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You also state that the Proposed Transactions are consistent with the policies of IFHF, as recited in its registration statement and reports filed under the Act.
Therefore, you conclude that the terms of the Proposed Transactions, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned.
This response expresses our view on enforcement action only and does not express any legal or interpretive conclusion on the issues presented.
Because our position is based upon the representations made to us in your letter, any different facts or representations may require a different conclusion. You also state that the general partner of IFHF, which is an affiliate of the Investment Adviser, has irrevocably agreed to waive any performance-based incentive allocation which it might otherwise receive from managing IFHF following the establishment of the Liquidating Trust.
You state that, in order to satisfy the Quarterly Tender Offers, IFHF typically submits redemption requests to the Underlying Funds and distributes the cash it receives from the Underlying Funds and other available cash to its tendering Limited Partners.
You further state that IFHF has submitted requests to redeem all or a portion of its interests in certain Underlying Funds that have suspended or sharply limited the ability of interest holders to redeem their interests (“Restricted Underlying Funds”).
Section 2(a)(3) of the Act defines an affiliated person of another person to include “(A) any person directly or indirectly owning, controlling, or holding with power to vote, 5 per centum or more of the outstanding voting securities of such other person; (B) any person 5 per centum or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such other person; (C) any person directly or indirectly controlling, controlled by, or under common control with, such other person; (D) any officer, director, partner, copartner, or employee of such other person; (E) if such other person is an investment company, any investment adviser thereof or any member of an advisory board thereof; and (F) if such other person is an unincorporated investment company not having a board of directors, the depositor thereof.” You note that Rule 17a-3 under the Act (which exempts from Section 17(a) of the Act transactions solely between a registered investment company and its fully-owned subsidiaries) and Rule 17a-5 under the Act (which provides that certain pro rata distributions by a registered investment company to its common shareholders shall not be deemed to involve a sale to or a purchase from such distributing investment company, as those terms are used in Section 17(a) of the Act) may be read to permit the Proposed Transactions. You do not request, and we do not express any view concerning, the status of the Liquidating Trust under the Act, the status under the Act of any Restricted Underlying Fund in which the Liquidating Trust may hold interests, or the application of Section 12(d)(1) of the Act to IFHF’s acquisition of its interest in the Liquidating Trust.
Nevertheless, in light of the Commission’s order in M. Hanna Company, et al., Investment Company Release No. 28, 1955), and the Chicago Milwaukee Corporation, SEC Staff No-Action Letter (pub. The Division of Investment Management generally permits third parties to rely on no-action or interpretive letters to the extent that the third party’s facts and circumstances are substantially similar to those described in the underlying request for a no-action or interpretive letter. In light of the very fact-specific nature your request, however, the position expressed in this letter applies only to the named parties, and no other entity may rely on this position.
Based on the facts and representations set forth in your letter, we would not recommend that the Commission take any enforcement action under Section 17(a) or 17(d) of the Act, or Rule 17d-1 under the Act, against IFHF, the Investment Adviser, the Liquidating Trust, or any Affiliated Limited Partner, if IFHF engages in the Proposed Transactions.You state that IFHF and the Investment Adviser are concerned that as IFHF continues to engage in its Quarterly Tender Offers, IFHF’s interests in the Restricted Underlying Funds could become a growing percentage of its total assets, and that IFHF could become less diversified from a portfolio management perspective.You state that IFHF and the Investment Adviser would like to establish the Liquidating Trust and to engage in a one-time transfer of all of IFHF’s interests in the Restricted Underlying Funds to the Liquidating Trust in exchange for an interest in the Liquidating Trust.See Informal Guidance Program for Small Entities, Investment Company Act Release No.
Dbsi Liquidating Trust is located at the address 6327 Sw Capitol Hwy in Portland, Oregon 97239.
In support of your request, you state that all of IFHF’s interests in the Restricted Underlying Funds as of December 31, 2010, will be transferred by IFHF to the Liquidating Trust and will be valued in the same manner as they are valued for purposes of computing IFHF’s net asset value.