1WS Credit Income Fund, et al., 46755-46759 [2020-16714]

Download as PDF khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Notices (b) All information presented to the Regulated Fund’s Board pursuant to this Condition will be kept for the life of the Regulated Fund and at least two years thereafter, and will be subject to examination by the Commission and its staff. (c) Each Regulated Fund’s chief compliance officer, as defined in rule 38a–1(a)(4), will prepare an annual report for its Board each year that evaluates (and documents the basis of that evaluation) the Regulated Fund’s compliance with the terms and Conditions of the application and the procedures established to achieve such compliance. (d) The Independent Directors (including the non-interested members of each Independent Party) will consider at least annually whether continued participation in new and existing Co-Investment Transactions is in the Regulated Fund’s best interests. 11. Record Keeping. Each Regulated Fund will maintain the records required by section 57(f)(3) of the Act as if each of the Regulated Funds were a BDC and each of the investments permitted under these Conditions were approved by the Required Majority under section 57(f). 12. Director Independence. No Independent Director (including the non-interested members of any Independent Party) of a Regulated Fund will also be a director, general partner, managing member or principal, or otherwise be an ‘‘affiliated person’’ (as defined in the Act) of any Affiliated Fund. 13. Expenses. The expenses, if any, associated with acquiring, holding or disposing of any securities acquired in a Co-Investment Transaction (including, without limitation, the expenses of the distribution of any such securities registered for sale under the Securities Act) will, to the extent not payable by the Advisers under their respective advisory agreements with the Regulated Funds and the Affiliated Funds, be shared by the Regulated Funds and the participating Affiliated Funds in proportion to the relative amounts of the securities held or being acquired or disposed of, as the case may be. 14. Transaction Fees.28 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 28 Applicants are not requesting and the Commission is not providing any relief for transaction fees received in connection with any Co-Investment Transaction. VerDate Sep<11>2014 20:39 Jul 31, 2020 Jkt 250001 participants on a pro rata basis based on the amounts they invested or committed, as the case may be, in such Co-Investment Transaction. If any transaction fee is to be held by an Adviser pending consummation of the transaction, the fee will be deposited into an account maintained by the Adviser at a bank or banks having the qualifications prescribed in section 26(a)(1), and the account will earn a competitive rate of interest that will also be divided pro rata among the participants. None of the Advisers, the Affiliated Funds, the other Regulated Funds or any affiliated person of the Affiliated Funds or the Regulated Funds will receive any additional compensation or remuneration of any kind as a result of or in connection with a Co-Investment Transaction other than (i) in the case of the Regulated Funds and the Affiliated Funds, the pro rata transaction fees described above and fees or other compensation described in Condition 2(c)(iii)(B)(z), (ii) brokerage or underwriting compensation permitted by section 17(e) or 57(k) or (iii) in the case of the Advisers, investment advisory compensation paid in accordance with investment advisory agreements between the applicable Regulated Fund(s) or Affiliated Fund(s) and its Adviser. 15. Independence. If the Holders own in the aggregate more than 25 percent of the Shares of a Regulated Fund, then the Holders will vote such Shares as directed by an independent third party when voting on (1) the election of directors; (2) the removal of one or more directors; or (3) any other matter under either the Act or applicable State law affecting the Board’s composition, size or manner of election. For the Commission, by the Division of Investment Management, under delegated authority. J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2020–16830 Filed 7–31–20; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 33959; 812–14997] 1WS Credit Income Fund, et al. July 28, 2020. Securities and Exchange Commission (‘‘Commission’’). ACTION: Notice. AGENCY: Notice of application for an order under section 17(d) of the Investment PO 00000 Frm 00170 Fmt 4703 Sfmt 4703 46755 Company Act of 1940 (the ‘‘Act’’) and rule 17d–1 under the Act permitting certain joint transactions otherwise prohibited by section 17(d) of the Act and under rule 17d–1 under the Act. SUMMARY OF APPLICATION: Applicants request an order to permit certain closed–end management investment companies to co-invest in portfolio companies with each other and with affiliated investment funds. APPLICANTS: 1WS Credit Income Fund (‘‘1WS’’ or the ‘‘Existing Regulated Fund’’), 1WS Capital Advisors, LLC (‘‘1WS Capital’’ or the ‘‘Existing 1WS Adviser’’), the investment adviser to 1WS, on behalf of itself and its successors,1 One William Street Capital Master Fund, Ltd., OWS Credit Opportunity Master Fund, Ltd., OWS ABS Master Fund II, LP, OWS COF I Master, L.P., OWS ABS IV, LP, OWS Global Fixed Income Fund (USDHedged), Ltd., OWS Credit Opportunity Fund, L.P., One William Street Capital Partners, L.P., One William Street Capital Partners II, L.P., One William Street Capital Offshore Fund, Ltd., OWS Capital Offshore Fund II, Ltd, One William Street Capital Intermediate Fund, L.P., OWS Credit Opportunity Offshore Fund, Ltd., OWS Credit Opportunity Offshore Fund II, Ltd, OWS Credit Opportunity Offshore Fund III, Ltd, OWS Credit Opportunity Intermediate Fund, LP, OWS Credit Opportunity I, LLC, OWS COF I, Ltd., OWS ABS Fund II, Ltd. and OWS ABS Fund V, Ltd. FILING DATES: The application was filed on January 11, 2019, and amended on May 21, 2019, June 17, 2019, and May 29, 2020. HEARING OR NOTIFICATION OF HEARING: An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by emailing the Commission’s Secretary at SecretarysOffice@sec.gov and serving applicants with a copy of the request by email. Hearing requests should be received by the Commission by 5:30 p.m. on August 24, 2020, 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 rule 0–5 under the Act, hearing requests should state the nature of the writer’s interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request 1 The term ‘‘successor,’’ as applied to the Adviser, means an entity that results from a reorganization into another jurisdiction or change in the type of business organization. E:\FR\FM\03AUN1.SGM 03AUN1 46756 Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Notices notification by emailing the Commission’s Secretary at SecretarysOffice@sec.gov. ADDRESSES: The Commission: Secretarys-Office@sec.gov. Applicants: c/o Kurt A. Locher, 1WS Capital Advisors, LLC, legal@owslp.com. FOR FURTHER INFORMATION CONTACT: Asaf Barouk, Attorney Adviser, at (202) 551– 4029 or David Nicolardi, Branch Chief, at (202) 551–6825 (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 for an applicant using the Company name box, at https:// www.sec.gov/search/search.htm or by calling (202) 551–8090. khammond on DSKJM1Z7X2PROD with NOTICES Applicants’ Representations 1. 1WS is a Delaware statutory trust, registered as a non-diversified, closed– end management investment company that has elected to operate as an interval fund pursuant to Rule 23c-3 under the Act. 1WS’ Objectives and Strategies 2 are to seek attractive risk-adjusted total returns through generating income and capital appreciation. The Board 3 of 1WS is comprised of 3 trustees, 2 of whom are Non-Interested Trustees.4 2. 1WS Capital is an investment adviser that is registered with the Commission under the Investment Advisers Act of 1940 (the ‘‘Advisers Act’’). 1WS Capital is controlled by its sole managing member, One William Street Capital Management, L.P. 1WS Capital serves as investment adviser to 1WS and manages 1WS’ portfolio in accordance with 1WS’ Objectives and Strategies. 3. An Existing Affiliated Fund is an entity whose investment adviser is One William Street Capital Management, L.P., the managing member of 1WS Adviser and that would be an investment company but for section 3(c)(1) or 3(c)(7) of the Act.5 2 ‘‘Objectives and Strategies’’ means a Regulated Fund’s investment objectives and strategies, as described in the Regulated Fund’s most current registration statement on Form N–2 or, as applicable, other filings the Regulated Fund has made with the Commission under the Securities Act of 1933 (the ‘‘1933 Act’’), or under the Securities Exchange Act of 1934, as amended, and the Regulated Fund’s reports to shareholders. 3 The term ‘‘Board’’ refers to the board of directors or trustees of any Regulated Fund. 4 The term ‘‘Non-Interested Trustees’’ refers to the trustees of any Regulated Fund who are not ‘‘interested persons’’ within the meaning of section 2(a)(19) of the Act. 5 ‘‘1WS Adviser’’ means the Existing 1WS Adviser, or its managing member, One William VerDate Sep<11>2014 20:39 Jul 31, 2020 Jkt 250001 4. Applicants seek an order (‘‘Order’’) to permit one or more Regulated Funds 6 and/or one or more Affiliated Funds 7 to participate in the same investment opportunities through a proposed coinvestment program (the ‘‘CoInvestment Program’’) where such participation would otherwise be prohibited under section 17(d) 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 (‘‘Private Placement Securities’’) 8 and (b) making additional investments in securities of such issuers, including through the exercise of warrants, conversion privileges, and other rights to purchase securities of the issuers (‘‘Follow-On Investments’’). ‘‘CoInvestment Transaction’’ means any transaction in which a Regulated Fund (or its Wholly-Owned Investment Sub (as defined below) participates together with one or more other Regulated Funds and/or one or more Affiliated Funds in reliance on the requested Order. ‘‘Potential Co-Investment Transaction’’ means any investment opportunity in which a Regulated Fund (or its WhollyOwned Investment Sub) could not participate together with one or more Affiliated Funds and/or one or more other Regulated Funds without obtaining and relying on the Order.9 5. Applicants state that any of the Regulated Funds may, from time to time, form a special purpose subsidiary (a ‘‘Wholly-Owned Investment Sub’’).10 Street Capital Management, L.P., and any current or future investment adviser that (i) controls, is controlled by, or is under common control with 1WS Capital, (ii) is registered as an investment adviser under the Advisers Act, and (iii) is not a Regulated Fund or a subsidiary of a Regulated Fund. The term ‘‘Adviser’’ means any 1WS Adviser. 6 ‘‘Regulated Fund’’ means the Existing Regulated Fund and any Future Regulated Fund. ‘‘Future Regulated Fund’’ means any closed–end management investment company (a) that is registered under the Act, (b) whose investment adviser is 1WS Adviser or its managing member, One William Street Capital Management, L.P., and (c) that intends to participate in the Co-Investment Program. 7 ‘‘Affiliated Funds’’ means the Existing Affiliated Funds and any Future Affiliated Fund. ‘‘Future Affiliated Fund’’ means any entity (a) whose investment adviser is a 1WS Adviser, (b) that would be an investment company but for section 3(c)(1) or 3(c)(7) of the Act, and (c) that intends to participate in the Co-Investment Program. 8 The term ‘‘private placement transactions’’ means transactions in which the offer and sale of securities by the issuer are exempt from registration under the 1933 Act, as amended. 9 All existing entities that currently intend to rely upon the requested Order have been named as applicants. Any other existing or future entity that subsequently relies on the Order will comply with the terms and conditions of the application. 10 The term ‘‘Wholly-Owned Investment Sub’’ means an entity (a) that is wholly-owned by a Regulated Fund (with the Regulated Fund at all PO 00000 Frm 00171 Fmt 4703 Sfmt 4703 With respect to each Wholly-Owned Investment Sub, such a subsidiary would be prohibited from investing in a Co-Investment Transaction with any Affiliated Fund or Regulated Fund because it would be a company controlled by its parent Regulated Fund for purposes of rule 17d–1 of the Act. Applicants request that each WhollyOwned Investment Sub be permitted to participate in Co-Investment Transactions in lieu of its parent Regulated Fund and that the WhollyOwned Investment Sub’s participation in any such transaction be treated, for purposes of the Order, as though the parent Regulated Fund were participating directly. 6. Applicants represent that this treatment is justified because a WhollyOwned Investment Sub would have no purpose other than serving as a holding vehicle for the Regulated Fund’s investments and, therefore, no conflicts of interest could arise between the Regulated Fund and the Wholly-Owned Investment Sub. The Regulated Fund’s Board would make all relevant determinations under the Conditions with regard to a Wholly-Owned Investment Sub’s participation in a CoInvestment Transaction, and the Regulated Fund’s Board would be informed of, and take into consideration, any proposed use of a Wholly-Owned Investment Sub in the Regulated Fund’s place. If the Regulated Fund proposes to participate in the same Co-Investment Transaction with any of its Wholly-Owned Investment Subs, the Board will also be informed of, and take into consideration, the relative participation of the Regulated Fund and the Wholly-Owned Investment Sub.11 7. When considering Potential CoInvestment Transactions for any Regulated Fund, the applicable Adviser will consider only the Objectives and Strategies, investment policies, times holding, beneficially and of record, 100% of the voting and economic interests); (b) whose sole business purpose is to hold one or more investments on behalf of the Regulated Fund; (c) with respect to which the Regulated Fund’s Board has the sole authority to make all determinations with respect to the entity’s participation under the conditions of the application; and (d) that would be an investment company but for section 3(c)(1) or 3(c)(7) of the Act. Any future subsidiaries of the Regulated Funds that participate in Co-Investment Transactions will be Wholly-Owned Investment Subs. 11 The participation of a Regulated Fund in a Potential Co-Investment Transaction may only be approved by both a majority of the trustees of the Board who have no financial interest in such transaction, plan, or arrangement and a majority of such trustees of the Board who are Non-Interested Trustees (a ‘‘Required Majority’’) eligible to vote on that Co-Investment Transaction (the ‘‘Eligible Trustees’’). E:\FR\FM\03AUN1.SGM 03AUN1 Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Notices khammond on DSKJM1Z7X2PROD with NOTICES investment positions, capital available for investment (‘‘Available Capital’’),12 and other pertinent factors applicable to that Regulated Fund. The Board of each Regulated Fund, including the NonInterested Trustees, has determined that it is in the best interests of the Regulated Fund to participate in Co-Investment Transactions.13 8. Other than pro rata dispositions and Follow-On Investments as provided in Conditions 7 and 8, and after making the determinations required in Conditions 1 and 2(a), the Adviser will present each Potential Co-Investment Transaction and the proposed allocation to the Eligible Trustees, and the Required Majority will approve each CoInvestment Transaction prior to any investment by the participating Regulated Fund. 9. With respect to the pro rata dispositions and Follow-On Investments provided in Conditions 7 and 8, a Regulated Fund may participate in a pro rata disposition or Follow-On Investment without obtaining prior approval of the Required Majority if, among other things: (i) the proposed participation of each Regulated Fund and Affiliated Fund in such disposition or Follow on Investment is proportionate to its outstanding investments in the issuer immediately preceding the disposition or Follow-On Investment, as the case may be; and (ii) the Board of the Regulated Fund has approved that Regulated Fund’s participation in pro rata dispositions and Follow-On Investments as being in the best interests of the Regulated Fund. If the Board does not so approve, any such disposition or Follow-On Investment will be submitted to the Regulated Fund’s Eligible Trustees. The Board of any Regulated Fund may at any time rescind, suspend or qualify its approval of pro rata dispositions and Follow-On Investments with the result that all dispositions and/or Follow-On Investments must be submitted to the Eligible Trustees. 10. No Non-Interested Trustee of a Regulated Fund will have a financial interest in any Co-Investment Transaction, other than indirectly through share ownership in one of the Regulated Funds. 12 The amount of each Regulated Fund’s Available Capital will be determined based on the amount of cash on hand, existing commitments and reserves, if any, the targeted leverage level, targeted asset class mix and other investment policies and restrictions set from time to time by the Board of the applicable Regulated Fund or imposed by applicable laws, rules, regulations or interpretations. 13 The Regulated Funds, however, will not be obligated to invest, or co-invest, when investment opportunities are referred to them. VerDate Sep<11>2014 20:39 Jul 31, 2020 Jkt 250001 11. If the Adviser, the Principals,14 or any person controlling, controlled by, or under common control with the Adviser or the Principals, and the Affiliated Funds (collectively, the ‘‘Holders’’) own in the aggregate more than 25 percent of the outstanding voting shares of a Regulated Fund (the ‘‘Shares’’), then the Holders will vote such Shares as required under Condition 14. Applicants believe that this Condition will ensure that the Non-Interested Trustees will act independently in evaluating the Co-Investment Program, because the ability of the Adviser or the Principals to influence the NonInterested Trustees by a suggestion, explicit or implied, that the NonInterested Trustees can be removed will be limited significantly. The NonInterested Trustees shall evaluate and approve any such independent party, taking into account its qualifications, reputation for independence, cost to the shareholders, and other factors that they deem relevant. Applicants’ Legal Analysis 1. Section 17(d) of the Act and rule 17d–1 under the Act prohibit affiliated persons of a registered investment company from participating in joint transactions with the company unless the Commission has granted an order permitting such transactions. In passing upon applications under rule 17d–1, the Commission considers whether the company’s participation in the joint transaction is consistent with the provisions, policies, and purposes of the Act and the extent to which such participation is on a basis different from or less advantageous than that of other participants. 2. Applicants state that in the absence of the requested relief, in some circumstances, the Regulated Funds would be limited in their ability to participate in attractive and appropriate investment opportunities. Applicants believe that the proposed terms and conditions set forth in the application ensure that the proposed Co-Investment Transactions are consistent with the protection of each Regulated Fund’s shareholders and with the purposes intended by the policies and provisions of the Act. Applicants believe that the participation of the Regulated Funds in Co-Investment Transactions done in accordance with the Conditions would be consistent with the provisions, policies, and purposes of the Act and would be done in a manner that was not different from, or less advantageous than, the other participants. 14 Certain employees and principals of 1WS Adviser (collectively, the ‘‘Principals’’). PO 00000 Frm 00172 Fmt 4703 Sfmt 4703 46757 Applicants’ Conditions Applicants agree that the Order granting the requested relief shall be subject to the following Conditions: 1. Each time a 1WS Adviser considers a Potential Co-Investment Transaction for an Affiliated Fund or another Regulated Fund that falls within a Regulated Fund’s then-current Objectives and Strategies, the Regulated Fund’s Adviser will make an independent determination of the appropriateness of the investment for such Regulated Fund in light of the Regulated Fund’s then-current circumstances. 2. (a) If the Adviser deems a Regulated Fund’s participation in any Potential Co-Investment Transaction to be appropriate for the Regulated Fund, it will then determine an appropriate level of investment for the Regulated Fund. (b) If the aggregate amount recommended by the applicable Adviser to be invested by the applicable Regulated Fund in the Potential CoInvestment Transaction, together with the amount proposed to be invested by the other participating Regulated Funds and Affiliated Funds, collectively, in the same transaction, exceeds the amount of the investment opportunity, the investment opportunity will be allocated among them pro rata based on each participant’s Available Capital, up to the amount proposed to be invested by each. The applicable Adviser will provide the Eligible Trustees of each participating Regulated Fund with information concerning each participating party’s Available Capital to assist the Eligible Trustees with their review of the Regulated Fund’s investments for compliance with these allocation procedures. (c) After making the determinations required in Conditions 1 and 2(a), the applicable Adviser will distribute written information concerning the Potential Co-Investment Transaction (including the amount proposed to be invested by each participating Regulated Fund and Affiliated Fund) to the Eligible Trustees of each participating Regulated Fund for their consideration. A Regulated Fund will co-invest with one or more other Regulated Funds and/ or one or more Affiliated Funds only if, prior to the Regulated Funds’ participation in the Potential CoInvestment Transaction, a Required Majority concludes that: (i) The terms of the Potential CoInvestment Transaction, including the consideration to be paid, are reasonable and fair to the Regulated Fund and its shareholders and do not involve overreaching in respect of the Regulated E:\FR\FM\03AUN1.SGM 03AUN1 khammond on DSKJM1Z7X2PROD with NOTICES 46758 Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Notices Fund or its shareholders on the part of any person concerned; (ii) the Potential Co-Investment Transaction is consistent with: (A) The interests of the shareholders of the Regulated Fund; and (B) the Regulated Fund’s then-current Objectives and Strategies; (iii) the investment by any other Regulated Funds or Affiliated Funds would not disadvantage the Regulated Fund, and participation by the Regulated Fund would not be on a basis different from or less advantageous than that of other Regulated Funds or Affiliated Funds; provided that, if any other Regulated Fund or Affiliated Fund, but not the Regulated Fund itself, gains the right to nominate a director for election to a portfolio company’s board of directors or the right to have a board observer or any similar right to participate in the governance or management of the portfolio company, such event shall not be interpreted to prohibit the Required Majority from reaching the conclusions required by this Condition (2)(c)(iii), if: (A) The Eligible Trustees will have the right to ratify the selection of such director or board observer, if any; (B) the applicable Adviser agrees to, and does, provide periodic reports to the Regulated Fund’s Board with respect to the actions of such director or the information received by such board observer or obtained through the exercise of any similar right to participate in the governance or management of the portfolio company; and (C) any fees or other compensation that any Affiliated Fund or any Regulated Fund or any affiliated person of any Affiliated Fund or any Regulated Fund receives in connection with the right of an Affiliated Fund or a Regulated Fund to nominate a director or appoint a board observer or otherwise to participate in the governance or management of the portfolio company will be shared proportionately among the participating Affiliated Funds (who each may, in turn, share its portion with its affiliated persons) and the participating Regulated Funds in accordance with the amount of each party’s investment; and (iv) the proposed investment by the Regulated Fund will not benefit the Adviser, the Affiliated Funds or the other Regulated Funds or any affiliated person of any of them (other than the parties to the Co-Investment Transaction), except (A) to the extent permitted by Condition 13, (B) to the extent permitted by section 17(e) of the Act, as applicable, (C) indirectly, as a result of an interest in the securities VerDate Sep<11>2014 20:39 Jul 31, 2020 Jkt 250001 issued by one of the parties to the CoInvestment Transaction, or (D) in the case of fees or other compensation described in Condition 2(c)(iii)(C). 3. Each Regulated Fund has the right to decline to participate in any Potential Co-Investment Transaction or to invest less than the amount proposed. 4. The applicable Adviser will present to the Board of each Regulated Fund, on a quarterly basis, a record of all investments in Potential Co-Investment Transactions made by any of the other Regulated Funds or Affiliated Funds during the preceding quarter that fell within the Regulated Fund’s thencurrent Objectives and Strategies that were not made available to the Regulated Fund, and an explanation of why the investment opportunities were not offered to the Regulated Fund. All information presented to the Board pursuant to this Condition will be kept for the life of the Regulated Fund and at least two years thereafter, and will be subject to examination by the Commission and its staff. 5. Except for Follow-On Investments made in accordance with Condition 8,15 a Regulated Fund will not invest in reliance on the Order in any issuer in which another Regulated Fund, Affiliated Fund, or any affiliated person of another Regulated Fund or Affiliated Fund is an existing investor. 6. A Regulated Fund will not participate in any Potential CoInvestment Transaction unless the terms, conditions, price, class of securities to be purchased, settlement date, and registration rights will be the same for each participating Regulated Fund and Affiliated Fund. The grant to an Affiliated Fund or another Regulated Fund, but not the Regulated Fund, of the right to nominate a director for election to a portfolio company’s board of directors, the right to have an observer on the board of directors or similar rights to participate in the governance or management of the portfolio company will not be interpreted so as to violate this Condition 6, if Conditions 2(c)(iii)(A), (B) and (C) are met. 7. (a) If any Affiliated Fund or any Regulated Fund elects to sell, exchange or otherwise dispose of an interest in a security that was acquired in a CoInvestment Transaction, the applicable Adviser will: (i) Notify each Regulated Fund that participated in the Co-Investment Transaction of the proposed disposition at the earliest practical time; and 15 This exception applies only to Follow-On Investments by a Regulated Fund in issuers in which that Regulated Fund already holds investments. PO 00000 Frm 00173 Fmt 4703 Sfmt 4703 (ii) formulate a recommendation as to participation by each Regulated Fund in the disposition. (b) Each Regulated Fund will have the right to participate in such disposition on a proportionate basis, at the same price and on the same terms and conditions as those applicable to the participating Affiliated Funds and Regulated Funds. (c) A Regulated Fund may participate in such disposition without obtaining prior approval of the Required Majority if: (i) The proposed participation of each Regulated Fund and each Affiliated Fund in such disposition is proportionate to its outstanding investments in the issuer immediately preceding the disposition; (ii) the Board of the Regulated Fund has approved as being in the best interests of the Regulated Fund the ability to participate in such dispositions on a pro rata basis (as described in greater detail in the application); and (iii) the Board of the Regulated Fund is provided on a quarterly basis with a list of all dispositions made in accordance with this Condition. In all other cases, the Adviser will provide its written recommendation as to the Regulated Fund’s participation to the Eligible Trustees, and the Regulated Fund will participate in such disposition solely to the extent that a Required Majority determines that it is in the Regulated Fund’s best interests. (d) Each Affiliated Fund and each Regulated Fund will bear its own expenses in connection with any such disposition. 8. (a) If any Affiliated Fund or any Regulated Fund desires to make a Follow-On Investment in a portfolio company whose securities were acquired in a Co-Investment Transaction, the applicable Adviser will: (i) Notify each Regulated Fund that participated in the Co-Investment Transaction of the proposed transaction at the earliest practical time; and (ii) formulate a recommendation as to the proposed participation, including the amount of the proposed Follow-On Investment, by each Regulated Fund. (b) A Regulated Fund may participate in such Follow-On Investment without obtaining prior approval of the Required Majority if: (i) The proposed participation of each Regulated Fund and each Affiliated Fund in such investment is proportionate to its outstanding investments in the issuer immediately preceding the Follow-On Investment; and (ii) the Board of the Regulated Fund has approved as being in the best interests of the Regulated Fund the ability to participate in E:\FR\FM\03AUN1.SGM 03AUN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Notices Follow-On Investments on a pro rata basis (as described in greater detail in the application). In all other cases, the Adviser will provide its written recommendation as to the Regulated Fund’s participation to the Eligible Trustees, and the Regulated Fund will participate in such Follow-On Investment solely to the extent that a Required Majority determines that it is in the Regulated Fund’s best interests. (c) If, with respect to any Follow-On Investment: (i) The amount of the opportunity is not based on the Regulated Funds’ and the Affiliated Funds’ outstanding investments immediately preceding the Follow-On Investment; and (ii) the aggregate amount recommended by the applicable Adviser to be invested by the applicable Regulated Fund in the Follow-On Investment, together with the amount proposed to be invested by the other participating Regulated Funds and Affiliated Funds, collectively, in the same transaction, exceeds the amount of the investment opportunity, then the investment opportunity will be allocated among them pro rata based on each participant’s Available Capital, up to the maximum amount proposed to be invested by each. (d) The acquisition of Follow-On Investments as permitted by this Condition will be considered a CoInvestment Transaction for all purposes and subject to the other Conditions set forth in the application. 9. The Non-Interested Trustees of each Regulated Fund will be provided quarterly for review all information concerning Potential Co-Investment Transactions and Co-Investment Transactions, including investments made by other Regulated Funds or Affiliated Funds that the Regulated Fund considered but declined to participate in, so that the Non-Interested Trustees may determine whether all investments made during the preceding quarter, including those investments that the Regulated Fund considered but declined to participate in, comply with the Conditions of the Order. In addition, the Non-Interested Trustees will consider at least annually the continued appropriateness for the Regulated Fund of participating in new and existing CoInvestment Transactions. 10. Each Regulated Fund will maintain the records required by section 57(f)(3) of the Act as if each of the Regulated Funds were a business development company (as defined in section 2(a)(48) of the Act) and each of the investments permitted under these Conditions were approved by the VerDate Sep<11>2014 20:39 Jul 31, 2020 Jkt 250001 Required Majority under section 57(f) of the Act. 11. No Non-Interested Trustee of a Regulated Fund will also be a director, general partner, managing member or principal, or otherwise an ‘‘affiliated person’’ (as defined in the Act) of an Affiliated Fund. 12. The expenses, if any, associated with acquiring, holding or disposing of any securities acquired in a CoInvestment Transaction (including, without limitation, the expenses of the distribution of any such securities registered for sale under the 1933 Act) will, to the extent not payable by the Advisers under their respective investment advisory agreements with the Affiliated Funds and the Regulated Funds, be shared by the Regulated Funds and the Affiliated Funds in proportion to the relative amounts of the securities held or to be acquired or disposed of, as the case may be. 13. Any transaction fee 16 (including break-up or commitment fees but excluding broker’s fees contemplated by section 17(e) of the Act, as applicable), received in connection with a CoInvestment Transaction will be distributed to the participating Regulated Funds and Affiliated Funds 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 such Adviser at a bank or banks having the qualifications prescribed in section 26(a)(1) of the Act, and the account will earn a competitive rate of interest that will also be divided pro rata among the participating Regulated Funds and Affiliated Funds based on the amounts they invest in such Co-Investment Transaction. None of the Affiliated Funds, the Advisers, the other Regulated Funds or any affiliated person of the Regulated Funds or Affiliated Funds will receive additional compensation or remuneration of any kind as a result of or in connection with a Co-Investment Transaction (other than (a) in the case of the Regulated Funds and the Affiliated Funds, the pro rata transaction fees described above and fees or other compensation described in Condition 2(c)(iii)(C); and (b) in the case of an Adviser, investment advisory fees paid in accordance with the agreement 16 Applicants are not requesting and the staff is not providing any relief for transaction fees received in connection with any Co-Investment Transaction. PO 00000 Frm 00174 Fmt 4703 Sfmt 4703 46759 between the Adviser and the Regulated Fund or Affiliated Fund. 14. If the Holders own in the aggregate more than 25 percent of the Shares of a Regulated Fund, then the Holders will vote such Shares (i) as directed by an independent third party, or (ii) in the same percentages as the Regulated Fund’s other shareholders (not including the Holders) when voting on (1) the election of directors; (2) the removal of one or more directors; or (3) any other matter under either the Act or applicable state law affecting the Board’s composition, size or manner of election. 15. Each Regulated Fund’s chief compliance officer, as defined in rule 38a-1(a)(4) under the Act, will prepare an annual report for its Board that evaluates (and documents the basis of that evaluation) the Regulated Fund’s compliance with the terms and conditions of the application and the procedures established to achieve such compliance. For the Commission, by the Division of Investment Management, under delegated authority. J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2020–16714 Filed 7–31–20; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–89413; File No. SR– NASDAQ–2020–044] Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Proposed Rule Change To Adopt Listing Rule IM–5900–8 To Offer a Complimentary Global Targeting Tool to Acquisition Companies Listed Pursuant to Nasdaq IM–5101–2 that Have Publicly Announced Entering Into a Binding Agreement for a Business Combination July 28, 2020. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1, and Rule 19b–4 thereunder,2 notice is hereby given that on July 15, 2020, The Nasdaq Stock Market LLC (‘‘Nasdaq’’ 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 publishing this notice to solicit 1 15 2 17 E:\FR\FM\03AUN1.SGM U.S.C. 78s(b)(1). CFR 240.19b–4. 03AUN1

Agencies

[Federal Register Volume 85, Number 149 (Monday, August 3, 2020)]
[Notices]
[Pages 46755-46759]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16714]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 33959; 812-14997]


1WS Credit Income Fund, et al.

July 28, 2020.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice.

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    Notice of application for an order under section 17(d) of the 
Investment Company Act of 1940 (the ``Act'') and rule 17d-1 under the 
Act permitting certain joint transactions otherwise prohibited by 
section 17(d) of the Act and under rule 17d-1 under the Act.

Summary of Application:  Applicants request an order to permit certain 
closed-end management investment companies to co-invest in portfolio 
companies with each other and with affiliated investment funds.

Applicants:  1WS Credit Income Fund (``1WS'' or the ``Existing 
Regulated Fund''), 1WS Capital Advisors, LLC (``1WS Capital'' or the 
``Existing 1WS Adviser''), the investment adviser to 1WS, on behalf of 
itself and its successors,\1\ One William Street Capital Master Fund, 
Ltd., OWS Credit Opportunity Master Fund, Ltd., OWS ABS Master Fund II, 
LP, OWS COF I Master, L.P., OWS ABS IV, LP, OWS Global Fixed Income 
Fund (USD-Hedged), Ltd., OWS Credit Opportunity Fund, L.P., One William 
Street Capital Partners, L.P., One William Street Capital Partners II, 
L.P., One William Street Capital Offshore Fund, Ltd., OWS Capital 
Offshore Fund II, Ltd, One William Street Capital Intermediate Fund, 
L.P., OWS Credit Opportunity Offshore Fund, Ltd., OWS Credit 
Opportunity Offshore Fund II, Ltd, OWS Credit Opportunity Offshore Fund 
III, Ltd, OWS Credit Opportunity Intermediate Fund, LP, OWS Credit 
Opportunity I, LLC, OWS COF I, Ltd., OWS ABS Fund II, Ltd. and OWS ABS 
Fund V, Ltd.
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    \1\ The term ``successor,'' as applied to the Adviser, means an 
entity that results from a reorganization into another jurisdiction 
or change in the type of business organization.

Filing Dates: The application was filed on January 11, 2019, and 
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amended on May 21, 2019, June 17, 2019, and May 29, 2020.

Hearing or Notification of Hearing:  An order granting the requested 
relief will be issued unless the Commission orders a hearing. 
Interested persons may request a hearing by emailing the Commission's 
Secretary at [email protected] and serving applicants with a 
copy of the request by email. Hearing requests should be received by 
the Commission by 5:30 p.m. on August 24, 2020, 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 rule 
0-5 under the Act, hearing requests should state the nature of the 
writer's interest, any facts bearing upon the desirability of a hearing 
on the matter, the reason for the request, and the issues contested. 
Persons who wish to be notified of a hearing may request

[[Page 46756]]

notification by emailing the Commission's Secretary at [email protected].

ADDRESSES: The Commission: [email protected]. Applicants: c/o 
Kurt A. Locher, 1WS Capital Advisors, LLC, [email protected].

FOR FURTHER INFORMATION CONTACT: Asaf Barouk, Attorney Adviser, at 
(202) 551-4029 or David Nicolardi, Branch Chief, at (202) 551-6825 
(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 for an 
applicant using the Company name box, at https://www.sec.gov/search/search.htm or by calling (202) 551-8090.

Applicants' Representations

    1. 1WS is a Delaware statutory trust, registered as a non-
diversified, closed-end management investment company that has elected 
to operate as an interval fund pursuant to Rule 23c-3 under the Act. 
1WS' Objectives and Strategies \2\ are to seek attractive risk-adjusted 
total returns through generating income and capital appreciation. The 
Board \3\ of 1WS is comprised of 3 trustees, 2 of whom are Non-
Interested Trustees.\4\
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    \2\ ``Objectives and Strategies'' means a Regulated Fund's 
investment objectives and strategies, as described in the Regulated 
Fund's most current registration statement on Form N-2 or, as 
applicable, other filings the Regulated Fund has made with the 
Commission under the Securities Act of 1933 (the ``1933 Act''), or 
under the Securities Exchange Act of 1934, as amended, and the 
Regulated Fund's reports to shareholders.
    \3\ The term ``Board'' refers to the board of directors or 
trustees of any Regulated Fund.
    \4\ The term ``Non-Interested Trustees'' refers to the trustees 
of any Regulated Fund who are not ``interested persons'' within the 
meaning of section 2(a)(19) of the Act.
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    2. 1WS Capital is an investment adviser that is registered with the 
Commission under the Investment Advisers Act of 1940 (the ``Advisers 
Act''). 1WS Capital is controlled by its sole managing member, One 
William Street Capital Management, L.P. 1WS Capital serves as 
investment adviser to 1WS and manages 1WS' portfolio in accordance with 
1WS' Objectives and Strategies.
    3. An Existing Affiliated Fund is an entity whose investment 
adviser is One William Street Capital Management, L.P., the managing 
member of 1WS Adviser and that would be an investment company but for 
section 3(c)(1) or 3(c)(7) of the Act.\5\
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    \5\ ``1WS Adviser'' means the Existing 1WS Adviser, or its 
managing member, One William Street Capital Management, L.P., and 
any current or future investment adviser that (i) controls, is 
controlled by, or is under common control with 1WS Capital, (ii) is 
registered as an investment adviser under the Advisers Act, and 
(iii) is not a Regulated Fund or a subsidiary of a Regulated Fund. 
The term ``Adviser'' means any 1WS Adviser.
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    4. Applicants seek an order (``Order'') to permit one or more 
Regulated Funds \6\ and/or one or more Affiliated Funds \7\ to 
participate in the same investment opportunities through a proposed co-
investment program (the ``Co-Investment Program'') where such 
participation would otherwise be prohibited under section 17(d) 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 (``Private Placement 
Securities'') \8\ and (b) making additional investments in securities 
of such issuers, including through the exercise of warrants, conversion 
privileges, and other rights to purchase securities of the issuers 
(``Follow-On Investments''). ``Co-Investment Transaction'' means any 
transaction in which a Regulated Fund (or its Wholly-Owned Investment 
Sub (as defined below) participates together with one or more other 
Regulated Funds and/or one or more Affiliated Funds in reliance on the 
requested Order. ``Potential Co-Investment Transaction'' means any 
investment opportunity in which a Regulated Fund (or its Wholly-Owned 
Investment Sub) could not participate together with one or more 
Affiliated Funds and/or one or more other Regulated Funds without 
obtaining and relying on the Order.\9\
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    \6\ ``Regulated Fund'' means the Existing Regulated Fund and any 
Future Regulated Fund. ``Future Regulated Fund'' means any closed-
end management investment company (a) that is registered under the 
Act, (b) whose investment adviser is 1WS Adviser or its managing 
member, One William Street Capital Management, L.P., and (c) that 
intends to participate in the Co-Investment Program.
    \7\ ``Affiliated Funds'' means the Existing Affiliated Funds and 
any Future Affiliated Fund. ``Future Affiliated Fund'' means any 
entity (a) whose investment adviser is a 1WS Adviser, (b) that would 
be an investment company but for section 3(c)(1) or 3(c)(7) of the 
Act, and (c) that intends to participate in the Co-Investment 
Program.
    \8\ The term ``private placement transactions'' means 
transactions in which the offer and sale of securities by the issuer 
are exempt from registration under the 1933 Act, as amended.
    \9\ All existing entities that currently intend to rely upon the 
requested Order have been named as applicants. Any other existing or 
future entity that subsequently relies on the Order will comply with 
the terms and conditions of the application.
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    5. Applicants state that any of the Regulated Funds may, from time 
to time, form a special purpose subsidiary (a ``Wholly-Owned Investment 
Sub'').\10\ With respect to each Wholly-Owned Investment Sub, such a 
subsidiary would be prohibited from investing in a Co-Investment 
Transaction with any Affiliated Fund or Regulated Fund because it would 
be a company controlled by its parent Regulated Fund for purposes of 
rule 17d-1 of the Act. Applicants request that each Wholly-Owned 
Investment Sub be permitted to participate in Co-Investment 
Transactions in lieu of its parent Regulated Fund and that the Wholly-
Owned Investment Sub's participation in any such transaction be 
treated, for purposes of the Order, as though the parent Regulated Fund 
were participating directly.
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    \10\ The term ``Wholly-Owned Investment Sub'' means an entity 
(a) that is wholly-owned by a Regulated Fund (with the Regulated 
Fund at all times holding, beneficially and of record, 100% of the 
voting and economic interests); (b) whose sole business purpose is 
to hold one or more investments on behalf of the Regulated Fund; (c) 
with respect to which the Regulated Fund's Board has the sole 
authority to make all determinations with respect to the entity's 
participation under the conditions of the application; and (d) that 
would be an investment company but for section 3(c)(1) or 3(c)(7) of 
the Act. Any future subsidiaries of the Regulated Funds that 
participate in Co-Investment Transactions will be Wholly-Owned 
Investment Subs.
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    6. Applicants represent that this treatment is justified because a 
Wholly-Owned Investment Sub would have no purpose other than serving as 
a holding vehicle for the Regulated Fund's investments and, therefore, 
no conflicts of interest could arise between the Regulated Fund and the 
Wholly-Owned Investment Sub. The Regulated Fund's Board would make all 
relevant determinations under the Conditions with regard to a Wholly-
Owned Investment Sub's participation in a Co-Investment Transaction, 
and the Regulated Fund's Board would be informed of, and take into 
consideration, any proposed use of a Wholly-Owned Investment Sub in the 
Regulated Fund's place. If the Regulated Fund proposes to participate 
in the same Co-Investment Transaction with any of its Wholly-Owned 
Investment Subs, the Board will also be informed of, and take into 
consideration, the relative participation of the Regulated Fund and the 
Wholly-Owned Investment Sub.\11\
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    \11\ The participation of a Regulated Fund in a Potential Co-
Investment Transaction may only be approved by both a majority of 
the trustees of the Board who have no financial interest in such 
transaction, plan, or arrangement and a majority of such trustees of 
the Board who are Non-Interested Trustees (a ``Required Majority'') 
eligible to vote on that Co-Investment Transaction (the ``Eligible 
Trustees'').
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    7. When considering Potential Co-Investment Transactions for any 
Regulated Fund, the applicable Adviser will consider only the 
Objectives and Strategies, investment policies,

[[Page 46757]]

investment positions, capital available for investment (``Available 
Capital''),\12\ and other pertinent factors applicable to that 
Regulated Fund. The Board of each Regulated Fund, including the Non-
Interested Trustees, has determined that it is in the best interests of 
the Regulated Fund to participate in Co-Investment Transactions.\13\
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    \12\ The amount of each Regulated Fund's Available Capital will 
be determined based on the amount of cash on hand, existing 
commitments and reserves, if any, the targeted leverage level, 
targeted asset class mix and other investment policies and 
restrictions set from time to time by the Board of the applicable 
Regulated Fund or imposed by applicable laws, rules, regulations or 
interpretations.
    \13\ The Regulated Funds, however, will not be obligated to 
invest, or co-invest, when investment opportunities are referred to 
them.
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    8. Other than pro rata dispositions and Follow-On Investments as 
provided in Conditions 7 and 8, and after making the determinations 
required in Conditions 1 and 2(a), the Adviser will present each 
Potential Co-Investment Transaction and the proposed allocation to the 
Eligible Trustees, and the Required Majority will approve each Co-
Investment Transaction prior to any investment by the participating 
Regulated Fund.
    9. With respect to the pro rata dispositions and Follow-On 
Investments provided in Conditions 7 and 8, a Regulated Fund may 
participate in a pro rata disposition or Follow-On Investment without 
obtaining prior approval of the Required Majority if, among other 
things: (i) the proposed participation of each Regulated Fund and 
Affiliated Fund in such disposition or Follow on Investment is 
proportionate to its outstanding investments in the issuer immediately 
preceding the disposition or Follow-On Investment, as the case may be; 
and (ii) the Board of the Regulated Fund has approved that Regulated 
Fund's participation in pro rata dispositions and Follow-On Investments 
as being in the best interests of the Regulated Fund. If the Board does 
not so approve, any such disposition or Follow-On Investment will be 
submitted to the Regulated Fund's Eligible Trustees. The Board of any 
Regulated Fund may at any time rescind, suspend or qualify its approval 
of pro rata dispositions and Follow-On Investments with the result that 
all dispositions and/or Follow-On Investments must be submitted to the 
Eligible Trustees.
    10. No Non-Interested Trustee of a Regulated Fund will have a 
financial interest in any Co-Investment Transaction, other than 
indirectly through share ownership in one of the Regulated Funds.
    11. If the Adviser, the Principals,\14\ or any person controlling, 
controlled by, or under common control with the Adviser or the 
Principals, and the Affiliated Funds (collectively, the ``Holders'') 
own in the aggregate more than 25 percent of the outstanding voting 
shares of a Regulated Fund (the ``Shares''), then the Holders will vote 
such Shares as required under Condition 14. Applicants believe that 
this Condition will ensure that the Non-Interested Trustees will act 
independently in evaluating the Co-Investment Program, because the 
ability of the Adviser or the Principals to influence the Non-
Interested Trustees by a suggestion, explicit or implied, that the Non-
Interested Trustees can be removed will be limited significantly. The 
Non-Interested Trustees shall evaluate and approve any such independent 
party, taking into account its qualifications, reputation for 
independence, cost to the shareholders, and other factors that they 
deem relevant.
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    \14\ Certain employees and principals of 1WS Adviser 
(collectively, the ``Principals'').
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Applicants' Legal Analysis

    1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit 
affiliated persons of a registered investment company from 
participating in joint transactions with the company unless the 
Commission has granted an order permitting such transactions. In 
passing upon applications under rule 17d-1, the Commission considers 
whether the company's participation in the joint transaction is 
consistent with the provisions, policies, and purposes of the Act and 
the extent to which such participation is on a basis different from or 
less advantageous than that of other participants.
    2. Applicants state that in the absence of the requested relief, in 
some circumstances, the Regulated Funds would be limited in their 
ability to participate in attractive and appropriate investment 
opportunities. Applicants believe that the proposed terms and 
conditions set forth in the application ensure that the proposed Co-
Investment Transactions are consistent with the protection of each 
Regulated Fund's shareholders and with the purposes intended by the 
policies and provisions of the Act. Applicants believe that the 
participation of the Regulated Funds in Co-Investment Transactions done 
in accordance with the Conditions would be consistent with the 
provisions, policies, and purposes of the Act and would be done in a 
manner that was not different from, or less advantageous than, the 
other participants.

Applicants' Conditions

    Applicants agree that the Order granting the requested relief shall 
be subject to the following Conditions:
    1. Each time a 1WS Adviser considers a Potential Co-Investment 
Transaction for an Affiliated Fund or another Regulated Fund that falls 
within a Regulated Fund's then-current Objectives and Strategies, the 
Regulated Fund's Adviser will make an independent determination of the 
appropriateness of the investment for such Regulated Fund in light of 
the Regulated Fund's then-current circumstances.
    2. (a) If the Adviser deems a Regulated Fund's participation in any 
Potential Co-Investment Transaction to be appropriate for the Regulated 
Fund, it will then determine an appropriate level of investment for the 
Regulated Fund.
    (b) If the aggregate amount recommended by the applicable Adviser 
to be invested by the applicable Regulated Fund in the Potential Co-
Investment Transaction, together with the amount proposed to be 
invested by the other participating Regulated Funds and Affiliated 
Funds, collectively, in the same transaction, exceeds the amount of the 
investment opportunity, the investment opportunity will be allocated 
among them pro rata based on each participant's Available Capital, up 
to the amount proposed to be invested by each. The applicable Adviser 
will provide the Eligible Trustees of each participating Regulated Fund 
with information concerning each participating party's Available 
Capital to assist the Eligible Trustees with their review of the 
Regulated Fund's investments for compliance with these allocation 
procedures.
    (c) After making the determinations required in Conditions 1 and 
2(a), the applicable Adviser will distribute written information 
concerning the Potential Co-Investment Transaction (including the 
amount proposed to be invested by each participating Regulated Fund and 
Affiliated Fund) to the Eligible Trustees of each participating 
Regulated Fund for their consideration. A Regulated Fund will co-invest 
with one or more other Regulated Funds and/or one or more Affiliated 
Funds only if, prior to the Regulated Funds' participation in the 
Potential Co-Investment Transaction, a Required Majority concludes 
that:
    (i) The terms of the Potential Co-Investment Transaction, including 
the consideration to be paid, are reasonable and fair to the Regulated 
Fund and its shareholders and do not involve overreaching in respect of 
the Regulated

[[Page 46758]]

Fund or its shareholders on the part of any person concerned;
    (ii) the Potential Co-Investment Transaction is consistent with:
    (A) The interests of the shareholders of the Regulated Fund; and
    (B) the Regulated Fund's then-current Objectives and Strategies;
    (iii) the investment by any other Regulated Funds or Affiliated 
Funds would not disadvantage the Regulated Fund, and participation by 
the Regulated Fund would not be on a basis different from or less 
advantageous than that of other Regulated Funds or Affiliated Funds; 
provided that, if any other Regulated Fund or Affiliated Fund, but not 
the Regulated Fund itself, gains the right to nominate a director for 
election to a portfolio company's board of directors or the right to 
have a board observer or any similar right to participate in the 
governance or management of the portfolio company, such event shall not 
be interpreted to prohibit the Required Majority from reaching the 
conclusions required by this Condition (2)(c)(iii), if:
    (A) The Eligible Trustees will have the right to ratify the 
selection of such director or board observer, if any;
    (B) the applicable Adviser agrees to, and does, provide periodic 
reports to the Regulated Fund's Board with respect to the actions of 
such director or the information received by such board observer or 
obtained through the exercise of any similar right to participate in 
the governance or management of the portfolio company; and
    (C) any fees or other compensation that any Affiliated Fund or any 
Regulated Fund or any affiliated person of any Affiliated Fund or any 
Regulated Fund receives in connection with the right of an Affiliated 
Fund or a Regulated Fund to nominate a director or appoint a board 
observer or otherwise to participate in the governance or management of 
the portfolio company will be shared proportionately among the 
participating Affiliated Funds (who each may, in turn, share its 
portion with its affiliated persons) and the participating Regulated 
Funds in accordance with the amount of each party's investment; and
    (iv) the proposed investment by the Regulated Fund will not benefit 
the Adviser, the Affiliated Funds or the other Regulated Funds or any 
affiliated person of any of them (other than the parties to the Co-
Investment Transaction), except (A) to the extent permitted by 
Condition 13, (B) to the extent permitted by section 17(e) of the Act, 
as applicable, (C) indirectly, as a result of an interest in the 
securities issued by one of the parties to the Co-Investment 
Transaction, or (D) in the case of fees or other compensation described 
in Condition 2(c)(iii)(C).
    3. Each Regulated Fund has the right to decline to participate in 
any Potential Co-Investment Transaction or to invest less than the 
amount proposed.
    4. The applicable Adviser will present to the Board of each 
Regulated Fund, on a quarterly basis, a record of all investments in 
Potential Co-Investment Transactions made by any of the other Regulated 
Funds or Affiliated Funds during the preceding quarter that fell within 
the Regulated Fund's then-current Objectives and Strategies that were 
not made available to the Regulated Fund, and an explanation of why the 
investment opportunities were not offered to the Regulated Fund. All 
information presented to the Board pursuant to this Condition will be 
kept for the life of the Regulated Fund and at least two years 
thereafter, and will be subject to examination by the Commission and 
its staff.
    5. Except for Follow-On Investments made in accordance with 
Condition 8,\15\ a Regulated Fund will not invest in reliance on the 
Order in any issuer in which another Regulated Fund, Affiliated Fund, 
or any affiliated person of another Regulated Fund or Affiliated Fund 
is an existing investor.
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    \15\ This exception applies only to Follow-On Investments by a 
Regulated Fund in issuers in which that Regulated Fund already holds 
investments.
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    6. A Regulated Fund will not participate in any Potential Co-
Investment Transaction unless the terms, conditions, price, class of 
securities to be purchased, settlement date, and registration rights 
will be the same for each participating Regulated Fund and Affiliated 
Fund. The grant to an Affiliated Fund or another Regulated Fund, but 
not the Regulated Fund, of the right to nominate a director for 
election to a portfolio company's board of directors, the right to have 
an observer on the board of directors or similar rights to participate 
in the governance or management of the portfolio company will not be 
interpreted so as to violate this Condition 6, if Conditions 
2(c)(iii)(A), (B) and (C) are met.
    7. (a) If any Affiliated Fund or any Regulated Fund elects to sell, 
exchange or otherwise dispose of an interest in a security that was 
acquired in a Co-Investment Transaction, the applicable Adviser will:
    (i) Notify each Regulated Fund that participated in the Co-
Investment Transaction of the proposed disposition at the earliest 
practical time; and
    (ii) formulate a recommendation as to participation by each 
Regulated Fund in the disposition.
    (b) Each Regulated Fund will have the right to participate in such 
disposition on a proportionate basis, at the same price and on the same 
terms and conditions as those applicable to the participating 
Affiliated Funds and Regulated Funds.
    (c) A Regulated Fund may participate in such disposition without 
obtaining prior approval of the Required Majority if: (i) The proposed 
participation of each Regulated Fund and each Affiliated Fund in such 
disposition is proportionate to its outstanding investments in the 
issuer immediately preceding the disposition; (ii) the Board of the 
Regulated Fund has approved as being in the best interests of the 
Regulated Fund the ability to participate in such dispositions on a pro 
rata basis (as described in greater detail in the application); and 
(iii) the Board of the Regulated Fund is provided on a quarterly basis 
with a list of all dispositions made in accordance with this Condition. 
In all other cases, the Adviser will provide its written recommendation 
as to the Regulated Fund's participation to the Eligible Trustees, and 
the Regulated Fund will participate in such disposition solely to the 
extent that a Required Majority determines that it is in the Regulated 
Fund's best interests.
    (d) Each Affiliated Fund and each Regulated Fund will bear its own 
expenses in connection with any such disposition.
    8. (a) If any Affiliated Fund or any Regulated Fund desires to make 
a Follow-On Investment in a portfolio company whose securities were 
acquired in a Co-Investment Transaction, the applicable Adviser will:
    (i) Notify each Regulated Fund that participated in the Co-
Investment Transaction of the proposed transaction at the earliest 
practical time; and
    (ii) formulate a recommendation as to the proposed participation, 
including the amount of the proposed Follow-On Investment, by each 
Regulated Fund.
    (b) A Regulated Fund may participate in such Follow-On Investment 
without obtaining prior approval of the Required Majority if: (i) The 
proposed participation of each Regulated Fund and each Affiliated Fund 
in such investment is proportionate to its outstanding investments in 
the issuer immediately preceding the Follow-On Investment; and (ii) the 
Board of the Regulated Fund has approved as being in the best interests 
of the Regulated Fund the ability to participate in

[[Page 46759]]

Follow-On Investments on a pro rata basis (as described in greater 
detail in the application). In all other cases, the Adviser will 
provide its written recommendation as to the Regulated Fund's 
participation to the Eligible Trustees, and the Regulated Fund will 
participate in such Follow-On Investment solely to the extent that a 
Required Majority determines that it is in the Regulated Fund's best 
interests.
    (c) If, with respect to any Follow-On Investment:
    (i) The amount of the opportunity is not based on the Regulated 
Funds' and the Affiliated Funds' outstanding investments immediately 
preceding the Follow-On Investment; and
    (ii) the aggregate amount recommended by the applicable Adviser to 
be invested by the applicable Regulated Fund in the Follow-On 
Investment, together with the amount proposed to be invested by the 
other participating Regulated Funds and Affiliated Funds, collectively, 
in the same transaction, exceeds the amount of the investment 
opportunity, then the investment opportunity will be allocated among 
them pro rata based on each participant's Available Capital, up to the 
maximum amount proposed to be invested by each.
    (d) The acquisition of Follow-On Investments as permitted by this 
Condition will be considered a Co-Investment Transaction for all 
purposes and subject to the other Conditions set forth in the 
application.
    9. The Non-Interested Trustees of each Regulated Fund will be 
provided quarterly for review all information concerning Potential Co-
Investment Transactions and Co-Investment Transactions, including 
investments made by other Regulated Funds or Affiliated Funds that the 
Regulated Fund considered but declined to participate in, so that the 
Non-Interested Trustees may determine whether all investments made 
during the preceding quarter, including those investments that the 
Regulated Fund considered but declined to participate in, comply with 
the Conditions of the Order. In addition, the Non-Interested Trustees 
will consider at least annually the continued appropriateness for the 
Regulated Fund of participating in new and existing Co-Investment 
Transactions.
    10. Each Regulated Fund will maintain the records required by 
section 57(f)(3) of the Act as if each of the Regulated Funds were a 
business development company (as defined in section 2(a)(48) of the 
Act) and each of the investments permitted under these Conditions were 
approved by the Required Majority under section 57(f) of the Act.
    11. No Non-Interested Trustee of a Regulated Fund will also be a 
director, general partner, managing member or principal, or otherwise 
an ``affiliated person'' (as defined in the Act) of an Affiliated Fund.
    12. 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 1933 Act) will, to the 
extent not payable by the Advisers under their respective investment 
advisory agreements with the Affiliated Funds and the Regulated Funds, 
be shared by the Regulated Funds and the Affiliated Funds in proportion 
to the relative amounts of the securities held or to be acquired or 
disposed of, as the case may be.
    13. Any transaction fee \16\ (including break-up or commitment fees 
but excluding broker's fees contemplated by section 17(e) of the Act, 
as applicable), received in connection with a Co-Investment Transaction 
will be distributed to the participating Regulated Funds and Affiliated 
Funds 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 such Adviser at a bank or banks having the qualifications prescribed 
in section 26(a)(1) of the Act, and the account will earn a competitive 
rate of interest that will also be divided pro rata among the 
participating Regulated Funds and Affiliated Funds based on the amounts 
they invest in such Co-Investment Transaction. None of the Affiliated 
Funds, the Advisers, the other Regulated Funds or any affiliated person 
of the Regulated Funds or Affiliated Funds will receive additional 
compensation or remuneration of any kind as a result of or in 
connection with a Co-Investment Transaction (other than (a) in the case 
of the Regulated Funds and the Affiliated Funds, the pro rata 
transaction fees described above and fees or other compensation 
described in Condition 2(c)(iii)(C); and (b) in the case of an Adviser, 
investment advisory fees paid in accordance with the agreement between 
the Adviser and the Regulated Fund or Affiliated Fund.
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    \16\ Applicants are not requesting and the staff is not 
providing any relief for transaction fees received in connection 
with any Co-Investment Transaction.
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    14. If the Holders own in the aggregate more than 25 percent of the 
Shares of a Regulated Fund, then the Holders will vote such Shares (i) 
as directed by an independent third party, or (ii) in the same 
percentages as the Regulated Fund's other shareholders (not including 
the Holders) when voting on (1) the election of directors; (2) the 
removal of one or more directors; or (3) any other matter under either 
the Act or applicable state law affecting the Board's composition, size 
or manner of election.
    15. Each Regulated Fund's chief compliance officer, as defined in 
rule 38a-1(a)(4) under the Act, will prepare an annual report for its 
Board that evaluates (and documents the basis of that evaluation) the 
Regulated Fund's compliance with the terms and conditions of the 
application and the procedures established to achieve such compliance.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-16714 Filed 7-31-20; 8:45 am]
BILLING CODE 8011-01-P
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