83_FR_1085 83 FR 1079 - Guggenheim Credit Income Fund, et al.; Notice of Application

83 FR 1079 - Guggenheim Credit Income Fund, et al.; Notice of Application

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 83, Issue 6 (January 9, 2018)

Page Range1079-1084
FR Document2018-00162

Federal Register, Volume 83 Issue 6 (Tuesday, January 9, 2018)
[Federal Register Volume 83, Number 6 (Tuesday, January 9, 2018)]
[Notices]
[Pages 1079-1084]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-00162]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 32960; File No. 812-14821]


Guggenheim Credit Income Fund, et al.; Notice of Application

January 3, 2018.
AGENCY:  Securities and Exchange Commission (``Commission'').

ACTION: Notice.

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

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

Applicants:  Guggenheim Credit Income Fund (the ``Fund'') (f/k/a Carey 
Credit Income Fund); Guggenheim Partners Investment Management, LLC 
(``Guggenheim''); Guggenheim Funds Distributors, LLC, Guggenheim Funds 
Investment Advisors, LLC, Security Investors, LLC (collectively, 
together with Guggenheim, the ``Existing Guggenheim Advisers''); 
Guggenheim European Credit Fund, Guggenheim Private Debt Fund Note 
Issuer, LLC, Guggenheim Private Debt Fund, LLC, Guggenheim Private Debt 
Fund, Ltd., Guggenheim Private Debt Master Fund, LLC, Guggenheim 
Private Debt Fund Note Issuer 2.0, LLC, Guggenheim Private Debt Fund 
2.0, LLC, Guggenheim Private Debt Fund 2.0, Ltd., Guggenheim Private 
Debt Master Fund 2.0, LLC, Guggenheim Private Debt MFLTB 2.0, LLC, NZC 
Guggenheim Fund LLC, NZC Guggenheim Fund Limited, NZC Guggenheim Master 
Fund Limited, NZCG Funding Ltd., NZCG Funding 2 Limited, South Dock 
Funding Limited, NZCG Feeder I, L.P., NZCG Funding 2, LLC, NZCG Funding 
LLC, Guggenheim U.S. Loan Fund, Guggenheim U.S. Loan Fund II, 
Guggenheim U.S. Loan Fund III, Guggenheim Opportunistic U.S. Loan and 
Bond Fund IV, GFI Fund, and GHY Fund (collectively, the ``Existing 
Affiliated Investors'').

Filing Dates:  The application was filed on September 22, 2017, and 
amended on November 22, 2017.

Hearing or Notification of Hearing:  An order granting the requested 
relief will be issued unless the Commission orders a hearing. 
Interested persons may request a hearing by writing to the Commission's 
Secretary and serving applicants with a copy of the request, personally 
or by mail. Hearing requests should be received by the Commission by 
5:30 p.m. on January 29, 2018, and should be accompanied by proof of 
service on applicants, in the form of an affidavit or, for lawyers, a 
certificate of service. Pursuant to rule 0-5 under the Act, hearing 
requests should state the nature of the writer's interest, any facts 
bearing upon the desirability of a hearing on the matter, the reason 
for the request, and the issues contested. Persons who wish to be 
notified of a hearing may request notification by writing to the 
Commission's Secretary.

ADDRESSES:  Secretary, U.S. Securities and Exchange Commission, 100 F 
St. NE, Washington, DC 20549-1090. Applicants: Guggenheim and the Fund: 
330 Madison Avenue, New York, NY 10017; the Existing Guggenheim 
Advisers and the Existing Affiliated Investors: 100 Wilshire Boulevard, 
5th Floor, Santa Monica, CA 90401.

FOR FURTHER INFORMATION CONTACT:  Hae-Sung Lee, Attorney-Adviser, at 
(202) 551-7345 or Robert H. Shapiro, Branch Chief, at (202) 551-6821 
(Chief Counsel's Office, Division of Investment Management).

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

Applicants' Representations

    1. The Fund is a Delaware statutory trust organized as a closed-end 
management investment company that has elected to be regulated as a BDC 
under the Act.\1\ The Fund serves as the

[[Page 1080]]

master fund in a master-feeder structure with three feeder funds and 
makes investments with the proceeds it receives from the sale of shares 
of the feeder funds.\2\ The Fund's Objectives and Strategies \3\ are to 
provide shareholders with current income, capital preservation and, to 
a lesser extent, long-term capital appreciation. The Fund invests 
primarily in large, privately-negotiated loans to private middle market 
U.S. companies and in opportunities that are originated by various 
intermediaries where the Fund is able to play a differentiated role 
gaining outsized allocation, influencing structure, pricing, and fees 
compared to the broader market (this could include more broadly 
syndicated assets such as bank loans and corporate bonds). The Fund has 
a five member Board,\4\ of which three members are Independent 
Trustees.\5\
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    \1\ Section 2(a)(48) of the Act 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) of the Act and makes available significant 
managerial assistance with respect to the issuers of such 
securities.
    \2\ The existing feeder funds are Carey Credit Income Fund--I, 
Carey Credit Income Fund 2016 T, and Carey Credit Income Fund 2018 
T. Any future feeder fund will be created by Guggenheim.
    \3\ ``Objectives and Strategies'' means a Regulated Entity's (as 
defined below) investment objectives and strategies, as described in 
the Regulated Entity's registration statement on Form N-2, other 
filings the Regulated Entity has made with the Commission under the 
Securities Act of 1933 (the ``Securities Act''), or under the 
Securities Exchange Act of 1934, and the Regulated Entity's reports 
to shareholders.
    \4\ The term ``Board'' refers to the board of directors or 
trustees of any Regulated Entity.
    \5\ The term ``Independent Trustees'' refers to the trustees or 
directors of any Regulated Entity that are not ``interested 
persons'' of the Regulated Entity within the meaning of section 
2(a)(19) of the Act.
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    2. Guggenheim is a Delaware limited liability company and is 
registered as an investment adviser under the Investment Advisers Act 
of 1940 (the ``Advisers Act''). Guggenheim serves as the investment 
adviser to the Fund. Guggenheim also provides administrative services 
to the Fund under an administrative services agreement. Guggenheim is 
part of the investment management business of Guggenheim Partners LLC, 
a privately held, global financial services firm.
    3. Each Existing Affiliated Investor is a privately-offered fund 
that would be an investment company but for section 3(c)(1) or 3(c)(7) 
of the Act. An Existing Guggenheim Adviser serves as the investment 
adviser to each Existing Affiliated Investor. Each Existing Guggenheim 
Adviser is either controlled by Guggenheim or under common control with 
Guggenheim and is registered as an investment adviser under the 
Advisers Act.
    4. Applicants seek to supersede the Prior Order \6\ to permit one 
or more Regulated Entities \7\ and/or one or more Affiliated Investors 
\8\ to participate in the same investment opportunities through a 
proposed co-investment program (the ``Co-Investment Program'') where 
such participation would otherwise be prohibited under sections 17(d) 
and 57(a)(4) and the rules under the Act. For purposes of the 
application, ``Co-Investment Transaction'' means any transaction in 
which a Regulated Entity (or its Wholly-Owned Investment Subsidiary, as 
defined below) participated together with one or more other Regulated 
Entities and/or one or more Affiliated Investors in reliance on the 
requested Order or the Prior Order. ``Potential Co-Investment 
Transaction'' means any investment opportunity in which a Regulated 
Entity (or its Wholly-Owned Investment Subsidiary) could not 
participate together with one or more Affiliated Investors and/or one 
or more other Regulated Entities without obtaining and relying on the 
Order.
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    \6\ The requested order (the ``Order'') would supersede an 
exemptive order issued by the Commission on June 28, 2016 (the 
``Prior Order'') that was granted pursuant to Sections 57(a)(4) and 
57(i) and Rule 17d-1, with the result that no person will continue 
to rely on the Prior Order if the Order is granted. Carey Credit 
Income Fund, et al., Investment Company Act Release Nos. 32138 (June 
2, 2016) (notice) and 32164 (June 28, 2016) (order). All existing 
entities that currently intend to rely on the Order have been named 
as applicants. Any other existing or future entity that relies on 
the Order in the future will comply with the terms and conditions of 
the application.
    \7\ ``Regulated Entity'' means the Fund and any Future Regulated 
Entity. ``Future Regulated Entity'' means a closed-end management 
investment company (a) that is registered under the Act or has 
elected to be regulated as a BDC under the Act, (b) whose investment 
adviser is a Guggenheim Adviser. ``Guggenheim Adviser'' means any 
Existing Guggenheim Adviser or any future investment adviser that 
(i) controls, is controlled by or is under common control with 
Guggenheim, (ii) is registered as an investment adviser under the 
Advisers Act, and (iii) is not a Regulated Entity or a subsidiary of 
a Regulated Entity.
    \8\ ``Affiliated Investors'' means the Existing Affiliated 
Investors and any Future Affiliated Investor. ``Future Affiliated 
Investor'' means an entity (a) whose investment adviser is a 
Guggenheim Adviser and (b) that would be an investment company but 
for section 3(c)(1) or 3(c)(7) of the Act.
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    5. Applicants state that a Regulated Entity may, from time to time, 
form a Wholly-Owned Investment Subsidiary.\9\ Such a subsidiary would 
be prohibited from investing in a Co-Investment Transaction with any 
Affiliated Investor because it would be a company controlled by its 
parent Regulated Entity for purposes of section 57(a)(4) and rule 17d-
1. Applicants request that each Wholly-Owned Investment Subsidiary be 
permitted to participate in Co-Investment Transactions in lieu of its 
parent Regulated Entity and that the Wholly-Owned Investment 
Subsidiary's participation in any such transaction be treated, for 
purposes of the requested Order, as though the parent Regulated Entity 
were participating directly. Applicants represent that this treatment 
is justified because a Wholly-Owned Investment Subsidiary would have no 
purpose other than serving as a holding vehicle for the Regulated 
Entity's investments and, therefore, no conflicts of interest could 
arise between the Regulated Entity and the Wholly-Owned Investment 
Subsidiary. The Regulated Entity's Board would make all relevant 
determinations under the conditions with regard to a Wholly-Owned 
Investment Subsidiary's participation in a Co-Investment Transaction, 
and the Regulated Entity's Board would be informed of, and take into 
consideration, any proposed use of a Wholly-Owned Investment Subsidiary 
in the Regulated Entity's place. If the Regulated Entity proposes to 
participate in the same Co-Investment Transaction with any of its 
Wholly-Owned Investment Subsidiaries, the Board will also be informed 
of, and take into consideration, the relative participation of the 
Regulated Entity and the Wholly-Owned Investment Subsidiary.
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    \9\ The term ``Wholly-Owned Investment Subsidiary'' means an 
entity (i) that is wholly-owned by a Regulated Entity (with such 
Regulated Entity at all times holding, beneficially and of record, 
100% of the voting and economic interests); (ii) whose sole business 
purpose is to hold one or more investments on behalf of the 
Regulated Entity (and, in the case of an entity that is licensed by 
the Small Business Administration to operate under the Small 
Business Investment Act of 1958, as amended (the ``SBA Act''), as a 
small business investment company (an ``SBIC''), to maintain a 
license under the SBA Act and issue debentures guaranteed by the 
Small Business Administration); (iii) with respect to which the 
Regulated Entity's Board has the sole authority to make all 
determinations with respect to the entity's participation under the 
conditions of the application; and (iv) that would be an investment 
company but for section 3(c)(1) or 3(c)(7) of the Act. All 
subsidiaries participating in the Co-Investment Program will be 
Wholly-Owned Investment Subsidiaries and will have Objectives and 
Strategies that are either substantially the same as, or a subset 
of, their parent Regulated Entity's Objectives and Strategies. A 
subsidiary that is an SBIC may be a Wholly-Owned Investment 
Subsidiary if it satisfies the conditions in this definition.
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    6. It is anticipated that a Guggenheim Adviser will periodically 
determine that certain investments the Guggenheim Adviser recommends 
for a Regulated Entity would also be appropriate investments for one or 
more other Regulated Entities and/or one or more Affiliated Investors. 
Such a determination may result in the Regulated Entity, one or more 
other Regulated Entities and/or one or more Affiliated Investors co-
investing in certain investment opportunities. For each such investment 
opportunity, the Guggenheim Adviser to each Regulated Entity will 
independently analyze and

[[Page 1081]]

evaluate the investment opportunity as to its appropriateness for such 
Regulated Entity taking into consideration the Regulated Entity's 
Objectives and Strategies.
    7. Applicants state that Guggenheim serves as the Fund's investment 
adviser and administrator and either it or another Guggenheim Adviser 
will serve in the same capacity to any Future Regulated Entity. 
Applicants represent that a Guggenheim Adviser will identify and 
recommend investments for each Regulated Entity and will have the 
authority to approve or reject all investments proposed for the 
Regulated Entity.
    8. Applicants state that each Guggenheim Adviser has (or will have, 
in the case of future advisers) an investment committee through which 
it will carry out its obligation under condition 1 to make a 
determination as to the appropriateness of a Potential Co-Investment 
Transaction for each Regulated Entity. Applicants represent that each 
Guggenheim Adviser, as a registered investment adviser, has (or will 
have, in the case of future advisers) developed a robust allocation 
process that is designed to allocate investment opportunities fairly 
and equitably among its clients over time. Applicants state that, in 
the case of a Potential Co-Investment Transaction, the applicable 
Guggenheim Adviser would apply its allocation policies and procedures 
in determining the proposed allocation for the Regulated Entity 
consistent with the requirements of condition 2(a).
    9. Applicants state that, once the applicable Guggenheim Adviser's 
investment committee approves a transaction, the Guggenheim Adviser 
would present the Potential Co-Investment Transaction and proposed 
allocation to the Regulated Entity's Board for its approval in 
accordance with the conditions to the application.
    10. If the applicable Guggenheim Adviser to a Regulated Entity 
determines that a Potential Co-Investment Transaction is appropriate 
for the Regulated Entity, and one or more other Regulated Entities and/
or one or more Affiliated Investors may also participate, the 
Guggenheim Adviser will present the investment opportunity to the 
Eligible Trustees \10\ of the Regulated Entity prior to the actual 
investment by the Regulated Entity. As to any Regulated Entity, a Co-
Investment Transaction will be consummated only upon approval by a 
required majority of the Eligible Trustees of such Regulated Entity 
within the meaning of section 57(o) of the Act (``Required 
Majority'').\11\
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    \10\ ``Eligible Trustees'' means the trustees or directors of a 
Regulated Entity that are eligible to vote under section 57(o) of 
the Act.
    \11\ In the case of a Regulated Entity that is a registered 
closed-end fund, the trustees or directors that make up the Required 
Majority will be determined as if the Regulated Entity were a BDC 
subject to section 57(o). As defined in section 57(o), ``required 
majority'' means ``both a majority of a business development 
company's directors or general partners who have no financial 
interest in such transaction, plan, or arrangement and a majority of 
such directors or general partners who are not interested persons of 
such company.''
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    11. With respect to the pro rata dispositions and follow-on 
Investments provided in conditions 7 and 8, a Regulated Entity may 
participate in a pro rata disposition or follow-on investment without 
obtaining prior approval of the Required Majority if, among other 
things: (i) The proposed participation of each Regulated Entity and 
Affiliated Investor in such disposition is proportionate to its 
outstanding investments in the issuer immediately preceding the 
disposition or follow-on investment, as the case may be; and (ii) each 
Regulated Entity's Board has approved that Regulated Entity's 
participation in pro rata dispositions and follow-on investments as 
being in the best interests of the Regulated Entity. If the Board does 
not so approve, any such disposition or follow-on investment will be 
submitted to the Regulated Entity's Eligible Trustees. The Board of any 
Regulated Entity may at any time rescind, suspend or qualify its 
approval of pro rata dispositions and follow-on investments with the 
result that all dispositions and/or follow-on investments must be 
submitted to the Eligible Trustees.
    12. No Independent Trustee of a Regulated Entity will have a 
financial interest in any Co-Investment Transaction.
    13. Under condition 15, if a Guggenheim Adviser or its principals, 
or any person controlling, controlled by, or under common control with 
the Guggenheim Adviser or its principals, and any Affiliated Investors 
(collectively, the ``Holders'') own in the aggregate more than 25% of 
the outstanding voting securities of a Regulated Entity (``Shares''), 
then the Holders will vote such Shares as directed by an independent 
third party when voting on matters specified in the condition. 
Applicants believe that this condition will ensure that the Independent 
Trustees will act independently in evaluating the Co-Investment 
Program, because the ability of the Guggenheim Adviser or its 
principals to influence the Independent Trustees by a suggestion, 
explicit or implied, that the Independent Trustees can be removed will 
be limited significantly. Applicants represent that the Independent 
Trustees shall evaluate and approve any such independent third party, 
taking into account its qualifications, reputation for independence, 
cost to the shareholders, and other factors that they deem relevant.

Applicants' Legal Analysis

    1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit 
participation by a registered investment company and an affiliated 
person 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. Section 17(d) of the Act and rule 
17d-1 under the Act are applicable to Regulated Entities that are 
registered closed-end investment companies. Similarly, with regard to 
BDCs, section 57(a)(4) of the Act makes it unlawful for any person who 
is related to a BDC in a manner described in section 57(b), acting as 
principal, knowingly to effect any transaction in which the BDC (or a 
company controlled by such BDC) is a joint or a joint and several 
participant with that person in contravention of rules as prescribed by 
the Commission. Because the Commission has not adopted any rules 
expressly under section 57(a)(4), section 57(i) provides that the rules 
under section 17(d) applicable to registered closed-end investment 
companies (e.g., rule 17d-1) are, in the interim, deemed to apply to 
transactions subject to section 57(a). Rule 17d-1, as made applicable 
to BDCs by section 57(i), prohibits any person who is related to a BDC 
in a manner described in section 57(b), as modified by rule 57b-1, from 
acting as principal, from participating in, or effecting any 
transaction in connection with, any joint enterprise or other joint 
arrangement or profit-sharing plan in which the BDC (or a company 
controlled by such BDC) is a participant, unless an application 
regarding the joint enterprise, arrangement, or profit-sharing plan has 
been filed with the Commission and has been granted by an order entered 
prior to the submission of the plan or any modification thereof, to 
security holders for approval, or prior to its adoption or modification 
if not so submitted.
    2. In passing upon applications under rule 17d-1, the Commission 
considers whether the company's participation in the joint transaction 
is consistent with the provisions, policies, and purposes of the Act 
and the extent to which such participation is on a basis different from

[[Page 1082]]

or less advantageous than that of other participants.
    3. Applicants submit that each Regulated Entity may be deemed to be 
an ``affiliated person'' of each other Regulated Entity within the 
meaning of section 2(a)(3) of the Act. Applicants state that the 
Regulated Entities, by virtue of each having a Guggenheim Adviser, may 
be deemed to be under common control, and thus affiliated persons of 
each other under section 2(a)(3)(C) of the Act. Section 17(d) and 
section 57(b) apply to any investment adviser to a closed-end fund or a 
BDC, respectively. Thus, a Guggenheim Adviser and any Affiliated 
Investors that it advises could be deemed to be persons related to 
Regulated Entities in a manner described by sections 17(d) and 57(b) 
and therefore prohibited by sections 17(d) and 57(a)(4) and rule 17d-1 
from participating in the Co-Investment Program. Applicants further 
submit that, because the Guggenheim Advisers are ``affiliated persons'' 
of other Guggenheim Advisers, Affiliated Investors advised by any of 
them could be deemed to be persons related to Regulated Entities (or a 
company controlled by a Regulated Entity) in a manner described by 
sections 17(d) and 57(b) and also prohibited from participating in the 
Co-Investment Program.
    4. Applicants state that they expect that that co-investment in 
portfolio companies by a Regulated Entity, one or more other Regulated 
Entities and/or one or more Affiliated Investors will increase 
favorable investment opportunities for each Regulated Entity.
    5. Applicants submit that the fact that the Required Majority will 
approve each Co-Investment Transaction before investment (except for 
certain dispositions or follow-on investments, as described in the 
conditions), and other protective conditions set forth in the 
application, will ensure that each Regulated Entity will be treated 
fairly. Applicants state that each Regulated Entity's participation in 
the Co-Investment Transactions will be consistent with the provisions, 
policies and purposes of the Act and on a basis that is not different 
from or less advantageous than that of other participants. Applicants 
further state that the terms and conditions proposed herein will ensure 
that all such transactions are reasonable and fair to each Regulated 
Entity and the Affiliated Investors and do not involve overreaching by 
any person concerned, including Guggenheim.

Applicants' Conditions

    Applicants agree that the Order will be subject to the following 
conditions:
    1. Each time a Guggenheim Adviser considers a Potential Co-
Investment Transaction for an Affiliated Investor or another Regulated 
Entity that falls within a Regulated Entity's then-current Objectives 
and Strategies, the Guggenheim Adviser to the Regulated Entity will 
make an independent determination of the appropriateness of the 
investment for the Regulated Entity in light of the Regulated Entity's 
then-current circumstances.
    2. a. If the Guggenheim Adviser to a Regulated Entity deems 
participation in any Potential Co-Investment Transaction to be 
appropriate for the Regulated Entity, the Guggenheim Adviser will then 
determine an appropriate level of investment for such Regulated Entity.
    b. If the aggregate amount recommended by the Guggenheim Adviser to 
a Regulated Entity to be invested by the Regulated Entity in the 
Potential Co-Investment Transaction, together with the amount proposed 
to be invested by the other participating Regulated Entities and 
Affiliated Investors, collectively, in the same transaction, exceeds 
the amount of the investment opportunity, the amount of the investment 
opportunity will be allocated among the Regulated Entities and such 
Affiliated Investors, pro rata based on each participant's Available 
Capital \12\ for investment in the asset class being allocated, up to 
the amount proposed to be invested by each. The Advisers to each 
participating Regulated Entity will provide the Eligible Trustees of 
each participating Regulated Entity with information concerning each 
participating party's Available Capital to assist the Eligible Trustees 
with their review of the Regulated Entity's investments for compliance 
with these allocation procedures.
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    \12\ ``Available Capital'' means (a) for each Regulated Entity, 
the amount of capital available for investment determined based on 
the amount of cash on hand, existing commitments and reserves, if 
any, the targeted leverage level, targeted asset mix and other 
investment policies and restrictions set from time to time by the 
Board of the applicable Regulated Entity or imposed by applicable 
laws, rules, regulations or interpretations and (b) for each 
Affiliated Investor, the amount of capital available for investment 
determined based on the amount of cash on hand, existing commitments 
and reserves, if any, the targeted leverage level, targeted asset 
mix and other investment policies and restrictions set by the 
Affiliated Investor's directors, general partners or adviser or 
imposed by applicable laws, rules, regulations or interpretations.
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    c. After making the determinations required in conditions 1 and 
2(a) above, the Advisers to the Regulated Entity will distribute 
written information concerning the Potential Co-Investment Transaction, 
including the amount proposed to be invested by each Regulated Entity 
and any Affiliated Investor, to the Eligible Trustees of each 
participating Regulated Entity for their consideration. A Regulated 
Entity will co-invest with one or more other Regulated Entities and/or 
an Affiliated Investor only if, prior to the Regulated Entities' and 
the Affiliated Investors' participation in the Potential Co-Investment 
Transaction, a Required Majority concludes that:
    (i) The terms of the Potential Co-Investment Transaction, including 
the consideration to be paid, are reasonable and fair to the Regulated 
Entity and its shareholders and do not involve overreaching in respect 
of the Regulated Entity or its shareholders on the part of any person 
concerned;
    (ii) the Potential Co-Investment Transaction is consistent with:
    (a) The interests of the Regulated Entity's shareholders; and
    (b) the Regulated Entity's then-current Objectives and Strategies;
    (iii) the investment by any other Regulated Entity or an Affiliated 
Investor would not disadvantage the Regulated Entity, and participation 
by the Regulated Entity would not be on a basis different from or less 
advantageous than that of any other Regulated Entity or Affiliated 
Investor; provided, that if another Regulated Entity or Affiliated 
Investor, but not the Regulated Entity itself, gains the right to 
nominate a director for election to a portfolio company's board of 
directors or the right to have a board observer, or any similar right 
to participate in the governance or management of the portfolio 
company, such event shall not be interpreted to prohibit a Required 
Majority from reaching the conclusions required by this condition 
2(c)(iii), if:
    (a) The Eligible Trustees will have the right to ratify the 
selection of such director or board observer, if any; and
    (b) the Guggenheim Adviser to the Regulated Entity agree to, and 
do, provide periodic reports to the Regulated Entity's Board with 
respect to the actions of such director or the information received by 
such board observer or obtained through the exercise of any similar 
right to participate in the governance or management of the portfolio 
company; and
    (c) any fees or other compensation that any other Regulated Entity 
or any Affiliated Investor or any affiliated person of any other 
Regulated Entity or an Affiliated Investor receives in connection with 
the right of one or more Regulated Entities or Affiliated Investors

[[Page 1083]]

to nominate a director or appoint a board observer or otherwise to 
participate in the governance or management of the portfolio company 
will be shared proportionately among the participating Affiliated 
Investors (who may, in turn, share their portion with their affiliated 
persons) and any participating Regulated Entity in accordance with the 
amount of each party's investment; and
    (iv) the proposed investment by the Regulated Entity will not 
benefit the Guggenheim Adviser, any other Regulated Entity or the 
Affiliated Investors or any affiliated person of any of them (other 
than the parties to the Co-Investment Transaction), except (A) to the 
extent permitted by condition 13, (B) to the extent permitted under 
sections 17(e) and 57(k) of the Act, as applicable, (C) in the case of 
fees or other compensation described in condition 2(c)(iii)(c), or (D) 
indirectly, as a result of an interest in the securities issued by one 
of the parties to the Co-Investment Transaction.
    3. Each Regulated Entity will have the right to decline to 
participate in any Potential Co-Investment Transaction or to invest 
less than the amount proposed.
    4. The Guggenheim Adviser will present to the Board of each 
Regulated Entity, on a quarterly basis, a record of all investments in 
Potential Co-Investment Transactions made by any of the other Regulated 
Entities or any of the Affiliated Investors during the preceding 
quarter that fell within the Regulated Entity's then-current Objectives 
and Strategies that were not made available to the Regulated Entity, 
and an explanation of why the investment opportunities were not offered 
to the Regulated Entity. All information presented to the Board 
pursuant to this condition will be kept for the life of the Regulated 
Entity and at least two years thereafter, and will be subject to 
examination by the Commission and its staff.
    5. Except for follow-on investments made in accordance with 
condition 8,\13\ a Regulated Entity will not invest in reliance on the 
Order in any issuer in which another Regulated Entity or an Affiliated 
Investor or any affiliated person of another Regulated Entity or an 
Affiliated Investor is an existing investor.
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    \13\ This exception applies only to follow-on investments by a 
Regulated Entity in issuers in which that Regulated Entity already 
holds investments.
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    6. A Regulated Entity will not participate in any Potential Co-
Investment Transaction unless the terms, conditions, price, class of 
securities to be purchased, settlement date, and registration rights 
will be the same for each participating Regulated Entity and Affiliated 
Investor. The grant to one or more Regulated Entities or Affiliated 
Investors, but not the Regulated Entity itself, of the right to 
nominate a director for election to a portfolio company's board of 
directors, the right to have an observer on the board of directors or 
similar rights to participate in the governance or management of the 
portfolio company will not be interpreted so as to violate this 
condition 6, if conditions 2(c)(iii)(a), (b) and (c) are met.
    7. a. If any Regulated Entity or Affiliated Investor elects to 
sell, exchange or otherwise dispose of an interest in a security that 
was acquired by one or more Regulated Entities and/or Affiliated 
Investors in a Co-Investment Transaction, the Guggenheim Adviser will:
    (i) Notify each Regulated Entity that participated in the Co-
Investment Transaction of the proposed disposition at the earliest 
practical time; and
    (ii) formulate a recommendation as to participation by each 
Regulated Entity in the disposition.
    b. Each Regulated Entity 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 Investors 
and any other Regulated Entity.
    c. A Regulated Entity may participate in such disposition without 
obtaining prior approval of the Required Majority if: (i) The proposed 
participation of each Regulated Entity and each Affiliated Investor in 
such disposition is proportionate to its outstanding investments in the 
issuer immediately preceding the disposition; (ii) the Regulated 
Entity's Board has approved as being in the best interests of the 
Regulated Entity the ability to participate in such dispositions on a 
pro rata basis (as described in greater detail in the application); and 
(iii) the Regulated Entity's Board is provided on a quarterly basis 
with a list of all dispositions made in accordance with this condition. 
In all other cases, the Guggenheim Adviser will provide its written 
recommendation as to the Regulated Entity's participation to the 
Eligible Trustees, and the Regulated Entity will participate in such 
disposition solely to the extent that a Required Majority determines 
that it is in the Regulated Entity's best interests.
    d. Each Regulated Entity and each Affiliated Investor will bear its 
own expenses in connection with the disposition.
    8. a. If any Regulated Entity or Affiliated Investor desires to 
make a ``follow-on investment'' (i.e., an additional investment in the 
same entity, including through the exercise of warrants or other rights 
to purchase securities of the issuer) in a portfolio company whose 
securities were acquired by the Regulated Entity and the Affiliated 
Investor in a Co-Investment Transaction, the Advisers will:
    (i) Notify each Regulated Entity of the proposed transaction at the 
earliest practical time; and
    (ii) formulate a recommendation as to the proposed participation, 
including the amount of the proposed follow-on investment, by each 
Regulated Entity.
    b. A Regulated Entity may participate in such follow-on investment 
without obtaining prior approval of the Required Majority if: (i) The 
proposed participation of each Regulated Entity and each Affiliated 
Investor in such investment is proportionate to its outstanding 
investments in the issuer immediately preceding the follow-on 
investment; and (ii) the Regulated Entity's Board has approved as being 
in the best interests of such Regulated Entity the ability to 
participate in follow-on investments on a pro rata basis (as described 
in greater detail in the application). In all other cases, the 
Guggenheim Adviser will provide its written recommendation as to such 
Regulated Entity's participation to the Eligible Trustees, and the 
Regulated Entity will participate in such follow-on investment solely 
to the extent that the Required Majority determines that it is in such 
Regulated Entity's best interests.
    c. If, with respect to any follow-on investment:
    (i) The amount of a follow-on investment is not based on the 
Regulated Entities' and the Affiliated Investors' outstanding 
investments immediately preceding the follow-on investment; and
    (ii) the aggregate amount recommended by the Guggenheim Adviser to 
be invested by the Regulated Entity in the follow-on investment, 
together with the amount proposed to be invested by the other 
participating Regulated Entities and the Affiliated Investors in the 
same transaction, exceeds the amount of the opportunity; then the 
amount invested by each such party will be allocated among them pro 
rata based on each participant's Available Capital for investment in 
the asset class being allocated, up to the amount proposed to be 
invested by each.
    d. The acquisition of follow-on investments as permitted by this

[[Page 1084]]

condition will be considered a Co-Investment Transaction for all 
purposes and be subject to the other conditions set forth in the 
application.
    9. The Independent Trustees of each Regulated Entity will be 
provided quarterly for review all information concerning Potential Co-
Investment Transactions and Co-Investment Transactions, including 
investments made by other Regulated Entities or Affiliated Investors 
that a Regulated Entity considered but declined to participate in, so 
that the Independent Trustees may determine whether all investments 
made during the preceding quarter, including those investments which 
the Regulated Entity considered but declined to participate in, comply 
with the conditions of the Order. In addition, the Independent Trustees 
will consider at least annually the continued appropriateness for such 
Regulated Entity of participating in new and existing Co-Investment 
Transactions.
    10. Each Regulated Entity will maintain the records required by 
section 57(f)(3) of the Act as if each of the Regulated Entities were a 
BDC and each of the investments permitted under these conditions were 
approved by a Required Majority under section 57(f).
    11. No Independent Trustee of a Regulated Entity will also be a 
trustee, director, general partner, managing member or principal, or 
otherwise an ``affiliated person'' (as defined in the Act) of any 
Affiliated Investor.
    12. The expenses, if any, associated with acquiring, holding or 
disposing of any securities acquired in a Co-Investment Transaction 
(including, without limitation, the expenses of the distribution of any 
such securities registered for sale under the Securities Act) shall, to 
the extent not payable by the Guggenheim Advisers under their 
respective advisory agreements with the Regulated Entities and the 
Affiliated Investors, be shared by the Regulated Entities and the 
Affiliated Investors in proportion to the relative amounts of the 
securities held or to be acquired or disposed of, as the case may be.
    13. Any transaction fee (including break-up or commitment fees but 
excluding brokers' fees contemplated by section 17(e) or 57(k) of the 
Act, as applicable) \14\ received in connection with a Co-Investment 
Transaction will be distributed to the participating Regulated Entities 
and Affiliated Investors on a pro rata basis based on the amount they 
invested or committed, as the case may be, in such Co-Investment 
Transaction. If any transaction fee is to be held by a Guggenheim 
Adviser pending consummation of the transaction, the fee will be 
deposited into an account maintained by the Guggenheim Adviser at a 
bank or banks having the qualifications prescribed in section 26(a)(1) 
of the Act, and the account will earn a competitive rate of interest 
that will also be divided pro rata among the participating Regulated 
Entities and Affiliated Investors based on the amount they invest in 
the Co-Investment Transaction. None of the other Regulated Entities, 
Affiliated Investors, the Guggenheim Advisers nor any affiliated person 
of the Regulated Entities or the Affiliated Investors will receive 
additional compensation or remuneration of any kind as a result of or 
in connection with a Co-Investment Transaction (other than (a) in the 
case of the Regulated Entities and the Affiliated Investors, the pro 
rata transaction fees described above and fees or other compensation 
described in condition 2(c)(iii)(c) and (b) in the case of the 
Guggenheim Advisers, investment advisory fees paid in accordance with 
the Regulated Entities' and the Affiliated Investors' investment 
advisory agreements).
---------------------------------------------------------------------------

    \14\ Applicants are not requesting and the Commission is not 
providing any relief for transaction fees received in connection 
with any Co-Investment Transaction.
---------------------------------------------------------------------------

    14. If the Holders own in the aggregate more than 25 percent of the 
shares of a Regulated Entity, then the Holders will vote such shares as 
directed by an independent third party when voting on (1) the election 
of directors or trustees; (2) the removal of one or more directors or 
trustees; or (3) any matters requiring approval by the vote of a 
majority of the outstanding voting securities, as defined in section 
2(a)(42) of the Act.
    15. Each Regulated Entity's chief compliance officer, as defined in 
Rule 38a-1(a)(4), will prepare an annual report for its Board that 
evaluates (and documents the basis of that evaluation) the Regulated 
Entity's compliance with the terms and conditions of the application 
and the procedures established to achieve such compliance.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-00162 Filed 1-8-18; 8:45 am]
BILLING CODE 8011-01-P



                                                                                 Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Notices                                                       1079

                                                or (b) institute proceedings to determine                   For the Commission, by the Division of               III, Guggenheim Opportunistic U.S.
                                                whether the proposed rule change                          Trading and Markets, pursuant to delegated             Loan and Bond Fund IV, GFI Fund, and
                                                should be disapproved.                                    authority.95                                           GHY Fund (collectively, the ‘‘Existing
                                                                                                          Eduardo A. Aleman,                                     Affiliated Investors’’).
                                                IV. Solicitation of Comments                              Assistant Secretary.                                   FILING DATES: The application was filed
                                                  Interested persons are invited to                       [FR Doc. 2018–00161 Filed 1–8–18; 8:45 am]             on September 22, 2017, and amended
                                                submit written data, views, and                           BILLING CODE 8011–01–P                                 on November 22, 2017.
                                                arguments concerning the foregoing,
                                                including whether the proposed rule                                                                              HEARING OR NOTIFICATION OF HEARING:
                                                change is consistent with the Act.                        SECURITIES AND EXCHANGE                                An order granting the requested relief
                                                Comments may be submitted by any of                       COMMISSION                                             will be issued unless the Commission
                                                the following methods:                                                                                           orders a hearing. Interested persons may
                                                                                                          [Investment Company Act Release No.                    request a hearing by writing to the
                                                Electronic Comments                                       32960; File No. 812–14821]                             Commission’s Secretary and serving
                                                  • Use the Commission’s internet                                                                                applicants with a copy of the request,
                                                comment form (http://www.sec.gov/                         Guggenheim Credit Income Fund, et                      personally or by mail. Hearing requests
                                                rules/sro.shtml); or                                      al.; Notice of Application                             should be received by the Commission
                                                  • Send an email to rule-comments@                       January 3, 2018.                                       by 5:30 p.m. on January 29, 2018, and
                                                sec.gov. Please include File Number SR–                                                                          should be accompanied by proof of
                                                                                                          AGENCY: Securities and Exchange
                                                NASDAQ–2017–128 on the subject line.                                                                             service on applicants, in the form of an
                                                                                                          Commission (‘‘Commission’’).
                                                Paper Comments                                                                                                   affidavit or, for lawyers, a certificate of
                                                                                                          ACTION: Notice.
                                                                                                                                                                 service. Pursuant to rule 0–5 under the
                                                   • Send paper comments in triplicate                                                                           Act, hearing requests should state the
                                                to Secretary, Securities and Exchange                        Notice of application for an order
                                                                                                          under sections 17(d) and 57(i) of the                  nature of the writer’s interest, any facts
                                                Commission, 100 F Street NE,                                                                                     bearing upon the desirability of a
                                                Washington, DC 20549–1090.                                Investment Company Act of 1940 (the
                                                                                                          ‘‘Act’’) and rule 17d–1 under the Act to               hearing on the matter, the reason for the
                                                All submissions should refer to File                                                                             request, and the issues contested.
                                                                                                          permit certain joint transactions
                                                Number SR–NASDAQ–2017–128. This                                                                                  Persons who wish to be notified of a
                                                                                                          otherwise prohibited by sections 17(d)
                                                file number should be included on the                                                                            hearing may request notification by
                                                                                                          and 57(a)(4) of the Act and rule 17d–1
                                                subject line if email is used. To help the                                                                       writing to the Commission’s Secretary.
                                                Commission process and review your                        under the Act.
                                                                                                          SUMMARY OF APPLICATION: Applicants                     ADDRESSES: Secretary, U.S. Securities
                                                comments more efficiently, please use
                                                only one method. The Commission will                      request an order to permit certain                     and Exchange Commission, 100 F St.
                                                post all comments on the Commission’s                     business development companies                         NE, Washington, DC 20549–1090.
                                                internet website (http://www.sec.gov/                     (‘‘BDC’’) and closed-end management                    Applicants: Guggenheim and the Fund:
                                                rules/sro.shtml). Copies of the                           investment companies to co-invest in                   330 Madison Avenue, New York, NY
                                                submission, all subsequent                                portfolio companies with each other and                10017; the Existing Guggenheim
                                                amendments, all written statements                        with affiliated investment funds.                      Advisers and the Existing Affiliated
                                                with respect to the proposed rule                         APPLICANTS: Guggenheim Credit Income
                                                                                                                                                                 Investors: 100 Wilshire Boulevard, 5th
                                                change that are filed with the                            Fund (the ‘‘Fund’’) (f/k/a Carey Credit                Floor, Santa Monica, CA 90401.
                                                Commission, and all written                               Income Fund); Guggenheim Partners                      FOR FURTHER INFORMATION CONTACT:
                                                communications relating to the                            Investment Management, LLC                             Hae-Sung Lee, Attorney-Adviser, at
                                                proposed rule change between the                          (‘‘Guggenheim’’); Guggenheim Funds                     (202) 551–7345 or Robert H. Shapiro,
                                                Commission and any person, other than                     Distributors, LLC, Guggenheim Funds                    Branch Chief, at (202) 551–6821 (Chief
                                                those that may be withheld from the                       Investment Advisors, LLC, Security                     Counsel’s Office, Division of Investment
                                                public in accordance with the                             Investors, LLC (collectively, together                 Management).
                                                provisions of 5 U.S.C. 552, will be                       with Guggenheim, the ‘‘Existing                        SUPPLEMENTARY INFORMATION: The
                                                available for website viewing and                         Guggenheim Advisers’’); Guggenheim                     following is a summary of the
                                                printing in the Commission’s Public                       European Credit Fund, Guggenheim                       application. The complete application
                                                Reference Room, 100 F Street NE,                          Private Debt Fund Note Issuer, LLC,                    may be obtained via the Commission’s
                                                Washington, DC 20549, on official                         Guggenheim Private Debt Fund, LLC,                     website by searching for the file
                                                business days between the hours of                        Guggenheim Private Debt Fund, Ltd.,                    number, or for an applicant using the
                                                10:00 a.m. and 3:00 p.m. Copies of the                    Guggenheim Private Debt Master Fund,                   Company name box, at http://
                                                filing also will be available for                         LLC, Guggenheim Private Debt Fund                      www.sec.gov/search/search.htm or by
                                                inspection and copying at the principal                   Note Issuer 2.0, LLC, Guggenheim                       calling (202) 551–8090.
                                                office of the Exchange. All comments                      Private Debt Fund 2.0, LLC,
                                                received will be posted without change.                   Guggenheim Private Debt Fund 2.0,                      Applicants’ Representations
                                                Persons submitting comments are                           Ltd., Guggenheim Private Debt Master                     1. The Fund is a Delaware statutory
                                                cautioned that we do not redact or edit                   Fund 2.0, LLC, Guggenheim Private                      trust organized as a closed-end
                                                personal identifying information from                     Debt MFLTB 2.0, LLC, NZC                               management investment company that
                                                comment submissions. You should                           Guggenheim Fund LLC, NZC                               has elected to be regulated as a BDC
                                                                                                          Guggenheim Fund Limited, NZC
sradovich on DSK3GMQ082PROD with NOTICES




                                                submit only information that you wish                                                                            under the Act.1 The Fund serves as the
                                                to make available publicly. All                           Guggenheim Master Fund Limited,
                                                submissions should refer to File                          NZCG Funding Ltd., NZCG Funding 2                        1 Section 2(a)(48) of the Act defines a ‘‘BDC’’ to

                                                Number SR–NASDAQ–2017–128 and                             Limited, South Dock Funding Limited,                   be any closed-end investment company that
                                                should be submitted on or before                          NZCG Feeder I, L.P., NZCG Funding 2,                   operates for the purpose of making investments in
                                                                                                                                                                 securities described in sections 55(a)(1) through
                                                January 30, 2018.                                         LLC, NZCG Funding LLC, Guggenheim                      55(a)(3) of the Act and makes available significant
                                                                                                          U.S. Loan Fund, Guggenheim U.S. Loan                   managerial assistance with respect to the issuers of
                                                  95 17   CFR 200.30–3(a)(12).                            Fund II, Guggenheim U.S. Loan Fund                     such securities.



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                                                1080                             Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Notices

                                                master fund in a master-feeder structure                   Regulated Entities 7 and/or one or more                   Such a subsidiary would be prohibited
                                                with three feeder funds and makes                          Affiliated Investors 8 to participate in                  from investing in a Co-Investment
                                                investments with the proceeds it                           the same investment opportunities                         Transaction with any Affiliated Investor
                                                receives from the sale of shares of the                    through a proposed co-investment                          because it would be a company
                                                feeder funds.2 The Fund’s Objectives                       program (the ‘‘Co-Investment Program’’)                   controlled by its parent Regulated Entity
                                                and Strategies 3 are to provide                            where such participation would                            for purposes of section 57(a)(4) and rule
                                                shareholders with current income,                          otherwise be prohibited under sections                    17d–1. Applicants request that each
                                                capital preservation and, to a lesser                      17(d) and 57(a)(4) and the rules under                    Wholly-Owned Investment Subsidiary
                                                extent, long-term capital appreciation.                    the Act. For purposes of the application,                 be permitted to participate in Co-
                                                The Fund invests primarily in large,                       ‘‘Co-Investment Transaction’’ means any                   Investment Transactions in lieu of its
                                                privately-negotiated loans to private                      transaction in which a Regulated Entity                   parent Regulated Entity and that the
                                                middle market U.S. companies and in                        (or its Wholly-Owned Investment                           Wholly-Owned Investment Subsidiary’s
                                                opportunities that are originated by                       Subsidiary, as defined below)                             participation in any such transaction be
                                                various intermediaries where the Fund                      participated together with one or more                    treated, for purposes of the requested
                                                is able to play a differentiated role                      other Regulated Entities and/or one or                    Order, as though the parent Regulated
                                                gaining outsized allocation, influencing                   more Affiliated Investors in reliance on                  Entity were participating directly.
                                                structure, pricing, and fees compared to                   the requested Order or the Prior Order.                   Applicants represent that this treatment
                                                the broader market (this could include                     ‘‘Potential Co-Investment Transaction’’                   is justified because a Wholly-Owned
                                                more broadly syndicated assets such as                     means any investment opportunity in                       Investment Subsidiary would have no
                                                bank loans and corporate bonds). The                       which a Regulated Entity (or its Wholly-                  purpose other than serving as a holding
                                                Fund has a five member Board,4 of                          Owned Investment Subsidiary) could                        vehicle for the Regulated Entity’s
                                                which three members are Independent                        not participate together with one or                      investments and, therefore, no conflicts
                                                Trustees.5                                                 more Affiliated Investors and/or one or                   of interest could arise between the
                                                   2. Guggenheim is a Delaware limited                     more other Regulated Entities without                     Regulated Entity and the Wholly-Owned
                                                liability company and is registered as an                  obtaining and relying on the Order.                       Investment Subsidiary. The Regulated
                                                investment adviser under the                                  5. Applicants state that a Regulated                   Entity’s Board would make all relevant
                                                Investment Advisers Act of 1940 (the                       Entity may, from time to time, form a                     determinations under the conditions
                                                ‘‘Advisers Act’’). Guggenheim serves as                    Wholly-Owned Investment Subsidiary.9                      with regard to a Wholly-Owned
                                                the investment adviser to the Fund.                                                                                  Investment Subsidiary’s participation in
                                                Guggenheim also provides                                   Commission on June 28, 2016 (the ‘‘Prior Order’’)         a Co-Investment Transaction, and the
                                                                                                           that was granted pursuant to Sections 57(a)(4) and        Regulated Entity’s Board would be
                                                administrative services to the Fund                        57(i) and Rule 17d–1, with the result that no person
                                                under an administrative services                           will continue to rely on the Prior Order if the Order     informed of, and take into
                                                agreement. Guggenheim is part of the                       is granted. Carey Credit Income Fund, et al.,             consideration, any proposed use of a
                                                investment management business of                          Investment Company Act Release Nos. 32138 (June           Wholly-Owned Investment Subsidiary
                                                                                                           2, 2016) (notice) and 32164 (June 28, 2016) (order).      in the Regulated Entity’s place. If the
                                                Guggenheim Partners LLC, a privately                       All existing entities that currently intend to rely on
                                                held, global financial services firm.                      the Order have been named as applicants. Any              Regulated Entity proposes to participate
                                                   3. Each Existing Affiliated Investor is                 other existing or future entity that relies on the        in the same Co-Investment Transaction
                                                a privately-offered fund that would be                     Order in the future will comply with the terms and        with any of its Wholly-Owned
                                                                                                           conditions of the application.                            Investment Subsidiaries, the Board will
                                                an investment company but for section                         7 ‘‘Regulated Entity’’ means the Fund and any

                                                3(c)(1) or 3(c)(7) of the Act. An Existing                 Future Regulated Entity. ‘‘Future Regulated Entity’’
                                                                                                                                                                     also be informed of, and take into
                                                Guggenheim Adviser serves as the                           means a closed-end management investment                  consideration, the relative participation
                                                investment adviser to each Existing                        company (a) that is registered under the Act or has       of the Regulated Entity and the Wholly-
                                                                                                           elected to be regulated as a BDC under the Act, (b)       Owned Investment Subsidiary.
                                                Affiliated Investor. Each Existing                         whose investment adviser is a Guggenheim Adviser.
                                                Guggenheim Adviser is either controlled                                                                                 6. It is anticipated that a Guggenheim
                                                                                                           ‘‘Guggenheim Adviser’’ means any Existing
                                                by Guggenheim or under common                              Guggenheim Adviser or any future investment               Adviser will periodically determine that
                                                control with Guggenheim and is                             adviser that (i) controls, is controlled by or is under   certain investments the Guggenheim
                                                                                                           common control with Guggenheim, (ii) is registered        Adviser recommends for a Regulated
                                                registered as an investment adviser                        as an investment adviser under the Advisers Act,          Entity would also be appropriate
                                                under the Advisers Act.                                    and (iii) is not a Regulated Entity or a subsidiary
                                                   4. Applicants seek to supersede the                     of a Regulated Entity.                                    investments for one or more other
                                                                                                              8 ‘‘Affiliated Investors’’ means the Existing          Regulated Entities and/or one or more
                                                Prior Order 6 to permit one or more
                                                                                                           Affiliated Investors and any Future Affiliated            Affiliated Investors. Such a
                                                   2 The existing feeder funds are Carey Credit
                                                                                                           Investor. ‘‘Future Affiliated Investor’’ means an         determination may result in the
                                                                                                           entity (a) whose investment adviser is a                  Regulated Entity, one or more other
                                                Income Fund—I, Carey Credit Income Fund 2016 T,            Guggenheim Adviser and (b) that would be an
                                                and Carey Credit Income Fund 2018 T. Any future            investment company but for section 3(c)(1) or             Regulated Entities and/or one or more
                                                feeder fund will be created by Guggenheim.                 3(c)(7) of the Act.                                       Affiliated Investors co-investing in
                                                   3 ‘‘Objectives and Strategies’’ means a Regulated
                                                                                                              9 The term ‘‘Wholly-Owned Investment                   certain investment opportunities. For
                                                Entity’s (as defined below) investment objectives          Subsidiary’’ means an entity (i) that is wholly-
                                                and strategies, as described in the Regulated                                                                        each such investment opportunity, the
                                                                                                           owned by a Regulated Entity (with such Regulated
                                                Entity’s registration statement on Form N–2, other         Entity at all times holding, beneficially and of
                                                                                                                                                                     Guggenheim Adviser to each Regulated
                                                filings the Regulated Entity has made with the             record, 100% of the voting and economic interests);       Entity will independently analyze and
                                                Commission under the Securities Act of 1933 (the           (ii) whose sole business purpose is to hold one or
                                                ‘‘Securities Act’’), or under the Securities Exchange      more investments on behalf of the Regulated Entity        conditions of the application; and (iv) that would
                                                Act of 1934, and the Regulated Entity’s reports to         (and, in the case of an entity that is licensed by the
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                                                                                     be an investment company but for section 3(c)(1) or
                                                shareholders.                                              Small Business Administration to operate under the
                                                   4 The term ‘‘Board’’ refers to the board of directors
                                                                                                                                                                     3(c)(7) of the Act. All subsidiaries participating in
                                                                                                           Small Business Investment Act of 1958, as amended         the Co-Investment Program will be Wholly-Owned
                                                or trustees of any Regulated Entity.                       (the ‘‘SBA Act’’), as a small business investment         Investment Subsidiaries and will have Objectives
                                                   5 The term ‘‘Independent Trustees’’ refers to the
                                                                                                           company (an ‘‘SBIC’’), to maintain a license under        and Strategies that are either substantially the same
                                                trustees or directors of any Regulated Entity that are     the SBA Act and issue debentures guaranteed by            as, or a subset of, their parent Regulated Entity’s
                                                not ‘‘interested persons’’ of the Regulated Entity         the Small Business Administration); (iii) with            Objectives and Strategies. A subsidiary that is an
                                                within the meaning of section 2(a)(19) of the Act.         respect to which the Regulated Entity’s Board has         SBIC may be a Wholly-Owned Investment
                                                   6 The requested order (the ‘‘Order’’) would             the sole authority to make all determinations with        Subsidiary if it satisfies the conditions in this
                                                supersede an exemptive order issued by the                 respect to the entity’s participation under the           definition.



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                                                                                 Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Notices                                              1081

                                                evaluate the investment opportunity as                   Trustees of such Regulated Entity                        can be removed will be limited
                                                to its appropriateness for such                          within the meaning of section 57(o) of                   significantly. Applicants represent that
                                                Regulated Entity taking into                             the Act (‘‘Required Majority’’).11                       the Independent Trustees shall evaluate
                                                consideration the Regulated Entity’s                       11. With respect to the pro rata                       and approve any such independent
                                                Objectives and Strategies.                               dispositions and follow-on Investments                   third party, taking into account its
                                                   7. Applicants state that Guggenheim                   provided in conditions 7 and 8, a                        qualifications, reputation for
                                                serves as the Fund’s investment adviser                  Regulated Entity may participate in a                    independence, cost to the shareholders,
                                                and administrator and either it or                       pro rata disposition or follow-on                        and other factors that they deem
                                                another Guggenheim Adviser will serve                    investment without obtaining prior                       relevant.
                                                in the same capacity to any Future                       approval of the Required Majority if,
                                                                                                         among other things: (i) The proposed                     Applicants’ Legal Analysis
                                                Regulated Entity. Applicants represent
                                                that a Guggenheim Adviser will identify                  participation of each Regulated Entity                      1. Section 17(d) of the Act and rule
                                                and recommend investments for each                       and Affiliated Investor in such                          17d–1 under the Act prohibit
                                                Regulated Entity and will have the                       disposition is proportionate to its                      participation by a registered investment
                                                authority to approve or reject all                       outstanding investments in the issuer                    company and an affiliated person in any
                                                investments proposed for the Regulated                   immediately preceding the disposition                    ‘‘joint enterprise or other joint
                                                Entity.                                                  or follow-on investment, as the case                     arrangement or profit-sharing plan,’’ as
                                                   8. Applicants state that each                         may be; and (ii) each Regulated Entity’s                 defined in the rule, without prior
                                                Guggenheim Adviser has (or will have,                    Board has approved that Regulated                        approval by the Commission by order
                                                in the case of future advisers) an                       Entity’s participation in pro rata                       upon application. Section 17(d) of the
                                                investment committee through which it                    dispositions and follow-on investments                   Act and rule 17d–1 under the Act are
                                                will carry out its obligation under                      as being in the best interests of the                    applicable to Regulated Entities that are
                                                condition 1 to make a determination as                   Regulated Entity. If the Board does not                  registered closed-end investment
                                                to the appropriateness of a Potential Co-                so approve, any such disposition or                      companies. Similarly, with regard to
                                                Investment Transaction for each                          follow-on investment will be submitted                   BDCs, section 57(a)(4) of the Act makes
                                                Regulated Entity. Applicants represent                   to the Regulated Entity’s Eligible                       it unlawful for any person who is
                                                that each Guggenheim Adviser, as a                       Trustees. The Board of any Regulated                     related to a BDC in a manner described
                                                registered investment adviser, has (or                   Entity may at any time rescind, suspend                  in section 57(b), acting as principal,
                                                will have, in the case of future advisers)               or qualify its approval of pro rata                      knowingly to effect any transaction in
                                                developed a robust allocation process                    dispositions and follow-on investments                   which the BDC (or a company
                                                that is designed to allocate investment                  with the result that all dispositions and/               controlled by such BDC) is a joint or a
                                                opportunities fairly and equitably                       or follow-on investments must be                         joint and several participant with that
                                                among its clients over time. Applicants                  submitted to the Eligible Trustees.                      person in contravention of rules as
                                                state that, in the case of a Potential Co-                 12. No Independent Trustee of a                        prescribed by the Commission. Because
                                                Investment Transaction, the applicable                   Regulated Entity will have a financial                   the Commission has not adopted any
                                                Guggenheim Adviser would apply its                       interest in any Co-Investment                            rules expressly under section 57(a)(4),
                                                allocation policies and procedures in                    Transaction.                                             section 57(i) provides that the rules
                                                determining the proposed allocation for                    13. Under condition 15, if a                           under section 17(d) applicable to
                                                the Regulated Entity consistent with the                 Guggenheim Adviser or its principals,                    registered closed-end investment
                                                requirements of condition 2(a).                          or any person controlling, controlled by,                companies (e.g., rule 17d–1) are, in the
                                                   9. Applicants state that, once the                    or under common control with the                         interim, deemed to apply to transactions
                                                applicable Guggenheim Adviser’s                          Guggenheim Adviser or its principals,                    subject to section 57(a). Rule 17d–1, as
                                                investment committee approves a                          and any Affiliated Investors                             made applicable to BDCs by section
                                                transaction, the Guggenheim Adviser                      (collectively, the ‘‘Holders’’) own in the               57(i), prohibits any person who is
                                                would present the Potential Co-                          aggregate more than 25% of the                           related to a BDC in a manner described
                                                Investment Transaction and proposed                      outstanding voting securities of a                       in section 57(b), as modified by rule
                                                allocation to the Regulated Entity’s                     Regulated Entity (‘‘Shares’’), then the                  57b–1, from acting as principal, from
                                                Board for its approval in accordance                     Holders will vote such Shares as                         participating in, or effecting any
                                                with the conditions to the application.                  directed by an independent third party                   transaction in connection with, any
                                                   10. If the applicable Guggenheim                      when voting on matters specified in the                  joint enterprise or other joint
                                                Adviser to a Regulated Entity                            condition. Applicants believe that this                  arrangement or profit-sharing plan in
                                                determines that a Potential Co-                          condition will ensure that the                           which the BDC (or a company
                                                Investment Transaction is appropriate                    Independent Trustees will act                            controlled by such BDC) is a participant,
                                                for the Regulated Entity, and one or                     independently in evaluating the Co-                      unless an application regarding the joint
                                                more other Regulated Entities and/or                     Investment Program, because the ability                  enterprise, arrangement, or profit-
                                                one or more Affiliated Investors may                     of the Guggenheim Adviser or its                         sharing plan has been filed with the
                                                also participate, the Guggenheim                         principals to influence the Independent                  Commission and has been granted by an
                                                Adviser will present the investment                      Trustees by a suggestion, explicit or                    order entered prior to the submission of
                                                opportunity to the Eligible Trustees 10 of               implied, that the Independent Trustees                   the plan or any modification thereof, to
                                                the Regulated Entity prior to the actual                                                                          security holders for approval, or prior to
                                                investment by the Regulated Entity. As
                                                                                                            11 In the case of a Regulated Entity that is a
                                                                                                                                                                  its adoption or modification if not so
                                                                                                         registered closed-end fund, the trustees or directors
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                                                to any Regulated Entity, a Co-                                                                                    submitted.
                                                                                                         that make up the Required Majority will be
                                                                                                                                                                     2. In passing upon applications under
                                                Investment Transaction will be                           determined as if the Regulated Entity were a BDC
                                                                                                         subject to section 57(o). As defined in section 57(o),   rule 17d–1, the Commission considers
                                                consummated only upon approval by a
                                                                                                         ‘‘required majority’’ means ‘‘both a majority of a       whether the company’s participation in
                                                required majority of the Eligible                        business development company’s directors or              the joint transaction is consistent with
                                                                                                         general partners who have no financial interest in
                                                  10 ‘‘Eligible Trustees’’ means the trustees or         such transaction, plan, or arrangement and a
                                                                                                                                                                  the provisions, policies, and purposes of
                                                directors of a Regulated Entity that are eligible to     majority of such directors or general partners who       the Act and the extent to which such
                                                vote under section 57(o) of the Act.                     are not interested persons of such company.’’            participation is on a basis different from


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                                                1082                           Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Notices

                                                or less advantageous than that of other                 Applicants’ Conditions                                    concerning the Potential Co-Investment
                                                participants.                                              Applicants agree that the Order will                   Transaction, including the amount
                                                   3. Applicants submit that each                       be subject to the following conditions:                   proposed to be invested by each
                                                Regulated Entity may be deemed to be                       1. Each time a Guggenheim Adviser                      Regulated Entity and any Affiliated
                                                an ‘‘affiliated person’’ of each other                  considers a Potential Co-Investment                       Investor, to the Eligible Trustees of each
                                                Regulated Entity within the meaning of                  Transaction for an Affiliated Investor or                 participating Regulated Entity for their
                                                                                                        another Regulated Entity that falls                       consideration. A Regulated Entity will
                                                section 2(a)(3) of the Act. Applicants
                                                                                                        within a Regulated Entity’s then-current                  co-invest with one or more other
                                                state that the Regulated Entities, by
                                                                                                        Objectives and Strategies, the                            Regulated Entities and/or an Affiliated
                                                virtue of each having a Guggenheim
                                                                                                        Guggenheim Adviser to the Regulated                       Investor only if, prior to the Regulated
                                                Adviser, may be deemed to be under                                                                                Entities’ and the Affiliated Investors’
                                                common control, and thus affiliated                     Entity will make an independent
                                                                                                        determination of the appropriateness of                   participation in the Potential Co-
                                                persons of each other under section                                                                               Investment Transaction, a Required
                                                2(a)(3)(C) of the Act. Section 17(d) and                the investment for the Regulated Entity
                                                                                                        in light of the Regulated Entity’s then-                  Majority concludes that:
                                                section 57(b) apply to any investment                                                                                (i) The terms of the Potential Co-
                                                                                                        current circumstances.
                                                adviser to a closed-end fund or a BDC,                     2. a. If the Guggenheim Adviser to a                   Investment Transaction, including the
                                                respectively. Thus, a Guggenheim                        Regulated Entity deems participation in                   consideration to be paid, are reasonable
                                                Adviser and any Affiliated Investors                    any Potential Co-Investment                               and fair to the Regulated Entity and its
                                                that it advises could be deemed to be                   Transaction to be appropriate for the                     shareholders and do not involve
                                                persons related to Regulated Entities in                Regulated Entity, the Guggenheim                          overreaching in respect of the Regulated
                                                a manner described by sections 17(d)                    Adviser will then determine an                            Entity or its shareholders on the part of
                                                and 57(b) and therefore prohibited by                   appropriate level of investment for such                  any person concerned;
                                                sections 17(d) and 57(a)(4) and rule                    Regulated Entity.                                            (ii) the Potential Co-Investment
                                                17d–1 from participating in the Co-                        b. If the aggregate amount                             Transaction is consistent with:
                                                Investment Program. Applicants further                  recommended by the Guggenheim                                (a) The interests of the Regulated
                                                submit that, because the Guggenheim                     Adviser to a Regulated Entity to be                       Entity’s shareholders; and
                                                Advisers are ‘‘affiliated persons’’ of                  invested by the Regulated Entity in the                      (b) the Regulated Entity’s then-current
                                                other Guggenheim Advisers, Affiliated                   Potential Co-Investment Transaction,                      Objectives and Strategies;
                                                Investors advised by any of them could                  together with the amount proposed to be                      (iii) the investment by any other
                                                be deemed to be persons related to                      invested by the other participating                       Regulated Entity or an Affiliated
                                                Regulated Entities (or a company                        Regulated Entities and Affiliated                         Investor would not disadvantage the
                                                                                                        Investors, collectively, in the same                      Regulated Entity, and participation by
                                                controlled by a Regulated Entity) in a
                                                                                                        transaction, exceeds the amount of the                    the Regulated Entity would not be on a
                                                manner described by sections 17(d) and
                                                                                                        investment opportunity, the amount of                     basis different from or less advantageous
                                                57(b) and also prohibited from
                                                                                                        the investment opportunity will be                        than that of any other Regulated Entity
                                                participating in the Co-Investment
                                                                                                        allocated among the Regulated Entities                    or Affiliated Investor; provided, that if
                                                Program.
                                                                                                        and such Affiliated Investors, pro rata                   another Regulated Entity or Affiliated
                                                   4. Applicants state that they expect                 based on each participant’s Available                     Investor, but not the Regulated Entity
                                                that that co-investment in portfolio                    Capital 12 for investment in the asset                    itself, gains the right to nominate a
                                                companies by a Regulated Entity, one or                 class being allocated, up to the amount                   director for election to a portfolio
                                                more other Regulated Entities and/or                    proposed to be invested by each. The                      company’s board of directors or the
                                                one or more Affiliated Investors will                   Advisers to each participating Regulated                  right to have a board observer, or any
                                                increase favorable investment                           Entity will provide the Eligible Trustees                 similar right to participate in the
                                                opportunities for each Regulated Entity.                of each participating Regulated Entity                    governance or management of the
                                                   5. Applicants submit that the fact that              with information concerning each                          portfolio company, such event shall not
                                                the Required Majority will approve each                 participating party’s Available Capital to                be interpreted to prohibit a Required
                                                Co-Investment Transaction before                        assist the Eligible Trustees with their                   Majority from reaching the conclusions
                                                investment (except for certain                          review of the Regulated Entity’s                          required by this condition 2(c)(iii), if:
                                                                                                        investments for compliance with these                        (a) The Eligible Trustees will have the
                                                dispositions or follow-on investments,
                                                                                                        allocation procedures.                                    right to ratify the selection of such
                                                as described in the conditions), and
                                                                                                           c. After making the determinations                     director or board observer, if any; and
                                                other protective conditions set forth in                                                                             (b) the Guggenheim Adviser to the
                                                the application, will ensure that each                  required in conditions 1 and 2(a) above,
                                                                                                        the Advisers to the Regulated Entity will                 Regulated Entity agree to, and do,
                                                Regulated Entity will be treated fairly.                                                                          provide periodic reports to the
                                                Applicants state that each Regulated                    distribute written information
                                                                                                                                                                  Regulated Entity’s Board with respect to
                                                Entity’s participation in the Co-                          12 ‘‘Available Capital’’ means (a) for each            the actions of such director or the
                                                Investment Transactions will be                         Regulated Entity, the amount of capital available for     information received by such board
                                                consistent with the provisions, policies                investment determined based on the amount of cash         observer or obtained through the
                                                and purposes of the Act and on a basis                  on hand, existing commitments and reserves, if any,
                                                                                                        the targeted leverage level, targeted asset mix and       exercise of any similar right to
                                                that is not different from or less                      other investment policies and restrictions set from       participate in the governance or
                                                advantageous than that of other                         time to time by the Board of the applicable               management of the portfolio company;
                                                participants. Applicants further state                  Regulated Entity or imposed by applicable laws,
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                                                                                                                                                                  and
                                                that the terms and conditions proposed                  rules, regulations or interpretations and (b) for each
                                                                                                        Affiliated Investor, the amount of capital available
                                                                                                                                                                     (c) any fees or other compensation
                                                herein will ensure that all such                        for investment determined based on the amount of          that any other Regulated Entity or any
                                                transactions are reasonable and fair to                 cash on hand, existing commitments and reserves,          Affiliated Investor or any affiliated
                                                each Regulated Entity and the Affiliated                if any, the targeted leverage level, targeted asset mix   person of any other Regulated Entity or
                                                                                                        and other investment policies and restrictions set
                                                Investors and do not involve                            by the Affiliated Investor’s directors, general
                                                                                                                                                                  an Affiliated Investor receives in
                                                overreaching by any person concerned,                   partners or adviser or imposed by applicable laws,        connection with the right of one or more
                                                including Guggenheim.                                   rules, regulations or interpretations.                    Regulated Entities or Affiliated Investors


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                                                                               Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Notices                                             1083

                                                to nominate a director or appoint a                     securities to be purchased, settlement                    8. a. If any Regulated Entity or
                                                board observer or otherwise to                          date, and registration rights will be the              Affiliated Investor desires to make a
                                                participate in the governance or                        same for each participating Regulated                  ‘‘follow-on investment’’ (i.e., an
                                                management of the portfolio company                     Entity and Affiliated Investor. The grant              additional investment in the same
                                                will be shared proportionately among                    to one or more Regulated Entities or                   entity, including through the exercise of
                                                the participating Affiliated Investors                  Affiliated Investors, but not the                      warrants or other rights to purchase
                                                (who may, in turn, share their portion                  Regulated Entity itself, of the right to               securities of the issuer) in a portfolio
                                                with their affiliated persons) and any                  nominate a director for election to a                  company whose securities were
                                                participating Regulated Entity in                       portfolio company’s board of directors,                acquired by the Regulated Entity and
                                                accordance with the amount of each                      the right to have an observer on the                   the Affiliated Investor in a Co-
                                                party’s investment; and                                 board of directors or similar rights to                Investment Transaction, the Advisers
                                                   (iv) the proposed investment by the                  participate in the governance or                       will:
                                                Regulated Entity will not benefit the                   management of the portfolio company                       (i) Notify each Regulated Entity of the
                                                Guggenheim Adviser, any other                           will not be interpreted so as to violate               proposed transaction at the earliest
                                                Regulated Entity or the Affiliated                      this condition 6, if conditions                        practical time; and
                                                Investors or any affiliated person of any               2(c)(iii)(a), (b) and (c) are met.                        (ii) formulate a recommendation as to
                                                of them (other than the parties to the Co-                 7. a. If any Regulated Entity or                    the proposed participation, including
                                                Investment Transaction), except (A) to                  Affiliated Investor elects to sell,                    the amount of the proposed follow-on
                                                the extent permitted by condition 13,                   exchange or otherwise dispose of an                    investment, by each Regulated Entity.
                                                (B) to the extent permitted under                       interest in a security that was acquired                  b. A Regulated Entity may participate
                                                sections 17(e) and 57(k) of the Act, as                 by one or more Regulated Entities and/                 in such follow-on investment without
                                                applicable, (C) in the case of fees or                  or Affiliated Investors in a Co-                       obtaining prior approval of the Required
                                                other compensation described in                         Investment Transaction, the                            Majority if: (i) The proposed
                                                condition 2(c)(iii)(c), or (D) indirectly,              Guggenheim Adviser will:                               participation of each Regulated Entity
                                                as a result of an interest in the securities               (i) Notify each Regulated Entity that               and each Affiliated Investor in such
                                                issued by one of the parties to the Co-                 participated in the Co-Investment                      investment is proportionate to its
                                                Investment Transaction.                                 Transaction of the proposed disposition                outstanding investments in the issuer
                                                   3. Each Regulated Entity will have the               at the earliest practical time; and                    immediately preceding the follow-on
                                                right to decline to participate in any                     (ii) formulate a recommendation as to               investment; and (ii) the Regulated
                                                Potential Co-Investment Transaction or                  participation by each Regulated Entity                 Entity’s Board has approved as being in
                                                to invest less than the amount proposed.                in the disposition.                                    the best interests of such Regulated
                                                                                                           b. Each Regulated Entity will have the              Entity the ability to participate in
                                                   4. The Guggenheim Adviser will
                                                                                                        right to participate in such disposition               follow-on investments on a pro rata
                                                present to the Board of each Regulated
                                                                                                        on a proportionate basis, at the same                  basis (as described in greater detail in
                                                Entity, on a quarterly basis, a record of
                                                                                                        price and on the same terms and                        the application). In all other cases, the
                                                all investments in Potential Co-
                                                                                                        conditions as those applicable to the                  Guggenheim Adviser will provide its
                                                Investment Transactions made by any of
                                                                                                        Affiliated Investors and any other                     written recommendation as to such
                                                the other Regulated Entities or any of
                                                                                                        Regulated Entity.                                      Regulated Entity’s participation to the
                                                the Affiliated Investors during the                        c. A Regulated Entity may participate
                                                preceding quarter that fell within the                                                                         Eligible Trustees, and the Regulated
                                                                                                        in such disposition without obtaining                  Entity will participate in such follow-on
                                                Regulated Entity’s then-current                         prior approval of the Required Majority
                                                Objectives and Strategies that were not                                                                        investment solely to the extent that the
                                                                                                        if: (i) The proposed participation of each             Required Majority determines that it is
                                                made available to the Regulated Entity,                 Regulated Entity and each Affiliated
                                                and an explanation of why the                                                                                  in such Regulated Entity’s best interests.
                                                                                                        Investor in such disposition is                           c. If, with respect to any follow-on
                                                investment opportunities were not                       proportionate to its outstanding                       investment:
                                                offered to the Regulated Entity. All                    investments in the issuer immediately                     (i) The amount of a follow-on
                                                information presented to the Board                      preceding the disposition; (ii) the                    investment is not based on the
                                                pursuant to this condition will be kept                 Regulated Entity’s Board has approved                  Regulated Entities’ and the Affiliated
                                                for the life of the Regulated Entity and                as being in the best interests of the                  Investors’ outstanding investments
                                                at least two years thereafter, and will be              Regulated Entity the ability to                        immediately preceding the follow-on
                                                subject to examination by the                           participate in such dispositions on a pro              investment; and
                                                Commission and its staff.                               rata basis (as described in greater detail                (ii) the aggregate amount
                                                   5. Except for follow-on investments                  in the application); and (iii) the                     recommended by the Guggenheim
                                                made in accordance with condition 8,13                  Regulated Entity’s Board is provided on                Adviser to be invested by the Regulated
                                                a Regulated Entity will not invest in                   a quarterly basis with a list of all                   Entity in the follow-on investment,
                                                reliance on the Order in any issuer in                  dispositions made in accordance with                   together with the amount proposed to be
                                                which another Regulated Entity or an                    this condition. In all other cases, the                invested by the other participating
                                                Affiliated Investor or any affiliated                   Guggenheim Adviser will provide its                    Regulated Entities and the Affiliated
                                                person of another Regulated Entity or an                written recommendation as to the                       Investors in the same transaction,
                                                Affiliated Investor is an existing                      Regulated Entity’s participation to the                exceeds the amount of the opportunity;
                                                investor.                                               Eligible Trustees, and the Regulated                   then the amount invested by each such
                                                   6. A Regulated Entity will not
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                                                                                                        Entity will participate in such                        party will be allocated among them pro
                                                participate in any Potential Co-                        disposition solely to the extent that a                rata based on each participant’s
                                                Investment Transaction unless the                       Required Majority determines that it is                Available Capital for investment in the
                                                terms, conditions, price, class of                      in the Regulated Entity’s best interests.              asset class being allocated, up to the
                                                  13 This exception applies only to follow-on
                                                                                                           d. Each Regulated Entity and each                   amount proposed to be invested by
                                                investments by a Regulated Entity in issuers in
                                                                                                        Affiliated Investor will bear its own                  each.
                                                which that Regulated Entity already holds               expenses in connection with the                           d. The acquisition of follow-on
                                                investments.                                            disposition.                                           investments as permitted by this


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                                                1084                            Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Notices

                                                condition will be considered a Co-                       as the case may be, in such Co-                        SECURITIES AND EXCHANGE
                                                Investment Transaction for all purposes                  Investment Transaction. If any                         COMMISSION
                                                and be subject to the other conditions                   transaction fee is to be held by a                     [Release No. 34–82440; File No. S7–24–89]
                                                set forth in the application.                            Guggenheim Adviser pending
                                                   9. The Independent Trustees of each                   consummation of the transaction, the                   Joint Industry Plan; Notice of Filing
                                                Regulated Entity will be provided                        fee will be deposited into an account                  and Immediate Effectiveness of the
                                                quarterly for review all information                     maintained by the Guggenheim Adviser                   Forty-First Amendment to the Joint
                                                concerning Potential Co-Investment                       at a bank or banks having the                          Self-Regulatory Organization Plan
                                                Transactions and Co-Investment                           qualifications prescribed in section                   Governing the Collection,
                                                Transactions, including investments                      26(a)(1) of the Act, and the account will              Consolidation and Dissemination of
                                                made by other Regulated Entities or                      earn a competitive rate of interest that               Quotation and Transaction Information
                                                Affiliated Investors that a Regulated                                                                           for Nasdaq-Listed Securities Traded on
                                                                                                         will also be divided pro rata among the
                                                Entity considered but declined to                                                                               Exchanges on an Unlisted Trading
                                                                                                         participating Regulated Entities and
                                                participate in, so that the Independent                                                                         Privileges Basis
                                                Trustees may determine whether all                       Affiliated Investors based on the amount
                                                investments made during the preceding                    they invest in the Co-Investment                       January 3, 2018.
                                                quarter, including those investments                     Transaction. None of the other                            Pursuant to Section 11A of the
                                                which the Regulated Entity considered                    Regulated Entities, Affiliated Investors,              Securities Exchange Act of 1934
                                                but declined to participate in, comply                   the Guggenheim Advisers nor any                        (‘‘Act’’),1 and Rule 608 thereunder,2
                                                with the conditions of the Order. In                     affiliated person of the Regulated                     notice is hereby given that on December
                                                addition, the Independent Trustees will                  Entities or the Affiliated Investors will              14, 2017, the Participants 3 in the Joint
                                                consider at least annually the continued                 receive additional compensation or                     Self-Regulatory Organization Plan
                                                appropriateness for such Regulated                       remuneration of any kind as a result of                Governing the Collection, Consolidation
                                                Entity of participating in new and                       or in connection with a Co-Investment                  and Dissemination of Quotation and
                                                existing Co-Investment Transactions.                     Transaction (other than (a) in the case                Transaction Information for Nasdaq-
                                                   10. Each Regulated Entity will                        of the Regulated Entities and the                      Listed Securities Traded on Exchanges
                                                maintain the records required by section                 Affiliated Investors, the pro rata                     on an Unlisted Trading Privileges Basis
                                                57(f)(3) of the Act as if each of the                    transaction fees described above and                   (‘‘NASDAQ/UTP Plan’’ or ‘‘Plan’’) filed
                                                Regulated Entities were a BDC and each                   fees or other compensation described in                with the Securities and Exchange
                                                of the investments permitted under                       condition 2(c)(iii)(c) and (b) in the case             Commission (‘‘Commission’’) a proposal
                                                these conditions were approved by a                                                                             to amend the NASDAQ/UTP Plan.4 The
                                                                                                         of the Guggenheim Advisers, investment
                                                Required Majority under section 57(f).                                                                          amendment is the 41st Amendment to
                                                                                                         advisory fees paid in accordance with                  the NASDAQ/UTP Plan
                                                   11. No Independent Trustee of a                       the Regulated Entities’ and the
                                                Regulated Entity will also be a trustee,                                                                        (‘‘Amendment’’).5
                                                                                                         Affiliated Investors’ investment                          The Amendment proposes to modify
                                                director, general partner, managing                      advisory agreements).
                                                member or principal, or otherwise an                                                                            the text of the fee schedule of the Plan
                                                ‘‘affiliated person’’ (as defined in the                    14. If the Holders own in the aggregate             to adopt a ‘‘Multiple Instance, Single
                                                Act) of any Affiliated Investor.                         more than 25 percent of the shares of a                User’’ (‘‘MISU’’) Program that aligns
                                                   12. The expenses, if any, associated                  Regulated Entity, then the Holders will                with the MISU Program used by the
                                                with acquiring, holding or disposing of                  vote such shares as directed by an                     CTA and CQ Plans. As explained in
                                                any securities acquired in a Co-                         independent third party when voting on                 greater detail below, the Participants
                                                Investment Transaction (including,                       (1) the election of directors or trustees;             state that the Amendment moves
                                                without limitation, the expenses of the                  (2) the removal of one or more directors               towards harmonizing the fees under the
                                                distribution of any such securities                                                                             Plan with the fees under the CTA and
                                                                                                         or trustees; or (3) any matters requiring
                                                registered for sale under the Securities                 approval by the vote of a majority of the                1 15  U.S.C. 78k–1.
                                                Act) shall, to the extent not payable by                 outstanding voting securities, as defined                2 17  CFR 242.608.
                                                the Guggenheim Advisers under their                      in section 2(a)(42) of the Act.                           3 The Participants are: Cboe BYX Exchange, Inc.;
                                                respective advisory agreements with the                                                                         Cboe BZX Exchange, Inc.; Cboe EDGA Exchange,
                                                                                                            15. Each Regulated Entity’s chief
                                                Regulated Entities and the Affiliated                                                                           Inc.; Cboe EDGX Exchange, Inc.; Cboe Exchange,
                                                                                                         compliance officer, as defined in Rule                 Inc.; Chicago Stock Exchange, Inc.; Financial
                                                Investors, be shared by the Regulated
                                                Entities and the Affiliated Investors in                 38a–1(a)(4), will prepare an annual                    Industry Regulatory Authority, Inc.; Investors
                                                                                                         report for its Board that evaluates (and               Exchange LLC; Nasdaq BX, Inc.; Nasdaq ISE, LLC;
                                                proportion to the relative amounts of the                                                                       Nasdaq PHLX LLC; The Nasdaq Stock Market LLC;
                                                securities held or to be acquired or                     documents the basis of that evaluation)                New York Stock Exchange LLC; NYSE Arca, Inc.;
                                                disposed of, as the case may be.                         the Regulated Entity’s compliance with                 NYSE American LLC; and NYSE National, Inc.
                                                                                                         the terms and conditions of the                        (collectively, the ‘‘Participants’’).
                                                   13. Any transaction fee (including                                                                              4 The Plan governs the collection, processing, and
                                                break-up or commitment fees but                          application and the procedures                         dissemination on a consolidated basis of quotation
                                                excluding brokers’ fees contemplated by                  established to achieve such compliance.                information and transaction reports in Eligible
                                                section 17(e) or 57(k) of the Act, as                                                                           Securities for each of its Participants. This
                                                                                                           For the Commission, by the Division of
                                                                                                                                                                consolidated information informs investors of the
                                                applicable) 14 received in connection                    Investment Management, under delegated                 current quotation and recent trade prices of Nasdaq
                                                with a Co-Investment Transaction will                    authority.                                             securities. It enables investors to ascertain from one
                                                be distributed to the participating                                                                             data source the current prices in all the markets
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                                                                                                         Eduardo A. Aleman,
                                                Regulated Entities and Affiliated                                                                               trading Nasdaq securities. The Plan serves as the
                                                                                                         Assistant Secretary.                                   required transaction reporting plan for its
                                                Investors on a pro rata basis based on                                                                          Participants, which is a prerequisite for their
                                                                                                         [FR Doc. 2018–00162 Filed 1–8–18; 8:45 am]
                                                the amount they invested or committed,                                                                          trading Eligible Securities. See Securities Exchange
                                                                                                         BILLING CODE 8011–01–P                                 Act Release No. 55647 (April 19, 2007), 72 FR
                                                  14 Applicants  are not requesting and the                                                                     20891 (April 26, 2007).
                                                Commission is not providing any relief for                                                                         5 See Letter from Emily Kasparov to Brent J.

                                                transaction fees received in connection with any                                                                Fields, Secretary, Commission, dated December 13,
                                                Co-Investment Transaction.                                                                                      2017 (‘‘Transmittal Letter’’).



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Document Created: 2018-01-09 02:18:40
Document Modified: 2018-01-09 02:18:40
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice.
DatesThe application was filed on September 22, 2017, and amended on November 22, 2017.
ContactHae-Sung Lee, Attorney-Adviser, at (202) 551-7345 or Robert H. Shapiro, Branch Chief, at (202) 551-6821 (Chief Counsel's Office, Division of Investment Management).
FR Citation83 FR 1079 

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