[Federal Register Volume 61, Number 29 (Monday, February 12, 1996)]
[Notices]
[Pages 5429-5430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3046]



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SECURITIES AND EXCHANGE COMMISSION
[Rel. No. IC-21735; 812-9900]


J.P. Morgan Index Funding Company, LLC; Notice of Application

February 6, 1996.
AGENCY: Securities and Exchange Commission (``SEC'').

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

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APPLICANT: J.P. Morgan Index Funding Company, LLC.

RELEVANT ACT SECTIONS: Order requested under section 6(c) of the Act 
that would exempt applicant from all provisions of the Act.

SUMMARY OF APPLICATION: Applicant requests an order that would permit 
it to sell certain preferred equity securities and use the proceeds to 
finance the business activities of its parent company, J.P. Morgan & 
Co. Incorporated (``J.P. Morgan''), and certain companies controlled by 
J.P. Morgan.

FILING DATE: The application was filed on December 15, 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 March 4, 1996, 
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 Fifth Street, NW., Washington, DC 20549. 
Applicant, 60 Wall Street, New York, New York 10260-0060.

FOR FURTHER INFORMATION CONTACT:
Elaine M. Boggs, Staff Attorney, at (202) 942-0572, or Alison E. Baur, 
Branch Chief, at (202) 942-0564 (Division of Investment Management, 
Office of Investment Company Regulation).

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.

Applicant's Representations

    1. Applicant is a Delaware limited liability company formed in 
November, 1995. Applicant's outstanding voting securities are owned by 
J.P. Morgan and J.P. Morgan Ventures Corporation.\1\ J.P. Morgan is a 
holding company for a group of global subsidiaries that provide a 
variety of financial services to corporations and other entities. 
Morgan Guaranty Trust Company of New York (``Morgan Guaranty'') is a 
New York State chartered banking institution, a member of the Federal 
Reserve System and the Federal Deposit Insurance Corporation, and is a 
subsidiary of J.P. Morgan.

    \1\ Applicant's counsel has stated that J.P. Morgan Ventures 
Corporation is a wholly-owned subsidiary of J.P. Morgan.
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    2. Applicant was organized to engage in financing activities that 
will provide funds for use in the operations of J.P. Morgan, Morgan 
Guaranty, and certain of their subsidiaries (the ``Morgan Entities''). 
Applicant proposes to obtain funds through the offer and sale of its 
preferred equity securities in the United States and in overseas 
markets, and to lend the proceeds to the Morgan Entities.
    3. Due to the nature of the capital markets, applicant may, from 
time to time, issue securities in amounts exceeding the amounts 
required by the Morgan Entities at any given time. However, at least 
85% of the cash or cash equivalents raised by applicant through the 
sale of preferred securities will be loaned to the Morgan Entities as 
soon as practicable, but in no event later than six months after 
applicant's receipt of such cash or cash equivalents. Amounts that are 
not loaned to the Morgan Entities will be invested in government 
securities, securities of J.P. Morgan, Morgan Guaranty, or a company 
controlled by J.P. Morgan or Morgan Guaranty (or, in the case of a 
partnership or joint venture, the securities of the partners or 
participants in the joint venture), or securities which are exempted 
from the provisions of the Securities Act of 1933 by section 3(a)(3) of 
that Act.
    4. Before applicant issues any securities, J.P. Morgan will enter 
into a master guarantee agreement (the ``Guarantee Agreement'') with 
applicant under which J.P. Morgan will guarantee the payment of 
principal and dividends on the securities issued by applicant, in 
accordance with rule 3a-5(a)(2) as interpreted by the staff.\2\ The 
Guarantee Agreement will give each holder of applicant's securities a 
direct right of action against J.P. Morgan's obligations under the 
Guarantee Agreement without first proceeding against applicant.

    \2\ See Chieftain International Funding Corp., (pub. avail. Nov. 
3, 1992) and Cleary, Gottlieb, Steen & Hamilton, (pub. avail. Dec. 
23, 1985).
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Applicant's Legal Analysis

    1. Applicant requests an exemption from all provisions of the Act. 
The Commission has stated that it is appropriate to exempt a finance 
subsidiary from all provisions of the Act where the primary purpose of 
the finance subsidiary is to finance the business operations of its 
parent or other subsidiaries of its parent and where any purchaser of 
the finance subsidiary's securities ultimately looks 

[[Page 5430]]
to the parent for repayment and not to the finance subsidiary.\3\

    \3\ Investment Company Act Release No. 14275 (Dec. 14, 1984) 
(release adopting rule 3a-5 under the Act). Rule 3a-5 provides an 
exemption from the definition of investment company for certain 
companies organized primarily to finance the business operations of 
their parent companies or companies controlled by their parent 
companies.
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    2. Rule 3a-5(b)(2)(i) in relevant part defines ``parent company'' 
to be a corporation, partnership, or joint venture that is not 
considered in investment company under section 3(a) or that is excepted 
or exempted by order from the definition of investment company by 
section 3(b) or by the rules or regulations under section 3(a). J.P. 
Morgan technically is not a ``parent company'' within the meaning of 
rule 3a-5(b)(2)(i) because it meets the definition of investment 
company in section 3(a) of the Act and is excepted by such definition 
by section 3(c)(6).
    3. Rule 3a-5(b)(3)(i) in relevant part defines a ``company 
controlled by the parent company'' to be a corporation, partnership, or 
joint venture that is not considered an investment company under 
section 3(a) or that is excepted or exempted by order from the 
definition of investment company by section 3(b) or by the rules and 
regulations under section 3(a). Certain of the Morgan Entities do not 
fit within the technical definition of ``companies controlled by the 
parent company'' because they derive their non-investment status from 
section 3(c).
    4. In the release adopting rule 3a-5, the Commission stated that it 
may be appropriate to grant exemptive relief to the finance subsidiary 
of a section 3(c) issuer, but only on a case-by-case basis upon an 
examination of all relevant facts. According to the adopting release, 
the concern was that a company may be considered a non-investment 
company for the purposes of the Act under section 3(c) of the Act and 
still be engaged primarily in investment company activities.
    5. Section 6(c) provides, in relevant part, that the SEC may, 
conditionally or unconditionally, by order, exempt any person or class 
of persons from any provision of the Act or from any rule thereunder, 
if such exemption is necessary or appropriate in the public interest, 
consistent with the protection of investors, and consistent with the 
purposes fairly intended by the policy and provisions of the Act. 
Applicant states that none of the Morgan Entities to which applicant 
may loan money are engaged primarily in investment company activities. 
In addition, if J.P. Morgan or Morgan Guaranty were themselves to issue 
the securities that are to be issued by applicant and use the proceeds, 
none of the Morgan Entities would be subject to regulation under the 
Act. While J.P. Morgan has chosen instead to use applicant as a 
financing vehicle, the Guarantee Agreement ensures that holders of 
applicant's securities will have direct access to J.P. Morgan's credit. 
Accordingly, applicant submits that the relief requested satisfies the 
section 6(c) standard.

Applicant's Condition

    Applicant agrees that the order granting the requested relief shall 
be subject to the following condition:
    1. Applicant will comply with all of the provisions of rule 3a-5 
under the Act, except: (a) J.P. Morgan will not meet the portion of the 
definition of ``parent company'' in rule 3a-5(b)(2)(i) solely because 
it is excluded from the definition of investment company under section 
3(c)(6) of the Act; (b) Morgan Guaranty will not meet the portion of 
the definition of ``company controlled by the parent company'' in rule 
3a-5(b)(3)(i) solely because it is excluded from the definition of 
investment company under section 3(c)(3) of the Act; and (c) applicant 
will be permitted to invest in or make loans to corporations, 
partnerships, and joint ventures that do not meet the portion of the 
definition of ``company controlled by the parent company'' in rule 3a-
5(b)(3)(i) solely because they are excluded from the definition of 
investment company by sections 3(c)(2), 3(c)(3), 3(c)(4), or 3(c)(6) of 
the Act, provided that any such entity excluded from the definition of 
investment company under section 3(c)(6) of the Act will not be engaged 
primarily, directly or through majority owned subsidiaries, in one or 
more of the businesses described in section 3(c)(5) of the Act.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-3046 Filed 2-9-96; 8:45 am]
BILLING CODE 8010-01-M