No. 812-
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
APPLICATION
FOR AN ORDER PURSUANT TO SECTIONS 17(d) AND 57(i) OF THE INVESTMENT COMPANY ACT OF 1940 AND RULE 17d-1 UNDER THE ACT TO PERMIT
CERTAIN JOINT TRANSACTIONS OTHERWISE PROHIBITED BY SECTIONS 17(d) AND 57(a)(4) OF THE ACT AND RULE 17d-l UNDER THE ACT
Eagle Point Credit Company Inc.; Eagle Point
Income Company Inc.; Eagle Point Institutional Income Fund; Eagle Point Credit Company Sub II (US) LLC; Eagle Point Credit Company Sub
(Cayman) Ltd.; Eagle Point Credit Company Sub II (Cayman) Ltd.; Eagle Point Income Company Sub (US) LLC; Eagle Point Income Company Sub
II (Cayman) Ltd.; EPIIF Sub (Cayman) Ltd.; EPIIF Sub II (Cayman) Ltd.; Eagle Point Credit Management LLC; Eagle Point Income Management
LLC; Eagle Point Credit Partners LP; Eagle Point Credit Partners Sub LLC; Eagle Point Credit Partners Sub (US) LLC; Eagle Point Credit
Partners Sub II (US) LLC; Eagle Point Credit Partners Sub III Ltd.; Eagle Point Credit Partners Sub IV Ltd; Eagle Point CLO Equity Fund
I LLC; Eagle Point CLO Equity Fund I Sub LLC; Eagle Point CLO Equity Fund I Cayman Sub Ltd.; Eagle Point Core Income Fund LP; Eagle Point
Core Sub LLC; Eagle Point Core Sub (US) LLC; Eagle Point Core Sub II (US) LLC; Eagle Point Defensive Income Fund US LP; EP DIF Delaware
I LLC; Eagle Point Defensive Income Fund Non-US LP; EP DIF Cayman I LP; EP DIF Cayman I Sub (US) LLC; EP DIF Cayman I Sub II (US) LLC;
Eagle Point Defensive Income Fund II US LP; EP DIF Delaware II LLC; Eagle Point Defensive Income Fund II EP LP; Eagle Point Defensive
Income Fund II Non-US LP; EP DIF Cayman II LP; Eagle Point Defensive Income Fund II Non-US Sub (US) LLC; Eagle Point Defensive Income
Fund II Non-US Sub II (US) LLC; Eagle Point Defensive Income Fund NJ LP; Eagle Point Defensive Income M LP; Eagle Point Defensive Income
M Sub US LLC; Eagle Point Defensive Income M Sub II (US) LLC; Eagle Point Defensive Income Partners LP; Eagle Point Defensive Income Partners
Sub (US) LLC; Eagle Point Enhanced Income Investor LLC; Eagle Point Enhanced Income Investor Sub (US) LLC; Eagle Point Enhanced Income
Investor Sub (Cayman) Ltd.; Eagle Point Enhanced Income Fund LP; Eagle Point Enhanced Income Sub (US) LLC; Eagle Point Enhanced Income
Sub II (US) LLC; Eagle Point SRT Co-Invest I LP; EP CLO Opportunities Fund I LP
600 Steamboat Road, Suite 202
Greenwich, CT 06830
(203) 340-8500
All Communications, Notices and Orders to:
Nauman S. Malik, Esq.
c/o Eagle Point Credit Management LLC
600 Steamboat Road, Suite 202
Greenwich, CT 06830
Copies to:
Thomas J. Friedmann, Esq.
Philip Hinkle, Esq.
Dechert LLP
One International Place, 40th Floor
100 Oliver Street
Boston, MA 02110
Page 1 of 30 sequentially numbered pages (including
exhibits).
As filed with the Securities and Exchange Commission
on October 10, 2023
I. INTRODUCTION
A. Requested
Relief
Eagle Point Credit Company
Inc. and its related entities, identified in Section I.B. below, hereby request an order (the “Order”)
pursuant to Sections 17(d) and 57(i) of the Investment Company Act of 1940, as amended (the “Act”)1
and Rule 17d-1 thereunder2 authorizing certain joint transactions that otherwise would be prohibited by either
or both of Sections 17(d) and 57(a)(4) as modified by the exemptive rules adopted by the U.S. Securities and Exchange
Commission (the “Commission”) under the Act.
In particular, the relief
requested in this application for an Order (the “Application”) would allow one or more Regulated Funds (including
one or more BDC Downstream Funds) and/or one or more Affiliated Funds (each as defined below) to participate in the same investment opportunities
through a proposed co-investment program where such participation would otherwise be prohibited under Sections 17(d) or 57(a)(4) and
the rules under the Act. All existing entities that currently intend to rely on the Order have been named as Applicants (defined
below) and any existing or future entities that may rely on the Order in the future will comply with the terms and conditions set forth
in this application (the “Conditions”).3
The Order would supersede
an exemptive order issued by the Commission on March 17, 2015 (the “Prior Order”)4 that was
granted pursuant to Section 17(d) and Rule 17d-1 under the Act, with the result that no person will continue to rely on
the Prior Order if the Order is granted.
B. Applicants
Seeking Relief
Each of the following entities is an applicant
seeking relief pursuant to the proposed Order (collectively, the “Applicants”):
| · | Eagle Point Credit Company Inc. (“ECC”), a Delaware corporation and an externally
managed, non-diversified closed-end management investment company registered under the Act; |
| · | Eagle Point Income Company Inc. (“EIC”), a Delaware corporation and an externally
managed, diversified closed-end management investment company registered under the Act; |
| · | Eagle Point Institutional Income Fund (“EPIIF”), a Delaware statutory trust
and an externally managed, non-diversified closed-end management investment company registered under the Act that operates as a tender
offer fund; |
| · | Eagle Point Credit Company Sub (Cayman) Ltd. (“ECC Sub Cayman”), a Cayman Islands
exempted company and wholly-owned subsidiary of ECC; |
| · | Eagle Point Credit Company Sub II (Cayman) Ltd. (“ECC Sub II Cayman”), a Cayman
Islands exempted company and wholly-owned subsidiary of ECC; |
1
Unless otherwise indicated, all section references herein are to the Act.
2
Unless otherwise indicated, all rule references herein are to rules under the Act.
3
No Regulated Fund or Affiliated Fund that relies on this Order will rely on any other order of the Commission authorizing
co-investment transactions pursuant to Sections 17(d) and 57(i) of the Act and no entity that relies on another such order of the Commission
will rely on this Order.
4
See Eagle Point Credit Company Inc., et al. (File No. 812-14330) Investment Company Act Rel. Nos. 31457 (February
18, 2015) (notice) and 31507 (March 17, 2015) (order).
| · | Eagle Point Credit Company Sub II (US) LLC (“ECC Sub II”), a Delaware limited
liability company and wholly-owned subsidiary of ECC; |
| · | Eagle Point Income Company Sub II (Cayman) Ltd. (“EIC Sub Cayman”), a Cayman
Islands exempted company and wholly-owned subsidiary of EIC; |
| · | Eagle Point Income Company Sub (US) LLC (“EIC Sub”), a Delaware limited liability
company and wholly-owned subsidiary of EIC; |
| · | EPIIF Sub (Cayman) Ltd. (“EPIIF Sub Cayman”), a Cayman Islands exempted company
and wholly-owned subsidiary of EPIIF; |
| · | EPIIF Sub II (Cayman) Ltd. (“EPIIF Sub II Cayman”), a Cayman Islands exempted
company and wholly-owned subsidiary of EPIIF; |
| · | Eagle Point Credit Management LLC (“EPCM”), a Delaware limited liability company
that serves as the investment adviser to the ECC, EPIIF and certain of the Existing Affiliated Funds (as defined below), on behalf of
itself and its successors; |
| · | Eagle Point Income Management LLC (“EPIM”), a Delaware limited liability company
that serves as the investment adviser to the EIC on behalf of itself and its successors; |
| · | The investment vehicles identified in Schedule A hereto, each of which is a separate and distinct legal
entity and each of which would be an investment company but for Section 3(c)(1) or 3(c)(7) of the Act (together, the “Existing
Affiliated Funds”); and |
| · | The accounts identified in Schedule B hereto that the Advisers and their affiliates use to hold various
financial assets in a principal capacity (together, “Existing Proprietary Accounts”). |
Applicants do not seek relief for transactions
that would be permitted under other regulatory or interpretive guidance, including, for example, transactions effected consistent with
Commission staff no-action positions.5
C. Defined
Terms
“Adviser”
means EPCM, EPIM and any Future Adviser (defined below).
“Affiliated Fund” means
the Existing Affiliated Funds, the Existing Proprietary Accounts, any Future Affiliated Funds (as defined below), and any Future Proprietary
Accounts (as defined below). No Existing Affiliated Fund is a BDC Downstream Fund.
“BDC”
means a business development company under the Act.6
“BDC Downstream
Fund” means, with respect to any Regulated Fund that is a BDC, an entity (i) that the BDC directly or indirectly controls,
(ii) that is not controlled by any person other than the BDC (except a person that indirectly controls the entity solely because
it controls the BDC), (iii) that would be an investment company but for Sections 3(c)(1) or 3(c)(7) of the Act, (iv) whose
investment adviser (and sub-adviser(s), if any) is an Adviser, (v) that is not a Wholly-Owned Investment Sub (as defined below),
and (vi) that intends to participate in the Co-Investment Program.
5
See the JT No-Action Letters (as defined below).
6
Section 2(a)(48) defines a BDC to be any closed-end investment company that operates for the purpose of making investments
in securities described in Section 55(a)(1) through 55(a)(3) and makes available significant managerial assistance with respect to the
issuers of such securities.
“Board”
means (i) with respect to a Regulated Fund other than a BDC Downstream Fund, the board of directors (or the equivalent) of the applicable
Regulated Fund and (ii) with respect to a BDC Downstream Fund, the Independent Party of the BDC Downstream Fund.
“Board-Established
Criteria” means criteria that the Board of a Regulated Fund may establish from time to time to describe the characteristics
of Potential Co-Investment Transactions regarding which the Adviser to such Regulated Fund should be notified under Condition 1. The Board-Established
Criteria will be consistent with the Regulated Fund’s Objectives and Strategies (defined below). If no Board-Established Criteria
are in effect, then the Regulated Fund’s Adviser will be notified of all Potential Co-Investment Transactions that fall within the
Regulated Fund’s then-current Objectives and Strategies. Board-Established Criteria will be objective and testable, meaning that
they will be based on observable information, such as industry/sector of the issuer, minimum EBITDA of the issuer, asset class of the
investment opportunity or required commitment size, and not on characteristics that involve a discretionary assessment. The Adviser to
the Regulated Fund may from time to time recommend criteria for the Board’s consideration, but Board-Established Criteria will only
become effective if approved by a majority of the Independent Directors (defined below). The Independent Directors of a Regulated Fund
may at any time rescind, suspend or qualify their approval of any Board-Established Criteria, though the Applicants anticipate that, under
normal circumstances, the Board would not modify these criteria more often than quarterly.
“Close Affiliate”
means the Advisers, the Regulated Funds, the Affiliated Funds and any other person described in Section 57(b) (after giving
effect to Rule 57b-1) in respect of any Regulated Fund (treating any registered investment company or series thereof as a BDC for
this purpose) except for limited partners included solely by reason of the reference in Section 57(b) to Section 2(a)(3)(D).
“Co-Investment
Program” means the proposed co-investment program that would permit one or more Regulated Funds and/or one or more Affiliated
Funds to participate in the same investment opportunities where such participation would otherwise be prohibited under Section 57(a)(4) and
Rule 17d–1 by (a) co-investing with each other in securities issued by issuers in private placement transactions in which
an Adviser negotiates terms in addition to price;7 and (b) making Follow-On Investments (as defined below).
“Co-Investment
Transaction” means any transaction in which a Regulated Fund (or its Wholly-Owned Investment Sub) participated together
with one or more Affiliated Funds and/or one or more other Regulated Funds in reliance on the Order.
“Disposition” means
the sale, exchange or other disposition of an interest in a security of an issuer.
“Eligible Directors”
means, with respect to a Regulated Fund and a Potential Co-Investment Transaction, the members of the Regulated Fund’s Board eligible
to vote on that Potential Co-Investment Transaction under Section 57(o) of the Act (treating any registered investment company
or series thereof as a BDC for this purpose).
“Follow-On Investment”
means (i) with respect to a Regulated Fund, an additional investment in the same issuer in which the Regulated Fund is currently
invested; or (ii) with respect to an Affiliated Fund, (X) an additional investment in the same issuer in which the Affiliated
Fund and at least one Regulated Fund are currently invested; or (Y) an investment in an issuer in which at least one Regulated Fund
is currently invested but in which the Affiliated Fund does not currently have an investment. An investment in an issuer includes, but
is not limited to, the exercise of warrants, conversion privileges or other rights to purchase securities of the issuer.
7
The term “private placement transactions” means transactions in which the offer and sale of securities by the
issuer are exempt from registration under the Securities Act of 1933 (the “Securities Act”).
“Future Adviser”
means any future investment adviser that (i) controls, is controlled by, or is under common control with any of the Advisers, (ii) (a) is
registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”);
or (b) is a relying adviser of an investment adviser that is registered under the Advisers Act and that controls, is controlled by,
or is under common control with, any of the Advisers, and (iii) is not a Regulated Fund or a subsidiary of a Regulated Fund.
“Future Affiliated
Fund” means any entity (a) whose investment adviser (and sub-adviser(s), if any) is an Adviser, (b) that either
(x) would be an investment company but for Section 3(c)(1), 3(c)(5)(C) or 3(c)(7) of the Act or (y) relies on
Rule 3a-7 under the Act, (c) that intends to participate in the Co-Investment Program and (d) that is not a BDC Downstream
Fund.
“Future Proprietary
Accounts” means any account of an Adviser or its affiliates or any company that is a direct or indirect, wholly- or majority-
owned subsidiary of an Adviser or its affiliates, that is formed in the future that, from time to time, may hold various financial assets
in a principal capacity.
“Future Regulated
Fund” means any closed-end management investment company (a) that is registered under the Act or has elected to be
regulated as a BDC, (b) whose investment adviser (and sub-adviser(s), if any) is an Adviser, and (c) that intends to participate
in the Co-Investment Program.
“Independent Director”
means a member of the Board of any relevant entity who is not an “interested person” as defined in Section 2(a)(19) of
the Act. No Independent Director of a Regulated Fund (including any non-interested member of an Independent Party) will have a financial
interest in any Co-Investment Transaction, other than indirectly through share ownership in one of the Regulated Funds.
“Independent Party”
means, with respect to a BDC Downstream Fund, (i) if the BDC Downstream Fund has a board of directors (or the equivalent), the board
or (ii) if the BDC Downstream Fund does not have a board of directors (or the equivalent), a transaction committee or advisory committee
of the BDC Downstream Fund.
“JT No-Action
Letters” means SMC Capital, Inc., SEC No-Action Letter (pub. avail. Sept. 5, 1995) and Massachusetts Mutual
Life Insurance Company, SEC No-Action Letter (pub. avail. June 7, 2000).
“Objectives and
Strategies” means (i) with respect to any Regulated Fund other than a BDC Downstream Fund, its investment objectives
and strategies, as described in its most current registration statement on Form 10 or N-2, other current filings with the Commission
under the Securities Act or under the Securities Exchange Act of 1934, as amended, and its most current report to stockholders, and (ii) with
respect to any BDC Downstream Fund, those investment objectives and strategies described in its disclosure documents (including private
placement memoranda and reports to equity holders) and organizational documents (including operating agreements).
“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.
“Pre-Boarding
Investments” are investments in an issuer held by a Regulated Fund as well as one or more Affiliated Funds and/or one or
more other Regulated Funds that were acquired prior to participating in any Co-Investment Transaction:
(i) in
transactions in which the only term negotiated by or on behalf of such funds was price in reliance on one of the JT No-Action Letters;
or
(ii) in
transactions occurring at least 90 days apart and without coordination between the Regulated Fund and any Affiliated Fund or other Regulated
Fund.
“Proprietary Accounts”
means, collectively, the Existing Proprietary Accounts and Future Proprietary Accounts.
“Regulated Funds”
means ECC, EIC, EPIIF, the Future Regulated Funds and the BDC Downstream Funds.
“Related Party”
means (i) any Close Affiliate and (ii) in respect of matters as to which any Adviser has knowledge, any Remote Affiliate.
“Remote Affiliate”
means any person described in Section 57(e) in respect of any Regulated Fund (treating any registered investment company or
series thereof as a BDC for this purpose) and any limited partner holding 5% or more of the relevant limited partner interests that would
be a Close Affiliate but for the exclusion in that definition.
“Required Majority”
means a required majority, as defined in Section 57(o) of the Act.8
“SBIC Subsidiary”
means a Wholly-Owned Investment Sub that is licensed by the Small Business Administration (the “SBA”) to operate
under the Small Business Investment Act of 1958, as amended, (the “SBA Act”) as a small business investment
company (an “SBIC”).
“Tradable Security”
means a security that meets the following criteria at the time of Disposition:
(i) it
trades on a national securities exchange or designated offshore securities market as defined in rule 902(b) under the Securities
Act;
(ii) it
is not subject to restrictive agreements with the issuer or other security holders; and
(iii) it
trades with sufficient volume and liquidity (findings as to which are documented by the Advisers to any Regulated Funds holding investments
in the issuer and retained for the life of the Regulated Fund) to allow each Regulated Fund to dispose of its entire position remaining
after the proposed Disposition within a short period of time not exceeding 30 days at approximately the value (as defined by Section 2(a)(41)
of the Act) at which the Regulated Fund has valued the investment.
“Wholly-Owned Investment
Sub” means an entity (i) that is a wholly-owned subsidiary9 of a Regulated Fund (with such Regulated Fund at
all times holding, beneficially and of record, directly or indirectly, 95% or more of the voting and economic interests); (ii) whose
sole business purpose is to hold one or more investments on behalf of such Regulated Fund (and, in the case of an SBIC Subsidiary, maintain
a license under the SBA Act and issue debentures guaranteed by the SBA); (iii) with respect to which such Regulated Fund’s
Board has the sole authority to make all determinations with respect to the entity’s participation under the Conditions to this
Application; and (iv) (A) that would be an investment company but for Section 3(c)(1), 3(c)(5)(C), or 3(c)(7) of
the Act, or (B) that qualifies as a real estate investment trust (“REIT”) within the meaning of Section 856
of the Internal Revenue Code (“Code”) because substantially all of its assets would consist of real properties.
8
In the case of a Regulated Fund that is a registered closed-end fund, the Board members that make up the Required Majority
will be determined as if the Regulated Fund were a BDC subject to Section 57(o). In the case of a BDC Downstream Fund with a board of
directors (or the equivalent), the members that make up the Required Majority will be determined as if the BDC Downstream Fund were a
BDC subject to Section 57(o). In the case of a BDC Downstream Fund with a transaction committee or advisory committee, the committee
members that make up the Required Majority will be determined as if the BDC Downstream Fund were a BDC subject to Section 57(o) and as
if the committee members were directors of the fund.
9
A “wholly-owned subsidiary” of a person is as defined in Section 2(a)(43) of the Act and means a company 95%
or more of the outstanding voting securities of which are owned by such person.
II. APPLICANTS
A. The
Regulated Funds
ECC is an externally managed,
non-diversified closed-end management investment company registered under the Act. ECC was initially formed on March 24, 2014 as
Eagle Point Credit Company LLC, a Delaware limited liability company and a wholly-owned subsidiary of Eagle Point Credit Partners Sub
Ltd., a Cayman Island exempted company, which, in turn, is a subsidiary of Eagle Point Credit Partners LP, a private fund managed by the
EPCM. ECC commenced operations on June 6, 2014. On October 6, 2014, ECC converted from a Delaware limited liability company
into a Delaware corporation. On October 7, 2014, ECC priced its initial public offering and on October 8, 2014, ECC’s
shares began trading on the New York Stock Exchange (“NYSE”). ECC has elected to be treated, and intends to
operate so as to qualify annually, as a regulated investment company (“RIC”) under subchapter M of the Code,
for federal income tax purposes. ECC is managed by EPCM pursuant to an investment advisory agreement.
EIC is an externally managed,
diversified closed-end management investment company registered under the Act. EIC was initially formed on September 28, 2018 as
EP Income Company LLC, a Delaware limited liability company. EIC commenced operations on October 4, 2018. On October 16, 2018,
EIC converted from a Delaware limited liability company into a Delaware corporation. On July 23, 2019, EIC priced its initial public
offering and on July 24, 2019, EIC’s shares began trading on the NYSE. EIC has elected to be treated, and intends to operate
so as to qualify annually, as a RIC under subchapter M of the Code, for federal income tax purposes. EIC is managed by EPIM pursuant to
an investment advisory agreement.
EPIIF is a Delaware statutory
trust and an externally managed, non-diversified closed-end management investment company registered under the Act. EPIIF commenced operations
on June 1, 2022 and is offering its shares of beneficial interest on a continuous basis at the applicable period end net asset value
per share plus any applicable sales loads and operates as a tender offer fund. EPIIF has elected to be treated, and intends to operate
so as to qualify annually, as a RIC under subchapter M of the Code, for federal income tax purposes. EPIIF is managed by EPCM pursuant
to an investment advisory agreement.
The business and affairs of
each Regulated Fund will be managed under the direction of a board, each of which currently consists of six members, four of whom are
Independent Directors. No Independent Director of a Regulated Fund, as the case may be, will have any financial interest in any Co-Investment
Transaction, including a Follow-on Investment, or any interest in any portfolio company, other than indirectly through share ownership
(if any) in the Regulated Fund of which they are a board member.
B. Existing
Affiliated Funds
All Existing Affiliated Funds
are investment vehicles, each of which is a separate and distinct legal entity that would be an investment company but for Section 3(c)(1) or
3(c)(7) of the Act. A list setting out the Existing Affiliated Funds is included on Schedule A hereto.
C. EPCM
and EPIM
EPCM is organized as a limited
liability company under the laws of the state of Delaware. EPCM is registered with the Commission pursuant to Section 203 of the
Advisers Act and serves as the investment adviser to ECC and EPIIF and each of the Existing Affiliated Funds. EPCM is primarily owned
by certain funds managed by Stone Point Capital LLC (“Stone Point” and the “Trident Funds”) through
intermediary holding companies. Additionally, EPCM’s Senior Investment Team and certain other employees of EPCM also hold indirect
ownership interests in EPCM. EPCM is ultimately governed through intermediary holding companies by a board of managers, which includes
Thomas P. Majewski, the founder and managing partner of EPCM, and certain principals of Stone Point (the “Adviser’s Board
of Managers”).
EPIM is organized as a limited
liability company under the laws of the state of Delaware. EPIM is registered with the Commission pursuant to Section 203 of the
Advisers Act and serves as the investment adviser to the EIC. EPIM is primarily owned by certain of the Trident Funds through intermediary
holding companies. Additionally, EPIM’s senior investment team, certain other employees of EPIM, and an affiliate of Enstar Group
Limited hold indirect ownership interests in EPIM. EPIM is ultimately governed through intermediary holding companies by the Adviser’s
Board of Managers.
D. Existing
Proprietary Accounts
The Existing Proprietary Accounts, identified
in Schedule B hereto, are accounts used by EPCM and certain of its affiliates to hold various financial assets in a principal capacity.
III. ORDER
REQUESTED
The Applicants respectfully
request an Order of the Commission under Sections 17(d) and 57(i) of the Act and Rule 17d-1 thereunder to permit, subject
to the terms and Conditions set forth below in this Application, a Regulated Fund and one or more other Regulated Funds and/or one or
more Affiliated Funds to enter into Co-Investment Transactions with each other.
The Regulated Funds and the
Affiliated Funds seek relief to enter into Co-Investment Transactions because such Co-Investment Transactions would otherwise be prohibited
by either or both of Section 17(d) or Section 57(a)(4) and the Rules under the Act. This Application seeks relief
in order to (i) enable the Regulated Funds and Affiliated Funds to avoid, among other things, the practical commercial and/or economic
difficulties of trying to structure, negotiate and persuade counterparties to enter into transactions while awaiting the granting of the
relief requested in individual applications with respect to each Co-Investment Transaction that arises in the future and (ii) enable
the Regulated Funds and the Affiliated Funds to avoid the significant legal and other expenses that would be incurred in preparing such
individual applications.
In Section A.1 below,
the Applicants first discuss the overall investment process that would apply to initial investments under the Order as well as subsequent
transactions with issuers. In Sections A.3 and A.4 below, the Applicants discuss additional procedures that apply to Follow-On Investments
and Dispositions, including the onboarding process that applies when initial investments were made without relying on the Order.
A. Overview
The Advisers are specialized
asset managers that focus in credit-oriented investment strategies. The three members of the Advisers’ senior investment team collectively
have around 60 years of industry experience. EPCM currently manages ECC and EPIIF, each of the Existing Affiliated Funds, and numerous
separately managed accounts, pursuant to a variety of credit-oriented investment mandates. EPIM currently manages EIC and focuses on investing
in collateralized loan obligations. As of June 30, 2023, the Advisers had over $8.2 billion of assets under management (inclusive
of undrawn capital commitments) in aggregate. The Advisers (including their affiliates) may hold various financial assets in a principal
capacity from time to time. Each Adviser is registered as an investment adviser with the Commission. Each Adviser manages the assets entrusted
to it by its clients in accordance with its fiduciary duty to those clients and, in the case of ECC, EIC, EPIIF and the Future Regulated
Funds, the Act.
The Advisers identify numerous
private placement opportunities each year on behalf of their clients, and must determine how to allocate those opportunities in a manner
that, over time, is fair and equitable to all of their clients, and without violating the prohibitions on joint transactions included
in Rule 17d-1 and Section 57(a)(4) of the Act. Such investment opportunities may necessitate or otherwise benefit from
multiple clients investing jointly. In those cases, the Advisers may not include a Regulated Fund in the allocation if another Regulated
Fund and/or any Affiliated Fund is participating, absent exemptive relief from the Commission. Once invested in a security, the Regulated
Funds and Affiliated Funds often have the opportunity to either complete an additional investment in the same issuer or exit the investment
in a transaction that may be a joint transaction. Currently, if a Regulated Fund and one or more Affiliated Funds are invested in an issuer
such funds may not participate in a Follow-On Investment or exit the investment if the terms of the transaction would be a prohibited
joint transaction (unless it is executed in compliance with the Prior Order).
As a result, the Regulated
Funds and Affiliated Funds are limited in the types of transactions in which they can participate with each other, and in the absence
of the requested relief the Regulated Funds would be required to forego certain transactions that would be beneficial to investors in
the Regulated Funds. Thus, the Applicants are seeking the relief requested by the Application for certain initial investments, Follow-On
Investments, and Dispositions as described below.
The Applicants discuss the
need for the requested relief in greater detail in Section III.C. below. The Applicants represent that the Advisers have established
rigorous processes for ensuring compliance with the Prior Order and for allocating initial investment opportunities, opportunities for
subsequent investments in an issuer and dispositions of securities holdings reasonably designed to treat all clients fairly and equitably.
As discussed below, these processes will be extended and modified in a manner reasonably designed to ensure that the additional transactions
permitted under the Order will both (i) be fair and equitable to the Regulated Funds and the Affiliated Funds and (ii) comply
with the Conditions contained in the Order.
1. The
Investment Process
The investment process consists
of three stages: (i) the identification and consideration of investment opportunities (including follow-on investment opportunities);
(ii) order placement and allocation; and (iii) consideration by each applicable Regulated Fund’s Board when a Potential
Co-Investment Transaction is being considered by one or more Regulated Funds, as provided by the Order.
(a). Identification
and Consideration of Investment Opportunities
The Advisers are organized
and managed such that investment committees (or designated individuals or portfolio managers in lieu of investment committees, as applicable)
(collectively, “Investment Committees”)10 conduct investment review processes and approve specific
investment decisions.
10
Investment Committees responsible for an area of investment may include investment professionals and senior management from
among one or more of the Advisers.
Opportunities for Potential
Co-Investment Transactions may arise when the investment advisory personnel of an Adviser become aware of investment opportunities that
may be appropriate for one or more Regulated Funds and/or one or more Affiliated Funds. The Advisers maintain and implement policies and
procedures reasonably designed to ensure that, when such opportunities arise, the Advisers to the relevant Regulated Funds are promptly
notified and receive the same information about the opportunity as any other Advisers considering the opportunity for their clients. In
particular, consistent with Condition 1, if a Potential Co-Investment Transaction falls within the then-current Objectives and Strategies
and any Board-Established Criteria of a Regulated Fund, the policies and procedures will require that the relevant Investment Committee
responsible for that Regulated Fund receive sufficient information to allow such the Regulated Fund’s Adviser to make its independent
determination and recommendations under Conditions 1, 2(a), 6, 7, 8 and 9 (as applicable).11 In addition, the policies and
procedures will specify the individuals or roles responsible for carrying out the policies and procedures, including ensuring that the
Advisers receive such information. After receiving notification of a Potential Co-Investment Transaction under Condition 1(a), the Adviser
to each applicable Regulated Fund, working through the applicable Investment Committee, will then make an independent determination of
the appropriateness of the investment for the Regulated Fund in light of the Regulated Fund’s then-current circumstances.
The Applicants represent that,
if the requested Order is granted, the investment advisory personnel of the Advisers to the Regulated Funds will be charged with making
sure they identify, and participate in this process with respect to, each investment opportunity that falls within the Objectives and
Strategies and Board-Established Criteria of each Regulated Fund. The Applicants assert that the Advisers’ allocation policies and
procedures are structured so that the relevant investment advisory personnel of the Advisers to each Regulated Fund will be promptly notified
of all Potential Co-Investment Transactions that fall within the then-current Objectives and Strategies and Board-Established Criteria
of such Regulated Fund and that the Advisers will undertake to perform these duties regardless of whether the Advisers serve as investment
adviser or sub-adviser to such Regulated Fund or Affiliated Funds.
(b). Order
Placement and Allocation
General.
If the Adviser to a Regulated Fund deems the Regulated Fund’s participation in any Potential Co-Investment Transaction to be appropriate,
it will, working through the applicable Investment Committee(s), formulate a recommendation regarding the proposed order amount for the
Regulated Fund. In doing so, the Adviser and the applicable Investment Committee(s) may consider such factors, among others, as investment
guidelines, issuer, industry and geographical concentration, availability of cash and other opportunities for which cash is needed, tax
considerations, leverage covenants, regulatory constraints (such as requirements under the Act), investment horizon, potential liquidity
needs, and the Regulated Fund’s risk concentration policies.
11
Representatives from each Adviser to a Regulated Fund are members of each applicable Investment Committee or otherwise entitled
to participate in each meeting of any Investment Committee that is expected to approve or reject recommended investment opportunities
falling within its Regulated Funds’ Objectives and Strategies and Board-Established Criteria. Accordingly, the policies and procedures
may provide, for example, that an Adviser will receive the information required under Condition 1 in conjunction with its representatives’
participation in the relevant Investment Committee’s meetings. The allocation memorandum for each Potential Co-Investment Transaction
will document the recommendations by the Investment Committee.
Allocation
Procedure. For each Regulated Fund and Affiliated Fund whose Adviser, through its Investment Committee, recommends participating
in a Potential Co-Investment Transaction, the applicable Investment Committee will approve the investment(s) and the investment amount(s).
Prior to the External Submission (as defined below), each proposed order or investment amount may be reviewed and adjusted, in accordance
with the applicable Adviser’s written allocation policies and procedures.12
The order of a Regulated Fund or Affiliated Fund resulting from this process is referred to as its “Internal Order”.
The Internal Order will be submitted for approval by the Required Majority of any participating Regulated Funds in accordance with the
Conditions and as discussed in Section III.A.1.c. below.
If the aggregate Internal
Orders for a Potential Co-Investment Transaction do not exceed the size of the investment opportunity immediately prior to the submission
of the orders to the underwriter, broker, dealer or issuer, as applicable (the “External Submission”), then
each Internal Order will be fulfilled as placed. If, on the other hand, the aggregate Internal Orders for a Potential Co-Investment Transaction
exceed the size of the investment opportunity immediately prior to the External Submission, then the allocation of the opportunity will
be made pro rata on the basis of the size of the Internal Orders.13 If, subsequent to such External Submission, the size
of the opportunity is increased or decreased, or if the terms of such opportunity, or the facts and circumstances applicable to the Regulated
Funds’ or the Affiliated Funds’ consideration of the opportunity, change, the participants will be permitted to submit revised
Internal Orders in accordance with written allocation policies and procedures that the Advisers will establish, implement and maintain.
The Board of the Regulated Fund will then either approve or disapprove of the investment opportunity in accordance with Condition 2, 6,
7, 8 or 9, as applicable.
Compliance.
The Applicants represent that the Advisers’ allocation review process is a robust process designed as part of their overall compliance
policies and procedures to ensure that every client is treated fairly and that the Advisers are following their allocation policies. The
entire allocation process is monitored and reviewed by the Advisers’ compliance team, led by the chief compliance officer, and approved
by the Board of each Regulated Fund as it applies to such Regulated Fund.
(c). Approval
of Potential Co-Investment Transactions
A Regulated Fund will enter
into a Potential Co-Investment Transaction with one or more other Regulated Funds and/or Affiliated Funds only if, prior to the Regulated
Fund’s participation in the Potential Co-Investment Transaction, the Required Majority approves it in accordance with the Conditions
of this Order.
In the case of a BDC Downstream
Fund with an Independent Party consisting of a transaction committee or advisory committee, the individuals on the committee would possess
experience and training comparable to that of the directors of the parent Regulated Fund and sufficient to permit them to make informed
decisions on behalf of the applicable BDC Downstream Fund. The use of Independent Parties for BDC Downstream Funds results in a standard
of approval that the Applicants believe is equally as stringent as the standard of approval that a board of directors would apply. Most
importantly, the Applicants represent that the Independent Parties of the BDC Downstream Funds would be bound (by law or by contract)
by fiduciary duties comparable to those applicable to the directors of the parent Regulated Fund, including a duty to act in the best
interests of their respective funds when approving transactions. These duties would apply in the case of all Potential Co-Investment Transactions,
including transactions that could present a conflict of interest.
12
The reason for any such adjustment to a proposed order amount will be documented in writing and preserved in the records
of each Adviser.
13
The Advisers will maintain records of all proposed order amounts, Internal Orders and External Submissions in conjunction
with Potential Co-Investment Transactions. Each applicable Adviser will provide the Eligible Directors with information concerning the
Affiliated Funds’ and Regulated Funds’ order sizes to assist the Eligible Directors with their review of the applicable Regulated
Fund’s investments for compliance with the Conditions.
Further, the Applicants believe
that the existence of differing routes of approval between the BDC Downstream Funds and other Regulated Funds would not result in the
Applicants investing through the BDC Downstream Funds in order to avoid obtaining the approval of a Regulated Fund’s Board. Each
Regulated Fund and BDC Downstream Fund has its own Objectives and Strategies and may have its own Board-Established Criteria, the implementation
of which depends on the specific circumstances of the entity’s portfolio at the time an investment opportunity is presented. As
noted above, consistent with its duty to its BDC Downstream Funds, the Independent Party must reach a conclusion on whether or not an
investment is in the best interest of its relevant BDC Downstream Funds. An investment made solely to avoid an approval requirement at
the Regulated Fund level should not be viewed as in the best interest of the entity in question and, thus, would not be approved by the
Independent Party.
A Regulated Fund may participate
in Pro Rata Dispositions (defined below) and Pro Rata Follow-On Investments (defined below) without obtaining prior approval of the Required
Majority in accordance with Conditions 6(c)(i) and 8(b)(i).
2. Delayed
Settlement
All Regulated Funds and Affiliated
Funds participating in a Co-Investment Transaction will invest at the same time, for the same price and with the same terms, conditions,
class, registration rights and any other rights, so that none of them receives terms more favorable than any other. However, the settlement
date for an Affiliated Fund in a Co-Investment Transaction may occur up to ten business days after the settlement date for the Regulated
Fund, and vice versa. Nevertheless, in all cases, (i) the date on which the commitment of the Affiliated Funds and Regulated Funds
is made will be the same even where the settlement date is not and (ii) the earliest settlement date and the latest settlement date
of any Affiliated Fund or Regulated Fund participating in the transaction will occur within ten business days of each other.
3. Permitted
Follow-On Investments and Approval of Follow-On Investments
From time to time the Regulated
Funds and Affiliated Funds may have opportunities to make Follow-On Investments in an issuer in which a Regulated Fund and one or more
other Regulated Funds and/or Affiliated Funds previously have invested and continue to hold an investment. If the Order is granted, Follow-On
Investments will be made in a manner that, over time, is fair and equitable to all of the Regulated Funds and Affiliated Funds and in
accordance with the proposed procedures discussed above and with the Conditions of the Order. The Order, if granted, would permit Affiliated
Funds to participate in Follow-On Investments in issuers in which at least one Regulated Fund is invested but such Affiliated Funds are
not invested. This relief would not permit Follow-On Investments by Regulated Funds that are not invested in the issuer.
The Order would divide Follow-On
Investments into two categories depending on whether the Regulated Funds and Affiliated Funds holding investments in the issuer previously
participated in a Co-Investment Transaction with respect to the issuer and continue to hold any securities acquired in a Co-Investment
Transaction for that issuer. If such Regulated Funds and Affiliated Funds have previously participated in a Co-Investment Transaction
with respect to the issuer, then the terms and approval of the Follow-On Investment would be subject to the process discussed in Section III.A.3.a.
below and governed by Condition 8. These Follow-On Investments are referred to as “Standard Review Follow-Ons.” If such Regulated
Funds and Affiliated Funds hold Pre-Boarding Investments and have not previously participated in a Co-Investment Transaction with respect
to the issuer, then the terms and approval of the Follow-On Investment would be subject to the “onboarding process” discussed
in Section III.A.3.b. below and governed by Condition 9. These Follow-On Investments are referred to as “Enhanced Review Follow-Ons.”
(a). Standard
Review Follow-Ons
A Regulated Fund may invest
in Standard Review Follow-Ons either with the approval of the Required Majority using the procedures required under Condition 8(c) or,
where certain additional requirements are met, without Board approval under Condition 8(b).
A Regulated Fund may participate
in a Standard Review Follow-On without obtaining the prior approval of the Required Majority if it is (i) a Pro Rata Follow-On Investment
or (ii) a Non-Negotiated Follow-On Investment.
A “Pro Rata Follow-On
Investment” is a Follow-On Investment (i) in which the participation of each Affiliated Fund and each Regulated Fund
is proportionate to its outstanding investments in the issuer or security, as appropriate,14 immediately preceding the Follow-On
Investment, and (ii) in the case of a Regulated Fund, a majority of the Board has approved the Regulated Fund’s participation
in pro rata Follow-On Investments as being in the best interests of the Regulated Fund. The Regulated Fund’s Board may refuse to
approve, or at any time rescind, suspend or qualify, their approval of Pro Rata Follow-On Investments, in which case all subsequent Follow-On
Investments will be submitted to the Regulated Fund’s Eligible Directors in accordance with Condition 8(c).
A “Non-Negotiated
Follow-On Investment” is a Follow-On Investment in which a Regulated Fund participates together with one or more Affiliated
Funds and/or one or more other Regulated Funds (i) in which the only term negotiated by or on behalf of the funds is price and (ii) with
respect to which, if the transaction were considered on its own, the funds would be entitled to rely on one of the JT No-Action Letters.
The Applicants believe that
these Pro Rata and Non-Negotiated Follow-On Investments do not present a significant opportunity for overreaching on the part of any Adviser
and thus do not warrant the time or the attention of the Board. Pro Rata Follow-On Investments and Non-Negotiated Follow-On Investments
remain subject to the Board’s periodic review in accordance with Condition 10.
(b). Enhanced
Review Follow-Ons
One or more Regulated Funds
and/or one or more Affiliated Funds holding Pre-Boarding Investments may have the opportunity to make a Follow-On Investment that is a
Potential Co-Investment Transaction in an issuer with respect to which they have not previously participated in a Co-Investment Transaction.
In these cases, the Regulated Funds and Affiliated Funds may rely on the Order to make such Follow-On Investment subject to the requirements
of Condition 9. These enhanced review requirements constitute an “onboarding process” whereby Regulated Funds and Affiliated
Funds may utilize the Order to participate in Co-Investment Transactions even though they already hold Pre-Boarding Investments. For a
given issuer, the participating Regulated Funds and Affiliated Funds need to comply with these requirements only for the first Co-Investment
Transaction. Subsequent Co-Investment Transactions with respect to the issuer will be governed by Condition 8 under the standard review
process.
14
See note 31, below.
4. Dispositions
The Regulated Funds and Affiliated
Funds may be presented with opportunities to sell, exchange or otherwise dispose of securities in a transaction that would be prohibited
by Rule 17d-1 or Section 57(a)(4), as applicable. If the Order is granted, such Dispositions will be made in a manner that,
over time, is fair and equitable to all of the Regulated and Affiliated Funds and in accordance with procedures set forth in the proposed
Conditions to the Order and discussed below.
The Order would divide these
Dispositions into two categories: (i) if the Regulated Funds and Affiliated Funds holding investments in the issuer have previously
participated in a Co-Investment Transaction with respect to the issuer and continue to hold any securities acquired in a Co-Investment
Transaction for such issuer, then the terms and approval of the Disposition (hereinafter referred to as “Standard Review Dispositions”)
would be subject to the process discussed in Section III.A.4.a. below and governed by Condition 6; and (ii) if the Regulated
Funds and Affiliated Funds have not previously participated in a Co-Investment Transaction with respect to the issuer, then the terms
and approval of the Disposition (hereinafter referred to as “Enhanced Review Dispositions”) would be subject to the same “onboarding
process” discussed in Section III.A.4.b. below, and governed by Condition 7.
(a). Standard
Review Dispositions
A Regulated Fund may participate
in a Standard Review Disposition either with the approval of the Required Majority using the standard procedures required under Condition
6(d) or, where certain additional requirements are met, without Board approval under Condition 6(c).
A Regulated Fund may participate
in a Standard Review Disposition without obtaining the prior approval of the Required Majority if (i) the Disposition is a Pro Rata
Disposition or (ii) the securities are Tradable Securities and the Disposition meets the other requirements of Condition 6(c)(ii).
A “Pro Rata Disposition”
is a Disposition (i) in which the participation of each Affiliated Fund and each Regulated Fund is proportionate to its outstanding
investment in the security subject to Disposition immediately preceding the Disposition;15 and (ii) in the case of a
Regulated Fund, a majority of the Board has approved the Regulated Fund’s participation in pro rata Dispositions as being in the
best interests of the Regulated Fund. The Regulated Fund’s Board may refuse to approve, or at any time rescind, suspend or qualify,
their approval of Pro Rata Dispositions, in which case all subsequent Dispositions will be submitted to the Regulated Fund’s Eligible
Directors.
In the case of a Tradable
Security, approval of the required majority is not required for the Disposition if: (x) the Disposition is not to the issuer or any
affiliated person of the issuer;16 and (y) the security is sold for cash in a transaction in which the only term negotiated
by or on behalf of the participating Regulated Funds and Affiliated Funds is price. Pro Rata Dispositions and Dispositions of a Tradable
Security remain subject to the Board’s periodic review in accordance with Condition 10.
15
See note 29, below.
16
In the case of a Tradable Security, Dispositions to the issuer or an affiliated person of the issuer are not permitted so
that funds participating in the Disposition do not benefit to the detriment of Regulated Funds that remain invested in the issuer. For
example, if a Disposition of a Tradable Security were permitted to be made to the issuer, the issuer may be reducing its short term assets
(i.e., cash) to pay down long term liabilities.
(b). Enhanced
Review Dispositions
One or more Regulated Funds
and one or more Affiliated Funds that have not previously participated in a Co-Investment Transaction with respect to an issuer may have
the opportunity to make a Disposition of Pre-Boarding Investments in a Potential Co-Investment Transaction. In these cases, the Regulated
Funds and Affiliated Funds may rely on the Order to make such Disposition subject to the requirements of Condition 7. As discussed above,
with respect to investment in a given issuer, the participating Regulated Funds and Affiliated Funds need only complete the onboarding
process for the first Co-Investment Transaction, which may be an Enhanced Review Follow-On or an Enhanced Review Disposition.17
Subsequent Co-Investment Transactions with respect to the issuer will be governed by Condition 6 or 8 under the standard review process.
5. Use
of Wholly-Owned Investment Subs
A Regulated Fund may, from
time to time, form one or more Wholly-Owned Investment Subs. Such a subsidiary may be prohibited from investing in a Co-Investment Transaction
with a Regulated Fund (other than its parent) or any Affiliated Fund because it would be a company controlled by its parent Regulated
Fund for purposes of Section 57(a)(4) and Rule 17d-1. The Applicants request that each Wholly-Owned Investment Sub be permitted
to participate in Co-Investment Transactions in lieu of the applicable parent Regulated Fund that owns it 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.
Applicants note that an entity
could not be both a Wholly-Owned Investment Sub and a BDC Downstream Fund because, in the former case, the Board of the parent Regulated
Fund makes any determinations regarding the subsidiary’s investments while, in the latter case, the Independent Party makes such
determinations.
B. Applicable
Law
1. Section 17(d) and
Section 57(a)(4)
Section 17(d) of
the Act generally prohibits an affiliated person (as defined in Section 2(a)(3) of the Act), or an affiliated person of such
affiliated person, of a registered investment company acting as principal, from effecting any transaction in which the registered investment
company is a joint or a joint and several participant, in contravention of such rules as the Commission may prescribe for the purpose
of limiting or preventing participation by the registered investment company on a basis different from or less advantageous than that
of such other participant.
17
However, with respect to an issuer, if a Regulated Fund’s first Co-Investment Transaction is an Enhanced Review Disposition,
and the Regulated Fund does not dispose of its entire position in the Enhanced Review Disposition, then before such Regulated Fund may
complete its first Standard Review Follow-On in such issuer, the Eligible Directors must review the proposed Follow-On Investment not
only on a stand-alone basis but also in relation to the total economic exposure in such issuer (i.e., in combination with the portion
of the Pre-Boarding Investment not disposed of in the Enhanced Review Disposition), and the other terms of the investments. This additional
review is required because such findings were not required in connection with the prior Enhanced Review Disposition, but they would have
been required had the first Co-Investment Transaction been an Enhanced Review Follow-On.
Similarly, with regard to
BDCs, Section 57(a)(4) prohibits certain persons specified in Section 57(b) from participating in a joint transaction
with the BDC, or a company controlled by the BDC, in contravention of rules as prescribed by the Commission. In particular, Section 57(a)(4) applies
to:
| · | Any director, officer, employee, or member of an advisory board of a BDC or any person (other than the
BDC itself) who is an affiliated person of the forgoing pursuant to Section 2(a)(3)(C); or |
| · | Any investment adviser or promoter of, general partner in, principal underwriter for, or person directly
or indirectly either controlling, controlled by, or under common control with, a BDC (except the BDC itself and any person who, if it
were not directly or indirectly controlled by the BDC, would not be directly or indirectly under the control of a person who controls
the BDC);18 or any person who is an affiliated
person of any of the forgoing within the meaning of Section 2(a)(3)(C) or (D). |
Pursuant to the foregoing
application of Section 57(a)(4), BDC Downstream Funds on the one hand and other Regulated Funds and Affiliated Funds on the other,
may not co-invest absent an exemptive order because the BDC Downstream Funds are controlled by a BDC and the Affiliated Funds and other
Regulated Funds are included in Section 57(b).
Section 2(a)(3)(C) defines
an “affiliated person” of another person to include any person directly or indirectly controlling, controlled by, or under
common control with, such other person. Section 2(a)(3)(D) defines “any officer, director, partner, copartner, or employee”
of an affiliated person as an affiliated person. Section 2(a)(9) defines “control” as the power to exercise a controlling
influence over the management or policies of a company, unless such power is solely the result of an official position with that company.
Under Section 2(a)(9) a person who beneficially owns, either directly or through one or more controlled companies, more than
25% of the voting securities of a company is presumed to control such company. The Commission and its staff have indicated on a number
of occasions their belief that an investment adviser that provides discretionary investment management services to a fund and that sponsored,
selected the initial directors, and provides administrative or other non-advisory services to the fund, controls such fund, absent compelling
evidence to the contrary.19
2. Rule 17d-1
Rule 17d-1 generally
prohibits an affiliated person (as defined in Section 2(a)(3)), or an affiliated person of such affiliated person, of a registered
investment company acting as principal, from effecting any transaction in which the registered investment company, or a company controlled
by such registered company, is a joint or a joint and several participant, in contravention of such rules as the Commission may prescribe
for the purpose of limiting or preventing participation by the registered investment company on a basis different from or less advantageous
than that of such first or second tier affiliate. Rule 17d-1 generally prohibits participation by a registered investment company
and an affiliated person (as defined in Section 2(a)(3)) or principal underwriter for that investment company, or an affiliated person
of such affiliated person or principal underwriter, in any “joint enterprise or other joint arrangement or profit-sharing plan,”
as defined in the rule, without prior approval by the Commission by order upon application.
18
Also excluded from this category by Rule 57b-1 is any person who would otherwise be included (a) solely because that person
is directly or indirectly controlled by a BDC, or (b) solely because that person is, within the meaning of Section 2(a)(3)(C) or (D),
an affiliated person of a person described in (a) above.
19
See, e.g., SEC Rel. No. IC-4697 (Sept. 8, 1966) (“For purposes of Section 2(a)(3)(C), affiliation based upon
control would depend on the facts of the given situation, including such factors as extensive interlocks of officers, directors or key
personnel, common investment advisers or underwriters, etc.”); Lazard Freres Asset Management, SEC No-Action Letter (pub. avail.
Jan. 10, 1997) (“While, in some circumstances, the nature of an advisory relationship may give an adviser control over its client’s
management or policies, whether an investment company and another entity are under common control is a factual question…”).
Rule 17d-1 was promulgated
by the Commission pursuant to Section 17(d) and made applicable to persons subject to Sections 57(a) and (d) by Section 57(i) to
the extent specified therein. Section 57(i) provides that, until the Commission prescribes rules under Sections 57(a) and
(d), the Commission’s rules under Section 17(d) applicable to registered closed-end investment companies will be
deemed to apply to persons subject to the prohibitions of Section 57(a) or (d). Because the Commission has not adopted any rules under
Section 57(a) or (d), Rule 17d-1 applies to persons subject to the prohibitions of Section 57(a) or (d).
The Applicants seek relief
pursuant to Rule 17d-1, which permits the Commission to authorize joint transactions upon application. In passing upon applications
filed pursuant to Rule 17d-1, the Commission is directed by Rule 17d-1(b) to consider whether the participation of a registered
investment company or controlled company thereof in the joint enterprise or joint arrangement under scrutiny is consistent with provisions,
policies and purposes of the Act and the extent to which such participation is on a basis different from or less advantageous than that
of other participants.
The Commission has stated
that Section 17(d), upon which Rule 17d-1 is based, and upon which Section 57(a)(4) was modeled, was designed to protect
investment companies from self-dealing and overreaching by insiders. The Commission has also taken notice that there may be transactions
subject to these prohibitions that do not present the dangers of overreaching.20 The Court of Appeals for the Second Circuit
has enunciated a like rationale for the purpose behind Section 17(d): “The objective of [Section] 17(d)…is to prevent…injuring
the interest of stockholders of registered investment companies by causing the company to participate on a basis different from or less
advantageous than that of such other participants.”21 Furthermore, Congress acknowledged that the protective system
established by the enactment of Section 57 is “similar to that applicable to registered investment companies under Section 17,
and rules thereunder, but is modified to address concerns relating to unique characteristics presented by business development companies.”22
Applicants believe that the Conditions would ensure
that the conflicts of interest that Section 17(d) and Section 57(a)(4) were designed to prevent would be addressed
and the standards for an order under Rule 17d-1 and Section 57(i) would be met.
C. Need
for Relief
Co-Investment Transactions
are prohibited by either or both of Rule 17d-1 and Section 57(a)(4) without a prior exemptive order of the Commission,
to the extent that the Affiliated Funds and the Regulated Funds participating in such transactions fall within the category of persons
described by Rule 17d-1 and/or Section 57(b), as modified by Rule 57b-1 thereunder, as applicable, vis-à-vis each
participating Regulated Fund.
Each of the participating
Regulated Funds and Affiliated Funds may be deemed to be affiliated persons vis-à-vis a Regulated Fund within the meaning of Section 2(a)(3) by
reason of common control because (i) EPCM serves as the investment adviser to, and may be deemed to control, each of the Existing
Affiliated Funds; and an Adviser to Affiliated Funds will be the investment adviser (and sub-adviser(s), if any) to, and may be deemed
to control, any Future Affiliated Fund; (ii) EPCM serves as the investment adviser to, and may be deemed to control ECC and EPIIF,
and EPIM serves as the investment adviser to, and may be deemed to control EIC; and an Adviser to Regulated Funds will be the investment
adviser (and sub-adviser(s), if any) to, and may be deemed to control, any Future Regulated Fund; (iii) each Wholly-Owned Investment
Sub and BDC Downstream Fund will be deemed to be controlled by its Regulated Fund parent and/or its Regulated Fund parent’s investment
adviser; and (iv) the Advisers to Affiliated Funds and the Advisers to Regulated Funds are under common control. Thus, each of the
Affiliated Funds could be deemed to be a person related to the Regulated Funds, including any BDC Downstream Fund, in a manner described
by Section 57(b) and an affiliated person to the other Regulated Funds in a manner described by Rule 17d-1; and therefore
the prohibitions of Rule 17d-1 and Section 57(a)(4) would apply respectively to prohibit the Affiliated Funds from participating
in Co-Investment Transactions with the Regulated Funds. Each Regulated Fund could also be related to or an affiliated person of each other
Regulated Fund in a manner described by Section 57(b) or Rule 17d-1, as applicable, and thus prohibited from participating
in Co-Investment Transactions with each other.
20
See Protecting Investors: A Half-Century of Investment Company Regulation, 1504 Fed. Sec. L. Rep., Extra Edition
(May 29, 1992) at 488 et seq.
21
Securities and Exchange Commission v. Talley Industries, Inc., 399 F.2d 396, 405 (2d Cir. 1968), cert. denied,
393 U.S. 1015 (1969).
22
H.Rep. No. 96-1341, 96th Cong., 2d Sess. 45 (1980) reprinted in 1980 U.S.C.C.A.N. 4827.
In addition, because the Proprietary
Accounts are controlled by an Adviser and, therefore, may be under common control with ECC, EIC, EPIIF, EPCM, EPIM, and any Future Regulated
Funds, the Proprietary Accounts could be deemed to be persons related to the Regulated Funds (or a company controlled by the Regulated
Funds) in a manner described by Section 17(d) or Section 57(b) and also prohibited from participating in the Co-Investment
Program.
Further, because the BDC Downstream
Funds and Wholly-Owned Investment Subs are or will be controlled by the Regulated Funds, the BDC Downstream Funds and Wholly-Owned Investment
Subs are subject to Section 57(a)(4) (or Section 17(d) in the case of Wholly-Owned Investment Subs controlled by Regulated
Funds that are registered under the Act), and thus also subject to the provisions of Rule 17d-1, and therefore would be prohibited
from participating in Co-Investment Transactions without the Order.
D. Precedents
The Commission has issued
numerous exemptive orders under the Act permitting registered investment companies and BDCs to co-invest with affiliated persons.23
Although the various precedents involved somewhat different formulae, the Commission has accepted, as a basis for relief from the prohibitions
on joint transactions, use of allocation and approval procedures to protect the interests of investors in the BDCs and registered investment
companies. The relief requested in this Application with respect to Follow-On Investments is based on the temporary relief granted by
the Commission on April 8, 2020.24 The Applicants submit that the allocation procedures set forth in the Conditions
for relief are consistent with and expand the range of investor protections found in the orders we cite.
23
See, e.g., KKR Real Estate Select Trust Inc., et al. (File No. 812-15181) Investment Company Act Rel. Nos.
34962 (July 18, 2023) (notice) and 34985 (August 15, 2023) (order); Fidelity Private Credit Fund., et al. (File No. 812-15307)
Investment Company Act Rel. Nos. 34803 (January 11, 2023) (notice) and 34831 (February 13, 2023) (order); BlackRock Capital Investment
Corporation, et al. (File No. 812-15259) Investment Company Act Rel. Nos. 34535 (March 18, 2022) (notice) and 34558 (April 14, 2022)
(order); Commonwealth Credit Partners BDC I, Inc., et al., (File No. 812-15195) Release No. IC-34325 (July 7, 2021) (notice),
Release No. IC-34347 (August 2, 2021) (order); Kayne Anderson MLP/Midstream Investment Company, et al., (File No. 812-14940) Release
No. IC-33742 (January 8, 2020) (notice), Release No. IC-33798 (February 4, 2020) (order); Prospect Capital Corporation, et al.,
(File No. 812-14977) Release No. IC-33716 (December 16, 2019) (notice), Release No. IC-33745 (January 13, 2020) (order); New Mountain
Finance Corporation, et al., (File No. 812-15030) Release No. IC-33624 (September 12, 2019) (notice), Release No. IC-33656 (October
8, 2019) (order); John Hancock GA Mortgage Trust, et al. (File No. 812-14917) Release No. IC-33493 (May 28, 2019) (notice), Release
No. IC- 33518 (June 25, 2019) (order); BlackRock Capital Investment Corporation, et al. (File No. 812-14955) Release No. IC-33480
(May 21, 2019) (notice), Release No. IC- 33515 (June 20, 2019) (order); Nuveen Churchill BDC LLC, et al. (File No. 812-14898)
Release No. IC-33475 (May 15, 2019) (notice), Release No. IC-33503 (June 7, 2019) (order).
24
BDC Temporary Exemptive Order, Investment Company Act Rel. Nos. 33837 (April 8, 2020) (order) (extension granted January
5, 2021 and further extension granted April 22, 2021).
The Commission also has issued
orders extending co-investment relief to proprietary accounts.25
IV. STATEMENT
IN SUPPORT OF RELIEF REQUESTED
In accordance with Rule 17d-1
(made applicable to transactions subject to Section 57(a) by Section 57(i)), the Commission may grant the requested relief
as to any particular joint transaction if it finds that the participation of the Regulated Funds in the joint transaction is consistent
with the provisions, policies and purposes of the Act and is not on a basis different from or less advantageous than that of other participants.
The Applicants submit that allowing the Co-Investment Transactions described in this Application is justified on the basis of (i) the
potential benefits to the Regulated Funds and the shareholders thereof and (ii) the protections found in the Conditions.
As required by Rule 17d-1(b),
the Conditions ensure that the terms on which Co-Investment Transactions may be made will be consistent with the participation of the
Regulated Funds being on a basis that it is neither different from nor less advantageous than other participants, thus protecting the
equity holders of any participant from being disadvantaged. The Conditions ensure that all Co-Investment Transactions are reasonable and
fair to the Regulated Funds and their shareholders and do not involve overreaching by any person concerned, including the Advisers.
A. Potential
Benefits
In the absence of the relief
sought hereby, in many circumstances the Regulated Funds would be limited in their ability to participate in attractive and appropriate
investment opportunities. Section 17(d), Section 57(a)(4) and Rule 17d-1 should not prevent BDCs and registered closed-end
investment companies from making investments that are in the best interests of their shareholders.
Each Regulated Fund and its
shareholders will benefit from the ability to participate in Co-Investment Transactions. The Board, including the Required Majority, of
each Regulated Fund has determined that it is in the best interests of the Regulated Fund to participate in Co-Investment Transactions
because, among other matters, (i) the Regulated Fund should be able to participate in a larger number and greater variety of transactions;
(ii) the Regulated Fund should be able to participate in larger transactions; (iii) the Regulated Fund should be able to participate
in all opportunities approved by a Required Majority or otherwise permissible under the Order rather than risk underperformance through
rotational allocation of opportunities among the Regulated Funds; (iv) the Regulated Fund and any other Regulated Funds participating
in the proposed investment should have greater bargaining power, more control over the investment and less need to bring in other external
investors or structure investments to satisfy the different needs of external investors; (v) the Regulated Fund should be able to
obtain greater attention and better deal flow from investment bankers and others who act as sources of investments; and (vi) the
Conditions are fair to the Regulated Funds and their shareholders.
25
See, e.g., KKR Real Estate Select Trust Inc., et al. (File No. 812-15181) Investment Company Act Rel. Nos.
34962 (July 18, 2023) (notice) and 34985 (August 15, 2023) (order); KKR Income Opportunities Fund, et al. (File No. 812-14951-01)
Investment Company Act Rel. Nos. 34138A (Dec. 11, 2020) (notice) and 34164A (Jan. 5, 2021) (order) ; Prospect Capital Corporation,
et al. (File No. 812-14977) Investment Company Act Rel. Nos. 33716 (December 16, 2019) (notice) and 33745 (January 13, 2020) (order);
New Mountain Finance Corporation, et al. (File No. 812-15030) Investment Company Act Rel. Nos. 33624 (September 12, 2019) (notice)
and 33656 (October 8, 2019) (order); John Hancock GA Mortgage Trust, et al. (File No. 812-14917) Investment Company Act Rel. Nos.
33493 (May 28, 2019) (notice) and 33518 (June 25, 2019) (order), Stellus Capital Investment Corporation, et al. (File No. 812-14855)
Investment Company Act Rel. Nos. 33289 (November 6, 2018) (notice) and 33316 (December 4, 2018) (order); THL Credit, Inc., et al.
(File Nos. 812-14807) Investment Company Act Rel. Nos. 33213 (August 24, 2018) (notice) and 33239 (September 19, 2018) (order); Blackstone
/ GSO Floating Rate Enhanced Income Fund, et al. (File No. 812-14835) Investment Company Act Rel. Nos. 33149 (July 6, 2018) (notice)
and 33186 (July 31, 2018) (order); Benefit Street Partners BDC, Inc., et al. (File No. 812-14601) Investment Company Act Rel.
Nos. 33068 (April 6, 2018) (notice) and 33090 (May 1, 2018) (order).
B. Protective
Representations and Conditions
The Conditions 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. Specifically, the Conditions incorporate the following critical protections: (i) all
Regulated Funds participating in the Co-Investment Transactions will invest at the same time (except that, subject to the limitations
in the Conditions, the settlement date for an Affiliated Fund in a Co-Investment Transaction may occur up to ten business days after the
settlement date for the Regulated Fund, and vice versa), for the same price and with the same terms, conditions, class, registration rights
and any other rights, so that none of them receives terms more favorable than any other; (ii) a Required Majority of each Regulated
Fund must approve various investment decisions (not including transactions completed on a pro rata basis pursuant to Conditions 6(c)(i) and
8(b)(i) or otherwise not requiring Board approval) with respect to such Regulated Fund in accordance with the Conditions; and (iii) the
Regulated Funds are required to retain and maintain certain records.
The Applicants believe that
participation by the Regulated Funds in Pro Rata Follow-On Investments and Pro Rata Dispositions, as provided in Conditions 6(c)(i) and
8(b)(i), is consistent with the provisions, policies and purposes of the Act and will not be made on a basis different from or less advantageous
than that of other participants. A formulaic approach, such as pro rata investment or disposition eliminates the possibility for overreaching
and unnecessary prior review by the Board. The Applicants note that the Commission has adopted a similar pro rata approach in the context
of Rule 23c-2, which relates to the redemption by a closed-end investment company of less than all of a class of its securities,
indicating the general fairness and lack of overreaching that such approach provides.
The Applicants also believe
that the participation by the Regulated Funds in Non-Negotiated Follow-On Investments and in Dispositions of Tradable Securities without
the approval of a Required Majority is consistent with the provisions, policies and purposes of the Act as there is no opportunity for
overreaching by affiliates.
If an Adviser, its principals,
or any person controlling, controlled by, or under common control with the Adviser or its principals, and the Affiliated Funds (collectively,
the “Holders”) own in the aggregate more than 25 percent of the outstanding voting shares of a Regulated Fund
(the “Shares”), then the Holders will vote such Shares as required under Condition 15; provided however, that
Condition 15 will not apply to a Regulated Fund during any time which the Holders in the aggregate own 100% of the Shares of such Regulated
Fund.
In sum, the Applicants believe
that the Conditions would ensure that each Regulated Fund that participates in any type of Co-Investment Transaction does not participate
on a basis different from, or less advantageous than, that of such other participants for purposes of Section 17(d) or Section 57(a)(4) and
the Rules under the Act. As a result, the Applicants believe that the participation of the Regulated Funds in Co-Investment Transactions
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.
V. CONDITIONS
The Applicants agree that
any Order granting the requested relief shall be subject to the following Conditions:
1. Identification
and Referral of Potential Co-Investment Transactions
(a). The
Advisers will establish, maintain and implement policies and procedures reasonably designed to ensure that each Adviser is promptly notified
of all Potential Co-Investment Transactions that fall within the then-current Objectives and Strategies and Board-Established Criteria
of any Regulated Fund the Adviser manages.
(b). When
an Adviser to a Regulated Fund is notified of a Potential Co-Investment Transaction under Condition 1(a), the Adviser will make an independent
determination of the appropriateness of the investment for the Regulated Fund in light of the Regulated Fund’s then-current circumstances.
2. Board
Approvals of Co-Investment Transactions
(a). If
the Adviser deems a Regulated Fund’s participation in any Potential Co-Investment Transaction to be appropriate for the Regulated
Fund, the Adviser will then determine an appropriate level of investment for the Regulated Fund.
(b). If
the aggregate amount recommended by the Advisers to be invested in the Potential Co-Investment Transaction by the participating Regulated
Funds and any participating Affiliated Funds, collectively, exceeds the amount of the investment opportunity, the investment opportunity
will be allocated among them pro rata based on the size of the Internal Orders, as described in section III.A.1.b. above. Each Adviser
to a participating Regulated Fund will promptly notify and provide the Eligible Directors with information concerning the Affiliated Funds’
and Regulated Funds’ order sizes to assist the Eligible Directors with their review of the applicable Regulated Fund’s investments
for compliance with these Conditions.
(c). After
making the determinations required in Condition 1(b) above, each Adviser to a participating Regulated Fund will distribute written
information concerning the Potential Co-Investment Transaction (including the amount proposed to be invested by each participating Regulated
Fund and each participating Affiliated Fund) to the Eligible Directors of its participating Regulated Fund(s) for their consideration.
A Regulated Fund will enter into a Co-Investment Transaction with one or more other Regulated Funds or Affiliated Funds only if, prior
to the Regulated Fund’s participation in the Potential Co-Investment Transaction, a Required Majority concludes that:
(i) the
terms of the transaction, including the consideration to be paid, are reasonable and fair to the Regulated Fund and its equity holders
and do not involve overreaching in respect of the Regulated Fund or its equity holders on the part of any person concerned;
(ii) the
transaction is consistent with:
(A) the
interests of the Regulated Fund’s equity holders; and
(B) the
Regulated Fund’s then-current Objectives and Strategies;
(iii) the
investment by any other Regulated Fund(s) or Affiliated Fund(s) 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 any other Regulated Fund(s) or Affiliated
Fund(s) participating in the transaction; provided that the Required Majority shall not be prohibited from reaching the conclusions
required by this Condition 2(c)(iii) if:
(A) the
settlement date for another Regulated Fund or an Affiliated Fund in a Co-Investment Transaction is later than the settlement date for
the Regulated Fund by no more than ten business days or earlier than the settlement date for the Regulated Fund by no more than ten business
days, in either case, so long as: (x) the date on which the commitment of the Affiliated Funds and Regulated Funds is made is the
same; and (y) the earliest settlement date and the latest settlement date of any Affiliated Fund or Regulated Fund participating
in the transaction will occur within ten business days of each other; or
(B) 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, the right to have a board observer or any similar right to participate in the governance or management
of the portfolio company so long as: (x) the Eligible Directors will have the right to ratify the selection of such director or board
observer, if any; (y) the 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 (z) any fees or other compensation that any other Regulated
Fund or Affiliated Fund or any affiliated person of any other Regulated Fund or Affiliated Fund receives in connection with the right
of one or more Regulated Funds or Affiliated Funds 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 any participating Affiliated Funds (who may, in
turn, share their portion with their affiliated persons) and any participating Regulated Fund(s) in accordance with the amount of
each such party’s investment; and
(iv) the
proposed investment by the Regulated Fund will not involve compensation, remuneration or a direct or indirect26
financial benefit to the Advisers, any other Regulated Fund, the Affiliated 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 14, (B) to the extent permitted
by Section 17(e) or 57(k), 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)(B)(z).
3. Right
to Decline
Each Regulated Fund has the
right to decline to participate in any Potential Co-Investment Transaction or to invest less than the amount proposed.
26
For example, procuring the Regulated Fund’s investment in a Potential Co-Investment Transaction to permit an affiliate
to complete or obtain better terms in a separate transaction would constitute an indirect financial benefit.
4. General
Limitation
Except for Follow-On Investments
made in accordance with Conditions 8 and 9 below,27 a Regulated Fund will not invest in reliance on the Order in any
issuer in which a Related Party has an investment.
5. Same
Terms and Conditions.
A Regulated Fund will not
participate in any Potential Co-Investment Transaction unless (i) the terms, conditions, price, class of securities to be purchased,
date on which the commitment is entered into and registration rights (if any) will be the same for each participating Regulated Fund and
Affiliated Fund and (ii) the earliest settlement date and the latest settlement date of any participating Regulated Fund or Affiliated
Fund will occur as close in time as practicable and in no event more than ten business days apart. The grant to one or more Regulated
Funds or Affiliated Funds, but not the respective 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 5, if Condition 2(c)(iii)(B) is met.
6. Standard
Review Dispositions
(a). General.
If any Regulated Fund or Affiliated Fund elects to sell, exchange or otherwise dispose of an interest in a security and one or more Regulated
Funds and Affiliated Funds have previously participated in a Co-Investment Transaction with respect to the issuer, then:
(i) the
Adviser to such Regulated Fund or Affiliated Fund28
will notify each Regulated Fund that holds an investment in the issuer of the proposed Disposition at the earliest practical time; and
(ii) the
Adviser to each Regulated Fund that holds an investment in the issuer will formulate a recommendation as to participation by such Regulated
Fund in the Disposition.
(b). Same
Terms and Conditions. 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 Affiliated Funds and any other Regulated Fund.
(c). No
Board Approval Required. A Regulated Fund may participate in such a Disposition without obtaining prior approval of the Required Majority
if:
(i) the
participation of each Regulated Fund and Affiliated Fund in such Disposition is proportionate to its then-current holding of the security
(or securities) of the issuer that is (or are) the subject of the Disposition;29
(B) 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 (C) the Board of the Regulated
Fund is provided on a quarterly basis with a list of all Dispositions made in accordance with this Condition; or
27
This exception applies only to Follow-On Investments by a Regulated Fund in issuers in which that Regulated Fund already
holds investments.
28
Any Proprietary Account that is not advised by an Adviser is itself deemed to be an Adviser for purposes of Conditions 6(a)(i),
7(a)(i), 8(a)(i) and 9(a)(i).
29
In the case of any Disposition, proportionality will be measured by each participating Regulated Fund’s and Affiliated
Fund’s outstanding investment in the security in question immediately preceding the Disposition.
(ii) each
security is a Tradable Security and (A) the Disposition is not to the issuer or any affiliated person of the issuer; and (B) the
security is sold for cash in a transaction in which the only term negotiated by or on behalf of the participating Regulated Funds and
Affiliated Funds is price.
(d). Standard
Board Approval. In all other cases, the Adviser will provide its written recommendation as to the Regulated Fund’s participation
to the Eligible Directors 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.
7. Enhanced
Review Dispositions
(a). General.
If any Regulated Fund or Affiliated Fund elects to sell, exchange or otherwise dispose of a Pre-Boarding Investment in a Potential Co-Investment
Transaction and the Regulated Funds and Affiliated Funds have not previously participated in a Co-Investment Transaction with respect
to the issuer:
(i) the
Adviser to such Regulated Fund or Affiliated Fund will notify each Regulated Fund that holds an investment in the issuer of the proposed
Disposition at the earliest practical time;
(ii) the
Adviser to each Regulated Fund that holds an investment in the issuer will formulate a recommendation as to participation by such Regulated
Fund in the Disposition; and
(iii) the
Advisers will provide to the Board of each Regulated Fund that holds an investment in the issuer all information relating to the existing
investments in the issuer of the Regulated Funds and Affiliated Funds, including the terms of such investments and how they were made,
that is necessary for the Required Majority to make the findings required by this Condition.
(b). Enhanced
Board Approval. The Adviser will provide its written recommendation as to the Regulated Fund’s participation to the Eligible
Directors, and the Regulated Fund will participate in such Disposition solely to the extent that a Required Majority determines that:
(i) the
Disposition complies with Condition 2(c)(i), (ii), (iii)(A), and (iv); and
(ii) the
making and holding of the Pre-Boarding Investments were not prohibited by Section 57 or Rule 17d-1, as applicable, and records
the basis for the finding in the Board minutes.
(c). Additional
Requirements: The Disposition may only be completed in reliance on the Order if:
(i) Same
Terms and Conditions. Each Regulated Fund has the right to participate in such Disposition on a proportionate basis, at the same price
and on the same terms and Conditions as those applicable to the Affiliated Funds and any other Regulated Fund;
(ii) Original
Investments. All of the Affiliated Funds’ and Regulated Funds’ investments in the issuer are Pre-Boarding Investments;
(iii) Advice
of counsel. Independent counsel to the Board advises that the making and holding of the investments in the Pre-Boarding Investments
were not prohibited by Section 57 (as modified by Rule 57b-1) or Rule 17d-1, as applicable;
(iv) Multiple
Classes of Securities. All Regulated Funds and Affiliated Funds that hold Pre-Boarding Investments in the issuer immediately before
the time of completion of the Co-Investment Transaction hold the same security or securities of the issuer. For the purpose of determining
whether the Regulated Funds and Affiliated Funds hold the same security or securities, they may disregard any security held by some but
not all of them if, prior to relying on the Order, the Required Majority is presented with all information necessary to make a finding,
and finds, that: (x) any Regulated Fund’s or Affiliated Fund’s holding of a different class of securities (including
for this purpose a security with a different maturity date) is immaterial30
in amount, including immaterial relative to the size of the issuer; and (y) the Board records the basis for any such finding in its
minutes. In addition, securities that differ only in respect of issuance date, currency, or denominations may be treated as the same security;
and
(v) No
control. The Affiliated Funds, the other Regulated Funds and their affiliated persons (within the meaning of Section 2(a)(3)(C) of
the Act), individually or in the aggregate, do not control the issuer of the securities (within the meaning of Section 2(a)(9) of
the Act).
8. Standard
Review Follow-Ons
(a). General.
If any Regulated Fund or Affiliated Fund desires to make a Follow-On Investment in an issuer and the Regulated Funds and Affiliated Funds
holding investments in the issuer previously participated in a Co-Investment Transaction with respect to the issuer:
(i) the
Adviser to each such Regulated Fund or Affiliated Fund will notify each Regulated Fund that holds securities of the portfolio company
of the proposed transaction at the earliest practical time; and
(ii) the
Adviser to each Regulated Fund that holds an investment in the issuer will formulate a recommendation as to the proposed participation,
including the amount of the proposed investment, by such Regulated Fund.
(b). No
Board Approval Required. A Regulated Fund may participate in the Follow-On Investment without obtaining prior approval of the Required
Majority if:
(i) A)
the proposed participation of each Regulated Fund and each Affiliated Fund in such investment is proportionate to its outstanding investments
in the issuer or the security at issue, as appropriate,31
immediately preceding the Follow-On Investment; and (B) the Board of the Regulated Fund has approved as being in the best interests
of the Regulated Fund the ability to participate in Follow-On Investments on a pro rata basis (as described in greater detail in this
Application); or
30
In determining whether a holding is “immaterial” for purposes of the Order, the Required Majority will consider
whether the nature and extent of the interest in the transaction or arrangement is sufficiently small that a reasonable person would
not believe that the interest affected the determination of whether to enter into the transaction or arrangement or the terms of the
transaction or arrangement.
31
To the extent that a Follow-On Investment opportunity is in a security or arises in respect of a security held by the participating
Regulated Funds and Affiliated Funds, proportionality will be measured by each participating Regulated Fund’s and Affiliated Fund’s
outstanding investment in the security in question immediately preceding the Follow-On Investment using the most recent available valuation
thereof. To the extent that a Follow-On Investment opportunity relates to an opportunity to invest in a security that is not in respect
of any security held by any of the participating Regulated Funds or Affiliated Funds, proportionality will be measured by each participating
Regulated Fund’s and Affiliated Fund’s outstanding investment in the issuer immediately preceding the Follow-On Investment
using the most recent available valuation thereof.
(ii) it
is a Non-Negotiated Follow-On Investment.
(c). Standard
Board Approval. In all other cases, the Adviser will provide its written recommendation as to the Regulated Fund’s participation
to the Eligible Directors and the Regulated Fund will participate in such Follow-On Investment solely to the extent that a Required Majority
makes the determinations set forth in Condition 2(c). If the only previous Co-Investment Transaction with respect to the issuer was an
Enhanced Review Disposition the Eligible Directors must complete this review of the proposed Follow-On Investment both on a stand-alone
basis and together with the Pre-Boarding Investments in relation to the total economic exposure and other terms of the investment.
(d). Allocation.
If, with respect to any such Follow-On Investment:
(i) the
amount of the opportunity proposed to be made available to any Regulated Fund is not based on the Regulated Funds’ and the Affiliated
Funds’ outstanding investments in the issuer or the security at issue, as appropriate, immediately preceding the Follow-On Investment;
and
(ii) the
aggregate amount recommended by the Advisers to be invested in the Follow-On Investment by the participating Regulated Funds and any participating
Affiliated Funds, collectively, exceeds the amount of the investment opportunity,
then the Follow-On Investment
opportunity will be allocated among them pro rata based on the size of the Internal Orders, as described in section III.A.1.b. above.
(e). Other
Conditions. The acquisition of Follow-On Investments as permitted by this Condition will be considered a Co-Investment Transaction
for all purposes and subject to the other Conditions set forth in this application.
9. Enhanced
Review Follow-Ons
(a). General.
If any Regulated Fund or Affiliated Fund desires to make a Follow-On Investment in an issuer that is a Potential Co-Investment Transaction
and the Regulated Funds and Affiliated Funds holding investments in the issuer have not previously participated in a Co-Investment Transaction
with respect to the issuer:
(i) the
Adviser to each such Regulated Fund or Affiliated Fund will notify each Regulated Fund that holds securities of the portfolio company
of the proposed transaction at the earliest practical time;
(ii) the
Adviser to each Regulated Fund that holds an investment in the issuer will formulate a recommendation as to the proposed participation,
including the amount of the proposed investment, by such Regulated Fund; and
(iii) the
Advisers will provide to the Board of each Regulated Fund that holds an investment in the issuer all information relating to the existing
investments in the issuer of the Regulated Funds and Affiliated Funds, including the terms of such investments and how they were made,
that is necessary for the Required Majority to make the findings required by this Condition.
(b). Enhanced
Board Approval. The Adviser will provide its written recommendation as to the Regulated Fund’s participation to the Eligible
Directors, and the Regulated Fund will participate in such Follow-On Investment solely to the extent that a Required Majority reviews
the proposed Follow-On Investment both on a stand-alone basis and together with the Pre-Boarding Investments in relation to the total
economic exposure and other terms and makes the determinations set forth in Condition 2(c). In addition, the Follow-On Investment may
only be completed in reliance on the Order if the Required Majority of each participating Regulated Fund determines that the making and
holding of the Pre-Boarding Investments were not prohibited by Section 57 (as modified by Rule 57b-1) or Rule 17d-1, as
applicable. The basis for the Board’s findings will be recorded in its minutes.
(c). Additional
Requirements. The Follow-On Investment may only be completed in reliance on the Order if:
(i) Original
Investments. All of the Affiliated Funds’ and Regulated Funds’ investments in the issuer are Pre-Boarding Investments;
(ii) Advice
of counsel. Independent counsel to the Board advises that the making and holding of the investments in the Pre-Boarding Investments
were not prohibited by Section 57 (as modified by Rule 57b-1) or Rule 17d-1, as applicable;
(iii) Multiple
Classes of Securities. All Regulated Funds and Affiliated Funds that hold Pre-Boarding Investments in the issuer immediately before
the time of completion of the Co-Investment Transaction hold the same security or securities of the issuer. For the purpose of determining
whether the Regulated Funds and Affiliated Funds hold the same security or securities, they may disregard any security held by some but
not all of them if, prior to relying on the Order, the Required Majority is presented with all information necessary to make a finding,
and finds, that: (x) any Regulated Fund’s or Affiliated Fund’s holding of a different class of securities (including
for this purpose a security with a different maturity date) is immaterial in amount, including immaterial relative to the size of the
issuer; and (y) the Board records the basis for any such finding in its minutes. In addition, securities that differ only in respect
of issuance date, currency, or denominations may be treated as the same security; and
(iv) No
control. The Affiliated Funds, the other Regulated Funds and their affiliated persons (within the meaning of Section 2(a)(3)(C) of
the Act), individually or in the aggregate, do not control the issuer of the securities (within the meaning of Section 2(a)(9) of
the Act).
(d). Allocation.
If, with respect to any such Follow-On Investment:
(i) the
amount of the opportunity proposed to be made available to any Regulated Fund is not based on the Regulated Funds’ and the Affiliated
Funds’ outstanding investments in the issuer or the security at issue, as appropriate, immediately preceding the Follow-On Investment;
and
(ii) the
aggregate amount recommended by the Advisers to be invested in the Follow-On Investment by the participating Regulated Funds and any participating
Affiliated Funds, collectively, exceeds the amount of the investment opportunity,
then the Follow-On Investment
opportunity will be allocated among them pro rata based on the size of the Internal Orders, as described in section III.A.1.b. above.
(e). Other
Conditions. The acquisition of Follow-On Investments as permitted by this Condition will be considered a Co-Investment Transaction
for all purposes and subject to the other Conditions set forth in this application.
10. Board
Reporting, Compliance and Annual Re-Approval
(a). Each
Adviser to a Regulated Fund will present to the Board of each Regulated Fund, on a quarterly basis, and at such other times as the Board
may request, (i) a record of all investments in Potential Co-Investment Transactions made by any of the other Regulated Funds or
any of the Affiliated Funds during the preceding quarter that fell within the Regulated Fund’s then-current Objectives and Strategies
and Board-Established Criteria that were not made available to the Regulated Fund, and an explanation of why such investment opportunities
were not made available to the Regulated Fund; (ii) a record of all Follow-On Investments in and Dispositions of investments in any
issuer in which the Regulated Fund holds any investments by any Affiliated Fund or other Regulated Fund during the prior quarter; and
(iii) 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 Independent
Directors, may determine whether all Potential Co-Investment Transactions and Co-Investment Transactions during the preceding quarter,
including those investments that the Regulated Fund considered but declined to participate in, comply with the Conditions.
(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. In the case of a BDC Downstream Fund that does not have a chief
compliance officer, the chief compliance officer of the BDC that controls the BDC Downstream Fund will prepare the report for the relevant
Independent Party.
(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
Fees32
Any transaction fee (including
break-up, structuring, monitoring or commitment fees but excluding brokerage or underwriting compensation permitted by Section 17(e) or
57(k)) received in connection with any Co-Investment Transaction will be distributed to the participants on a pro rata basis based on
the amounts they invested or committed, as the case may be, in such Co-Investment Transaction. If any transaction fee is to be held by
an Adviser pending consummation of the transaction, the fee will be deposited into an account maintained by the Adviser at a bank or banks
having the qualifications prescribed in Section 26(a)(1), and the account will 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 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; provided however, that this Condition 15 will not apply to a Regulated Fund during any time in
which the Holders in the aggregate own 100% of the Shares of such Regulated Fund.
32
The Applicants are not requesting and the Commission is not providing any relief for transaction fees received in connection
with any Co-Investment Transaction.
VI. PROCEDURAL
MATTERS
A. Communications
Please address all communications
concerning this Application and the Notice and Order to:
Nauman S. Malik, Esq.
Eagle Point Credit Management LLC
600 Steamboat Road, Suite 202
Greenwich, CT 06830
Please address any questions,
and a copy of any communications, concerning this Application, the Notice and Order to:
Thomas J. Friedmann, Esq.
Philip Hinkle, Esq.
Dechert LLP
One International Place, 40th Floor
100 Oliver Street
Boston, MA 02110
The Applicants desire that
the Commission issue an Order pursuant to Rule 0-5 without conducting a hearing.
Pursuant to Rule 0-2,
each person executing the Application on behalf of an Applicant says that he or she has duly executed the Application for and on behalf
of such Applicant; that he or she is authorized to execute the Application pursuant to the terms of an operating agreement, management
agreement or otherwise; and that all actions by members, directors or other bodies necessary to authorize each deponent to execute and
file the Application have been taken.
The verifications required
by Rule 0-2(d) and the authorizations required by Rule 0-2(c) are attached hereto as Exhibit A and Exhibit B.
B. Authorization
All requirements for the execution
and filing of this Application in the name and on behalf of each Applicant by the undersigned have been complied with and the undersigned
is fully authorized to do so and has duly executed this Application as of this 10th day of October, 2023.
| |
EAGLE POINT CREDIT COMPANY INC. |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Chief Executive Officer |
| |
|
|
| |
EAGLE POINT INCOME COMPANY INC. |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Chief Executive Officer |
| |
|
|
| |
EAGLE POINT INSTITUTIONAL INCOME FUND |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Chief Executive Officer |
| |
|
|
| |
EAGLE POINT CREDIT COMPANY SUB II (US) LLC |
| |
By: Eagle Point Credit Company Inc., its sole member |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Chief Executive Officer |
| |
|
|
| |
EAGLE POINT CREDIT COMPANY SUB (CAYMAN) LTD. |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Director |
| |
EAGLE POINT CREDIT COMPANY SUB II (CAYMAN) LTD. |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Director |
| |
|
|
| |
EAGLE POINT INCOME COMPANY SUB (US) LLC |
| |
By: Eagle Point Income Company Inc., its sole member |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Chief Executive Officer |
| |
|
|
| |
EAGLE POINT INCOME COMPANY SUB II (CAYMAN) LTD. |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Director |
| |
|
|
| |
EPIIF SUB (CAYMAN) LTD. |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Director |
| |
|
|
| |
EPIIF SUB II (CAYMAN) LTD. |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Director |
| |
EAGLE POINT CREDIT MANAGEMENT LLC |
| |
By: Eagle Point Parent LLC, its sole member |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Managing Partner |
| |
|
|
| |
EAGLE POINT INCOME MANAGEMENT LLC |
| |
By: EP Ventures LLC, its sole member |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Managing Partner |
| |
|
|
| |
EAGLE POINT CREDIT PARTNERS LP |
| |
By: Eagle Point Credit GP I LP, its general partner |
| |
By: Eagle Point Credit GP-GP Ltd., its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Authorized Person |
| |
|
|
| |
EAGLE POINT CREDIT PARTNERS SUB LLC |
| |
By: Eagle Point Credit GP I LP, its general partner |
| |
By: Eagle Point Credit GP-GP Ltd., its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Authorized Person |
| |
EAGLE POINT CREDIT PARTNERS SUB (US) LLC |
| |
By: Eagle Point Credit Partners LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Authorized Person |
| |
|
|
| |
EAGLE POINT CREDIT PARTNERS SUB II (US) LLC |
| |
By: Eagle Point Credit Partners LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Authorized Person |
| |
|
|
| |
EAGLE POINT CREDIT PARTNERS SUB III LTD. |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Authorized Person |
| |
|
|
| |
EAGLE POINT CREDIT PARTNERS SUB IV LTD |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Authorized Person |
| |
|
|
| |
EAGLE POINT CLO EQUITY FUND I LLC |
| |
By: Eagle Point Credit Management LLC, its manager |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
EAGLE POINT CLO EQUITY FUND I SUB LLC |
| |
By: Eagle Point CLO Equity Fund I LLC, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT CLO EQUITY FUND I CAYMAN SUB LTD. |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT CORE INCOME FUND LP |
| |
By: Eagle Point CIF GP I LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT CORE SUB LLC |
| |
By: Eagle Point Core Income Fund LP, its managing member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT CORE SUB (US) LLC |
| |
By: Eagle Point Core Income Fund LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
EAGLE POINT CORE SUB II (US) LLC |
| |
By: Eagle Point Core Income Fund LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME FUND US LP |
| |
By: Eagle Point DIF GP I LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EP DIF DELAWARE I LLC |
| |
By: Eagle Point Defensive Income Fund US LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME FUND NON-US LP |
| |
By: Eagle Point DIF GP I LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EP DIF CAYMAN I LP |
| |
By: Eagle Point DIF GP I LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
EP DIF CAYMAN I SUB (US) LLC |
| |
By: Eagle Point DIF GP I LLC, its managing member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EP DIF CAYMAN I SUB II (US) LLC |
| |
By: EP DIF Cayman I LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME FUND II US LP |
| |
By: Eagle Point DIF GP II LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EP DIF DELAWARE II LLC |
| |
By: Eagle Point Defensive Income Fund II US LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME FUND II EP LP |
| |
By: Eagle Point DIF GP II LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
EAGLE POINT DEFENSIVE INCOME FUND II NON-US LP |
| |
By: Eagle Point DIF GP II LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EP DIF CAYMAN II LP |
| |
By: Eagle Point DIF GP II LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME FUND II NON-US SUB (US) LLC |
| |
By: Eagle Point DIF GP II LLC, its managing member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME FUND II NON-US SUB II (US) LLC |
| |
By: EP DIF Cayman II LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
EAGLE POINT DEFENSIVE INCOME FUND NJ LP |
| |
By: Eagle Point DIF GP NJ LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME M LP |
| |
By: Eagle Point DIF GP I LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME M SUB US LLC |
| |
By: Eagle Point DIF GP I LLC, its managing member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME M SUB II (US) LLC |
| |
By: Eagle Point Defensive Income M LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME PARTNERS LP |
| |
By: Eagle Point DIP General Partner LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
EAGLE POINT DEFENSIVE INCOME PARTNERS SUB (US) LLC |
| |
By: Eagle Point DIP General Partner LLC, its managing member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT ENHANCED INCOME INVESTOR LLC |
| |
By: Eagle Point Credit Management LLC, its manager |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT ENHANCED INCOME INVESTOR SUB (US) LLC |
| |
By: Eagle Point Enhanced Income Investor LLC, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT ENHANCED INCOME INVESTOR SUB (CAYMAN) LTD. |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT ENHANCED INCOME FUND LP |
| |
By: Eagle Point EIF General Partner LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
EAGLE POINT ENHANCED INCOME SUB (US) LLC |
| |
By: Eagle Point Enhanced Income Fund LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT ENHANCED INCOME SUB II (US) LLC |
| |
By: Eagle Point Enhanced Income Fund LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT SRT CO-INVEST I LP |
| |
By: EP SRT Co-Invest GP I LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EP CLO OPPORTUNITIES FUND I LP |
| |
By: EP CLO GP I LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
Schedule A
Below is a list of the Existing Affiliated Funds other than the Existing
Proprietary Accounts. All other Existing Affiliated Funds are advised by EPCM.
| Eagle Point Credit Partners LP |
| Eagle Point Credit Partners Sub LLC |
| Eagle Point Credit Partners Sub (US) LLC |
| Eagle Point Credit Partners Sub II (US) LLC |
| Eagle Point Credit Partners Sub III Ltd. |
| Eagle Point Credit Partners Sub IV Ltd |
| Eagle Point CLO Equity Fund I LLC |
| Eagle Point CLO Equity Fund I Sub LLC |
| Eagle Point CLO Equity Fund I Cayman Sub Ltd. |
| Eagle Point Core Income Fund LP |
| Eagle Point Core Sub LLC |
| Eagle Point Core Sub (US) LLC |
| Eagle Point Core Sub II (US) LLC |
| Eagle Point Defensive Income Fund US LP |
| EP DIF Delaware I LLC |
| Eagle Point Defensive Income Fund Non-US LP |
| EP DIF Cayman I LP |
| EP DIF Cayman I Sub (US) LLC |
| EP DIF Cayman I Sub II (US) LLC |
| Eagle Point Defensive Income Fund II US LP |
| EP DIF Delaware II LLC |
| Eagle Point Defensive Income Fund II EP LP |
| Eagle Point Defensive Income Fund II Non-US LP |
| EP DIF Cayman II LP |
| Eagle Point Defensive Income Fund II Non-US Sub (US) LLC |
| Eagle Point Defensive Income Fund II Non-US Sub II (US) LLC |
| Eagle Point Defensive Income Fund NJ LP |
| Eagle Point Defensive Income M LP |
| Eagle Point Defensive Income M Sub US LLC |
| Eagle Point Defensive Income M Sub II (US) LLC |
| Eagle Point Defensive Income Partners LP |
| Eagle Point Defensive Income Partners Sub (US) LLC |
| Eagle Point Enhanced Income Investor LLC |
| Eagle Point Enhanced Income Investor Sub (US) LLC |
| Eagle Point Enhanced Income Investor Sub (Cayman) Ltd. |
| Eagle Point Enhanced Income Fund LP |
| Eagle Point Enhanced Income Sub (US) LLC |
| Eagle Point Enhanced Income Sub II (US) LLC |
| Eagle Point SRT Co-Invest I LP |
| EP CLO Opportunities Fund I LP |
Schedule B
Below is a list of the Existing Proprietary Accounts.
Exhibit A
Verification
The undersigned states that
they have duly executed the attached Application for an Order under Sections 17(d) and 57(i) of the Investment Company Act of
1940, as amended, and Rule 17d-1 thereunder, dated October 10, 2023 for and on behalf of the Applicants, as the case may be,
that they hold the office with each such entity as indicated below, and that all actions by stockholders, officers, directors, and other
bodies necessary to authorize the undersigned to execute and file such Application have been taken. The undersigned further states that
they are familiar with the instrument and the contents thereof, and that the facts set forth therein are true to the best of their knowledge,
information, and belief.
| |
EAGLE POINT CREDIT COMPANY INC. |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Chief Executive Officer |
| |
|
|
| |
EAGLE POINT INCOME COMPANY INC. |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Chief Executive Officer |
| |
|
|
| |
EAGLE POINT INSTITUTIONAL INCOME FUND |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Chief Executive Officer |
| |
|
|
| |
EAGLE POINT CREDIT COMPANY SUB II (US) LLC |
| |
By: Eagle Point Credit Company Inc., its sole member |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Chief Executive Officer |
| |
|
|
| |
EAGLE POINT CREDIT COMPANY SUB (CAYMAN) LTD. |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Director |
| |
|
|
| |
EAGLE POINT CREDIT COMPANY SUB II (CAYMAN) LTD. |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Director |
| |
|
|
| |
EAGLE POINT INCOME COMPANY SUB (US) LLC |
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By: Eagle Point Income Company Inc., its sole member |
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|
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By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Chief Executive Officer |
| |
|
|
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EAGLE POINT INCOME COMPANY SUB II (CAYMAN) LTD. |
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|
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By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Director |
| |
|
|
| |
EPIIF SUB (CAYMAN) LTD. |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Director |
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|
|
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EPIIF SUB II (CAYMAN) LTD. |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Director |
| |
|
|
| |
EAGLE POINT CREDIT MANAGEMENT LLC |
| |
By: Eagle Point Parent LLC, its sole member |
| |
|
| |
By: |
/s/Thomas P. Majewski |
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Name: |
Thomas P. Majewski |
| |
Title: |
Managing Partner |
| |
|
|
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EAGLE POINT INCOME MANAGEMENT LLC |
| |
By: EP Ventures LLC, its sole member |
| |
|
| |
By: |
/s/Thomas P. Majewski |
| |
Name: |
Thomas P. Majewski |
| |
Title: |
Managing Partner |
| |
|
|
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EAGLE POINT CREDIT PARTNERS LP |
| |
By: Eagle Point Credit GP I LP, its general partner |
| |
By: Eagle Point Credit GP-GP Ltd., its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Authorized Person |
| |
|
|
| |
EAGLE POINT CREDIT PARTNERS SUB LLC |
| |
By: Eagle Point Credit GP I LP, its general partner |
| |
By: Eagle Point Credit GP-GP Ltd., its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Authorized Person |
| |
|
|
| |
EAGLE POINT CREDIT PARTNERS SUB (US) LLC |
| |
By: Eagle Point Credit Partners LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Authorized Person |
| |
|
|
| |
EAGLE POINT CREDIT PARTNERS SUB II (US) LLC |
| |
By: Eagle Point Credit Partners LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Authorized Person |
| |
|
|
| |
EAGLE POINT CREDIT PARTNERS SUB III LTD. |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Authorized Person |
| |
|
|
| |
EAGLE POINT CREDIT PARTNERS SUB IV LTD |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Authorized Person |
| |
|
|
| |
EAGLE POINT CLO EQUITY FUND I LLC |
| |
By: Eagle Point Credit Management LLC, its manager |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT CLO EQUITY FUND I SUB LLC |
| |
By: Eagle Point CLO Equity Fund I LLC, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT CLO EQUITY FUND I CAYMAN SUB LTD. |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT CORE INCOME FUND LP |
| |
By: Eagle Point CIF GP I LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT CORE SUB LLC |
| |
By: Eagle Point Core Income Fund LP, its managing member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT CORE SUB (US) LLC |
| |
By: Eagle Point Core Income Fund LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT CORE SUB II (US) LLC |
| |
By: Eagle Point Core Income Fund LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME FUND US LP |
| |
By: Eagle Point DIF GP I LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EP DIF DELAWARE I LLC |
| |
By: Eagle Point Defensive Income Fund US LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME FUND NON-US LP |
| |
By: Eagle Point DIF GP I LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EP DIF CAYMAN I LP |
| |
By: Eagle Point DIF GP I LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EP DIF CAYMAN I SUB (US) LLC |
| |
By: Eagle Point DIF GP I LLC, its managing member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EP DIF CAYMAN I SUB II (US) LLC |
| |
By: EP DIF Cayman I LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME FUND II US LP |
| |
By: Eagle Point DIF GP II LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EP DIF DELAWARE II LLC |
| |
By: Eagle Point Defensive Income Fund II US LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME FUND II EP LP |
| |
By: Eagle Point DIF GP II LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME FUND II NON-US LP |
| |
By: Eagle Point DIF GP II LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EP DIF CAYMAN II LP |
| |
By: Eagle Point DIF GP II LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME FUND II NON-US SUB (US) LLC |
| |
By: Eagle Point DIF GP II LLC, its managing member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME FUND II NON-US SUB II (US) LLC |
| |
By: EP DIF Cayman II LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME FUND NJ LP |
| |
By: Eagle Point DIF GP NJ LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME M LP |
| |
By: Eagle Point DIF GP I LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME M SUB US LLC |
| |
By: Eagle Point DIF GP I LLC, its managing member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME M SUB II (US) LLC |
| |
By: Eagle Point Defensive Income M LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME PARTNERS LP |
| |
By: Eagle Point DIP General Partner LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT DEFENSIVE INCOME PARTNERS SUB (US) LLC |
| |
By: Eagle Point DIP General Partner LLC, its managing member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT ENHANCED INCOME INVESTOR LLC |
| |
By: Eagle Point Credit Management LLC, its manager |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT ENHANCED INCOME INVESTOR SUB (US) LLC |
| |
By: Eagle Point Enhanced Income Investor LLC, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT ENHANCED INCOME INVESTOR SUB (CAYMAN) LTD. |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT ENHANCED INCOME FUND LP |
| |
By: Eagle Point EIF General Partner LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT ENHANCED INCOME SUB (US) LLC |
| |
By: Eagle Point Enhanced Income Fund LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT ENHANCED INCOME SUB II (US) LLC |
| |
By: Eagle Point Enhanced Income Fund LP, its sole member |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EAGLE POINT SRT CO-INVEST I LP |
| |
By: EP SRT Co-Invest GP I LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
EP CLO OPPORTUNITIES FUND I LP |
| |
By: EP CLO GP I LLC, its general partner |
| |
|
| |
By: |
/s/Kenneth P. Onorio |
| |
Name: |
Kenneth P. Onorio |
| |
Title: |
Chief Financial Officer |
Exhibit B
Authorization
RESOLUTIONS OF EACH OF THE BOARDS OF DIRECTORS/TRUSTEES
(EACH, A “BOARD”) OF EAGLE POINT CREDIT COMPANY INC., EAGLE POINT INCOME INC. AND EAGLE POINT INSTITUTIONAL INCOME FUND (EACH,
A “COMPANY”)
RESOLVED,
that any one or more of the officers (collectively, the “Authorized Officers” and each, an “Authorized
Officer”) of each Company be, and each of them individually hereby is, authorized, empowered and directed, in the name and
on behalf of each Company, to cause to be executed, delivered and filed with the U.S. Securities and Exchange Commission (the “SEC”)
an application (the “Exemptive Application”) to amend that certain exemptive order issued by the SEC on March 17,
2015 (SEC Rel. No. IC-31507) under Section 17(d) of the Investment Company Act of 1940, as amended (the “1940
Act”) and Rule 17d-1 thereunder (the “Order”); and
RESOLVED,
that the Authorized Officers be, and each of them individually hereby is, authorized, empowered and directed, in the name and on behalf
of each Company, to cause to be made, executed, delivered and filed with the SEC any amendments to the Exemptive Application and any additional
applications for exemptive relief or any amendments to the Order (or any related orders of exemption) as are determined necessary, advisable
or appropriate by any such Authorized Officer in order to effectuate the foregoing, such determination to be conclusively evidenced by
the taking of any such action; and
RESOLVED,
that all acts and things previously done by any Authorized Officer, on or prior to the date hereof, in the name and on behalf of each
Company in connection with the foregoing are in all respects authorized, ratified, approved, confirmed and adopted as acts and deeds by
and on behalf of each Company; and
RESOLVED,
that the Authorized Officers be, and each of them individually hereby is, authorized, empowered and directed, in the name and on behalf
of each Company, to certify and deliver copies of these resolutions to such governmental bodies, agencies, persons, firms or corporations
as any such officer may deem necessary and to identify by such officer’s signature or certificate, or in such form as may be required,
the documents and instruments approved herein and to furnish evidence of the approval, by an officer authorized to give such approval,
of any such document, instrument or provision or any addition, deletion or change in any document, instrument or provision.
Adopted August 9, 2023.
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