[Federal Register Volume 64, Number 157 (Monday, August 16, 1999)]
[Notices]
[Pages 44559-44560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21192]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Release No. 23939; 812-11566]


BHF Finance (Delaware) Inc.; Notice of Application

August 10, 1999.
AGENCY: Securities and Exchange Commission (``SEC'').

ACTION: Notice of application for exemption under section 6(c) of the 
Investment Company Act of 1940 (the Act'') from all provision of the 
Act.

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SUMMARY OF APPLICATION: Applicant, BHF Finance (Delaware) Inc. (``BHF 
Finance''), seeks an order to permit BHF Finance to sell securities and 
use the proceeds to finance the business activities of its parent 
company, BHF-BANK Aktiengesellschaft (``BHF''), and certain companies 
controlled by BHF.

FILING DATES: The application was filed on March 17, 1999, and amended 
on August 4, 1999.

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 
applicant with a copy of the request, personally or by mail. Hearing 
requests should be received by the SEC by 5:30 p.m. on September 7, 
1999, and should be accompanied by proof of service on applicant 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, N.W., Washington, D.C. 
20549-0609. Applicant, 590 Madison Avenue, New York, NY 10022.

FOR FURTHER INFORMATION CONTACT: Janet M. Grossnickle, Attorney-
Adviser, at (202) 942-0526, or Mary Kay Frech, 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 Fifth Street, N.W., Washington, D.C. 
20549-0102 (tel. 202-942-8090).

Applicant's Representations

    1. BHF is a commercial bank organized under the laws of the Federal 
Republic of Germany (``Germany''). BHF provides, directly or through 
its subsidiaries, a wide range of financial services to individuals 
businesses, governments and financial institutions throughout Germany 
and internationally. As of December 31, 1998, BHF was the seventh 
largest publicly traded commercial bank in Germany in terms of 
consolidated total assets, which totaled approximately DM 89 billion. 
BHF Finance is a Delaware corporation and wholly-owned subsidiary of 
BHF that was organized to engage in financing activities and to provide 
funds for BHF and companies controlled by BHF.
    2. On December 30, 1998, approximately 39% of the shares of BHF 
were indirectly acquired by ING Groep N.V. (``ING Group''), a 
Netherlands corporation engaged in insurance activities in the United 
States. BHF Finance states that ING Group's investment is considered a 
controlling interest under the Bank Holding Company Act of 1956 
(``BHCA''), which prohibits a foreign entity from engaging directly or 
indirectly in banking and insurance activities in the United States at 
the same time. Accordingly, BHF is in the process of terminating all 
banking activities, as defined in the BHCA, in the United States (``de-
banking'').
    3. BHF Finance previously issued and sold commercial paper in the 
United States pursuant to an SEC order issued in 1986 and amended in 
1993 (``Prior Order'') exempting it from all provisions of the Act.\1\ 
BHF Finance has discontinued the issuance and sale of commercial paper 
pursuant to the Prior Order in connection with the de-banking. All of 
the commercial paper issued pursuant to the Prior Order matured on or 
prior to June 18, 1999. The order requested by BHF Finance will 
supersede the Prior Order.
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    1\1\ Berliner Handels-Und Frandfurter Bank and BHF Finance 
(Delaware) Inc., Investment Company Act Release Nos. 19603 (July 38, 
1993) (notice) and 19649 (Aug. 24, 1993) (order); Berliner Handels-
Und Frandfurter Bank and BHF Finance (Delaware) Inc., Investment 
Company Act Release Nos. 15188 (July 2, 1986) (notice) and 15230 
(July 29, 1986) (order).
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    4. BHF intends to continue to engage in some business activities in 
the BHF Finance, primarily the business of extending commercial credit 
to third parties, through BHF (USA) Capital Corporation (``BHF 
Capital''), a Delaware corporation, which is an

[[Page 44560]]

indirect, wholly-owned subsidiary of BHF. All of the outstanding 
securities of BHF Capital are indirectly owned by BHF.
    5. BHF Finance proposes to issue commercial paper in the United 
States pursuant to the exemption contained in section 3(a)(3) of the 
Securities Act of 1933 (the ``1933 Act''). BHF Finance may also offer 
debt securities other than commercial paper or non-voting preferred 
stock in the United States, and lend the proceeds to or invest the 
proceeds in BHF, BHF Capital and other companies that, after giving 
effect to the exemption requested in the application, will be companies 
controlled by BHF within the meaning of rule 3a-5(b) under the Act as 
discussed below (``Controlled Companies''). Rule 3a-5 generally exempts 
finance subsidiaries of operating companies from the definition of 
investment company.
    6. Any issuance of debt securities or non-voting preferred stock by 
BHF Finance will be guaranteed unconditionally by BHF with a guarantee 
that meets the requirements of rule 3a-5(a)(1) or (2), respectively 
(the ``Guarantee'`). In accordance with rule 3a-5(a)(5), at least 85% 
of any cash or cash equivalents raised by BHF Finance will be invested 
in or loaned to BHF and Controlled Companies as soon as practicable, 
but in no event later than six months after BHF Finance's receipt of 
such cash or cash equivalents. In accordance with rule 3a-5(a)(6), all 
investments by BHF Finance, including temporary investments, will be 
made in government securities, securities of BHF and Controlled 
Companies, or debt securities that are exempted from the provisions of 
the 1933 Act by section 3(a)(3) of the 1933 Act.
    7. In connection with BHF Finance's offering of securities 
guaranteed by BHF, BHF will submit to the jurisdiction of any state or 
Federal court in the County of New York, State of New York and will 
appoint an agent to accept any process which may be served in any 
action based upon BHF's obligations to BHF Finance as described in the 
application. Such consent to jurisdiction and such appointment of an 
authorized agent to accept service of process will be irrevocable until 
all amounts due and to become due with respect to securities issued by 
BHF Finance as described in the application have been paid.

Applicant's Legal Analysis

    1. BHF Finance requests relief under section 6(c) of the Act for an 
exemption from all provisions of the Act. Rule 3a-5 under the Act 
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.
    2. 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) of the Act or that is excepted or exempted by order from 
the definition of investment company by section 3(b) of the Act or by 
the rules and regulations under section 3(a). Certain of BHF's 
subsidiaries do not fit within the definition of ``companies controlled 
by the parent company'' because they derive their non-investment 
company status from section 3(c) of the Act. In addition, BHF engages 
in certain activities (including certain investment activities) through 
BHF Capital. BHF Capital has no outstanding securities other than those 
owned directly or indirectly by BHF (excluding short-term paper, 
directors' qualifying shares, and debt securities owned by the Small 
Business Administration). BHF Capital would be eligible for exemption 
under rule 3a-3 under the Act, except that BHF is a foreign bank.\2\ 
Accordingly, BHF Finance requests exemptive relief to permit it to lend 
the proceeds of its debt offerings to certain subsidiaries of BHF that 
are excluded from the definition of investment company by virtue of 
section 3(c) and subsidiaries that would be excluded by virtue of rule 
3a-3, but for BHF's status as their parent company. BHF Finance states 
that neither itself, nor BHF, nor BHF Capital engage primarily in 
investment company activities.
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    \2\ Rule 3a-3 generally exempts an issuer from the definition of 
investment company if all of its outstanding securities (other than 
short-term paper, directors' qualifying shares, and debt securities 
owned by the Small Business Administration) are owned by an eligible 
parent company. A parent company generally is eligible if it meets 
certain asset and income tests and (i) it is not an investment 
company as defined in section 3(a) of the Act; (ii) it is excluded 
from the definition of investment company by section 3(b) of the 
Act; or (iii) it is deemed not to be an investment company under 
rule 3a-1 of the Act.
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    3. Section 6(c) of the Act, in pertinent part, provides that the 
SEC, by order upon application, may conditionally or unconditionally 
exempt any person, security or transaction, or any class or classes of 
persons, securities or transactions, from any provision or provisions 
of the Act to the extent that such 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. BHF Finance submits that its exemptive request 
meets the standards set out in section 6(c).

Applicant's Condition

    BHF Finance agrees that the order granting the requested relief 
will be subject to the following condition:
    BHF Finance will comply with all of the provisions of rule 3a-5 
under the Act, except paragraph 9b)(3)(i) to the extent that BHF 
Finance will be permitted to invest in or make loans to entities that 
do not meet the portion of the definition of ``company controlled by 
the parent company'' solely because they are:
    (1) subsidiaries of BHF that would be excluded from the definition 
of investment company by virtue of rule 3a-3 under the Act, but for 
BHF's status as their parent company; or
    (2) corporations, partnerships, and joint ventures that are 
excluded from the definition of investment company by section 3(c)(1), 
(2), (4), (6) or (7) of the Act, provided that any such entity:
    (a) if excluded from the definition of investment company pursuant 
to section 3(c)(1) or section 3(c)(7) of the Act, will be engaged 
solely in lending, leasing or related activities (such as entering into 
credit derivatives to manage the credit risk exposures of its lending 
and leasing activities) and will not be structured as a means of 
avoiding regulation under the Act; and
    (b) if excluded from the definition of investment company pursuant 
to section 3(c)(6) of the Act, will not be engaged primarily, directly 
or indirectly, in one or more of the businesses described in section 
3(c)(5) of the Act.

    For the SEC, by the Division of Investment Management, pursuant 
to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 99-21192 Filed 8-13-99; 8:45 am]
BILLING CODE 8010-01-M