[Federal Register Volume 78, Number 214 (Tuesday, November 5, 2013)]
[Notices]
[Pages 66394-66395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-26412]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 30771; 812-14185]


OFS Capital Corporation, et al.; Notice of Application

October 30, 2013.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under section 6(c) of the 
Investment Company Act of 1940 (the ``Act'') for an exemption from 
sections 18(a) and 61(a) of the Act.

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APPLICANTS: OFS Capital Corporation (the ``Company''), OFS Capital 
Management, LLC (the ``Investment Adviser''), Tamarix Capital G.P. LLC 
(the ``General Partner''), and Tamarix Capital Partners, L.P. (``OFS 
SBIC'').

SUMMARY OF THE APPLICATION: The Company requests an order to permit it 
to adhere to a modified asset coverage requirement.

FILING DATES: The application was filed July 29, 2013, and amended on 
October 4, 2013 and October 28, 2013.

HEARING OR NOTIFICATION OF HEARING: An order granting the application 
will be issued unless the Commission orders a hearing. Interested 
persons may request a hearing by writing to the Commission's Secretary 
and serving applicants with a copy of the request, personally or by 
mail. Hearing requests should be received by the Commission by 5:30 
p.m. on November 25, 2013 and should be accompanied by proof of service 
on the Applicants, in the form of an affidavit or, for lawyers, a 
certificate of service. Hearing requests should state the nature of the 
writer's interest, the reason for the request, and the issues 
contested. Persons who wish to be notified of a hearing may request 
notification by writing to the Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F 
Street NE., Washington, DC 20549-1090. Applicants: Glenn R. Pittson, 
OFS Capital Corporation, 2850 West Golf Road, Suite 520, Rolling 
Meadows, Illinois 60008.

FOR FURTHER INFORMATION CONTACT: David J. Marcinkus, Senior Counsel, at 
(202) 551-6882, or David P. Bartels, Branch Chief, at (202) 551-6821 
(Division of Investment Management, Exemptive Applications Office).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained via the 
Commission's Web site 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 Company, a Delaware corporation, is an externally managed, 
non-diversified, closed-end management investment company that has 
elected to be regulated as a business

[[Page 66395]]

development company (``BDC'') under the Act.\1\ The Company's 
investment objective is to provide its stockholders with both current 
income and capital appreciation primarily through debt investments and, 
to a lesser extent, equity investments. The Investment Adviser, a 
Delaware limited liability company, is the investment adviser to the 
Company. The Investment Adviser is registered under the Investment 
Advisers Act of 1940.
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    \1\ Section 2(a)(48) defines a BDC to be any closed-end 
investment company that operates for the purpose of making 
investments in securities described in section 55(a)(1) through 
55(a)(3) of the Act and makes available significant managerial 
assistance with respect to the issuers of such securities.
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    2. OFS SBIC, a Delaware limited partnership, is a small business 
investment company (``SBIC'') licensed by the Small Business 
Administration (``SBA'') to operate under the Small Business Investment 
Act of 1958 (``SBIA''). OFS SBIC is excluded from the definition of 
investment company by section 3(c)(7) of the Act. The Company currently 
owns a 67.5 percent limited partnership interest in OFS SBIC.\2\ The 
General Partner, a Delaware limited liability company, is the general 
partner of OFS SBIC. The General Partner owns 1% of OFS SBIC in the 
form of a general partner interest.
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    \2\ The Company intends to acquire all of the remaining limited 
partnership interests in OFS SBIC that are currently owned or 
subscribed for by other persons. The Company also intends to acquire 
all of the membership interests in the General Partner. The Company 
currently holds a 23.35 percent membership interest in the General 
Partner. Acquiring the limited partnership interests in OFS SBIC and 
the membership interests in the General Partner (the 
``Transaction'') requires prior SBA approval, and there can be no 
assurance if and when the SBA will grant this approval. Once the 
Transaction is complete, OFS SBIC will be a SBIC Subsidiary (defined 
below), the General Partner will be a wholly-owned subsidiary of the 
Company, and each of OFS SBIC and the General Partner will be 
consolidated with the Company for financial reporting purposes. 
However, until the Transaction is completed, the Company will not 
rely on requested order with respect to OFS SBIC.
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Applicants' Legal Analysis

    1. The Company requests an exemption pursuant to section 6(c) of 
the Act from the provisions of sections 18(a) and 61(a) of the Act to 
permit it to adhere to a modified asset coverage requirement with 
respect to any direct or indirect wholly-owned subsidiary of the 
Company that is licensed by the SBA to operate under the SBIA as a SBIC 
and relies on Section 3(c)(7) for an exemption from the definition of 
``investment company'' under the 1940 Act (each, a ``SBIC 
Subsidiary'').\3\ Applicants state that companies operating under the 
SBIA, such as the SBIC Subsidiary, will be subject to the SBA's 
substantial regulation of permissible leverage in their capital 
structure.
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    \3\ All existing entities that currently intend to rely on the 
order are named as applicants. Any other existing or future entity 
that may rely on the order in the future will comply with the terms 
and condition of the order.
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    2. Section 18(a) of the Act prohibits a registered closed-end 
investment company from issuing any class of senior security or selling 
any such security of which it is the issuer unless the company complies 
with the asset coverage requirements set forth in that section. Section 
61(a) of the Act makes section 18 applicable to BDCs, with certain 
modifications. Section 18(k) exempts an investment company operating as 
an SBIC from the asset coverage requirements for senior securities 
representing indebtedness that are contained in section 18(a)(1)(A) and 
(B).
    3. Applicants state that the Company may be required to comply with 
the asset coverage requirements of section 18(a) (as modified by 
section 61(a)) on a consolidated basis because the Company may be 
deemed to be an indirect issuer of any class of senior security issued 
by OFS SBIC or another SBIC Subsidiary. Applicants state that applying 
section 18(a) (as modified by section 61(a)) on a consolidated basis 
generally would require that the Company treat as its own all assets 
and any liabilities held directly either by itself, by OFS SBIC, or by 
another SBIC Subsidiary. Accordingly, the Company requests an order 
under section 6(c) of the Act exempting the Company from the provisions 
of section 18(a) (as modified by section 61(a)), such that senior 
securities issued by each SBIC Subsidiary that would be excluded from 
the SBIC Subsidiary's asset coverage ratio by section 18(k) if it were 
itself a BDC would also be excluded from the Company's consolidated 
asset coverage ratio.
    4. Section 6(c) of the Act, in relevant part, permits the 
Commission to exempt any transaction or class of transactions from any 
provision of the Act if and to the extent that such exemption is 
necessary or appropriate in the public interest and consistent with the 
protection of investors and the purposes fairly intended by the policy 
and provisions of the Act. Applicants state that the requested relief 
satisfies the section 6(c) standard. Applicants contend that, because 
the SBIC Subsidiary would be entitled to rely on section 18(k) if it 
were a BDC itself, there is no policy reason to deny the benefit of 
that exemption to the Company.

Applicants' Condition

    Applicants agree that any order granting the requested relief will 
be subject to the following condition:
    The Company shall not issue or sell any senior security, and the 
Company shall not cause or permit OFS SBIC or any other SBIC Subsidiary 
to issue or sell any senior security of which the Company, OFS SBIC or 
any other SBIC Subsidiary is the issuer except to the extent permitted 
by section 18 (as modified for BDCs by section 61) of the Act; provided 
that, immediately after the issuance or sale by any of the Company, OFS 
SBIC or any other SBIC Subsidiary of any such senior security, the 
Company, individually and on a consolidated basis, shall have the asset 
coverage required by section 18(a) of the Act (as modified by section 
61(a)). In determining whether the Company has the asset coverage on a 
consolidated basis required by section 18(a) of the Act (as modified by 
section 61(a)), any senior securities representing indebtedness of a 
SBIC Subsidiary if that SBIC Subsidiary has issued indebtedness that is 
held or guaranteed by the SBA shall not be considered senior securities 
and, for purposes of the definition of ``asset coverage'' in section 
18(h), shall be treated as indebtedness not represented by senior 
securities.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-26412 Filed 11-4-13; 8:45 am]
BILLING CODE 8011-01-P