SEC Division of Investment Management staff letter: XAI Octagon Floating Rate & Alternative Income Term Trust

Aug. 6, 2019

Response of the Office of Chief Counsel Division of Investment Management

August 6, 2019

XAI Octagon Floating Rate & Alternative Income Term Trust

Effective August 1, 2021, This Letter Is Withdrawn

Please consult this web page for more information.

File No. 811-23247

Your letter dated August 6, 2019, requests our assurance that we would not recommend enforcement action to the Securities and Exchange Commission (“Commission”) under Section 5(b) or Section 6(a) of the Securities Act of 1933 (the “Securities Act”) against XAI Octagon Floating Rate & Alternative Income Term Trust (the “Fund”), which filed and had declared effective by the Commission an equity shelf registration statement on Form N-2 (“Registration Statement”), if the Fund files a post-effective amendment to its Registration Statement pursuant to Rule 486(b) under the Securities Act, under the circumstances set forth in your letter.

Background

You state that the Fund is a closed-end management investment company registered under the Investment Company Act of 1940 (the “Investment Company Act”). The Fund filed and had declared effective by the Commission its Registration Statement pursuant to which it may issue common shares of beneficial interest on a delayed and continuous basis in accordance with Rule 415(a)(1)(x) under the Securities Act and the positions of the Commission staff.[1] XA Investments serves as the investment adviser to the Fund and Octagon Credit Investors, LLC serves as the sub-adviser to the Fund. The Fund’s common shares of beneficial interest are registered under Section 12(b) of the Securities Exchange Act of 1934, as amended, and are listed and traded on the New York Stock Exchange. The Fund has a fiscal year-end of September 30.

You state that the Fund’s board of trustees (the “Board”),[2] including a majority of independent trustees, has concluded that a continuously effective equity shelf registration statement would be beneficial to the Fund, its shareholders and potential investors. You state that the Fund, therefore, needs a continuously effective Registration Statement, and annually would have to file post-effective amendments to its Registration Statement pursuant to Section 8(c) of the Securities Act (“Post-Effective Amendments”) to bring the Fund’s financial statements up to date or to make other non-material changes. You further state that the Fund, its shareholders and potential investors would benefit if Post-Effective Amendments filed for the purpose of bringing the Fund’s financial statements up to date or to make any other non-material changes were effective immediately, as permitted by Rule 486(b) under the Securities Act available to certain registered closed-end investment companies. You state that utilization of Rule 486(b) would help ensure that the Fund has the ability to raise capital as the opportunity arises, and could reduce expenses incurred by the Fund in the Post-Effective Amendment process. You further state that due to the limited purpose for which the Fund would use Rule 486(b), no erosion of investor protection would occur and investors could have faster access to important information about the Fund, including its updated financial information.

Discussion

Rule 486(b) under the Securities Act, in relevant part, states that a post-effective amendment to a registration statement filed by a registered closed-end management investment company which makes periodic repurchase offers under Rule 23c-3 under the Investment Company Act (“Interval Fund”) shall become effective on the date on which it is filed with the Commission, provided that certain conditions are met. The conditions of Rule 486(b) require, among other things, that the post-effective amendment be filed for no purpose other than, among other things, bringing the financial statements up to date or making non-material changes, and that the registrant make certain representations concerning the purpose for which the amendment is filed.

In adopting Rule 486(b) in 1994, the Commission recognized that Interval Funds may have a need to raise capital continuously, and therefore need continuously effective registration statements and would benefit if certain filings could become effective automatically.[3] The Commission staff in 1998 recognized that registered closed-end management investment companies such as the Fund, which is not an Interval Fund, also may benefit from the flexibility to take advantage of favorable market conditions to raise additional capital through continuous or delayed offerings of their securities.[4] You assert that the Fund, its shareholders and potential investors also would benefit if the Fund’s Post-Effective Amendments that comply with the conditions of Rule 486(b) could become effective immediately pursuant to that Rule.

You represent that each filing made in reliance on the requested relief would be made in compliance with the conditions of Rule 486(b), and that the Fund will file a Post-Effective Amendment containing a prospectus pursuant to Section 8(c) of the Securities Act prior to any offering of its common shares of beneficial interest at a price below net asset value. You also represent that in relying on the requested relief to sell common shares of beneficial interest, the Fund will sell newly issued shares at a price no lower than the sum of the Fund’s net asset value plus the per share commission or underwriting discount.[5]

Conclusion

Based on the facts and representations set forth in your letter, we would not recommend that the Commission take any enforcement action under Section 5(b) or Section 6(a) of the Securities Act against the Fund if it files Post-Effective Amendments to its Registration Statement pursuant to Rule 486(b) under the Securities Act. 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 all of the facts and representations in your letter, any different facts or representations may require a different conclusion.[6] We note that the Fund has acknowledged that the staff may withdraw any assurance granted in this letter if the staff finds that the Fund is misusing Rule 486(b) or for any other reason.

Benjamin Kalish
Senior Counsel

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[1] See Nuveen Virginia Premium Income Municipal Fund, SEC Staff No-Action Letter (Oct. 6, 2006); Pilgrim America Prime Rate Trust, SEC Staff No-Action Letter (May 1, 1998) (“Pilgrim Letter”).

[2] The Fund is organized as a Delaware statutory trust that is governed by a board of trustees.

[3] See Post-Effective Amendments to Investment Company Registration Statements, Investment Company Act Release No. 20486 (Aug. 17, 1994), n.22 and accompanying text. An Interval Fund operates pursuant to a fundamental policy that requires the Interval Fund to make periodic offers to repurchase its common stock in an amount not less than five percent of the outstanding shares. See Rule 23c-3 under the Investment Company Act. These repurchase offers may create a need for the Interval Fund to replenish its assets by making a continuous or intermittent offering of its common stock. See Continuous or Delayed Offerings by Certain Closed-End Management Investment Companies; Automatic Effectiveness of Certain Registration Statements and Post-Effective Amendments, Investment Company Act Release No. 19391 (Apr. 7, 1993).

[4] See Pilgrim Letter, supra note 1, n.12 and accompanying text.

[5] See Pilgrim Letter, supra note 1, n.4 and accompanying text.

[6] 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. See Informal Guidance Program for Small Entities, Investment Company Act Release No. 22587 (Mar. 27, 1997), n.20. In light of the very fact-specific nature of the Fund’s request, however, the position expressed in this letter applies only to the Fund, and no other entity may rely on this position. The staff is willing to consider similar requests from other registered closed-end management investment companies.

Last Reviewed or Updated: March 24, 2023

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SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
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Deputy Director and Chief Counsel
Division of Investment Management
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Re: XAI Octagon Floating Rate & Alternative Income Term Trust - Request for No-Action Relief Dear Mr. Cellupica:
On behalf of XAI Octagon Floating Rate & Alternative Income Term Trust (the "Fund"), we seek assurance that the staff of the Division of Investment Management (the "Staff') will not recommend enforcement action against the Fund to the Securities and Exchange Commission (the "Commission") under Section 5(b) or Section 6(a) of the Securities Act of 1933, as amended (the "Securities Act"), ifit utilizes Rule 486(b) under the Securities Act to file post-effective amendments to its registration statement in satisfaction of the undertakings contained in its registration statement under the circumstances set forth in this letter.
I. Background
The Fund is a closed-end management investment company that is registered under the Investment Company Act of 1940, as amended (the "Investment Company Act"). The Fund is organized as a Delaware statutory trust and is governed by a board of trustees (the "Board"). The Fund is authorized to issue common shares of beneficial interest. The Commission declared effective the Fund's equity shelf registration statement on Form N-2 (File Nos. 333-227640 and 811-23247) on March 12, 2019. The Fund's common shares of beneficial interest are registered under Section 12(b) of the Securities Exchange Act of 1934, as amended, and are listed and traded on the New York Stock Exchange. XA Investments LLC serves as the investment adviser to the Fund and Octagon Credit Investors, LLC serves as the investment sub-adviser to the Fund. The Fund has a fiscal year end of September 30. The Fund has filed and had declared effective by the Commission its equity shelf Registration Statement on Form N-2 pursuant to which it has registered, and may issue, common shares of beneficial interest in accordance with the terms of Rule 415(a)(l)(x) under the Securities Act and the positions of the Staff articulated in Pilgrim

America Prime Rate Trust, SEC Staff Na-Action Letter (May 1, 1998) ("Pilgrim") and Nuveen Virginia Premium Income Municipal Fund, SEC Staff No-Action Letter (Oct. 6, 2006) ("Nuveen I"). The Board of the Fund, including a majority of the independent trustees ("Independent Board Members"), has concluded that the continued ability to raise capital through the public offering of additional securities on a delayed and continuous basis is beneficial to the Fund and its shareholders. The Board of the Fund has also concluded that a continuously effective equity shelf registration statement is beneficial to the Fund, its shareholders and potential investors. As discussed below, however, the Fund is subject to the risk of being unable to sell securities pursuant to its effective equity shelf registration statement for significant portions of each year due to the post-effective amendment process currently required to bring the Fund's financial statements up to date. The post-effective amendment process requires the Commission to review and declare effective any post-effective amendments filed to an equity shelf registration statement in order to bring the Fund's financial statements up to date. The Board of the Fund believes that the Fund, its shareholders and potential investors would benefit if the Fund were allowed to utilize Rule 486(b) under the Securities Act, which is available only to a certain category of registered closed-end investment companies, 1 to file post￾effective amendments to its equity shelf registration statement that would become effective immediately, primarily for the purposes of updating its financial statements or making non￾material changes. Investors would benefit from the Fund's ability to raise capital in continuous offerings of its securities at non-dilutive prices, without potentially significant periods of disruption to such offering process. In addition, Fund shareholders could benefit from considerable cost savings, as expenses incurred in respect of the current post-effective amendment process can be significant. Due to the limited purpose for which the Fund proposes to use Rule 486(b ), no erosion of investor protections would occur.
II. Discussion
Section 5(b)(l) of the Securities Act makes it unlawful for any person directly or
indirectly to transmit, through interstate commerce, a prospectus relating to any security with respect to which a registration statement has been filed, unless the prospectus meets the requirements of Section 10 of the Securities Act. Similarly, Section 5(b )(2) of the Securities Act makes it unlawful for any person directly or indirectly to carry or cause to be carried any security for the purpose of sale or delivery, unless preceded or accompanied by a prospectus that meets the requirements of Section 1 0(a) of the Securities Act.
Section l0(a)(l) of the Securities Act, in pertinent part, states that a prospectus relating to
a security - other than a security issued by a foreign issuer - shall contain the inf01mation The Fund is not organized as an interval fund pursuant to Rule 23c-3 under the Investment Company Act, and therefore Rule 486(b) is not cmTently available to the Fund.

contained in the issuer's registration statement. Section 1 0(a)(3) of the Securities Act states that, notwithstanding Section IO(a)(l), a prospectus that is used more than nine months after the effective date of the registration statement must have information as of a date not more than sixteen months prior to such use, so far as the information is known to the user of the prospectus or can be furnished by the user of the prospectus without umeasonable effort or expense ( a "10(a)(3) Prospectus"). Open-end management investment companies ("Open-end funds"), unit investment trusts, and face-amount certificate companies are required by Section 24(e) of the Investment Company Act to use a 10(a)(3) Prospectus that does not vary from the latest prospectus filed as
part of a post-effective amendment to the fund's registration statement. Open-end funds satisfy
this requirement by filing a post-effective amendment pursuant to Rule 485 under the Securities Act, which provides for automatic or immediate effectiveness.2 Notably, however, Section 24(e) does not apply to closed-end management investment companies, and there is no statutory requirement mandating that a closed-end fund make such a post-effective filing. 3 Instead, Rule 415( a)(3) under the Securities Act requires a registrant that is an investment company filing on Form N-2 (the registration statement utilized by closed-end funds) to furnish the unde1iakings required by Item 34.4 of Form N-2. Item 34.4.a of Form N-2 requires closed-end funds to undertake "to file, during any period in which offers or sales are being made, a post-effective amendment to the registration statement: (1) to include any prospectus required by Section 10(a)(3) of the 1933 Act." The Fund has made this undertaking in its registration statement. As a consequence, the Fund currently is required to file a post-effective amendment on an annual basis to update its equity shelf registration statement with its audited financial statements in accordance with this unde1iaking, as well as to make any non-material updates. The Fund cmTently satisfies this undertaking by filing a post-effective amendment with the Commission pursuant to Section 8(c) of the Securities Act. Section 8( c) does not provide a mechanism for automatic effectiveness.4 A post-effective amendment filed pursuant to Section 8(c) must be declared effective by the Staff in order to take effect. This process subjects the filings to Staff review and comment, including for routine non-material amendments, which can be a lengthy process. Prior to the post-effective amendment being declared effective by the Staff, the Fund cannot issue common shares of beneficial interest pursuant to it, thereby potentially preventing the Fund from taking advantage of what may be an attractive market to raise assets for the benefit of the Fund's shareholders. Rule 485(a) permits automatic effectiveness after the passage of a specified period of time. Rule 485(b) provides for immediate effectiveness of filings made for certain purposes, including, among other things, updating financial statements and making non-material changes. See Section 24(e) of the Investment Company Act; L. Loss, J. Seligman & T. Paredes, I Securities Regulation 998-1000 (5th ed. 2014). But see supra note 2 and accompanying text for a discussion of Rule 485, which provides for automatic and immediate effectiveness for Open-end funds. 4

Closed-end funds which are operated as interval funds pursuant to Rule 23c-3 under the Investment Company Act are not subject to these delays. Rule 486(b) provides that a post￾effective amendment to an effective registration statement, or a registration statement for additional shares of common stock, filed by a registered closed-end management investment company or business development company that makes periodic repurchase offers under Rule 23c-3 ("Interval Funds") shall become immediately effective on the date it is filed, or on a later date designated by the registrant that is no more than 30 days after the filing is made, provided that the post-effective amendment or registration statement is filed solely: (i) to register additional shares of common stock for which a registration statement filed on Form N-2 is effective, (ii) to bring the financial statements up to date under Section 10(a)(3) of the Securities Act or Rule 3-18 of Regulation S-X under the Securities Act, (iii) to designate a new effective date for a previously filed post-effective amendment or registration statement for additional shares under Rule 486(a), which has not yet become effective, (iv) to disclose or update the information required by Item 9c of Form N-2, 5 (v) to make any non-material changes the registrant deems appropriate, and (vi) for any other purpose the Commission shall approve. In the adopting release for Rule 486, the Commission stated that "[t]he initial proposal of Rule 486 recognized that closed-end interval funds may need continuously effective registration statements and would benefit if certain filings could become effective automatically."6 The Fund believes that this line of reasoning should be extended to it as a closed-end fund that is conducting offerings pursuant to Rule 415(a)(l)(x). The Staff has concurred with this approach. 7 In the Prior No-Action Letters, the Staff granted no-action assurances to many closed-end fund complexes that were engaged in delayed or continuous offerings pursuant to Rule 415(a)(l)(x). In the letters, the Staff agreed not to recommend enforcement action to the Commission under Sections 5 and 6(a) of the Securities Act based on the representation that the respective fund's board of directors approved the fund's delayed or continuous offerings, the representation that each fund's post-effective amendments We note that Form N-2 does not have, and has never had, an "Item 9c." Based upon a review of the administrative history of Rule 486, we believe that this should be a reference to Item 9.1.c. of Form N-2, which relates to information regarding individual portfolio managers. Accordingly, the Fund plans to treat the reference to "Item 9c" as a reference to Item 9.1.c. of Form N-2. Post-Effective Amendments to Investment Company Registration Statements, SEC Rel. No. 33-7083 (Aug. 17, 1994). The Staff has granted over 25 no-action assurances to closed-end fund complexes concurring with this approach since 20 I 0. See,
e.g., Nuveen S&P 500 Dynamic Overwrite Fund, et al., SEC Staff No-Action Letter (April 26, 2019); Voya Prime Rate Trust, SEC StaffNo-Action Letter (April 8, 2019); PIMCO Income Strategy Fund and PIMCO Income Strategy Fund II, SEC Staff No-Action Letter (January 30, 2019); Eaton Vance Tax-Managed Buy-Write Opportunities Fund, et al., SEC Staff No-Action Letter (Oct. 29, 2018); and DNP Select Income Fund Inc., SEC Staff No-Action Letter (Oct. 4, 2018). These previous similar no-action assurances are collectively referred to as the "Prior No-Action Letters."

would comply with the conditions of Rule 486(b), and the representation that each fund would file a post-effective amendment containing a prospectus pursuant to Section 8(c) of the Securities Act prior to any offering of its common stock at a price below net asset value. The Staff has stated that, "[i]n light of the very fact specific nature" of the requests, this relief is limited on its face to the addressees of the no-action letters. The Staff has also stated, however, that it "is willing to consider similar requests from other registered closed-end management investment companies." We submit that the facts presented by the Fund in this request are similar to those presented in the Prior No-Action Letters. As was the case with each of the funds in the Prior No￾Action Letters, the Board of the Fund, including a majority of its Independent Board Members, has concluded that the continued ability to raise capital through the public offering of additional common shares of beneficial interest on a delayed and continuous basis would benefit the Fund and its shareholders. In addition, the Board of the Fund has concluded that a continuously effective equity shelf registration statement would be beneficial to the Fund, its shareholders and potential investors. In furtherance of these conclusions, the Fund has an effective registration statement on file with the Commission pursuant to which the Fund may issue common shares of beneficial interest on a delayed and continuous basis in accordance with Rule 415(a)(l)(x) and the positions of the Staff in the Nuveen I and Pilgrim letters. As is the case with Interval Funds, the Fund and its common shareholders would also benefit from having a continuously effective registration statement. The ability to utilize Rule 486(6) under the Securities Act would have significant benefits for the Fund and its investors:

• The Fund would have the ability to raise capital as the opportunity arises;
• The Fund could reduce the expenses it presently incurs as part of the registration
  statement review and comment process, thus benefiting shareholders; and
• Investors could have faster access to impmiant information about the Fund
  including its updated financial information.
  In addition, because the ability to rely on Rule 486(b) would only permit the Fund to update its financial statements, or to make non-material changes to its registration statement, the Fund believes that the public policy of protecting investors would be safeguarded. 8 The Fund represents that each filing made in reliance on the requested relief would be made in compliance with the conditions of Rule 486(6), and that the Fund will file a post-effective amendment containing a prospectus pursuant to Section 8(c) of the Securities Act prior to any offering of its Additionally, pursuant to Rule 4 l 5(a)(5) under the Securities Act, shelf registration statements, including the Fund's registration statement, have a maximum lifespan of three years, meaning limits on the Fund's ability to file automatically effective post-effective amendments would remain in place.

common shares of beneficial interest at a price below net asset value. In relying on the requested relief to sell common shares of beneficial interest, the Fund will sell newly issued shares at a price no lower than the sum of the Fund's net asset value plus the per share commission or underwriting discount.9 The Fund would utilize Rule 486(b) to file post-effective amendments only to: (1) bring the financial statements of the Fund up to date under Section 1 0(a)(3) of the Securities Act or Rule 3-18 of Regulation S-X; (2) update the information required by Item 9.1.c of Form N-2; or (3) make any non-material changes the registrant deems appropriate. 10
III. Conclusion
In light of the forgoing, we seek your assurances that the Staff will deem the Fund to have complied with its undertaking provided in response to Item 34.4.a of Form N-2, and will not recommend enforcement action against the Fund to the Commission under Section 5(b) or
Section 6(a) of the Securities Act if the Fund utilizes Rule 486(b) of the Securities Act, under the
circumstances set forth above.

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The Fund acknowledges that the Staff may withdraw any assurance granted in response to this letter if the Staff finds that the Fund is misusing Rule 486(b), or for any other reason. Please contact the undersigned at (312) 407-0641 with any questions or comments regarding this letter. Sincerely, Kevin T. Hardy 9 See Pilgrim. 10 The Fund would not seek to use a filing made in accordance with Rule 486(b) to register additional securities without first obtaining relief from Rule 413 under the Securities Act. 1133282-CHISR02A - MSW