\FM\15MYN1.SGM 15MYN1 Federal Register / Vol. 83, No. 94 / Tuesday, May 15, 2018 / Notices though such ownership will exist for only a momentary period of time. 14. The Applicants submit that the requested exemption from sections 12(d)(1)(A) and 12(d)(1)(C) meets the standards set forth in section 12(d)(1)(J). Section 12(d)(1)(J) provides that ‘‘the Commission, by rule or regulation, upon its own motion or by order upon application, may conditionally or unconditionally exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions from any provision of this subsection, if and to the extent that such exemption is consistent with the public interest and the protection of investors.’’ 15. The Applicants state that the Proposed Transactions are consistent with the public interest in that they are intended to result in a benefit to nonelecting Unitholders, Electing Unitholders and potential future investors in the Extension Fund. The Applicants also state that the Proposed Transactions are consistent with investor protection because the momentary holding by the Fund of Shares of the Existing Fund does not raise any of the concerns that Sections 12(d)(1)(A) and (C) were intended to address. For the Commission, by the Division of Investment Management, under delegated authority. Eduardo A. Aleman, Assistant Secretary. BILLING CODE 8011–01–P [Release No. 34–83192; File No. SR–BX– 2018–017] Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Reorganize and Amend Chapter XV, Section 3, entitled BX Options Market—Ports and Other Services daltland on DSKBBV9HB2PROD with NOTICES May 9, 2018. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on April 27, 2018, Nasdaq BX, Inc. (‘‘BX’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been prepared by the Exchange. The Commission is U.S.C. 78s(b)(1). CFR 240.19b–4. VerDate Sep<11>2014 20:27 May 14, 2018 The Exchange proposes to reorganize and amend Chapter XV, Section 3, entitled ‘‘BX Options Market—Ports and Other Services.’’ The text of the proposed rule change is available on the Exchange’s website at https://nasdaqbx.cchwallstreet.com/, at the principal office of the Exchange, and at the Commission’s Public Reference Room. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. 1. Purpose SECURITIES AND EXCHANGE COMMISSION 2 17 I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change A. Self-Regulatory Organization’s Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change [FR Doc. 2018–10246 Filed 5–14–18; 8:45 am] 1 15 publishing this notice to solicit comments on the proposed rule change from interested persons. Jkt 244001 The Exchange proposes to reorganize and amend Chapter XV, Section 3, entitled ‘‘BX Options Market—Ports and Other Services.’’ The Exchange offers various services across its 6 affiliated options markets, BX, The Nasdaq Options Market LLC, Nasdaq Phlx LLC, Nasdaq ISE, LLC, Nasdaq GEMX, LLC and Nasdaq MRX, LLC (‘‘Nasdaq Affiliated Markets’’).3 The Exchange desires to rename services to conform the naming of the offerings across all Nasdaq Affiliated Markets. The Exchange proposes to reorganize Section 3 to list order and quote protocols first, order and execution offerings next, followed by data ports and other ports as the last section. The Exchange proposes to list data offerings which are offered at no cost. The Exchange believes that aligning its offerings, where relevant, across the Nasdaq Affiliated Markets will provide 3 The Exchange will file a similar rule change on each Nasdaq Affiliated Market to conform the offerings by amending naming to make them similar and delineating each offering on the fee schedule where no fee is assessed. PO 00000 Frm 00123 Fmt 4703 Sfmt 4703 22563 more transparency as to the offerings for market participants. Ports The Exchange proposes to define a port within Section 3 to provide additional clarity to the fee schedule as ‘‘a logical connection or session that enables a market participant to send inbound messages and/or receive outbound messages from the Exchange using various communication protocols.’’ The Exchange believes this definition will assist Participants in distinguishing ports from other offerings. Order and Quote Protocols The Exchange proposes to add a new section (i) and include the following introductory sentence, ‘‘The following order and quote protocols are available on BX.’’ Today, BX offers market participants an Order Entry order protocol and an SQF quote protocol. These fees currently exist on the fee schedule. The Exchange is not amending any pricing related to these protocols. The Exchange proposes to rename ‘‘Order Entry Port Fee’’ as ‘‘FIX Port Fee.’’ This description is more accurate as ‘‘FIX’’ is the name of the order entry protocol. A Participant may request an SQF Port or an SQF Purge Port, the price is $500 for either port. SQF is an interface that allows market makers to connect and send quotes, sweeps and auction responses into the Exchange. The SQF Purge port only receives and notifies of purge requests from the market maker. The proposal is to include a line item for each offering because a market participant may either select an SQF port or an SQF Purge Port and both are assessed the same $500 fee. The price does not vary. The Exchange separately lists these offerings on Nasdaq ISE, LLC. A separate line item will make clear that there are two options for this offering. The price of the SQF Purge Port is not being amended. The Exchange believes that grouping the available order and quote protocols together into their own subsection will provide greater transparency within its fee schedule as to the available protocols. Order and Execution Information The Exchange proposes to add a new section (ii) and add the following introductory sentence, ‘‘The following order and execution information is available to Participants.’’ The Exchange proposes to group the available order and execution information that is particular to a Participant’s executions on BX into its own subsection. Today, BX offers CTI, Order Entry DROP and E:\FR\FM\15MYN1.SGM 15MYN1

Agencies

[Federal Register Volume 83, Number 94 (Tuesday, May 15, 2018)]
[Notices]
[Pages 22560-22563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-10246]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 33094; File No. 812-14765]


TCW Direct Lending LLC, et al.;

May 9, 2018.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice.

-----------------------------------------------------------------------

    Notice of an application for an order under sections 12(d)(1)(J), 
57(c), 57(i) and 60 of Investment Company Act of 1940 (the ``Act'') and 
rule 17d-1 under the Act to permit certain joint transactions otherwise 
prohibited by sections 12(d)(1)(A), 12(d)(1)(C), 57(a)(1), 57(a)(2) and 
57(a)(4) of the Act and rule 17d-1 under the Act.

Applicants: TCW Direct Lending LLC (the ``Fund''), TCW Middle Market 
Lending Opportunities BDC, Inc. (the ``Extension Fund''), and TCW Asset 
Management Company (the ``Adviser'').

Summary of Application: Applicants seek an order to permit the Fund (i) 
to conduct an exchange offer pursuant to which investors in the Fund 
(``Unitholders''), including certain directors and officers of the Fund 
and employees of the Adviser (collectively, the ``TCW Directors, 
Officers and Employees''), may elect to exchange all or a portion of 
their units in the Fund (``Units'') for an equivalent number of shares 
(``Shares'') in the Extension Fund (each such Unitholder, an ``Electing 
Unitholder''), and (ii) to transfer to the Extension Fund a pro rata 
portion of the Fund's assets and liabilities, including a pro rata 
portion of each of the Fund's portfolio investments, in proportion to 
the percentage of Units tendered and accepted for exchange.

Filing Dates: The application was filed on April 20, 2017, and amended 
on October 16, 2017, May 3, 2018, and May 9, 2018.

Hearing or Notification of Hearing: An order granting the application 
will be issued unless the Commission orders a hearing. Interested 
persons may request a hearing by writing to the Commission's Secretary 
and serving applicants with a copy of the request, personally or by 
mail. Hearing requests should be received by the Commission by 5:30 
p.m. on May 30, 2018 and should be accompanied by proof of service on 
the applicants, in the form of an affidavit, or, for lawyers, a 
certificate of service. Pursuant to section 0-5 under the Act, hearing 
requests should state the nature of the writer's interest, any facts 
bearing upon the desirability of a hearing on the matter, the reason 
for the request, and the issues contested. Persons who wish to be 
notified of a hearing may request notification by writing to the 
Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F 
Street NE, Washington, DC 20549-1090. The Applicants: c/o Adrian Rae 
Leipsic, Esq., and Adam E. Fleisher, Esq., Cleary Gottlieb Steen & 
Hamilton LLP, One Liberty Plaza, New York, New York 10006.

FOR FURTHER INFORMATION CONTACT: Asen Parachkevov, Senior Counsel, or 
David J. Marcinkus, Branch Chief, at (202) 551-6821 (Division of 
Investment Management, Chief Counsel's Office).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained via the 
Commission's website by searching for the file number, or an applicant 
using the Company name box, at https://www.sec.gov/search/search.htm or 
by calling (202) 551-8090.

Applicants' Representations

    1. The Fund, a Delaware limited liability company, is a closed-end 
management investment company that has elected to be regulated as a 
business development company (``BDC'') under the Act. On April 18, 
2014, the Fund filed a registration statement on Form 10 to register 
Units pursuant to section 12(g) of the Exchange Act of 1934 (the 
``Exchange Act''). The Fund commenced operations on September 19, 2014. 
The Fund operates as a direct lending company that seeks to generate 
risk-adjusted returns primarily through direct investments in senior 
secured loans made to middle-market companies or other companies that 
are engaged in various businesses.
    2. The Fund conducted a private offering of its Units to investors 
in reliance on the exemption from registration provided by section 506 
of Regulation D under the Securities Act of 1933 (the ``Securities 
Act''). The Fund entered into subscription agreements with its 
Unitholders, pursuant to which the Unitholders made capital commitments 
to the Fund. The Units are not traded on an exchange and are not freely 
transferable.
    3. The Extension Fund, a Delaware corporation and a wholly-owned 
subsidiary of the Fund, intends to elect to be regulated as a BDC. 
Applicants state that the Extension Fund will have investment 
objectives and investment policies that are substantially similar to 
the Fund's. Applicants state that the Extension Fund intends to conduct 
an initial public offering or listing of its Shares immediately 
following the completion of the Proposed Transactions.
    4. The Adviser, a Delaware limited liability company, is registered 
as an investment adviser under the Investment Advisers Act of 1940 (the 
``Advisers Act''). The Adviser serves as investment adviser to the Fund 
pursuant to an investment advisory

[[Page 22561]]

agreement, and intends to serve as investment adviser to the Extension 
Fund.
    5. Applicants state that the Fund's legal interest in each of its 
existing portfolio investments is capable of being proportionally 
assigned or similarly transferred on a pro rata basis. Applicants 
further state that each of the credit agreements and loan documents 
governing the terms of the Fund's assets, which primarily consist of 
loans and other private investments in middle market companies, permits 
an assignment, participation or similar transfer by the Fund without 
the need for the written consent of any administrative or collateral 
agent, borrower or other party.
    6. Applicants state that the Fund's limited liability company 
operating agreement (the ``LLC Agreement'') provides that the Fund will 
be dissolved upon the expiration of its six-year term on September 19, 
2020 (subject to any extensions of the term in accordance with the 
procedures set forth in the LLC Agreement), whereupon the Fund's assets 
will be liquidated in an orderly manner, capital will be returned to 
the Unitholders, and the Fund will wind up. Applicants state that the 
Fund's organizational documents do not permit the Fund to conduct an 
initial public offering of its Units, and the Fund has agreed that no 
Unitholder will be required to participate in a publicly traded vehicle 
without such Unitholder's consent.
    7. Applicants state that the Fund's LLC Agreement provides for the 
ability of the Fund to engage in a ``split-off'' transaction, which, as 
described below and in greater detail in the application, would be 
implemented through the Exchange Offer, the Refinancing, the 
Contribution Transaction and the Share Issuance (each defined below, 
and, collectively, the ``Proposed Transactions''). The costs and 
expenses of the Proposed Transactions will be borne by the Adviser.\1\
---------------------------------------------------------------------------

    \1\ All costs and expenses relating to the organization and 
operation of the Extension Fund will be borne by the Extension Fund 
as fully disclosed to investors prior to their decision to 
participate in the Exchange Offer.
---------------------------------------------------------------------------

    8. If the requested order is granted, the Applicants propose to 
conduct an exchange offer, pursuant to which each Unitholder may elect 
to exchange a number of Units for an equivalent number of Shares (the 
``Exchange Offer''). The Exchange Offer will be conducted as a private 
placement pursuant to Regulation D and made in compliance with rule 
13e-4 under the Exchange Act and section 23(c)(2) of the Act.
    9. Applicants state that the Exchange Offer will not commence 
unless and until (1) the boards of the Fund and the Extension Fund (the 
``Fund Board'' and the ``Extension Fund Board'', and collectively, the 
``Boards''), including a ``required majority'' (as defined in section 
57(o) of the Act (``Required Majority'')) of the directors of each 
Board, authorize and approve the Proposed Transactions, and make all 
necessary determinations, including among other things, that: (i) The 
Proposed Transactions are in the best interests of the Fund or the 
Extension Fund, as applicable, (ii) the interests of Unitholders who 
elect to remain invested in the Fund and the interests of the Electing 
Unitholders will not be diluted as a result of effecting the Proposed 
Transactions, and (iii) following the Proposed Transactions, all 
Unitholders, including the Electing Unitholders, will hold the same pro 
rata interest in the same underlying portfolio investments as 
immediately prior to the Exchange; (2) the Fund Board, including a 
Required Majority, approves the participation in the Exchange by any 
``remote'' affiliate of the Fund, as described in Section 57(d) of the 
Act and as required under section 57(f) of the Act; and (3) the 
Extension Fund Board, including a Required Majority, and the Fund, in 
its capacity as initial shareholder of the Extension Fund, each approve 
the investment advisory agreement between the Extension Fund and the 
Adviser.
    10. Applicants state that simultaneously with the Share Issuance 
(as defined below), the Fund will transfer to the Extension Fund a pro 
rata portion of each of the Fund's assets and liabilities, including 
each of the Fund's portfolio investments, in proportion to the 
percentage of Units tendered by Electing Unitholders and accepted for 
exchange (the ``Contribution Transaction''). Applicants state that such 
computation will be objective and formulaic and determined solely on 
the basis of the percentage of Electing Unitholders, and will not be 
impacted by the valuation of the Fund's assets or any other factor that 
would impart an element of discretion. Applicants further state that 
material liabilities (other than those arising under the Fund's credit 
facility) will also be proportionally transferred or transferred on a 
pro rata basis by the Fund to the Extension Fund.
    11. Applicants state that simultaneously with the Contribution 
Transaction, the Extension Fund will issue the applicable number of 
Shares to each Electing Unitholder in exchange for the corresponding 
number of Units accepted by the Fund from such Electing Unitholder in 
the Exchange Offer (the ``Share Issuance'').
    12. Immediately prior to (and effectively contemporaneously with) 
the closing of the Exchange, the Contribution Transaction and the Share 
Issuance, (a) the Extension Fund will enter into a new credit facility 
and draw down an amount equal to the pro rata portion of the Fund's 
existing indebtedness immediately prior to the closing of the Exchange 
Offer attributable to the Units that have been validly tendered by 
Electing Unitholders and accepted for exchange, which amount will be 
distributed to the Fund and will be used to pay down the Fund's current 
outstanding senior secured revolving credit facility, and (b) the Fund 
will enter into a new credit facility to drawn down an amount to pay 
down the remainder of its existing credit facility (together, the 
``Refinancing'').
    13. Applicants believe that the Proposed Transactions will result 
in a number of benefits to Unitholders. Applicants state that the 
Proposed Transactions will provide Unitholders with the optionality 
that was negotiated for and was disclosed at the time of their 
investment in the Fund and will enable Unitholders to participate in 
the Extension Fund in a manner that promotes capital formation. 
Applicants state that the Proposed Transactions will position the 
Extension Fund to continue operations as a BDC with the goals of 
achieving greater economies of scale and completing an initial public 
offering or listing of its Shares. Applicants further state that by 
allowing the Unitholders to elect to participate in the Extension Fund, 
the Proposed Transactions will enable potential future retail investors 
to benefit from alignment with sophisticated institutional investors 
who elect to participate in the Extension Fund.

Legal Analysis

Section 57(a)(1) and 57(a)(2) of the Act

    1. The Applicants are requesting an exemption pursuant to section 
57(c) from the provisions of sections 57(a)(1) and 57(a)(2), in order 
to permit the Applicants to effect the Contribution Transaction and the 
Share Issuance.
    2. Sections 57(a)(1) provides that it shall be unlawful for any 
person who is related to a BDC in a manner described in section 57(b) 
\2\, acting as principal, to sell to such BDC, or to a company 
controlled by such BDC, any securities

[[Page 22562]]

or other property unless such sale involves solely (emphasis added) (i) 
securities of which the buyer is the issuer or (ii) securities of which 
the seller is the issuer and which are part of a general offering to 
the holders of a class of its securities.
---------------------------------------------------------------------------

    \2\ Section 57(b) specifies the persons to whom the prohibitions 
of sections 57(a)(1), (a)(2) and (a)(4) apply.
---------------------------------------------------------------------------

    3. Section 57(a)(2) provides that it shall be unlawful for any 
person who is related to a BDC in a manner described in section 57(b), 
acting as principal, to purchase from such BDC, or from a company 
controlled by such BDC, any securities or other property except for 
securities of which the seller is the issuer.
    4. Rule 57b-1 does not exempt the Fund and the Extension Fund from 
being subject to the prohibitions of section 57(a).\3\ In addition, the 
TCW Directors, Officers and Employees may be prohibited by section 
57(a)(1) and (2) from participating in the Share Issuance as a result 
of tendering their Units in the Exchange.
---------------------------------------------------------------------------

    \3\ Rule 57b-1 exempts certain persons otherwise related to a 
BDC in a manner described in section 57(b)(2) from being subject to 
the prohibitions of section 57(a). Specifically, this rule states 
that the provisions of section 57(a) shall not apply to any person: 
(a) Solely because that person is directly or indirectly controlled 
by a BDC; or (b) solely because that person is directly or 
indirectly controlling, controlled by, or under common control with, 
a person described in (a) of the rule or is an officer, director, 
partner, copartner, or employee of a person described in (a) of the 
rule (emphasis added).
---------------------------------------------------------------------------

    5. Section 57(c) authorizes the Commission to issue an exemptive 
order if (i) the terms of the proposed transaction, including the 
consideration to be paid or received, are reasonable and fair and do 
not involve overreaching of the BDC or its shareholders or partners on 
the part of any person concerned, (ii) the proposed transaction is 
consistent with the policy of the BDC, as recited in the filings made 
by such company with the Commission under the Securities Act, its 
registration statement and reports filed under the Exchange Act, and 
its reports to shareholders or partners; and, and (iii) the proposed 
transaction is consistent with the general purposes of the Act.
    6. The Applicants submit that the request for an exemption from the 
provisions of section 57(a)(1) and (a)(2) meets the standards for an 
order set forth in section 57(c). First, Applicants state that the 
terms of the Contribution Transaction, including the consideration to 
be paid or received, are fair and reasonable and involve no element of 
overreaching, since the transfer by the Fund of a pro rata portion of 
each of its assets and liabilities to the Extension Fund will be 
determined solely on the basis of the percentage of Electing 
Unitholders, which is purely an objective and formulaic exercise. 
Second, the Applicants state that the Contribution Transaction and the 
Share Issuance are consistent with the stated investment policies of 
the Fund as fully disclosed to Unitholders. Finally, the Applicants 
submit that the Boards, including a Required Majority of each, will 
have approved and authorized, as well as made all required 
determinations with respect to, the Proposed Transactions.

Section 57(a)(4) and Rule 17d-1, as Made Applicable to BDCs by Section 
57(i) of the Act

    7. The Applicants are also requesting an Order pursuant to section 
57(i) and rule 17d-1, to permit certain joint transactions that may be 
otherwise prohibited by Section 57(a)(4) and rule 17d-1.
    8. Section 57(a)(4) makes it unlawful for any person who is related 
to a BDC in a manner described in section 57(b), acting as principal, 
knowingly to effect any transaction in which the BDC or a company 
controlled by such BDC is a joint or a joint and several participant. 
Section 57(i) provides that the rules under section 17(d) applicable to 
registered closed-end investment companies are deemed to apply to 
transactions subject to section 57(a). In relevant part, rule 17d-1 
prohibits any person who is related to a BDC in a manner described in 
section 57(b), acting as principal, from participating in, or effecting 
any transaction in connection with, any joint enterprise or other joint 
arrangement in which the BDC or a company controlled by such BDC is a 
participant, unless an application has been filed with the Commission 
and an order has been granted.
    9. The Fund and the Extension Fund may be viewed as affiliated 
persons of each other in a manner described in section 57(b). 
Considered together, the Proposed Transactions will require a 
considerable degree of coordination among the Fund, the Extension Fund 
and the Adviser that may indicate the existence of a ``joint 
arrangement'' as described in rule 17d-1. Further, certain TCW 
Directors, Officers and Employees who have invested in the Fund are 
affiliated persons of the Fund pursuant to section 57(b).
    10. Rule 17d-1(b) provides that in determining whether to grant 
such an order, the Commission will consider whether the participation 
of the investment company in the joint transaction ``is consistent with 
the provisions, policies and purposes of the Act and the extent to 
which such participation is on a basis different from or less 
advantageous than that of other participants.''
    11. The Applicants submit that the request for an order under 
section 57(a)(4) and rule 17d-1 meets the standards set forth to rule 
17d-1 for the same reasons as discussed above with respect to the 
request for exemption from sections 57(a)(1) and (a)(2). The Applicants 
state that TCW Directors, Officers and Employees will participate in 
the Exchange pursuant to the same terms and documentation as all other 
Unitholders, and the Proposed Transactions will not place any of the 
Fund, the Extension Fund or existing Unitholders of the Fund in a 
position less advantageous than that of any other of such persons. The 
Applicants further submit that the terms of the investment advisory 
agreement between the Extension Fund and the Adviser will be 
comprehensively disclosed to all Unitholders in the Offer to Exchange, 
the Fund and the Extension Fund will pay comparable management fees in 
respect of overlapping investments transferred by the Fund to the 
Extension Fund, and each Unitholder who wishes to remain invested in 
the Fund will be subject to the Fund's existing fee structure without 
any modification.

Sections 12(d)(1)(A) and 12(d)(1)(C), as Made Applicable to BDCs by 
Section 60 of the Act

    12. The Applicants are requesting an exemption pursuant to section 
12(d)(1)(J) from the provisions of section 12(d)(1)(A) and section 
12(d)(1)(C), to permit the Applicants to effect the Proposed 
Transactions.
    13. Sections 12(d)(1)(A) and 12(d)(1)(C) are made applicable to 
BDCs by section 60 to the same extent as if they were registered 
closed-end investment companies. The Proposed Transactions may be 
viewed as violating sections 12(d)(1)(A) \4\ and 12(d)(1)(C) \5\ 
because prior to the Exchange, the Fund will own 100% of the newly 
issued Shares of the Extension Fund, even

[[Page 22563]]

though such ownership will exist for only a momentary period of time.
---------------------------------------------------------------------------

    \4\ Section 12(d)(1)(A) provides that no registered investment 
company (``acquiring company'') may acquire securities of any other 
investment company (``acquired company'') if such securities 
represent more than 3% of the acquired company's outstanding voting 
stock or more than 5% of the acquiring company's total assets, or if 
such securities, together with the securities of other investment 
companies, represent more than 10% of the acquiring company's total 
assets.
    \5\ Section 12(d)(1)(C) provides that no investment company 
(``acquiring company'') may acquire any securities issued by a 
registered closed-end investment company, if the acquiring company 
owns more than 10% of the total outstanding voting stock of such 
closed-end company.
---------------------------------------------------------------------------

    14. The Applicants submit that the requested exemption from 
sections 12(d)(1)(A) and 12(d)(1)(C) meets the standards set forth in 
section 12(d)(1)(J). Section 12(d)(1)(J) provides that ``the 
Commission, by rule or regulation, upon its own motion or by order upon 
application, may conditionally or unconditionally exempt any person, 
security, or transaction, or any class or classes of persons, 
securities, or transactions from any provision of this subsection, if 
and to the extent that such exemption is consistent with the public 
interest and the protection of investors.''
    15. The Applicants state that the Proposed Transactions are 
consistent with the public interest in that they are intended to result 
in a benefit to non-electing Unitholders, Electing Unitholders and 
potential future investors in the Extension Fund. The Applicants also 
state that the Proposed Transactions are consistent with investor 
protection because the momentary holding by the Fund of Shares of the 
Existing Fund does not raise any of the concerns that Sections 
12(d)(1)(A) and (C) were intended to address.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-10246 Filed 5-14-18; 8:45 am]
 BILLING CODE 8011-01-P
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.