[Federal Register Volume 61, Number 63 (Monday, April 1, 1996)]
[Notices]
[Pages 14346-14349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7841]



=======================================================================
-----------------------------------------------------------------------

[[Page 14347]]


SECURITIES AND EXCHANGE COMMISSION

[Rel. No. IC-21857; International Series Release No. 958; File No. 812-
9702]


ABN AMRO Bank N.V., et al.; Notice of Application

March 26, 1996.
AGENCY: Securities and Exchange Commission (``SEC'').

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

-----------------------------------------------------------------------

APPLICANTS: ABN AMRO Bank N.V. (``ABN AMRO''), ABN AMRO 
Effectenbewaarbedrijf N.V. (``AAEB''), and ABN AMRO Global Custody N.V. 
(``AAGC'') (collectively, the ``ABN AMRO Applicants''); and MeesPierson 
N.V. (``MeesPierson''), MeesPierson Effectenbewaarbedrijf N.V. 
(``MPEB''), and MeesPierson Global Custody Services N.V. (``MPGCS'') 
(collectively, the ``MeesPierson Applicants''). (ABN AMRO and 
MeesPierson are collectively referred to as the ``Banks''). (AAEB, 
AAGC, MPEB, and MPGCS are collectively referred to as the ``Special 
Purpose Corporations'').

RELEVANT ACT SECTIONS: Order requested under section 6(c) of the Act 
that would exempt applicants from section 17(f) of the Act.

SUMMARY OF APPLICATION: Applicants request an order to permit U.S. 
investment companies and their custodians or subcustodians to maintain 
securities and other assets in the custody of AAEB and AAGC, through 
ABN AMRO, and MPEB and MPGCS, through MeesPierson, in The Netherlands.

FILING DATE: The Application was filed on August 3, 1995 and amended on 
March 20, 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 22, 1996 
and should be accompanied by proof of service on the 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 may request 
notification of a hearing by writing to the SEC's Secretary.

ADDRESS: Secretary, SEC, 450 5th Street, N.W., Washington, D.C. 20549. 
Applicants: the ABN AMRO Applicants, Foppingadreef 22, 1102 BS 
Amsterdam, The Netherlands; the MeesPierson Applicants, Rokin 55, 1012 
KK Amsterdam, the Netherlands, c/o Edward G. Eisert, Schulte Roth & 
Zabel, 900 Third Avenue, New York, New York 10022.

FOR FURTHER INFORMATION CONTACT: Deepak T. Pai, Staff Attorney, at 
(202) 942-0574, 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 from 
the SEC's Public Reference Branch.

Applicants' Representations

    1. ABN AMRO is a Netherlands banking organization. ABN AMRO Holding 
N.V. (``Holding'') is the parent company of ABN AMRO, and together with 
other domestic and international subsidiaries and affiliates, 
constitute the ``ABN AMRO Group.'' Holding and ABN AMRO are regulated 
in The Netherlands by De Nederlandsche Bank N.V., the Dutch Central 
Bank (``DNB''). As of December 31, 1994, Holding held approximately 
100% of the share capital of ABN AMRO, and ABN AMRO accounted for 
approximately 100% of the total assets of Holding. ABN AMRO provides a 
variety of commercial banking and securities services on an 
international basis. At December 31, 1994, Holding had total assets of 
approximately U.S. $291 billion and shareholders' equity of 
approximately U.S. $11.9 billion.
    2. AAEB and AAGC are public limited liability companies organized 
under the laws of The Netherlands. AAEB is a Special Purpose 
Corporation incorporated by ABN AMRO pursuant to a uniform system for 
the administration and safekeeping of bearer securities held in The 
Netherlands known as the ``Vabef System.'' AAGC is a Special Purpose 
Corporation incorporated by ABN AMRO pursuant to a system for the 
administration and safekeeping of bearer securities held outside The 
Netherlands and all registered securities referred to as ``Vabef II.'' 
Neither AAEB nor AAGC engages in any activity other than the 
safekeeping of securities for the benefit of ABN AMRO's clients and for 
ABN AMRO itself, effectively serving only as a ``vault'' for the 
safekeeping of such securities. ABN AMRO provides its clients with all 
custody-related services with respect to these securities.
    3. MeesPierson is a banking organization regulated in The 
Netherlands by DNB. MeesPierson, a wholly owned subsidiary of ABN AMRO, 
is a global merchant bank that provides a variety of specialized 
financial services. At December 31, 1994, MeesPierson had total assets 
of approximately $22 billion and approximately $1.2 billion in 
shareholders equity.
    4. MPEB and MPGCS are public limited liability companies organized 
under the laws of The Netherlands. MPEB is a Special Purpose 
Corporation incorporated by MeesPierson pursuant to the Vabef System. 
MPGCS is a Special Purpose Corporation incorporated by MeesPierson in 
connection with Vabef II. MPEB and MPGCS do not engage in any activity 
other than the safekeeping of securities for the benefit of 
MeesPierson's clients and for MeesPierson itself, effectively serving 
only as vaults for the safekeeping of such securities. MeesPierson 
provides its clients with all other custody-related services with 
respect to these securities.
    5. Applicants request an order exempting (a) The ABN AMRO 
Applicants and the MeesPierson Applicants, (b) any investment companies 
registered under the Act other than those registered under section 7(d) 
of the Act (``U.S. Investment Companies''), and (c) any custodian or 
subcustodian for a U.S. Investment Company, from the provisions of 
section 17(f) of the Act to the extent necessary to permit such U.S. 
Investment Companies and such custodians or subcustodians to maintain 
securities and other assets (``Securities'') in the custody of the ABN 
AMRO Applicants and the MeesPierson Applicants.\1\ None of the Special 
Purpose Corporations is a ``bank'' within the meaning of the Act and 
each may not technically be a ``banking institution or trust company'' 
regulated as such by the Government of The Netherlands in accordance 
with the requirements of rule 17f-5. Moreover, none of the Special 
Purpose Corporations meets the minimum shareholder's equity requirement 
of the rule.

    \1\ As used herein, the term ``Securities'' does not include 
securities issued or guaranteed by the U.S. Government or by any 
state or any political subdivision thereof, or any agency thereof, 
or by an entity organized under the laws of the U.S. or any state 
thereof (other than certificates of deposit, evidences of 
indebtedness and other securities, issued or guaranteed by an entity 
so organized which have been issued and sold outside the U.S.).
---------------------------------------------------------------------------

    6. Applicants state that under the laws of The Netherlands, unless 
special measures are taken, bearer securities

[[Page 14348]]
which a bank holds as custodian for its clients and registered 
securities registered in the name of a bank as custodian for its 
clients, will form part of the assets of that bank. Applicants contend 
that if the bank becomes insolvent, these securities will fall within 
the bankruptcy estate. Although the likelihood of a bank supervised by 
the DNB becoming insolvent is negligible, applicants assert that it is 
nevertheless considered desirable to segregate a Dutch bank's assets 
from those of its clients.
    7. Applicants represent that the sole purpose for the establishment 
of the Special Purpose Corporations by the Banks and their use for the 
safekeeping of Securities is to provide the highest level of protection 
to the Banks' clients and to ensure that clients' assets could not fall 
within the bankruptcy estate of the Banks. Under the Vabef System and 
Vabef II, the client has a direct right against the relevant Special 
Purpose Corporation with respect to the Securities deposited. The 
obligations of each Special Purpose Corporation with respect to such 
Securities are solely towards its clients. Consequently, the clients' 
rights with respect to these Securities are separated from the Bank's 
own assets and, therefore, are protected under the laws of The 
Netherlands from any risk of the Bank becoming insolvent and from 
recourse by the Bank's creditors.
    8. Applicants state that a Special Purpose Corporation is expressly 
prohibited by its Articles of Association from engaging in any activity 
which could involve a commercial risk, and does not engage in any 
activity other than the safekeeping of securities for the benefit of 
the incorporating bank's clients or the bank itself. The Special 
Purpose Corporations will have no creditors other than those who have 
entrusted securities to them and those whose claims would arise in the 
ordinary course of business.
    9. The personnel of each Bank manages and operates its respective 
Special Purpose Corporation. Each Bank is the managing director of its 
respective Special Purpose Corporation and acts to the fullest extent 
on its behalf and in its name, both towards clients and third parties. 
The activities of the Banks in their capacity as the managing directors 
of their respective Special Purpose Corporations are governed by rules 
jointly adopted by the Banks and their respective Special Purpose 
Corporations. The rules, which include a guarantee by the Banks of the 
obligations of their respective Special Purpose Corporations, are 
incorporated into each custody agreement entered into between the Banks 
and a U.S. Investment Company.
    10. Pursuant to contracts between each Bank and the Special Purpose 
Corporation, the Banks are obligated to reimburse the Special Purpose 
Corporations for losses that may be incurred in any year. Applicants 
assert that, to the extent that claims of creditors cannot be paid by 
fees charged by the Special Purpose Corporations, they will be paid by 
the appropriate Bank. Therefore, in practice, the claims against a 
Special Purpose Corporation will never exceed the total of the 
securities which its clients have entrusted to it.

Applicants' Legal Analysis

    1. Section 17(f) of the Act provides that a registered investment 
company may maintain securities and similar assets in the custody of a 
bank meeting the requirements of section 26(a) of the Act, a member 
firm of a national securities exchange, the investment company itself, 
or a system for the central handling of securities established by a 
national securities exchange. Section 2(a)(5) of the Act defines 
``bank'' to include banking institutions organized under the laws of 
the United States, member banks of the Federal Reserve System, and 
certain banking institutions or trust companies doing business under 
the laws of any state or of the United States.
    2. Rule 17f-5 under the Act permits certain entities located 
outside the U.S . to serve as custodians for investment company assets. 
Rule 17f-5 defines the term ``Eligible Foreign Custodian'' to include a 
banking institution or trust company, incorporated or organized under 
the laws of a country other than the United States, that is regulated 
as such by that country's government or an agency thereof, and that has 
shareholders' equity in excess of U.S. $200 million.
    3. Each of the Banks qualifies as an ``Eligible Foreign Custodian'' 
and each provides all the services of a custodian, other than the 
safekeeping of securities. The Banks utilize their respective Special 
Purpose Corporations only to provide for the safekeeping of certain 
securities. The Special Purpose Corporations, however, do not qualify 
as ``Eligible Foreign Custodians,'' because technically they may not be 
regulated as ``banking institutions or trust companies'' by the 
Government of The Netherlands and because they do not have 
shareholders' equity in excess of $200 million.
    4. Applicants contend that the purpose of section 17(f) of the Act 
is to ensure that U.S. Investment Companies hold securities in a safe 
manner that protects the interests of their shareholders. Applicants 
assert that the requested exemptions are consistent with these purposes 
because they would provide adequate protection for the custody of the 
Securities of the U.S. Investment Companies through either ABN AMRO or 
MeesPierson in reliance on their affiliated, bankruptcy-remote, Special 
Purpose Corporations.
    5. Applicants represent that under the Vabef System and Vabef II, 
the two components of the custodial function, safekeeping and the 
provision of administrative custodial services, have formally been 
segregated, but that in daily practice the Banks and their respective 
Special Purpose Corporations operate as one entity. While the 
Securities are held by the Special Purpose Corporations, applicants 
assert that the Banks remain charged with, and responsible for, 
virtually all of the acts implementing the custody of the Securities. 
Applicants assert that, although each of the Special Purpose 
Corporations may not be technically regulated as a ``banking 
institution or trust company'' by DNB, as a practical matter, their 
management and operation are subject to the supervision of DNB through 
the supervision DNB exercises over ABN AMRO and MeesPierson.
    6. Applicants believe that the requested order is necessary and 
appropriate in the public interest because it would permit U.S. 
Investment Companies and their custodians and subcustodians to have 
access to the custody services of ABN AMRO and MeesPierson in the 
Netherlands. Based upon (a) the legal framework and market practices in 
The Netherlands, (b) the size and strength of ABN AMRO and MeesPierson, 
and (c) the guarantee to be given by ABN AMRO with respect to AAEB and 
AAGC, and MeesPierson with respect to MPEB and MPGCS, applicants assert 
that U.S. Investment Companies and their custodians and subcustodians 
will have an equal or greater degree of protection when their 
Securities are held in custody by the Banks in reliance upon the 
services provided by the Special Purpose Corporations than when their 
Securities are held with other entities which strictly comply with all 
of the requirements for an ``Eligible Foreign Custodian.''

Applicants' Conditions

    Applicants agree that any order granting the requested relief shall 
be subject to the following conditions:

[[Page 14349]]


 The ABN AMRO Applicants

    1. The foreign custody arrangements which involve or rely upon AAEB 
and AAGC will comply with the provisions of rule 17f-5 in all respects 
except those provisions relating to (a) the fact that each of AAEB and 
AAGC may not be technically a ``banking institution or trust company'' 
incorporated or organized under the laws of The Netherlands, and (b) 
the minimum shareholders' equity requirements for ``Eligible Foreign 
Custodians'' under rule 17f-5.
    2. A U.S. Investment Company or a custodian or subcustodian for a 
U.S. Investment Company will deposit Securities with AAEB and AAGC 
through ABN AMRO only in accordance with a three-party contractual 
agreement (a ``Three Party Agreement'') that will remain in effect at 
all times during which AAEB and AAGC fail to meet all of the 
requirements of Rule 17f-5 (and during which such Securities remain 
deposited with AAEB and AAGC). Each Three Party Agreement will be a 
three-party agreement among (a) ABN AMRO, (b) AAEB or AAGC, and (c) the 
U.S. Investment Company or custodian or subcustodian of the Securities 
of the U.S. Investment Company. Under the Three Party Agreement, AAEB 
or AAGC will undertake to provide only specified custodial or 
subcustodial services. The Three Party Agreement will further provide 
that ABN AMRO will be liable for any loss, damage, cost, expense, 
liability, or claim arising out of or in connection with the 
performance by AAEB and AAGC of their respective responsibilities under 
the Three Party Agreement to the same extent as if ABN AMRO had been 
required to provide all custody services under such Three Party 
Agreement.
    3. ABN AMRO currently satisfies and will continue to satisfy the 
minimum shareholders' equity requirement set forth in subsection 
(c)(2)(i) of rule 17f-5.
    4. ABN AMRO will be regulated by DNB as a banking institution under 
the laws of The Netherlands.

The MeesPierson Applicants

    1. The foreign custody arrangements which involve or rely upon MPEB 
and MPGCS will comply with the provisions of rule 17f-5 in all respects 
except those provisions relating to (a) the fact that each of MPEB and 
MPGCS may not be technically a ``banking institution or trust company'' 
incorporated or organized under the laws of The Netherlands, and (b) 
the minimum shareholders' equity requirement for ``Eligible Foreign 
Custodians'' under rule 17f-5.
    2. A U.S. Investment Company or a custodian or subcustodian for a 
U.S. Investment Company will deposit Securities with MPEB and MPGCS 
through MeesPierson only in accordance with a three-party contractual 
agreement (a ``Three Party Agreement'') that will remain in effect at 
all times during which MPEB and MPGCS fail to meet all of the 
requirements of rule 17f-5 (and during which such Securities remain 
deposited with MPEB and MPGCS). Each Three Party Agreement will be a 
three-party agreement among (a) MeesPierson, (b) MPEB or MPGCS, and (c) 
the U.S. Investment Company or custodian or subcustodian of the 
Securities of the U.S. Investment Company. Under the Three Party 
Agreement, MPEB of MPGCS will undertake to provide only specified 
custodial or subcustodial services. The Three Party Agreement will 
further provide that MeesPierson will be liable for any loss, damage, 
cost, expense, liability, or claim arising out of or in connection with 
the performance by MPEB and MPGCS, of their respective responsibilities 
under the Three Party Agreement to the same extent as if MeesPierson 
had been required to provide all custody services under such Three 
Party Agreement.
    3. MeesPierson currently satisfies and will continue to satisfy the 
minimum shareholders' equity requirement set forth in subsection 
(c)(2)(i) of rule 17f-5.
    4. MeesPierson will be regulated by DNB as a banking institution 
under the laws of The Netherlands.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Jonathan G. Katz,
Secretary.
[FR Doc. 96-7841 Filed 3-29-96; 8:45 am]
BILLING CODE 8010-01-M