File 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 INVESTMENT COMPANY ACT OF 1940 TO PERMIT CERTAIN JOINT TRANSACTIONS
OTHERWISE PROHIBITED BY SECTIONS 17(d) AND 57(a)(4) OF THE INVESTMENT COMPANY ACT OF 1940 AND RULE 17d-l UNDER THE INVESTMENT COMPANY
ACT OF 1940
In the Matter of the Application of:
SABA CAPITAL INCOME & OPPORTUNITIES FUND II
SABA CAPITAL INCOME & OPPORTUNITIES FUND
SABA CAPITAL MANAGEMENT, L.P.
SABA CAPITAL MANAGEMENT GP, LLC
SABA CAPITAL CARRY NEUTRAL TAIL HEDGE PARTNERS,
L.P.
SABA CAPITAL CARRY NEUTRAL TAIL HEDGE OFFSHORE FUND,
LTD.
SABA CAPITAL CARRY NEUTRAL TAIL HEDGE MASTER FUND,
LTD.
SABA CAPITAL PARTNERS, L.P.
SABA CAPITAL OFFSHORE FUND, LTD.
SABA CAPITAL MASTER FUND, LTD.
SABA CAPITAL CEF OPPORTUNITIES 1 ONSHORE, L.P.
SABA CAPITAL CEF OPPORTUNITIES 1 OFFSHORE, LTD.
SABA CAPITAL CEF OPPORTUNITIES 1, LTD.
SABA CAPITAL CEF OPPORTUNITIES 2 OFFSHORE, LTD.
SABA CAPITAL CEF OPPORTUNITIES 2, LTD.
SABA CAPITAL CEF OPPORTUNITIES 3, LTD.
SABA CAPITAL CEF SPECIAL OPPORTUNITIES OFFSHORE
FUND 1, LTD.
SABA CAPITAL CEF SPECIAL OPPORTUNITIES ONSHORE FUND
1, LP
SABA CAPITAL CEF SPECIAL OPPORTUNITIES MASTER FUND
1, LTD.
SABA CAPITAL CEF SPECIAL OPPORTUNITIES OFFSHORE
FUND 2, LTD.
SABA CAPITAL CEF SPECIAL OPPORTUNITIES ONSHORE FUND
2, LP
SABA CAPITAL CEF SPECIAL OPPORTUNITIES MASTER FUND
2, LTD.
SABA CAPITAL ARCADIA MASTER FUND, LTD.
SABA CAPITAL ARCADIA ONSHORE FUND, L.P.
SABA CAPITAL R FUND, LTD.
SABA CAPITAL W FUND, LTD.
SABA CAPITAL BLUEBIRD FUND, LTD.
SABA CAPITAL II, LLC
SABA II AGGREGATOR VEHICLE LLC
SABA CAPITAL OFFSHORE FUND II, LTD.
SABA II AIV LP
SABA CAPITAL MASTER FUND II, LTD.
SABA CAPITAL, LLC
SABA CAPITAL MATADOR FUND, LTD.
SABA CAPITAL M FUND, LTD.
Please direct all communications, notices and orders
regarding this Application to:
Saba Capital Management, L.P.
405 Lexington Avenue, 58th Floor
New York, New York 10174
Attention: Michael D’Angelo Michael.DAngelo@sabacapital.com |
|
Michael S. Didiuk
Schulte Roth & Zabel LLP
919 Third Avenue
New York, NY 10022
(212) 756-2405
Michael.didiuk@srz.com |
As filed with the U.S. Securities and Exchange
Commission on June 7, 2024
TABLE OF CONTENTS
I. INTRODUCTION |
2 |
A. Requested Relief |
2 |
B. Applicants Seeking Relief |
2 |
C. Defined Terms |
2 |
II. APPLICANTS |
6 |
A. The Existing Regulated
Funds |
6 |
B. Existing Affiliated Funds |
7 |
C. Saba Capital |
7 |
III. ORDER REQUESTED |
7 |
A. Overview |
7 |
B. Applicable Law |
13 |
C. Need for Relief |
15 |
D. Precedents |
16 |
IV. STATEMENT IN SUPPORT OF RELIEF REQUESTED |
17 |
A. Potential Benefits |
17 |
B. Protective Representations and Conditions |
18 |
V. CONDITIONS |
18 |
VI. PROCEDURAL MATTERS |
28 |
A. Communications |
28 |
B. Authorization |
28 |
EXHIBITS
Exhibit A – Verifications
Exhibit B – Authorizations/Board Resolutions for BRW
Exhibit C – Authorizations/Board Resolutions for SABA
The Applicants (as defined
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 (the “Act”), as amended1
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 (the “Application”) would allow one or more Regulated Funds (as defined below)
(including one or more BDC Downstream Funds) and/or one or more Affiliated Funds (each as defined below) to participate in the same investment
opportunities where such participation would otherwise be prohibited under Section 17(d) or 57(a)(4) and the rules under the Act. All
existing entities that currently intend to rely on the Order have been named as Applicants (as 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
| B. | Applicants Seeking Relief |
|
o |
Saba Capital Income & Opportunities Fund, a closed-end management investment company registered under the Act (“BRW”); |
|
o |
Saba Capital Income & Opportunities II, a closed-end management investment company registered under the Act (“SABA” and together with BRW, the “Existing Regulated Funds”) |
|
o |
Saba
Capital Management, L.P., (“Saba Capital” or the “Existing Adviser”), an
investment adviser registered with the Commission under the Investment Advisers Act of 1940, as amended (the “Advisers
Act”), and its successors;4 and |
|
o |
The entities identified in Appendix A, 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), 3(c)(5)(C) or 3(c)(7) of the Act (the “Existing Affiliated Funds”; together with the Existing Regulated Funds and the Existing Adviser, the “Applicants”). |
______________________
1
Unless otherwise indicated, all section references herein are to the Act.
2
Unless otherwise indicated, all rule references herein are to rules under the Act.
3
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
The term successor, as applied to each Adviser, means an entity which results from a reorganization into another jurisdiction or
change in the type of business organization.
“Adviser”
means the Existing Adviser and any Future Adviser (defined below).
“Affiliated
Fund5” means the Existing Affiliated
Funds, any Saba Capital Proprietary Account (as defined below) and any entity (a) whose investment adviser (and sub-adviser, if any)
is the 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 and (c) that is not a BDC Downstream Fund, and (d) that intends to participate in the Co-Investment Program.
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 Section 3(c)(1) or 3(c)(7) of the Act, (iv) whose investment adviser (and
sub-adviser, if any) is an Adviser, (v) that is not a Wholly-Owned Investment Sub and (vi) that intends to participate in the Co-Investment
Program.
“Board”
means (i) with respect to a Regulated Fund other than a BDC Downstream Fund, the board of directors or trustees (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 (as defined below) regarding which the Adviser to the 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 Funds 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 Trustees (defined below). The Independent Trustees of a Regulated Fund may at any time rescind, suspend
or qualify their approval of any Board-Established Criteria, though Applicants anticipate that, under normal circumstances,
the Board would not modify these criteria more often than quarterly.
______________________
5
Affiliated Funds may include funds that are ultimately structured as collateralized loan obligation funds
(“CLOs”). Such CLOs would be investment companies but for the exception provided in section 3(c)(7) of the
Act or their ability to rely on rule 3a-7 under the Act. During the investment period of a CLO, the CLO may engage in certain
transactions customary in CLO formations with another Affiliated Fund on a secondary basis at fair market value. For purposes of the
Order, any securities that were acquired by an Affiliated Fund in a particular Co-Investment Transaction that are then transferred
in such customary transactions to an Affiliated Fund that is or will become a CLO (an “Affiliated Fund
CLO”) will be treated as if the Affiliated Fund CLO acquired such securities in the Co-Investment Transaction. For the
avoidance of doubt, any such transfer from an Affiliated Fund to an Affiliated Fund CLO will be treated as a Disposition and
completed pursuant to terms and conditions of the application, though applicants note that the Regulated Funds would be prohibited
from participating in such Disposition by section 17(a)(2) or section 57(a)(2) of the Act, as applicable. The participation by any
Affiliated Fund CLO in any such Co-Investment Transaction will remain subject to the Order.
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 Sections 55(a)(1) through 55(a)(3) and makes available significant managerial assistance with respect to the issuers of
such securities.
“Close Affiliate”
means the Adviser, 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 (or its Wholly-Owned Investment Sub) 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.
“Future Adviser”
means any future investment adviser that (i) controls, is controlled by, or is under common control with, the Existing Adviser, (ii) (a)
is registered as an investment adviser under the Advisers Act or, (b) is a relying adviser of an investment adviser that is registered
under the Advisers Act and that controls, is controlled by or is under common control with the Existing Adviser, and (iii) is not a Regulated
Fund or a subsidiary of a Regulated Fund.
“Future Regulated
Fund” means a 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, if any) is an Adviser, and (c) that intends to participate in the Co-Investment
Program.
______________________
7
The term “private placement transactions” means transactions in which the offer and sale of securities by the issuer are
exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”).
“Independent
Trustee” 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 Trustee 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 or more 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 Staff No-Action Letter (pub. avail. Sept. 5, 1995) and Massachusetts Mutual
Life Insurance Company, SEC Staff 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 N-2, other current filings with the Commission under the
Securities Act or under the Securities Exchange Act of 1934, as amended (“Exchange Act”), 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 (or its Wholly-Owned Investment
Sub) 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.
“Regulated
Funds” means (i) the Existing Regulated Funds, (ii) the Future Regulated Funds and (iii) 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
“Saba Capital
Proprietary Account”9 means
any account of the Adviser or any affiliate of the Adviser or of any direct or indirect, wholly-or majority-owned subsidiary of the Adviser
or its affiliates that, from time to time, may hold various financial assets in a principal capacity and intends to participate in the
proposed co-investment program.
“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 Adviser 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 subsidiary10
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. There are currently no existing Wholly-Owned Investment Subs.
______________________
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
Currently, there are no Saba Capital Proprietary Accounts that intend to participate in the Co-Investment Program. Each Saba Capital
Propriety Account will be subject to oversight by the Adviser. As a result, the Adviser will ensure compliance by each Saba Capital Proprietary
Account with the conditions of the Application in the same manner in which the Adviser will ensure compliance by each Affiliated Fund.
10
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.
| A. | The Existing Regulated Funds |
The Existing Regulated
Funds are externally managed, closed-end, non-diversified investment companies registered as investment companies under the Act. BRW
is a Massachusetts business trust. SABA is a Delaware statutory trusts.
BRW’s and SABA’s
investment objective is to seek to provide investors with a high level of current income, with a secondary goal of capital appreciation.
BRW and SABA seek to achieve this objective by investing globally in debt and equity securities of public and private companies, which
includes, among other things, investing in closed-end funds, special purpose acquisition companies (“SPACs”),
public and private debt instruments, as well as derivatives, including but not limited to, total return swaps, credit default swaps, options
(including but not limited to index options) and futures, where BRW or SABA seeks to enhance returns and/or to reduce portfolio risk.
From time to time, in pursuit of its investment objectives, BRW or SABA may also invest up to 15% of their total assets in private funds
on a discretionary basis.
| B. | Existing Affiliated Funds |
Saba Capital is the investment
adviser to the Existing Affiliated Funds. Each Existing Affiliated Fund is a separate and distinct legal entity and, when and if offering
its interests to U.S. persons, would be an investment company but for Section 3(c)(1), 3(c)(5)(C) or 3(c)(7) of the Act. A complete list
of the Existing Affiliated Funds is included in Appendix A.
Saba Capital is an investment
adviser registered with the Commission under the Advisers Act and serves as investment adviser to the Existing Regulated Funds and Existing
Affiliated Funds. Saba Capital was incorporated in Delaware on March 5, 2009.
The Applicants respectfully
request an Order of the Commission under Sections 17(d) and 57(i) and Rule 17d-1 thereunder to permit, subject to the terms and Conditions
set forth below in this Application, 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 without an exemptive order from the Commission. 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.
Similar to the standard
precedent used for the majority of co-investment applications (the “Standard Precedent”), Applicants seek relief that would
permit Co-Investment Transactions in the form of initial investments, Follow-On Investments and Dispositions of investments in an issuer.
In these cases, the terms and Conditions of this Application would govern the entire lifecycle of an investment with respect to a particular
issuer, including both the initial investment and any subsequent transactions. Unlike the Standard Precedent, Applicants also seek the
ability to make Follow-On Investments and Dispositions in issuers where the Regulated Funds and Affiliated Funds did not make their initial
investments in reliance on the Order. Applicants seek this flexibility because the Regulated Funds and Affiliated Funds may, at times,
invest in the same issuer without engaging in a prohibited joint transaction but then find that subsequent transactions with that issuer
would be prohibited under the Act. Through the proposed “onboarding process,” discussed below, Applicants would, under certain
circumstances, be permitted to rely on the Order to complete subsequent Co-Investment Transactions. In Section A.1. below, 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, 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.
The Adviser is presented
with many investment opportunities each year and must determine how to allocate those opportunities in a manner that, is fair and equitable
to all of its 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 be may be joint transactions such that the Adviser may not includea Regulated Fund in the allocation
if another Regulated Fund and/or any Affiliated Fund is participating. 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. 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.
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 the Regulated Funds
often must forego transactions that would be beneficial to investors in the Regulated Funds. Thus, Applicants are seeking the relief requested
by the Application for certain initial investments, Follow-On Investments, and Dispositions as described below.
The Adviser has established
rigorous processes for allocating initial investment opportunities, opportunities for subsequent investments in an issuer and dispositions
of securities holdings reasonably designed to treat all clients fairly and equitably. As 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.
The investment process
consists of three stages: (i) the identification and consideration of investment opportunities (including Follow-On Investments); (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 Adviser is organized
and managed such that the portfolio managers and analysts (“Investment Teams”) responsible for evaluating investment
opportunities and making investment decisions on behalf of clients are promptly notified of the opportunities that fall within
the then current Board Established Criteria, if any.
Opportunities for Potential
Co-Investment Transactions may arise when an Investment Team becomes aware of investment opportunities that may be appropriate for a Regulated
Fund and one or more other Regulated Funds and/or one or more Affiliated Funds. If the requested Order is granted, the Adviser will establish,
maintain and implement policies and procedures reasonably designed to ensure that, when such opportunities arise, the relevant Investment
Team(s) that advise the Regulated Funds are promptly notified and receive the same information about the opportunity as any other Investment
Teams of the Adviser that are 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 Team responsible for that Regulated Fund receives sufficient information
to allow such 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 relevant Investment Team(s) that advise the Regulated Funds receive such information. After receiving notification
of a Potential Co-Investment Transaction under Condition 1(a), the Adviser, working through the applicable Investment Team(s) that advise
the Regulated Funds, will then make an independent determination of the appropriateness of the investment for each Regulated Fund in light
of the Regulated Fund’s then-current circumstances.
Applicants represent that,
if the requested Order is granted, the Investment Team(s) 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. Applicants assert that the Adviser’s allocation policies and procedures are structured so that the relevant
Investment Team(s) for 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 Adviser and the respective
Investment Team(s) will undertake to perform these duties regardless of whether the Adviser serve as investment adviser or sub-adviser
to the 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 relevant Investment Team, formulate a recommendation
regarding the proposed order amount for the Regulated Fund. In doing so, the Adviser and the relevant Investment Team(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 the Investment Team(s) that advise the Regulated Funds will be entitled to participate in each meeting of investment
advisory personnel, including of any investment committee that is expected to approve or reject recommended investment opportunities
falling within the Regulated Funds’ Objectives and Strategies and Board-Established Criteria. Accordingly, the policies and procedures
may provide, for example, that the Adviser will receive the information required under Condition 1 in conjunction with such representatives’
participation in such meetings.
Allocation Procedure.
For each Regulated Fund and Affiliated Fund whose Adviser recommends participating in a Potential Co-Investment Transaction, such Adviser
will approve an investment amount to be allocated to each Regulated Fund and/or Affiliated Fund participating in the Potential Co-Investment
Transaction. Prior to the External Submission (as defined below), each proposed order amount may be reviewed and adjusted, in accordance
with the 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 Adviser 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.
Applicants represent that the Adviser’s allocation review process is a robust process designed as part of its overall
compliance policies and procedures to ensure that every client is treated fairly and that the Adviser is following its allocation policies. The allocation process is monitored and reviewed by the Adviser’s “allocation working
group,” which includes the chief compliance officer, and is 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 trustees of the parent Regulated Fund and sufficient to permit them to make informed
decisions on behalf of the applicable BDC Downstream Fund. 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
trustees 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 the Adviser.
13
The Adviser will maintain records of all proposed order amounts, Internal Orders and External Submissions in conjunction with
Potential Co-Investment Transactions. The 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, Applicants believe
that the existence of differing routes of approval between the BDC Downstream Funds and other Regulated Funds would not result in Applicants
investing through the BDC Downstream Funds in order to avoid obtaining the approval of a 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).
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 a 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 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 the 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.
Applicants believe
that these Pro Rata Follow-On Investments and Non-Negotiated Follow-On Investments do not present a significant opportunity for
overreaching on the part of the 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 29, below.
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 28, below.
16
In the case of a Tradable Security, Dispositions to the issuer or an affiliated person of the issuer are not permitted so that funds
participating in the Disposition do not benefit to the detriment of Regulated Funds that remain invested in the issuer. For example,
if a Disposition of a Tradable Security were permitted to be made to the issuer, the issuer may be reducing its short term assets (i.e.,
cash) to pay down long term liabilities.
| (b) | Enhanced Review Dispositions |
One or more Regulated Funds
and one or more Affiliated Funds that have not previously participated in a Co-Investment Transaction with respect to an issuer may have
the opportunity to make a Disposition of Pre-Boarding Investments in a Potential Co-Investment Transaction. In these cases, the Regulated
Funds and Affiliated Funds may rely on the Order to make such Disposition subject to the requirements of Condition 7. As discussed above,
with respect to investment in a given issuer, the participating Regulated Funds and Affiliated Funds need only complete the onboarding
process for the first Co-Investment Transaction, which may be an Enhanced Review Follow-On or an Enhanced Review Disposition.17
Subsequent Co-Investment Transactions with respect to the issuer will be governed by Condition 6 or 8 under the standard review process.
| 5. | Use of Wholly-Owned Investment Subs |
A 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. 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.
| 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
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 Staff 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).
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.
Co-Investment Transactions
are prohibited by either or both of Rule 17d-1 and Sections 17(d) and 57(a)(4) without a prior exemptive order of the Commission to the
extent that the Affiliated Funds and the Regulated Funds participating in such transactions fall within the category of persons described
by Rule 17d-1 and/or Section 57(b), as modified by Rule 57b-1 thereunder, as applicable, vis-à-vis each participating Regulated
Fund.
______________________
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.
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) an Existing Adviser is the investment adviser (and
sub-adviser, if any) to, and may be deemed to control, each of the Existing Affiliated Funds, and the Adviser will be the investment
adviser (and sub-adviser, if any) to, and may be deemed to control, any other Affiliated Fund; (ii) Saba Capital is the Adviser to,
and may be deemed to control, the Existing Regulated Funds; and the Adviser will be the investment adviser (and sub-adviser, if any)
to, and may be deemed to control, any Future Regulated Fund; (iii) each BDC Downstream Fund will be deemed to be controlled by its
BDC parent and/or its BDC parent’s Adviser; and (iv) the Adviser is under common control. Thus, each Regulated Fund and
each Affiliated Fund may be deemed to be a person related to a Regulated Fund or BDC Downstream Fund in a manner described by
Section 57(b) (or Section 17(d) in the case of Regulated Funds that are registered under the Act) and therefore would be prohibited
by Section 57(a)(4) (or Section 17(d) in the case of Regulated Funds that are registered under the Act) and Rule 17d-1 from
participating in Co-Investment Transactions without the Order.
Further, because the BDC
Downstream Funds and Wholly-Owned Investment Subs are controlled by the Regulated Funds, the BDC Downstream Funds and Wholly-Owned Investment
Subs are subject to Section 57(a)(4) (or Section 17(d) in the case of Wholly-Owned Investment Subs controlled by Regulated Funds that
are registered under the Act), and thus also subject to the provisions of Rule 17d-1, and therefore would be prohibited from participating
in Co-Investment Transactions without the Order.
In addition, because
the Saba Capital Proprietary Accounts are controlled by the Adviser and, therefore, may be under common control with the Existing
Regulated Funds, the Adviser, and any Future Regulated Funds, the Saba Capital 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 57(b) and
also prohibited from participating in the Co-Investment Program.
The Commission has issued
numerous exemptive orders under the Act permitting registered investment companies and BDCs to co-invest with affiliated persons, including
precedents involving proprietary accounts.23
______________________
23
See, e.g., JPM Private Markets Fund, et al. (File No. 812-15396) Investment Company Act Rel. Nos. 34914 (May 11, 2023) and 34939
(June 6, 2023); Constitution Capital Access Fund, LLC, et al. (File No. 812-15367) Investment Company Act Rel. Nos. 34828 (February 7,
2023) and 34851 (March 7, 2023); Kennedy Lewis Management LP, et al. (File No. 812-15309) Investment Company Act Rel. Nos. 34824 (February
6, 2023) and 34847 (March 6, 2023); Fidelity Private Credit Fund., et al. (File No. 812-15307) Investment Company Act Rel. Nos. 34803
(January 11, 2023) and 34831 (February 13, 2023); Forum Real Estate Income Fund, et al. (File No. 812-15355) Investment Company Act Rel.
Nos. 34780 (December 21, 2022) and 34810 (January 18, 2023); PCM Fund, Inc., et al. (File No. 812-15248) Investment Company Act Rel.
Nos. 34779 (December 19, 2022) and 34808 (January 17, 2023); ACAP Strategic Fund, et al. (File No. 812-15285) Investment Company Act
Rel. Nos. 34777 (December 16, 2022) and 34806 (January 13, 2023); Silver Spike Investment Corp., et al. (File No. 812-15339) Investment
Company Act Rel. Nos. 34771 (December 12, 2022) and 34798 (January 9, 2023); Varagon Capital Corporation, et al. (File No. 812-15361)
Investment Company Act Rel. Nos. 34766 (November 29, 2022) and 34788 (December 22, 2022); John Hancock Asset-Based Lending Fund, et al.
(File No. 812-15286) Investment Company Act Rel. Nos. 34690 (August 29, 2022) and 34718 (September 26, 2022); Brightwood Capital Corporation
I, et al (File No. 812-15287) Investment Company Act Rel. Nos. 34680 (August 22, 2022) and 34704 (September 19, 2022) and CION Investment
Corporation, et al. (File No. 812-14387) Investment Company Act Rel. Nos. 34662 (August 4, 2022) and 34693 (August 30, 2022).
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, and subsequent exemptive
relief.24 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 cited orders.
| IV. | STATEMENT IN SUPPORT OF RELIEF REQUESTED |
In accordance with Rule
17d-1 (made applicable to transactions subject to Section 57(a) by Section 57(i)), the Commission may grant the requested relief as to
any particular joint transaction if it finds that the participation of the Regulated Funds in the joint transaction is consistent with
the provisions, policies and purposes of the Act and is not on a basis different from or less advantageous than that of other participants.
Applicants submit that allowing the Co-Investment Transactions described in this Application is justified on the basis of (i) the potential
benefits to the Regulated Funds and the shareholders thereof and (ii) the protections found in the Conditions.
As required by Rule 17d-1(b),
the Conditions ensure that the terms on which Co-Investment Transactions may be made will be consistent with the participation of the
Regulated Funds and 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 Adviser.
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.
______________________
24
See Order Under Sections 6(c), 17(d), 38(a), and 57(i) of the Investment Company Act of 1940 and Rule 17d-1 Thereunder Granting
Exemptions from Specified Provisions of the Investment Company Act and Certain Rules Thereunder, Investment Company Act Rel. No. 33837
(April 8, 2020). See, e.g. JPM Private Markets Fund, et al., supra note 23; Constitution Capital Access Fund, LLC, et al., supra
note 23; Kennedy Lewis Management LP, et al., supra note 23; Fidelity Private Credit Fund., et al., supra note 23;
Forum Real Estate Income Fund, et al., supra note 23; PCM Fund, Inc., et al., supra note 23; ACAP Strategic Fund, et al.,
supra note 23; Silver Spike Investment Corp., et al., supra note 23 and Varagon Capital Corporation, et al., supra
note 23. See also, Golub Capital BDC, Inc., et al. (File No. 812-15326) Investment Company Act Rel. Nos. 34775 (December 16, 2022)
and 34805 (January 13, 2023); MidCap Financial Investment Corporation, et al.(File No. 812-15382) Investment Company Act Rel. Nos. 34770
(December 9, 2022) and 34799 (January 10, 2023); Monroe Capital Corporation, et al. (File No. 812-15388) Investment Company Act Rel.
Nos. 34769 (December 8, 2022) and 34800 (January 10, 2023); Goldman Sachs BDC, Inc., et al (File No. 812-15237) Investment Company Act
Rel. Nos. 34533 (March 15, 2022) and 34753 (November 16, 2022); Main Street Capital Corporation, et al. (File No. 812-15362) Investment
Company Act Rel. Nos. 34726 (October 11, 2022) and 34748 (November 8, 2022); PennantPark Investment Advisers, LLC, et al. (File No. 812-15305)
Investment Company Act Rel. Nos. 34723 (October 3, 2022) and 34742 (October 28, 2022); Neuberger Berman BDC LLC, et al. (File No. 812-15378)
Investment Company Act Rel. Nos. 34719 (September 29, 2022) and 34730 (October 25, 2022); Nuveen Churchill Direct Lending Corp., et al.
(File No. 812-15322) Investment Company Act Rel. Nos. 34702 (September 15, 2022) and 34728 (October 14, 2022); Ares Capital Corporation,
et al. (File No. 812-15368) Investment Company Act Rel. Nos. 34699 (September 8, 2022) and 34722 (September 30, 2022) and Owl Rock Capital
Corporation, et al. (File No. 812-15341) Investment Company Act Rel. Nos. 34670 (August 10, 2022) and 34696 (September 6, 2022).
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 will determine 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.
| 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 no such fund 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.
Applicants believe that
participation by the Regulated Funds in Pro Rata Follow-On Investments and Pro Rata Dispositions, as provided in Conditions 6(c)(i) and
8(b)(i), is consistent with the provisions, policies and purposes of the Act and will not be made on a basis different from or less advantageous
than that of other participants. A formulaic approach, such as pro rata investment or disposition eliminates the possibility for overreaching
and unnecessary prior review by the Board. Applicants note that the Commission has adopted a similar pro rata approach in the context
of Rule 23c-2 under the Act, 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 a pro rata approach provides.
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 the 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.
In sum, 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, 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
such that each Regulated Fund’s participation is not different from, or less advantageous than, that of the other participants.
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 Adviser will establish, maintain and implement policies and procedures reasonably designed to
ensure that the 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, it will then determine an appropriate level of investment for the Regulated Fund. |
| (b) | If the aggregate amount recommended by the Adviser 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. The 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), 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 indirect25 financial benefit to the Adviser, 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. |
| 4. | General Limitation. Except for Follow-On Investments made in accordance with Conditions 8 and 9
below,26 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 Fund27
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. |
______________________
25 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.
26 This exception applies only to Follow-On Investments
by a Regulated Fund in issuers in which that Regulated Fund already holds investments.
27 Any Saba Capital 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).
| (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) | (A) 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;28
(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 |
| (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 Adviser 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. |
_____________________
28 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.
| (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 immaterial29
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). |
______________________
29 In determining whether a holding is “immaterial”
for purposes of the Order, the Required Majority will consider whether the nature and extent of the interest in the transaction or arrangement
is sufficiently small that a reasonable person would not believe that the interest affected the determination of whether to enter into
the transaction or arrangement or the terms of the transaction or arrangement.
| 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,30
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 |
| (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 |
______________________
30 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) | the aggregate amount recommended by the Adviser 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 Adviser 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 Adviser 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
Trustees, 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 Trustees (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 Trustee (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 Adviser under their respective advisory agreements with the
Regulated Funds and the Affiliated Funds, be shared by the Regulated Funds and the participating Affiliated Funds in proportion to the
relative amounts of the securities held or being acquired or disposed of, as the case may be. |
| 14. | Transaction Fees.31
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 Adviser, 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 Adviser, investment advisory compensation paid in accordance with investment advisory agreements between the applicable Regulated
Fund(s) or Affiliated Fund(s) and its Adviser. |
______________________
31 Applicants are not requesting and the Commission
is not providing any relief for transaction fees received in connection with any Co-Investment Transaction.
| 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 trustees; (2) the removal of one or more trustees; or (3) any other matter under either the
Act or applicable State law affecting the Board’s composition, size or manner of election. |
Pursuant to Rule 0-2(f)
under the Act, each Applicant states its address for purposes of this Application is as indicated below. Please address all communications
concerning this Application and the Notice and Order to:
Saba Capital Management, L.P.
405 Lexington Avenue, 58th Floor
New York, New York 10174
Attention: Michael D’Angelo
Michael.DAngelo@sabacapital.com
Please address any questions,
and a copy of any communications, concerning this Application, the Notice and Order to:
Michael S. Didiuk
Schulte Roth & Zabel LLP
919 Third Avenue
New York, NY 10022
(212) 756-2405
Michael.didiuk@srz.com
Applicants desire that the Commission issue
an Order pursuant to Rule 0-5 without conducting a hearing.
Pursuant to Rule 0-2, each
person executing the Application on behalf of an Applicant says that he or she has duly executed the Application for and on behalf of
such Applicant; that he or she is authorized to execute the Application pursuant to the terms of an operating agreement, management agreement
or otherwise; and that all actions by members, trustees 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.
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 7th day of June, 2024.
* * * * *
[Signature Page Follows]
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Saba Capital Income & Opportunities Fund |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: Secretary |
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Saba Capital Income & Opportunities Fund II |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: Secretary
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Saba Capital Management, L.P. |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Saba Capital Management GP, LLC |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: Authorized Signatory |
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Saba Capital Carry Neutral Tail Hedge Partners, L.P. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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Saba Capital Carry Neutral Tail Hedge Offshore Fund, Ltd. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Saba Capital Carry Neutral Tail Hedge Master Fund, Ltd. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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Saba Capital Partners, L.P. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Saba Capital Offshore Fund, Ltd. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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Saba Capital Master Fund, Ltd. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Saba Capital CEF Opportunities 1 Onshore, L.P. |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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Saba Capital CEF Opportunities 1 Offshore, Ltd. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Saba Capital CEF Opportunities 1, Ltd. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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Saba Capital CEF Opportunities 2 Offshore, Ltd. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Saba Capital CEF Opportunities 2, Ltd. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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Saba Capital CEF Opportunities 3, Ltd. |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Saba Capital CEF Special Opportunities Offshore Fund 1, Ltd. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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Saba Capital CEF Special Opportunities Onshore Fund 1, LP |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Saba Capital CEF Special Opportunities Master Fund 1, Ltd. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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Saba Capital CEF Special Opportunities Offshore Fund 2, Ltd. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Saba Capital CEF Special Opportunities Onshore Fund 2, LP |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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Saba Capital CEF Special Opportunities Master Fund 2, Ltd. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Saba Capital Arcadia Master Fund, Ltd. |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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Saba Capital Arcadia Onshore Fund, L.P. |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Saba Capital R Fund, Ltd. |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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Saba Capital W Fund, Ltd. |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Saba Capital Bluebird Fund, Ltd. |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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Saba Capital II, LLC |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: Authorized Signatory |
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Saba II Aggregator Vehicle LLC |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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Saba Capital Offshore Fund II, Ltd. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Saba II AIV LP |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Saba Capital Master Fund II, Ltd. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Saba Capital, LLC |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: Authorized Signatory |
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Saba Capital Matador Fund, Ltd. |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: Authorized Signatory |
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Saba Capital M Fund, Ltd. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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Appendix A
Below is a list of the Existing Affiliated Funds. All such Existing
Affiliated Funds are advised by the Existing Adviser:
Saba Capital Management GP, LLC
Saba Capital Carry Neutral Tail Hedge Partners, L.P.
Saba Capital Carry Neutral Tail Hedge Offshore Fund, Ltd.
Saba Capital Carry Neutral Tail Hedge Master Fund, Ltd.
Saba Capital Partners, L.P.
Saba Capital Offshore Fund, Ltd.
Saba Capital Master Fund, Ltd.
Saba Capital CEF Opportunities 1 Onshore, L.P.
Saba Capital CEF Opportunities 1 Offshore, Ltd.
Saba Capital CEF Opportunities 1, Ltd.
Saba Capital CEF Opportunities 2 Offshore, Ltd.
Saba Capital CEF Opportunities 2, Ltd.
Saba Capital CEF Opportunities 3, Ltd.
Saba Capital CEF Special Opportunities Offshore Fund 1, Ltd.
Saba Capital CEF Special Opportunities Onshore Fund 1, LP
Saba Capital CEF Special Opportunities Master Fund 1, Ltd.
Saba Capital CEF Special Opportunities Offshore Fund 2, Ltd.
Saba Capital CEF Special Opportunities Onshore Fund 2, LP
Saba Capital CEF Special Opportunities Master Fund 2, Ltd.
Saba Capital Arcadia Master Fund, Ltd.
Saba Capital Arcadia Onshore Fund, L.P.
Saba Capital R Fund, Ltd.
Saba Capital W Fund, Ltd.
Saba Capital Bluebird Fund, Ltd.
Saba Capital II, LLC
Saba II Aggregator Vehicle LLC
Saba Capital Offshore Fund II, Ltd.
Saba II AIV LP
Saba Capital Master Fund II, Ltd.
Saba Capital, LLC
Saba Capital Matador Fund, Ltd.
Saba Capital M Fund, Ltd.
EXHIBIT A
VERIFICATION
The undersigned states that he or she has 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 June 7, 2024, for and on behalf of the Applicants, as the case may be, that he or she holds the office with such
entity as indicated below and that all actions by the stockholders, trustees, and other bodies necessary to authorize the undersigned
to execute and file such Application have been taken. The undersigned further says that he or she is familiar with the instrument and
the contents thereof, and that the facts set forth therein are true to the best of his or her knowledge, information, and belief.
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As to Saba Capital INCOME & OPPORTUNITIES FUND |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: Secretary |
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As to Saba Capital INCOME & OPPORTUNITIES FUND II |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: Secretary |
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As to Saba Capital MANAGEMENT, L.P. |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: Secretary |
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As to SABA CAPITAL MANAGEMENT GP, LLC |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: Authorized Signatory |
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As to SABA CAPITAL CARRY NEUTRAL TAIL HEDGE PARTNERS, L.P. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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As to SABA CAPITAL CARRY NEUTRAL TAIL HEDGE OFFSHORE FUND, LTD. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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As to SABA CAPITAL CARRY NEUTRAL TAIL HEDGE MASTER FUND, LTD. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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As to SABA CAPITAL PARTNERS, L.P. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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As to SABA CAPITAL OFFSHORE FUND, LTD. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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As to SABA CAPITAL MASTER FUND, LTD. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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As to SABA CAPITAL CEF OPPORTUNITIES 1 ONSHORE, L.P. |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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As to SABA CAPITAL CEF OPPORTUNITIES 1 OFFSHORE, LTD. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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As to SABA CAPITAL CEF OPPORTUNITIES 1, LTD. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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As to SABA CAPITAL CEF OPPORTUNITIES 2 OFFSHORE, LTD. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
/s/ |
Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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As to SABA CAPITAL CEF OPPORTUNITIES 2, LTD. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
/s/ |
Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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As to SABA CAPITAL CEF OPPORTUNITIES 3, LTD. |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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As to SABA CAPITAL CEF SPECIAL OPPORTUNITIES OFFSHORE FUND 1, LTD. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
/s/ |
Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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As to SABA CAPITAL CEF SPECIAL OPPORTUNITIES ONSHORE FUND 1, LP |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
/s/ |
Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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As to SABA CAPITAL CEF SPECIAL OPPORTUNITIES MASTER FUND 1, LTD. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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As to SABA CAPITAL CEF SPECIAL OPPORTUNITIES OFFSHORE FUND 2, LTD. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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As to SABA CAPITAL CEF SPECIAL OPPORTUNITIES ONSHORE FUND 2, LP |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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As to SABA CAPITAL CEF SPECIAL OPPORTUNITIES MASTER FUND 2, LTD. |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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As to SABA CAPITAL ARCADIA MASTER FUND, LTD. |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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As to SABA CAPITAL ARCADIA ONSHORE FUND, L.P. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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As to SABA CAPITAL R FUND, LTD. |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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As to SABA CAPITAL W FUND, LTD. |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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As to SABA CAPITAL BLUEBIRD FUND, LTD. |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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As to SABA CAPITAL II, LLC |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: Authorized Signatory |
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As to SABA II AGGREGATOR VEHICLE LLC |
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By:
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Saba Capital Management, L.P., its investment manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel
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As to SABA CAPITAL OFFSHORE FUND II, LTD. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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As to SABA II AIV LP |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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As to SABA CAPITAL MASTER FUND II, LTD. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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As to SABA CAPITAL, LLC |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: Authorized Signatory |
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As to SABA CAPITAL MATADOR FUND, LTD. |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: Authorized Signatory |
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As to SABA CAPITAL M FUND, LTD. |
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By:
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Saba Capital Management, L.P., its manager |
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By: |
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/s/ Michael D’Angelo |
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Name: Michael D’Angelo |
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Title: General Counsel |
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EXHIBIT B
Resolutions Adopted by the Board of Trustees
(the “Board”) of
Saba Capital Income and Opportunities Fund (the “Fund”)
WHEREAS, the Board has
reviewed the Fund’s Co-Investment Exemptive Application (the “Exemptive Application”), a copy of which is attached hereto
as an exhibit, for an order of the U.S. Securities and Exchange Commission (the “SEC”) pursuant to Sections 17(d) and 57(i)
of the Investment Company Act of 1940, as amended (the “1940 Act”), and Rule 17d-1 thereunder permitting certain joint transactions
that otherwise may be prohibited by Sections 17(d) and 57(a)(4) of the 1940 Act and Rule 17d-1 thereunder; and
WHEREAS, the Board deems
it advisable and in the best interest of the Fund that the Fund file the Exemptive Application.
RESOLVED, that the officers
of the Fund (the “Officers”) be, and each of them hereby is, authorized, empowered and directed, in the name and on behalf
of the Fund, to cause to be executed, delivered and filed with the SEC the Exemptive Application, in substantially the form attached hereto;
and
FURTHER RESOLVED, that
the Officers shall be, and hereby are, authorized, empowered and directed, in the name and on behalf of the Fund, to cause to be made,
executed, delivered and filed with the SEC any amendments to the Exemptive Application, together with such exhibits and other documents
thereto, as are satisfactory in form and substance to counsel to the Fund in order to effectuate the foregoing, such determination to
be conclusively evidenced by the taking of any such action; and
FURTHER RESOLVED, that
all acts and things previously done by the Officers, on or prior to the date hereof, in the name and on behalf of the Fund in connection
with the foregoing resolutions are in all respects authorized, ratified, approved, confirmed and adopted as the acts and deeds by and
on behalf of the Fund; and
FURTHER RESOLVED, that
each Officer be, and hereby is, authorized, empowered and directed to certify and deliver copies of these resolutions to such governmental
bodies, agencies, persons, firms or corporations as the 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 presented to and approved herein and to furnish evidence
of the approval of any document, instrument or provision or any addition, deletion or change in any document or instrument.
EXHIBIT C
Resolutions Adopted by the Board of Trustees
(the “Board”) of
Saba Capital Income and Opportunities Fund II (the “Fund”)
WHEREAS, the Board has
reviewed the Fund’s Co-Investment Exemptive Application (the “Exemptive Application”), a copy of which is attached hereto
as an exhibit, for an order of the U.S. Securities and Exchange Commission (the “SEC”) pursuant to Sections 17(d) and 57(i)
of the Investment Company Act of 1940, as amended (the “1940 Act”), and Rule 17d-1 thereunder permitting certain joint transactions
that otherwise may be prohibited by Sections 17(d) and 57(a)(4) of the 1940 Act and Rule 17d-1 thereunder; and
WHEREAS, the Board deems
it advisable and in the best interest of the Fund that the Fund file the Exemptive Application.
RESOLVED, that the officers
of the Fund (the “Officers”) be, and each of them hereby is, authorized, empowered and directed, in the name and on behalf
of the Fund, to cause to be executed, delivered and filed with the SEC the Exemptive Application, in substantially the form attached hereto;
and
FURTHER RESOLVED, that
the Officers shall be, and hereby are, authorized, empowered and directed, in the name and on behalf of the Fund, to cause to be made,
executed, delivered and filed with the SEC any amendments to the Exemptive Application, together with such exhibits and other documents
thereto, as are satisfactory in form and substance to counsel to the Fund in order to effectuate the foregoing, such determination to
be conclusively evidenced by the taking of any such action; and
FURTHER RESOLVED, that
all acts and things previously done by the Officers, on or prior to the date hereof, in the name and on behalf of the Fund in connection
with the foregoing resolutions are in all respects authorized, ratified, approved, confirmed and adopted as the acts and deeds by and
on behalf of the Fund; and
FURTHER RESOLVED, that
each Officer be, and hereby is, authorized, empowered and directed to certify and deliver copies of these resolutions to such governmental
bodies, agencies, persons, firms or corporations as the 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 presented to and approved herein and to furnish evidence
of the approval of any document, instrument or provision or any addition, deletion or change in any document or instrument.
Saba Capital Income and ... (NYSE:SABA)
過去 株価チャート
から 9 2024 まで 10 2024
Saba Capital Income and ... (NYSE:SABA)
過去 株価チャート
から 10 2023 まで 10 2024