[Federal Register Volume 60, Number 103 (Tuesday, May 30, 1995)]
[Notices]
[Pages 28193-28197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13075]



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SECURITIES AND EXCHANGE COMMISSION
[Release No. IC--21087; International Series Release No. 812; 812-7846]


Citibank, NA., et al.; Notice of Application

May 22, 1995.
AGENCY: Securities and Exchange Commission (``SEC'').

ACTION: Notice of Application for Exemption under the Investment 
Company Act of 1940 (``1940 Act'').

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APPLICANTS: Citibank, N.A. (``Citibank'') and Citicorp.

relevant 1940 act sections: Exemption requested under section 6(c) from 
section 17(f) and rule 17F-5.

summary of application: Applicants seek conditional exemptive relief 
from section 17(f) of the 1940 Act and rule 17f-5 thereunder with 
respect to two forms of foreign custody arrangements. The requested 
exemption would amend an existing order (the ``1992 Order'') \1\ 
allowing Citibank, acting as custodian or subcustodian, to deposit the 
securities of United States investment companies with certain foreign 
subsidiaries of the Applicants. The requested exemption also would 
allow Citibank to make available direct custody arrangements between 
United States investment companies and certain foreign subsidiaries of 
the Applicants.

    \1\ Investment Company Act Release Nos. 18710 (May 15, 1992) 
(notice) and 18782 (June 12, 1992) (order).

filing dates: The application was filed on January 7, 1992, and was 
amended and restated on September 8, 1992, May 19, 1993, November 21, 
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1994, April 24, 1995, and May 22, 1995.

Hearing or Notification of Hearing: An order granting the application 
will be issued unless the SEC orders a hearing. Interested persons may 
request a hearing by writing to the SEC's Secretary and serving 
Applicants with a copy of the request, personally or by mail. Hearing 
requests should be received by the SEC by 5:30 p.m. on June 16, 1995, 
and should be accompanied by proof of service on 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 SEC's 
Secretary.

addresses: Secretary, SEC, 450 5th Street, NW., Washington, DC 20549. 
Applicants, c/o Caroline F. Marks, Esq., GTS-Legal, 111 Wall Street, 
15th Floor, Zone 9, New York, New York 10043.

for further information contract: H.R. Hallock, Jr., Special Counsel, 
at (202) 942-0564 (Office of Investment Company Regulation, Division of 
Investment Management) .

supplementary information: The following is a summary of the 
application. The complete application may be obtained for a fee at the 
SEC's Public Reference Branch.

[[Page 28194]] Applicants' Representations

A. Background

    1. Citibank, a United States national banking association, is a 
wholly-owned subsidiary of Citicorp, a Delaware bank holding company. 
Citibank operates an extensive custodian network through its branches 
and through its own subsidiaries and subsidiaries of Citicorp, as well 
as unaffiliated correspondent banks. As of December 31, 1993, Citibank 
had approximately $648 billion in assets under custody.
    2. In 1987, the SEC exempted Citibank (the ``1987 Order'') \2\ from 
section 17(f) of the 1940 Act to permit it, as the custodian of the 
securities and other assets (the ``Securities'') of any registered 
management investment company, other than an investment company 
registered under section 7(d) of the 1940 Act, or as subcustodian of 
the Securities of such investment companies for which any other entity 
is acting as custodian, to deposit such Securities under custodial 
arrangements (the ``Agency Custody Arrangements'') with certain 
specified foreign subsidiaries of Citibank (the ``Citibank 
Subsidiaries'') or Citicorp (the ``Citicorp Subsidiaries'' and, 
together with the Citibank Subsidiaries, the ``Foreign Subsidiaries'').

    \2\ Investment Company Act Release Nos. 15580 (Feb. 13, 1987) 
(notice) and 15617 (Mar 11, 1987) (order).
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    3. In 1990, the SEC exempted Citibank (the ``1990 Order'') \3\ from 
section 17(f) to permit it, acting as custodian or subcustodian, to 
maintain the Securities of such investment companies with several 
additional Foreign Subsidiaries. In the 1992 Order, the SEC exempted 
Citibank to permit it to maintain the Securities of such investment 
companies with certain additional Foreign Subsidiaries and to eliminate 
the requirement of the 1987 and 1990 Orders that each Foreign 
Subsidiary be a signatory to the custody agreement.

    \3\ Investment Company Act Release Nos. 17329 (Feb. 1, 1990) 
(notice) and 17360 (Feb. 28, 1990) (order).
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    4. Each of the Foreign Subsidiaries currently providing custodial 
services to U.S. Investment Companies is, and any additional Foreign 
Subsidiary providing such services in the future will be, a banking 
institution or trust company incorporated under the laws of a country 
other than the United States and regulated as such by that country's 
government or an agency thereof. Each of these Foreign Subsidiaries is, 
or will be, experienced, capable and well qualified to provide such 
services.

B. Relief Requested

    1. Applicants seek exemptive relief to allow 14 Citibank 
Subsidiaries that were granted relief in the 1992 Order \4\ to act as 
custodians for any registered management investment company, 
incorporated or organized under the laws of the United States or a 
state thereof (a ``U.S. Investment Company'') under direct contractual 
arrangements with such U.S. Investment Companies or their custodians 
(the ``Direct Custody Arrangements''), as well as under the Agency 
Custody Arrangements referred to above. Applicants also seek exemptive 
relief for the Direct and Agency Custody Arrangements with respect to 
one additional Citibank Subsidiary, Citibank a.s. in the Czech 
Republic. Each of these 15 Citibank Subsidiaries is a majority-owned or 
wholly-owned subsidiary of Citibank.

    \4\ Citibank (Channel Islands) Limited; Citibank, S.A. in 
France; Citicorp Investment Bank (The Netherlands) N.V.; Citibank 
(Zaire) S.A.R.L., Citibank Zambia Limited; Citicorp Nominees Pty. 
Limited in Australia; Citibank, Nominees (New Zealand) Limited; 
Citibank Portugal, S.A., Banco de Honduras S.A.; Citibank Budapest 
Rt.; Citibank-Maghreb in Morocco; Citibank (Trinidad & Tobago) 
Limited; Cititrust Colombia S.A. Sociedad Fiduciaria; and Citibank 
(Poland) S.A.
    2. In addition, Applicants seek relief to modify the Agency Custody 
Arrangements permitted by the 1992 Order to provide for the Citicorp 
guarantee described in paragraphs 9 through 11 below and set forth in 
Conditions 3(b), 5(c) and 9 below. Finally, Applicants seek to have any 
order granting relief with respect to the Agency or Direct Custody 
Arrangements apply to any other Foreign Subsidiary in the future that 
does not meet the minimum shareholders' equity requirement of rule 17f-
5,\5\ except that the Direct Custody Arrangements would apply to the 
Citicorp Subsidiaries only at such time as direct custody services are 
to be offered by them in accordance with applicable law.\6\

    \5\ Applicants do not request any relief with respect to 
Citibank T/O or any other subsidiary or affiliate of Citibank 
located in the Russian Federation. Should the Applicants request 
exemptive relief in the future with respect to Citibank T/O, such 
request would be the subject of a separate application.
    \6\ Citibank is subject to certain constraints imposed by the 
Federal Reserve Act with respect to its transactions with Citicorp 
and its subsidiaries. Accordingly, Applicants presently intend to 
permit only the existing and any additional Citibank Subsidiaries, 
but not the Citicorp Subsidiaries, to offer Direct Custody 
Arrangements.
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    3. Applicants intend that may order granting the relief requested 
by the application supersede the 1987, 1990, and 1992 Orders and 
provide a single comprehensive order covering both the Direct and 
Agency Custody Arrangements.
    4. Under the Agency Custody Arrangements, the Securities are 
maintained in the custody of the Foreign Subsidiaries only in 
accordance with a custody agreement among (a) the U.S. Investment 
Company or its custodian, (b) Citibank, and (c) Citicorp (the ``Agency 
Custody Agreement''). Citibank acts as the custodian or subcustodian of 
the Securities and delegates its responsibilities to the Foreign 
Subsidiaries in accordance with the terms of a subcustodian agreement 
(the ``Subcustodian Agreement'').
    5. The Agency Custody Agreement provides that the delegation by 
Citibank to a Foreign Subsidiary does not relieve Citibank of any 
responsibility to the U.S. Investment Company or its custodian for any 
loss due to such delegation except such loss as may result from 
political risk (e.g., exchange control restrictions, confiscation, 
expropriation, nationalization, insurrection, civil strife or armed 
hostilities), and other risk of loss for which neither Citibank nor the 
Foreign Subsidiary would be liable under rule 17f-5 (e.g., despite the 
exercise of reasonable care, loss due to Act of God, nuclear incident 
and the like). The Agency Custody Agreement also provides that Citicorp 
is liable, in accordance with the terms of the guarantee described 
below, for losses of Securities resulting from the bankruptcy or 
insolvency of the Foreign Subsidiaries.
    6. There may be instances in which a U.S. Investment Company would 
prefer having a Foreign Subsidiary be engaged as a direct custodian, 
receive direct instruction, and maintain separate accounts for it 
without the involvement of Citibank. In addition, certain United States 
banks that serve as custodians of U.S. Investment Companies do not 
require the custody services of another United States custodian, but 
nonetheless do require the services of foreign subcustodians in certain 
foreign countries.
    7. The Direct Custody Arrangements for which an exemption is being 
sought would enable the Citibank Subsidiaries referred to in paragraph 
1 and note 4 above to act as direct custodians in accordance with 
either a master custody agreement under which a U.S. Investment Company 
or its custodian would enter into a direct custodian relationship with 
a number of Citibank Subsidiaries or an individual custody agreement 
under which a U.S. Investment Company or its custodian would enter into 
a direct custodial relationship with a particular Citibank Subsidiary 
(either, a ``Direct Custody Agreement''). The Direct Custody 
[[Page 28195]] Agreement would be among (i) the U.S. Investment Company 
or custodian for which the Foreign Subsidiary acts as custodian or 
subcustodian, (ii) the Foreign Subsidiary, (iii) Citicorp, and (iv) 
Citibank. The terms of each Direct Custody Agreement would include a 
confirmation by the Foreign Subsidiary that it will act as the 
custodian or subcustodian, as the case may be, of the Securities under 
the requested order, an agreement by Citicorp that it is liable, in 
accordance with the terms of its guarantee, for losses of Securities 
resulting from the bankruptcy or insolvency of the Foreign Subsidiary, 
and an agreement by Citibank to be liable for any loss resulting from 
the performance of the Foreign Subsidiary, except such loss as may 
result from political risk (e.g., exchange control restrictions, 
confiscation, expropriation, nationalization, insurrection, civil 
strife or armed hostilities), and other risk of loss for which neither 
Citibank nor the Foreign Subsidiary would be liable under rule 17f-5 
(e.g., despite the exercise of reasonable care, loss due to Act of God, 
nuclear incident and the like).
    8. The extent of Citibank's liability for losses attributable to a 
Foreign Subsidiary under the Direct Custody Arrangements would be the 
same as that provided for under the Agency Custody Arrangements. Under 
both the Agency Custody Arrangements and the Direct Custody 
Arrangements, Citibank would be liable for the negligent acts or 
omissions of the Foreign Subsidiaries.
    9. Both the Agency and Direct Custody Agreements would provide that 
Citicorp will be liable in accordance with the terms of a guarantee for 
losses of Securities resulting from bankruptcy or insolvency of any of 
the Foreign Subsidiaries. Under the 1987, 1990, and 1992 Orders, 
Citicorp has issued a guarantee for losses resulting from the 
bankruptcy or insolvency of each Foreign Subsidiary (the 
``Guarantee''). If the requested order is issued, the Guarantee will be 
amended to cover all the Securities held by the Foreign Subsidiaries 
pursuant to an Agency Custody Agreement or a Direct Custody Agreement. 
The dollar amount of the Guarantee applicable to all Foreign 
Subsidiaries will equal or exceed the aggregate market value of the 
Securities held in the custody of the Foreign Subsidiaries.
    10. The value of the Securities held under Agency Custody Agreement 
will be calculated by Citibank based on records maintained by Citibank, 
as custodian, and reports by the Foreign Subsidiaries. The total amount 
also will be reported to Citicorp. In addition, each Foreign Subsidiary 
will submit to Citicorp monthly its calculation, and the basis on which 
it was made, of the value of the Securities held by it under Direct 
Custody Agreements. After review of the results of the monthly 
monitoring, Citicorp will take the necessary steps to adjust the amount 
of the Guarantee to cover the aggregate value of the Securities.
    11. In the event that at the time of an insolvency a Foreign 
Subsidiary holds Securities having an aggregate value in excess of the 
aggregate value of Securities which such Foreign Subsidiary held at the 
time of the previous adjustment of the Guarantee, Citicorp will 
immediately take such steps as may be necessary to increase the size of 
the Guarantee to cover the amount of such excess. This coverage will 
remain in place until such time as the Foreign Subsidiary's bankruptcy 
estate is settled, the amount of any loss to the U.S. Investment 
Company attributable to the bankruptcy or insolvency is calculated, and 
payment under the Guarantee, if necessary, is made.
Applicants' Legal Analysis

    1. Applicants seek the requested exemptive relief because the 
Foreign Subsidiaries do not qualify to serve as custodians for U.S. 
Investment Companies under the terms of section 17(f) of the 1940 Act 
or rule 17f-5 thereunder. Section 17(f) provides, in relevant part, 
that a registered management investment company may place and maintain 
its securities and similar assets in the custody of a bank or banks 
meeting the requirements of section 26(a) of the 1940 Act. The Foreign 
Subsidiaries, however, do not fall within the definition of a ``bank'' 
as that term is defined in section 2(a)(5) of the 1940 Act.
    2. Rule 17f-5 would permit a U.S. Investment Company to deposit 
securities, cash and cash equivalents with an ``eligible foreign 
custodian,'' a term that is defined to include, as here relevant, a 
majority-owned direct or indirect subsidiary of a qualified U.S. bank 
or bank holding company that is incorporated or organized under the 
laws of a country other than the United States and that has 
shareholders' equity in excess of $100,000,000 (U.S. $ or equivalent). 
None of the Foreign Subsidiaries currently meets or in the future will 
meet the minimum shareholders' equity requirement of rule 17f-5.
    3. Citibank believes that permitting U.S. Investment Companies and 
their custodians to enter into direct custodial arrangements with the 
Foreign Subsidiaries adequately would protect U.S. Investment Companies 
and their shareholders against loss while permitting the Foreign 
Subsidiaries to serve the needs of U.S. Investment Companies more 
efficiently by being able to interact directly with the U.S. Investment 
Company or its custodian. The proposed arrangements would enable the 
Foreign Subsidiaries, as direct custodians, to carry out their 
custodial duties and to respond to their customers' instructions, 
inquiries and other operational needs without communications being 
processed through Citibank, thereby reducing the cost and time involved 
in administering custodial accounts.
    4. Although Citibank would not be in an agency relationship with 
the Foreign Subsidiaries under the Direct Custody Arrangements, it 
nonetheless would provide the necessary review and independent 
oversight of their performance and capabilities. Applicants submit that 
Citibank's ongoing review insures that safeguards substantially equal 
to those provided by its United States operations are in place and 
provides for uniformity in procedures for custodial administration. 
Because Citibank would be a party to each Direct Custody Agreement and 
would agree to be responsible for negligent acts or omissions of the 
Foreign Subsidiaries, Citibank would have a vested interest in 
verifying that each Foreign Subsidiary maintained adequate standards 
for the safekeeping of securities.
    5. Under the Direct Custody Arrangements, Citibank will be in 
privity of contract with the U.S. Investment Company or its custodian. 
While it would be necessary for a U.S. Investment Company or its 
custodian to establish the negligence of the applicable Foreign 
Subsidiary in the action against Citibank, obtaining a judgment against 
the particular Foreign Subsidiary would not be a condition precedent to 
bringing an action against Citibank.
    6. Under the Agency Custody Arrangements, Citibank, in its capacity 
as custodian, would have custodial obligations to the U.S. Investment 
Company or its custodian. In that case, the Foreign Subsidiary would be 
the subcustodian and an agent of Citibank. Applicants assert that any 
distinction between the agency and direct custodial relationships, 
however, is not of consequence to U.S. Investment Companies and their 
custodians, since in either case they would be able to seek recovery 
for losses caused by the Foreign Subsidiaries' negligence from, 
[[Page 28196]] and bring an action directly against, Citibank.
    7. Applicants assert that provision of the Guarantee by Citicorp 
(rather than by Citibank) under the Agency and Direct Custody 
Arrangements does not negatively affect the level of protection 
afforded the U.S. Investment Companies and custodians whose Securities 
are held in the custody of the Foreign Subsidiaries. Since the total 
Guarantee amount is available to cover one or more Foreign 
Subsidiaries, Applicants assert that the Guarantee should be more than 
sufficient to cover losses attributable to the bankruptcy of any one 
particular Foreign Subsidiary.
    8. Applicants submit that, as required by section 6(c) of the 1940 
Act, the exemptions requested are (i) necessary or appropriate in the 
public interest, (ii) consistent with the protection of investors, and 
(iii) consistent with the purposes fairly intended by the policy and 
provisions of the 1940 Act.

Applicants' Conditions

    If the requested order is granted, Applicants agree to the 
following conditions:
    1. The foreign custody arrangements proposed with respect to the 
Foreign Subsidiaries will satisfy the requirements of rule 17f-5 in all 
respects other than with regard to shareholders' equity.
    2. Securities of U.S. Investment Companies and their custodians 
entering into Direct Custody Arrangements will be maintained with a 
Foreign Subsidiary only in accordance with a Direct Custody Agreement, 
required to remain in effect at all times during which the Foreign 
Subsidiary fails to satisfy the requirements of rule 17f-5 relating to 
shareholders' equity.
    3. The Direct Custody Agreement will be among (i) each U.S. 
Investment Company or custodian for which the Foreign Subsidiary serves 
as custodian or subcustodian, (ii) the Foreign Subsidiary, (iii) 
Citibank, and (iv) Citicorp. The Direct Custody Agreement will provide 
the following:
    (a) confirmation by the Foreign Subsidiary that it will act as the 
custodian or subcustodian, as the case may be, of the Securities of the 
U.S. Investment Company pursuant to the requested order;
    (b) Citicorp will be liable, in accordance with the terms of the 
Guarantee, for losses of the Securities of the U.S. Investment 
Companies resulting from the bankruptcy or insolvency of the particular 
Foreign Subsidiary; and
    (c) Citibank will be liable for any loss resulting from the 
performance of the Foreign Subsidiary, except such loss as may result 
from (i) political risk (e.g., exchange control restrictions, 
confiscation, expropriation, nationalization, insurrection, civil 
strife, or armed hostilities) and (ii) other risks of loss for which 
the Foreign Subsidiary would not be liable under rule 17f-5.
    4. Under the Direct Custody Arrangements, U.S. Investment Companies 
or their custodians, as the case may be, will be entitled to seek 
relief directly against Citibank or the particular Foreign Subsidiary.
    5. Securities of U.S. Investment Companies custodied pursuant to 
Agency Custody Arrangements will be maintained with a Foreign 
Subsidiary only in accordance with an Agency Custody Agreement, 
required to remain in effect at all times during which the foreign 
Subsidiary fails to satisfy the requirements of rule 17f-5 relating to 
shareholders' equity.
    6. The Agency Custody Agreement will be among (i) the U.S. 
Investment Companies or custodians for which Citibank serves as 
custodian or subcustodian, (ii) Citibank, and (iii) Citicorp. The 
Agency Custody Agreement will provide the following:
    (a) Citibank will act as the custodian or subcustodian, as the case 
may be, of the Securities of the U.S. Investment Companies and will be 
able to delegate its responsibilities to the Foreign Subsidiaries;
    (b) Citibank's delegation of duties to a Foreign Subsidiary would 
not relieve Citibank of any responsibility to the U.S. Investment 
Company or its custodian for any loss due to such delegation except 
such loss as may result from (i) political risk (e.g., exchange control 
restrictions, confiscation, expropriation, nationalization, 
insurrection, civil strife or armed hostilities) and (ii) other risks 
of loss for which neither Citibank nor the Foreign Subsidiary would be 
liable under rule 17f-5; and
    (c) Citicorp will be liable, in accordance with the terms of the 
Guarantee, for losses of U.S. Investment Company Securities resulting 
from the bankruptcy or insolvency of the Foreign Subsidiary.
    7. With respect to the Agency Custody Arrangements, Citibank has 
entered, or will enter, into a Subcustodian Agreement with each Foreign 
Subsidiary pursuant to which Citibank will delegate to the Foreign 
Subsidiary such of its duties and obligations as would be necessary to 
permit the Foreign Subsidiary to hold in custody, in the country in 
which it operates, the Securities of the U.S. Investment Company. The 
Subcustodian Agreement provides, or will provide, an acknowledgement by 
the Foreign Subsidiary that it is acting as a foreign custodian for 
U.S. Investment Companies and their custodians pursuant to the terms of 
the exemptive order requested by the application. The Subcustodian 
Agreement provides explicitly, or will explicitly provide, that U.S. 
Investment Companies or their custodians, as the case may be, that have 
entered into an Agency Custody Agreement with Citibank will be third 
party beneficiaries of the Subcustodian Agreement, will be entitled to 
enforce the terms thereof, and will be entitled to seek relief directly 
against the Foreign Subsidiary or against Citibank.
    8. Each Subcustodian Agreement is or will be governed by New York 
law; or, if any Subcustodian Agreement were governed by the local law 
of the foreign jurisdiction in which the Foreign Subsidiary is located, 
Citibank has obtained or shall obtain an opinion of counsel from such 
foreign jurisdiction opining as to the enforceability of the rights of 
a third party beneficiary under the laws of such foreign jurisdiction.
    9. The dollar value of the Guarantee applicable to the Foreign 
Subsidiaries shall be at least equal to the aggregate value of the 
Securities of U.S. Investment Companies held in the custody of the 
Foreign Subsidiaries pursuant to the Direct Custody Agreements and the 
Agency Custody Agreements, calculated at the close of the previous 
calendar month. The value of U.S. Investment Company Securities held in 
the custody of the Foreign Subsidiaries as Citibank's subcustodians 
will be calculated by Citibank based on records maintained by Citibank 
and reports by the Foreign Subsidiaries at the end of each calendar 
month, and such amount will be reported to Citicorp. In addition each 
Foreign Subsidiary will submit to Citicorp monthly its calculation, and 
the basis on which it was made, of the market value of U.S. Investment 
Company Securities held in custody by it under Direct Custody 
Agreements. After reviewing the results of the monthly monitoring, 
Citicorp will take such steps as may be necessary to adjust the amount 
of the Guarantee to cover the aggregate value of the Securities held 
under Agency and direct Custody Agreements. In the event of the 
insolvency of a Foreign Subsidiary at a time when the aggregate value 
of U.S. Investment Company Securities held by such Foreign Subsidiary 
is in excess of the amount of such Securities which such Foreign 
Subsidiary held at the prior month's end, Citicorp will immediately 
take such steps as may be necessary to [[Page 28197]] increase the size 
of the Guarantee to cover the amount of such excess.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 95-13075 Filed 5-26-95; 8:45 am]
BILLING CODE 8010-01-M