[Federal Register Volume 61, Number 60 (Wednesday, March 27, 1996)]
[Notices]
[Pages 13541-13544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7345]



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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Rel. No. 21836; 812-9786]

Access Capital Strategies Community Investment Fund, Inc., et 
al.; Notice of Application
March 20, 1996.
Agency: Securities and Exchange Commission (``SEC'').

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

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Applicants: Access Capital Strategies Community Investment Fund, Inc. 
(``Strategies'') and Access Capital Strategies Corp. (``Access''), on 
behalf of themselves and any future business development companies that 
are advised by Access or entities controlling, controlled by, or under 
common control (as defined in section 2(a)(9) of the Act) with Access 
(``Future Funds'').
Relevant Act Sections: Order requested under section 6(c) and rule 17d-
1 authorizing certain transactions otherwise prohibited under section 
57(a)(4).
Summary of Application: Applicants seek an order that would permit two 
existing portfolios of Strategies and any Future Fund to enter into 
certain co-investment transactions.
Filing Dates: The application was filed on September 28, 1995, and 
amended on December 27, 1995 and March 15, 1996.
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 April 15, 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 such notification by writing to the 
SEC's Secretary.
Addresses: Secretary, SEC, 450 Fifth Street, N.W., Washington, D.C 
20549. Applicants, c/o Access Capital Strategies Corp., 124 Mt. Auburn 
Street, Suite 200N, Cambridge, Massachusetts 02138.
For Further Information Contact: Courtney S. Thornton, Senior Counsel, 
at (202) 942-0583, or Alison E. Baur, Branch Chief, at (202) 942-0564 
(Divi-
sion of Investment Management,

[[Page 13542]]

Office of Investment Company Regulation).

Supplementary Information: The following is a summary of the 
application. The complete application may be obtained for a fee from 
the SEC's Public Reference Branch.

Applicants' Representations

    1. Applicants seek an order under section (6(c) and rule 17d-1 
authorizing two portfolios of Strategies, the Bank Portfolio and the 
Institutional Investor Portfolio (the ``Portfolios''), and the Future 
Funds (collectively with the Portfolios, the ``Funds'') to purchase 
securities or otherwise effect transactions jointly with another Fund 
in transactions that are otherwise prohibited by section 57(a)(4). Each 
Portfolio is a Maryland corporation that has elected to be regulated as 
a business development company (``BDC'') under the Act.\1\ The 
investment objective of each Portfolio is to invest in geographically 
specific private placement debt securities and to earn a total return 
over the life of the Portfolio greater than that of the Access 
Benchmark, a blend of selected fixed-income indices designed by Mellon 
Bond Associates, a wholly-owned subsidiary of Mellon Bank Corporation.

    \1\ Each Future Fund will elect to be regulated as a BDC under 
the Act.
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    2. Access, a newly formed corporation that has registered as an 
investment adviser under the Investment Advisers Act of 1940, is an 
indirect, wholly-owned subsidiary of Mellon Bank, N.A. Access serves as 
investment adviser to each Portfolio. As compensation for its services, 
Access will receive an annual management fee based upon a percentage of 
the assets of each Portfolio.
    3. Each Portfolio has an eight-member board of directors (``Board 
of Directors''), five of whom are not affiliated persons of Access or 
interested persons of any Fund (the ``Independent Directors''). The 
Board of Directors of each Portfolio will provide overall guidance and 
supervision with respect to the operations of the Portfolio, and will 
perform all duties the Act imposes on the boards of directors of BDCs 
organized in corporate form. The Independent Directors will assume the 
responsibilities and obligations imposed by the Act and the regulations 
thereunder on the disinterested directors of a BDC organized in 
corporate form. None of the Independent Directors of the Bank Portfolio 
will serve as an Independent Director of the Institutional Investor 
Portfolio, although one or more of the Independent Directors of the 
Portfolios may serve as Independent Directors of one or more Future 
Funds.
    4. Applicants propose to allow each Fund to purchase securities 
jointly with one or more other Funds in transactions that are otherwise 
prohibited by section 57(a)(4) or rule 17d-1 under the Act (``Co-
Investment Transactions''). Before undertaking a Co-Investment 
Transaction, Access will make a written investment presentation 
respecting the proposed transaction to the Board of Directors of each 
Fund based on such considerations and circumstances as Access deems 
appropriate, including the consistency of the proposed transaction with 
the investment objectives and policies of each Fund. The presentation 
will include the name of each Fund that has funds available for 
investment and the amount of the proposed investment. There will be no 
consideration paid to Access (or its controlling persons) directly or 
indirectly, including any type of brokerage commission, in connection 
with a Co-Investment Transaction, although Access will continue to 
receive its normal advisory compensation with respect to each Fund.
    5. Each Fund will make its own decision on whether or not to 
participate in a Co-Investment Transaction, and no Fund will be able to 
impose an investment decision on the other Funds. Prior to engaging in 
a Co-Investment Transaction, a required majority (as defined in section 
57(o) of the Act) (``Required Majority'') of the directors of each Fund 
shall conclude that the terms of the proposed transaction, as presented 
to them by Access, are reasonable and fair to the shareholders of their 
respective Fund and do not involve overreaching of the Fund or its 
shareholders on the part of any person concerned.
    6. Where the aggregate amount recommended for a Fund and that 
sought by other Funds is greater than the amount available for 
investment, the amount available for purchase by a Fund shall be 
determined on a pro rata basis determined by dividing the net assets of 
the fund by the sum of the net assets of the fund and each other Fund 
seeking to make the investment. Each Fund may determine not to take its 
full allocation or decline to participate when a Required Majority of 
the directors of the Fund determines that to do so would not be in the 
best interests of the Fund. Any such excess investment opportunity will 
be made available to other Funds that have determined to participate in 
the Co-Investment transaction in the same proportions as their 
participation in the transaction. All follow-on investments (additional 
investments in the same entity) will be treated in the same manner as 
the initial Co-Investment Transaction, except that the denominator in 
the fraction will consist solely of the net assets for those Funds that 
chose to participate in the initial transaction.
    7. A Co-Investment Transaction will be effected for each 
participating Fund on the same terms and conditions. For such co-
investment assets, each Fund will be offered the opportunity to sell, 
exchange, or otherwise dispose of such investments in the same manner 
and at the same time. A Required Majority of the directors of a Fund 
may either accept all or part or none of such offer, depending on their 
determination of the best interests of each Fund. A decision by a Fund 
not to participate in a Co-Investment Transaction, to take less or more 
than its full allocation, or not to sell, exchange of otherwise dispose 
of a co-investment asset in the same manner and at the same time as the 
other Funds electing to participate, shall include a finding by a 
Required Majority of its directors that such decision is fair and 
reasonable to the fund and its shareholder's and not the result of 
overreaching on the part of any party concerned.
    8. Applicants believe that the ability to participate in Co-
Investment Transactions would be advantageous for each Fund because it 
would enlarge the scope of each Fund's co-investment opportunities and 
permit such transactions to be effected at better prices and on more 
favorable terms than if only one Fund has Been able to participate in 
any given transaction. If the requested order were not granted, the 
Funds would have to seek the participation of other community investing 
entities or forego the opportunity. Applicants also anticipate that the 
availability of one or more of the Funds as an investing partner in a 
Co-Investment Transaction would significantly alleviate the cost of 
searching for such an alternative investing partner, as well as the 
risk that the alternative community investing entity would appropriate 
for itself the entire investment opportunity.

Applicants' Legal Analysis

    1. Section 57(a)(4) prohibits certain affiliated persons of a BDC 
specified in section 57(b) from participating in joint transactions 
with the BDC or a company controlled by the BDC. Section 57(b)(2) 
extends the prohibitions of section 57(a) to persons under common 
control with a BDC. Applicants believe that the Funds may be prohibited 
from engaging

[[Page 13543]]
in joint transactions because they share a common investment adviser.
    2. Section 57(i) provides that the rules and regulations of the SEC 
under sections 17(a) and (d) applicable to registered closed-end 
investment companies shall apply to transactions subject to sections 
57(a) and (d) in the absence of rules under these sections. No rules 
with respect to joint transactions have been adopted under sections 
57(a) and (d). Rule 17d-1 prohibits affiliated persons of a registered 
investment company from entering into joint transactions with the 
investment company unless the SEC has granted an order permitting the 
transaction after considering whether the participation of the 
investment company is consistent with the provision, policies, and 
purposes of the Act and the extent to which such participation is on a 
basis different from or less advantageous than that of other 
participants.
    3. Applicants state that all Funds will participate in the proposed 
Co-Investment Transactions on the same terms. In addition, applicants 
state that the procedure for allocating investment opportunities will 
ensure that the Funds will be treated fairly. Moreover, applicants 
assert that the approval of these transactions by a Required majority 
of the directors will ensure that no overreaching will occur. 
Applicants therefore believe that the requested exemption for Co-
Investment Transactions meets the standards for granting exemptive 
relief under rule 17d-1.
    4. Section 6(c) of the Act permits the SEC to exempt any person or 
transaction from any provision of the Act if the exemption is necessary 
or appropriate in the public interest and consistent with the 
protection of investors and the purposes fairly intended by the policy 
of the Act. Applicants submit that it would be impractical to attempt 
to obtain separate exemptive relief under section 57(a)(4) and rule 
17d-1 for each Co-Investment Transaction as it arises. Applicants 
therefore represent that failure to obtain prospective, generic 
exemptive relief would severely hamper the Funds' ability to 
participate meaningfully in community investing and, thus, to achieve 
their investment objectives. Accordingly, applicants believe that the 
terms of the relief requested with respect to the proposed Co-
Investment Transactions are consistent with the standards of section 
6(c).

Applicants' Conditions

    Applicants agree that the following conditions will govern 
transactions under the requested order:
    1. (a) To the extent that a Fund is considering new investments, 
Access will review investment opportunities on behalf of the Fund, 
including investments being considered on behalf of other Funds. Access 
will determine whether a particular investment is eligible for 
investment by any Fund.
    (b) If access deems an investment eligible for investment by any 
Fund, Access will determine what it considers to be an appropriate 
amount that the Fund should invest in the particular investment. Where 
the aggregate amount recommended for the Fund and that sought by other 
Funds is greater than the amount available for investment, the amount 
available for purchase by the Fund shall be determined on a pro rata 
basis calculated by dividing the net assets of the Fund by the sum of 
the net assets of each Fund seeking to make the investment.
    (c) Following the making of the determinations referred to in (a) 
and (b), Access will distribute information concerning the proposed Co-
Investment Transaction to the Board of Directors of each participating 
Fund. Such information will include the name of each Fund that proposes 
to make the investment and the amount of each proposed investment.
    (d) The Board of Directors of each participating Fund will review 
the information regarding Access's preliminary determination. A fund 
will only engage in a Co-Investment Transaction if a Required Majority 
of the directors of the Fund conclude, prior to the acquisition of the 
investment, that:
    (i) the terms of the transaction, including the consideration to be 
paid, are reasonable and fair to the shareholders of the Fund and do 
not involve overreaching of the Fund or such shareholders on the part 
of any person concerned;
    (ii) the transaction is consistent with the interests of the 
shareholders of the Fund and is consistent with the Fund's investment 
objectives and policies as recited in its registration statement and 
reports filed under the Securities Exchange Act of 1934, and its report 
to shareholders;
    (iii) the investments by one or more of the other Funds would not 
disadvantage the Fund, and that participation by the Fund would not be 
on a basis different from or less advantageous than that of the other 
Funds; and
    (iv) the proposed Co-Investment Transaction will not benefit Access 
or any affiliated person thereof (other than the Funds) except to the 
extent permitted pursuant to sections 17(e) and 57(k) of the Act.
    (e) A Fund has the right to decline to participate in a particular 
Co-Investment Transaction or may purchase less than its full 
allocation.
    2. No Fund will make an investment for its portfolio if a Fund, 
Access, or a person controlling, controlled by, or under common control 
with Access is an existing investor in such issuer.
    3. All Co-Investment Transactions will consist of the same class of 
securities, including the same registration rights (if any) and other 
rights related thereto, at the same unit consideration, and on the same 
terms and conditions, and the settlement date will be the same.
    4. If one or more Funds elect to sell, exchange, or otherwise 
dispose of an interest in a particular security that is also held by 
another Fund, notice of the proposed disposition will be given to the 
other Funds at the earliest practical time, and such Funds will be 
given the opportunity to participate in such disposition on a 
proportionate basis, at the same price and on the same terms and 
conditions. Access will formulate a recommendation as to participation 
by such Fund in such a disposition, and provide a written 
recommendation to the Board of Directors of such Fund. A Fund will 
participate in any such disposition if a Required Majority of its 
directors determines that it is in the best interest of the investing 
Fund. Each Fund will bear its own expenses associated with any such 
disposition of a portfolio security.
    5. If a Fund desires to make a follow-on investment in a particular 
issuer whose securities are held by any other Fund, or to exercise 
rights to purchase securities of such an issuer, Access will notify the 
other Fund of the proposed transaction at the earliest practical time. 
Access will formulate a recommendation as to the proposed participation 
by the other Fund in a follow-on investment, and provide the 
recommendation to the other Fund's Board of Directors along with notice 
of the total amount of the follow-on investment. The other Fund's 
directors will make their own determination with respect to follow-on 
investments. To the extent that the amount of a follow-on investment 
available to a Fund is not based on the amount of its initial 
investment, the relative amount of investment by each Fund 
participating in a follow-on investment will be based on a ratio 
derived by comparing the remaining funds available for investment by 
each such Fund with the

[[Page 13544]]
total amount of the follow-on investment. A Fund will participate in 
such investment to the extent that a Required Majority of its directors 
determine that it is in the Fund's best interest. The acquisition of 
follow-on investments as permitted by this condition will be subject to 
the other conditions set forth herein.
    6. The Board of Directors of the Funds will be provided quarterly 
for review all information concerning Co-Investment Transactions made 
by the Funds, including Co-Investment Transactions in which one or more 
Funds declined to participate, so that they may determine whether all 
Co-Investment Transactions made during the preceding quarter, including 
those Co-Investment Transactions they declined, compiled with the 
conditions set forth above.
    7. Each Fund will maintain the records required by section 57(f)(3) 
of the Act as if each of the Co-Investment Transactions permitted under 
these conditions had been approved by Required Majority of its 
directors under section 57(f).
    8. No Fund will engage in a Co-Investment Transactions with another 
Fund that has a common Independent Director.
    9. No person other than a Fund shall participate in a Co-Investment 
Transaction unless a separate exemptive order with respect to such 
transaction has been obtained.


    For the SEC, by the Division of Investment Management, under 
delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-7345 Filed 3-26-96; 8:45 am]
BILLING CODE 8010-01-M