[Federal Register Volume 62, Number 199 (Wednesday, October 15, 1997)]
[Notices]
[Pages 53669-53672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27171]


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SECURITIES AND EXCHANGE COMMISSION

[Rel. No. IC-22842; 812-10582]


Sierra Asset Management Portfolios, et al.; Notice of Application

October 7, 1997.
AGENCY: Securities and Exchange Commission (``SEC'' or ``Commission'').

ACTION: Notice of application under sections 6(c), 12(d)(1)(J), and 
17(b) of the Investment Company Act of 1940 (the ``Act'') for an 
exemption from sections 12(d)(1) (A) and (C) and 17(a) of the Act.

SUMMARY OF APPLICATION: Applicants request an order that would amend a 
prior order \1\ (the ``Prior Order'') to permit a ``fund of funds'' 
that is an open-end investment company to invest in shares of an 
affiliated closed-end investment company.

    \1\ Sierra Asset Management Trust, et al., Investment Company 
Act Release Nos. 22001 (June 3, 1996) (notice) and 22047 (June 28, 
1996) (order).
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APPLICANTS: Sierra Asset Management Portfolios (the ``Trust''), Sierra 
Prime Income Fund (``SPIF''), Sierra Investment Advisors Corporation 
(``Sierra Advisors''), and Sierra Investment Services Corporation 
(``Sierra Services''), including each applicant's successor in 
interest.\2\

    \2\ ``Successor in interest'' is limited to entities that result 
from a reorganization into another jurisdiction or a change in the 
type of business organization.
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FILING DATES: The application was filed on March 19, 1997 and amended 
on July 21, 1997. Applicants have agreed to file an amendment, the 
substance of which is incorporated in this notice, during the notice 
period.

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 October 29, 
1997, 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, N.W., Washington, D.C. 
20549. Applicants, 9301 Corbin Avenue, Suite 333, Northridge, 
California 91324.

FOR FURTHER INFORMATION CONTACT: Elaine M. Boggs, Senior Counsel, at 
(202) 942-0572, or Christine Y. Greenlees, Branch Chief, 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, 450 5th Street, N.W., Washington, D.C. 
20549 (telephone (202) 942-8090).

Applicants' Representations

    1. The Trust is registered under the Act as an open-end management 
investment company and consists of five portfolios (the ``SAM 
Portfolios'').\3\ Each SAM Portfolio operates as a ``fund of funds'' 
under the Prior Order and invests substantially all of its assets in 
shares of various portfolios of Sierra Trust Funds. Sierra Trust Funds 
is a registered open-end management investment company comprised of 
sixteen portfolios (the ``Underlying Funds'') that is part of the 
``same group of investment companies'' (as defined in section 
12(d)(1)(G)(ii) of the Act) as the SAM Portfolios. Each SAM Portfolio 
also invests in other securities. Each SAM Portfolio seeks to provide 
diversification among major asset categories and stock and bond sub-
categories. Certain of the SAM Portfolios are designed to provide 
exposure in varying degrees to the growth potential of the stock market 
and/or the income potential of the bond market.
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    \3\ The Trust was initially organized as the ``Sierra Asset 
Management Trust,'' but changed its name on July 19, 1996, prior to 
the Trust's registration statement becoming effective.
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    2. Applicants seek to amend the Prior Order to permit the SAM 
Portfolios to acquire up to 100% of SPIF's shares. Applicants request 
that relief be extended to any registered open-end management 
investment company, or

[[Page 53670]]

series thereof, for which Sierra Services or any entity controlling, 
controlled by, or under common control with Sierra Services, now or in 
the future acts as investment adviser or principal underwriter (the 
``Funds'').\4\
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    \4\ All investment companies that presently intend to rely on 
the requested order are named as applicants.
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    3. SPIF is registered under the Act as a non-diversified closed-end 
fund. SPIF seeks to provide a high level of current income, consistent 
with preservation of capital, through investments primarily in senior 
collateralized loans made by banks or other financial institutions to 
U.S. corporations, partnerships, and other entities. The loans 
generally are expected to pay interest at rates that float or reset at 
a margin above a generally recognized base lending rate and, in 
addition, have a dollar-weighted average maturity of ninety days or 
less. As a result, the net asset value (``NAV'') of SPIF's shares has 
remained, and is expected to remain, relatively stable. Sierra Services 
has determined that SPIF's investment objective and policies make it an 
appropriate investment for four of the five SAM Portfolios. (It is not 
presently intended that the other portfolio will invest in shares of 
SPIF.)
    4. Sierra Services is an investment adviser registered under the 
Investment Advisers Act of 1940 (the ``Advisers Act'') and a broker-
dealer registered under the Securities Exchange Act of 1934. Sierra 
Services serves as the principal underwriter/distributor of the SAM 
Portfolios and SPIF. Sierra Services also serves as the SAM Portfolios' 
investment adviser, for which it receives payment equal to 0.15% of 
each SAM Portfolio's average net assets. Sierra Advisors is an 
investment adviser registered under the Advisers Act and provides 
overall investment management services to SPIF, for which it receives 
payment equal to .95% of SPIF's assets. Sierra Advisors and Sierra 
Services are wholly-owned subsidiaries of Sierra Capital Management 
Corporation, which in turn is a wholly-owned subsidiary of Washington 
Mutual, Inc. Van Kampen American Capital Management, Inc. (``VKM'') is 
an investment adviser registered under the Advisers Act and manages 
SPIF's investment portfolio on a day-to-day basis.
    5. The SAM Portfolios currently offer two classes of shares, class 
A shares and class B shares. Class A shares are subject to a maximum 
front-end sales charge that ranges from 4.50% to 5.75%. Purchases of $1 
million or more and certain other purchases are not subject to a front-
end sales charge but may be subject to a contingent deferred sales 
charge (``CDSC'') of up to 1.00%. Class A shares also are subject to a 
0.25% asset-based sales charge. Class B shares are subject to a maximum 
CDSC of 5%, a 0.75% asset-based sales charge, and a 0.25% shareholder 
servicing fee.
    6. SPIF currently offers a single class of shares that carry a 
maximum 4.5% front-end sales charge.\5\ SPIF has received an order of 
the Commission permitting it to offer additional classes of shares 
subject to differing sales charge structures (the ``Multi-Class 
Order'').\6\ The sales charges would include front-end sales charges, 
early withdrawal charges that are analogous to CDSCs and that comply in 
substance with the terms of rule 6c-10 under the Act, and asset-based 
distribution fees that comply with the terms of rule 12b-1 under the 
Act. In addition, under the Multi-Class Order, SPIF has agreed to 
comply with the terms of rule 18f-3 under the Act. SPIF also has agreed 
to treat all sales-related compensation as sales charges subject to the 
terms of rule 2830 of the Conduct Rules of the National Association of 
Securities Dealers, Inc. (``NASD'').
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    \5\ Shares of SPIF would be sold to the SAM Portfolios without 
imposition of a sales charge.
    \6\ Sierra Prime Income Fund, et al. Investment Company Act 
Release Nos. 22512 (Feb. 14, 1997) (notice) and 22556 (March 12, 
1997) (order).
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    7. SPIF's shares are offered to the public on a continuous basis 
pursuant to rule 415 under the Securities Act of 1933. Unlike most 
closed-end funds, SPIF's shares are not listed on an exchange or traded 
over-the-counter. No secondary market exists for SPIF's shares, and 
none is expected to develop in the future. SPIF has made, and intends 
to continue to make, pursuant to section 23(c)(2) of the Act, quarterly 
tender offers to repurchase a specified percentage of its outstanding 
shares for cash at NAV, subject to approval by SPIF's board of trustees 
(the ``Tender Privilege'').
    8. Under the Tender Privilege, absent an early withdrawal charge, 
SPIF shareholders receive cash in an amount equal to the NAV of their 
shares as determined by State Street Bank & Trust Company at the close 
of business on the date that the Tender Privilege terminates. SPIF 
shareholders who do not wish to receive cash under the Tender Privilege 
may instead elect to exchange their shares (the ``Exchange Privilege'') 
for shares of the Sierra Trust Funds or the SAM Portfolios. SPIF has 
informed investors in its promotional materials that there can be no 
assurance that the Tender and Exchange Privileges will be offered every 
quarter, or if completed, that they will provide sufficient liquidity 
for all shareholders who wish to dispose of their SPIF shares.
    9. Sierra Services acknowledges that SPIF shares will be deemed 
illiquid securities unless determined otherwise by the Trust's board of 
trustees, and that any purchase of SPIF shares by a SAM Portfolio will 
comply with the SEC rules, regulations, and staff positions concerning 
the liquidity of an open-end fund's portfolio. The Trust acknowledges 
that the periodic tender offers do not by themselves provide a basis 
for determining that the SPIF shares are liquid.

Applicants' Legal Analysis

    1. Section 12(d)(1)(A) provides that no registered investment 
company may acquire securities of another investment company if the 
securities represent more than 3% of the acquired company's outstanding 
voting stock, more than 5% of the acquiring company's total assets, or 
if the securities, together with the securities of any other acquired 
investment companies, represent more than 10% of the acquiring 
company's total assets. The purpose of section 12(d)(1)(A) was to 
address the perceived adverse consequences of ``pyramiding'' of 
investment companies in a fund of funds arrangement, including 
duplicative costs, the exercise of undue influence or control over the 
underlying fund, and the potential adverse impact of large-scale 
redemptions.
    2. Section 12(d)(1)(C) provides that no registered investment 
company may acquire securities of a registered closed-end company if 
the acquiring company, together with any other investment companies 
advised by the investment adviser, own more than 10% of the closed-end 
fund's outstanding voting securities. Applicants state that there were 
no additional concerns underlying section 12(d)(1)(C); rather, section 
12(d)(1)(C) was intended to relax the section 12(d)(1)(A) prohibitions 
to accommodate fund industry difficulties associated with monitoring 
the acquisition of closed-end fund shares.
    3. Applicants request relief from the limitations of sections 
12(d)(1) (A) and (C) to the extent necessary to permit each individual 
SAM Portfolio to invest more than 5% of its assets in SPIF and acquire 
more than 3% of SPIF's shares.
    4. Section 12(d)(1)(J) provides that the SEC may exempt persons or 
transactions from any provision of section 12(d)(1) if and to the 
extent the exemption is consistent with the public interest and the 
protection of investors. For the reasons below, applicants assert that 
the

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proposal meets the requirements of section 12(d)(1)(J).
    5. Section 12(d)(1)(G) of the Act provides that section 12(d)(1) 
will not apply to the securities of an acquired company purchased by an 
acquiring company if: (a) The acquiring company and the acquired 
company are part of the same group of investment companies; (b) the 
acquiring company holds only securities of acquired companies that are 
part of the same group of investment companies, government securities, 
and short-term paper; (c) the aggregate sales loads and distribution-
related fees of the acquiring company and the acquired company are 
limited; and (d) the acquired company has a policy that prohibits it 
from acquiring securities of registered open-end investment companies 
or registered unit investment trusts in reliance on section 12(d)(1) 
(F) or (G).
    6. Applicants may not rely on section 12(d)(1)(G) because the SAM 
Portfolios will, in addition to investing directly in portfolio 
securities as permitted by the Prior Order, be investing in shares of 
SPIF, a closed-end fund. However, applicants believe that exemptive 
relief to permit investments by the SAM Portfolios in shares of SPIF is 
appropriate because SPIF will operate in a manner substantially similar 
to an open-end fund. Applicants state that operational similarities 
between SPIF and an open-end fund include the following: (a) Share 
offerings on a continuous basis at a price equal to their NAV, plus any 
applicable sales charges; (b) daily pricing of shares that 
substantially complies with rule 22c-1 under the Act; and (c) 
procedures that permit investors to tender their shares for cash in an 
amount equal to their NAV.
    7. Applicants assert that permitting the SAM Portfolios to invest 
in SPIF would not raise the concerns underlying sections 12(d)(1)(A) 
and (C). Applicants believe that the proposal will not raise the 
concern that investors will be subject to two layers of advisory fees. 
Applicants state that, before approving any advisory contract under 
section 15 of the Act, the trustees of the Trust, including a majority 
of the trustees who are not ``interested persons,'' as defined in 
section 2(a)(19) of the Act, will find that any advisory fees charged 
under the contract are based on services provided that are in addition 
to, rather than duplicative of, services provided under any advisory 
contract with an Underlying Fund or SPIF. Applicants also note that the 
advisory fees charged to the Trust are, in essence, for asset 
allocation, while the Underlying Funds' and SPIF's advisory fees relate 
to the selection and disposition of specific securities.
    8. Applicants assert that the proposal will not involve layering of 
sales charges. Applicants state that, as a condition to the requested 
relief, any sales charges or distribution or service fees relating to 
the shares of a SAM Portfolio will not exceed the limits set forth in 
rule 2830 of the Conduct Rules of the NASD when aggregated with any 
sales charges or distribution or service fees that the SAM Portfolio 
may pay relating to the acquisition, holding, or disposition of shares 
of the Underlying Funds or SPIF.
    9. Applicants state that administrative and similar fees may be 
charged at the Trust and Underlying Fund and SPIF levels. However, 
applicants believe that overall administrative and other expenses may 
be reduced at each individual level under the proposed arrangement.
    10. Applicants contend that the threat of large scale redemptions 
is minimized in the proposed structure. Applicants assert that the SAM 
Portfolios are designed for long-term investors, which reduces the 
possibility that the SAM Portfolios will be used as short-term trading 
vehicles and further protects the SAM Portfolios, the Underlying Funds, 
and SPIF from unexpected large redemptions.
    11. Applicants state that an additional concern underlying section 
12(d)(1) is the creation of overly complex investment vehicles. 
Applicants state that these concerns are addresses by the fact that no 
Underlying Fund or SPIF will acquire securities of any other investment 
company in excess of the limits contained in section 12(d)(1)(A) of the 
Act.
    12. Section 17(a) generally prohibits an affiliated person of a 
registered investment company from selling securities to, or purchasing 
securities from, the company. The Trust and SPIF may be considered 
affiliated persons by virtue of being under common control of Sierra 
Capital Management Corporation. They also many be deemed to be 
affiliated persons to the extent that a SAM Portfolio may own 5% or 
more of SPIF's shares. Accordingly, applicants request relief to permit 
SPIF to sell its shares to and repurchase its shares from the SAM 
Portfolios.
    13. Section 6(c) of the Act provides that the SEC may exempt 
persons or transactions 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 and provisions of the Act.
    14. Section 17(b) provides that the SEC will exempt a proposed 
transaction from section 17(a) if evidence establishes that (a) the 
terms of the proposed transaction, including the consideration to be 
paid or received, are reasonable and fair and do not involve 
overreaching; (b) the proposed transaction is consistent with the 
policies of the registered investment company involved; and (c) the 
proposed transaction is consistent with the general purposes of the 
Act. Applicants request an exemption under sections 6 (c) and 17 (b) 
and state that relief is appropriate for the reasons discussed below.
    15. Applicants believe that the terms of the proposed arrangement 
are reasonable and fair and do not involve overreaching because the 
consideration paid for the sale and repurchase of shares of SPIF will 
be based on the NAV of SPIF. Applicants represent that VKM, an entity 
that is not an affiliated person of Sierra Services, will provide 
pricing recommendations to Sierra Advisors concerning SPIF's portfolio 
securities. Sierra Advisors will then provide pricing information, 
based on the recommendations received from VKM, to State Street Bank & 
Trust Company to determine the NAV of SPIF's shares, subject to 
procedures that SPIF's board of trustees have established and monitor 
on a periodic basis. Sales and repurchases from all investors will be 
based on the NAV so determined.
    16. Applicants state that the proposed arrangement will be 
consistent with the policies of each Fund and SPIF. The investment of 
assets of the Funds in shares of SPIF and the issuance of shares of 
SPIF to the Funds will be effected in accordance with the investment 
restrictions of each Fund and SPIF and will be consistent with the 
policies as set forth in the registration statement of each Fund and 
SPIF. Applicants also believe that the proposed arrangement is 
consistent with the general purposes of the Act.

Applicants' Conditions

    Applicants agree that the order granting the requested relief shall 
be subject to the following conditions, which supersede the conditions 
to the Prior Order:
    1. A Fund may purchase shares of SPIF so long as shares of SPIF are 
continuously offered to the Funds at NAV, and SPIF continues to offer 
the Tender Privilege.
    2. Neither the Underlying Funds nor SPIF (collectively, the ``New 
Underlying Funds'') will acquire securities of any other investment 
company in excess of

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the limits contained in section 12(d)(1)(A) of the Act.
    3. Before approving any advisory contract under section 15 of the 
Act, the board of trustees of a Fund, including a majority of the 
trustees who are not ``interested persons'' of the Fund as defined in 
section 2(a)(19) of the Act, will find that the advisory fees charged 
under the contract are based on services provided that are in addition 
to, rather than duplicative of, services provided under any New 
Underlying Fund advisory contract. This finding, and the basis upon 
which the finding was made, will be recorded fully in the minute books 
of the Fund.
    4. Any sales charges or distribution or service-related fees 
charged with respect to shares of a Fund, when aggregated with any 
sales charges or distribution or service-related fees paid by the Fund 
with respect to the shares of any New Underlying Fund, will not exceed 
the limits set forth in rule 2830 of the NASD Conduct Rules.
    5. Each Fund and each New Underlying Fund will be part of the same 
``group of investment companies,'' as defined in section 
12(d)(1)(G)(ii) of the Act.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 97-27171 Filed 10-14-97; 8:45 am]
BILLING CODE 8010-01-M