|Monday, March 20, 2000|
|Letters Deemed Significant by the Division of Investment Management
The staff permitted this company to distribute to existing and prospective advisory clients a quarterly report which identifies and discusses some, but not all, of the specific securities bought, sold or held by the adviser for investment advisory accounts. The staff did not consider the report to be an advertisement that gives its recipients a misleading impression of the adviser's performance, which is prohibited by section 206(4) of the Investment Advisers Act.
The staff agreed that this family of unit investment trusts could pay the costs of filing and preparing their registration statements without penalty under section 26 of the Investment Company Act. The staff stated that such payments would not constitute direct remuneration or "hidden charges," both of which are prohibited under section 26.
The staff was of the view that if this company exercises the defeasanse provisions contained in its commercial mortgage loans ("CMBSs"), the CMBSs will still qualify as "mortgage-related securities" under 1934 Act section 3(a)(41). The staff limited its view to certain CMBSs.
The staff stated that it would not recommend Commission action under section 34(b) of the Investment Company Act if these funds, which hold themselves out as diversified in their registration statements, treat an investment in the shares of the series of a trust that is excepted from the definition of "investment company" pursuant to section 3(c)(7) as an investment in the securities of an investment company solely for purposes of section 5(b)(1). The staff noted that each series will operate in all material respects as an open-end management investment company, and will comply with the diversification requirements.
The staff permitted, under 1934 Act section 17(f) and rule 17f-5, this bank's funds to place their investments in the custody of a special purpose corporation ("SPC") established by the bank. The staff stated that the funds' foreign custody arrangements that involve the SPC must comply with rule 17f-5 in all respects except that the SPC may not be a qualified foreign bank or eligible foreign custodian.
The staff allowed a fund to enter into a repurchase agreement ("repo") with broker-dealer and bank counterparties that are engaged in a securities-related business under section 12(d)(3) of the Investment Company Act. The staff stated that the fund's board or investment adviser must evaluate the creditworthiness of the repo counterparties, and must take steps that are reasonably designed to ensure that the fund's repos are fully collateralized.
The staff advised this company that it could use certain materials as the basis for performance information, provided that the net asset values were accumulated contemporaneously with the management of the account. The company intends to publish materials listing the net asset values of a managed account, together with worksheets that demonstrate the calculation of performance information based on those net asset values, to demonstrate performance information under section 204 and rule 204-2(a)(16) of the Investment Advisers Act.
The staff advised this company that its proposed concentration policy is consistent with section 8(b)(1) of the Investment Advisers Act. The fund proposed to implement a new concentration policy to permit it to invest up to 35% of its total assets in the equity securities of issuers in a particular industry or group of industries if, at the time of investment, that industry represents 20% or more of the index.
The staff advised this investment adviser that an adviser would not violate section 206(4) or rule 206(4)-2(a)(5) of the Investment Advisers Act if the adviser achieves the annual verification of client funds and securities through a series of unannounced examinations performed throughout the year.
The staff permitted, under section 206 of the Investment Advisers Act, sponsors of this COMPANY's mutual fund wrap fee program to defer, and eventually excuse, the payment of certain expenses by clients as long as the clients continue their participation in the program for a specified period of time. The wrap fee program is intended to help the company's sponsors to market successfully to investors.
The staff permitted, under section 7 of the Investment Company Act, this company, a newly-formed trust and a trustee to implement a depositary receipts program without registering the trust as an investment company. According to the company, the program is intended function as a means to provide investors with a less costly way of purchasing, holding and transferring equity securities within a particular industry, sector or group, and not as an investment company.
The staff allowed this company, without registering under 1933 Act section 3(a)(1), to issue common shares to MetLife Policyholder Trust so that the trust could exchange the shares for holding company common shares and allocate interests to trust eligible policyholders. These transactions are being made in connection with the company's proposed conversion to a stock life company that will be a subsidiary of the holding company.
The staff agreed that a fund's use of an automated phone system that includes estimated and actual distribution information could comply with 1933 Act rule 482 notwithstanding that the distribution information does not meet certain requirements of the rule that apply to the presentation of performance.
The staff reviewed mutual funds' pricing obligations and provided additional guidance to funds on their obligations to price and redeem their securities during emergency, unusual and other situations.