[Federal Register Volume 66, Number 45 (Wednesday, March 7, 2001)]
[Notices]
[Pages 13813-13815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-5538]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. IC-24881; 812-12266]


ING Pilgrim Investments, LLC, et al.; Notice of Application

February 28, 2001.
Agency: Securities and Exchange Commission (``Commission'').

Action: Notice of application for an order under section 6(c) of the 
Investment Company Act of 1940 (``Act'') for an exemption from sections 
18(c) and 18(i) of the Act, under sections 6(c) and 23(c)(3) of the Act 
for an exemption from rule 23c-3 under the Act, and pursuant to section 
17(d) of the Act and rule 17d-1 under the Act.

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

Summary of Application: Applicants request on order to permit certain 
registered closed-end management investment companies to issue multiple 
classes of shares and to impose asset-based distribution fees and early 
withdrawal charges.

Applicants: Pilgrim Senior Income Fund (``Fund''), ING Pilgrim 
Investments, LLC (``Investment Adviser''), and ING Pilgrim Securities, 
Inc. (``ING Pilgrim Securities'').

Filing Dates: The application was filed on September 25, 2000 and 
amended on February 28, 2001.

Hearing or Notification of Hearing: An order granting the application 
will be issued unless the Commission orders a hearing. Interested 
persons may request a hearing by writing to the Commission's Secretary 
and serving applicants with a copy of the request, personally or by 
mail. Hearing requests should be received by the Commission by 5:30 
p.m. on March 26, 2001, 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 Commission's Secretary.

Addresses: Secretary, Commission, 450 Fifth Street, NW, Washington, DC 
20549-0609. Applicants, 7337 East Doubletree Ranch Road, Scottsdale, 
Arizona, 85258.

[[Page 13814]]


For Further Information Contact: Keith A. Gregory, Attorney-Adviser, at 
(202) 942-0611, or Janet M. Grossnickle, 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 
Commission's Public Reference Branch, 450 Fifth Street, NW, Washington, 
DC 20549-0101, (202) 942-8090.

Applicants' Representations:

    1. The Fund is a closed-end management investment company 
registered under the Act and organized as a Delaware business trust. 
The Investment Adviser is registered as an investment adviser under the 
Investment6 Advisers Act of 1940 and will serve as investment adviser 
to the Fund. ING Pilgrim Securities, a broker-dealer registered under 
the Securities Exchange Act of 1934, will distribute the Fund's shares. 
The Investment Adviser and ING Pilgrim Securities are both indirect, 
wholly-owned subsidiaries of ING Groep N.V. Applicants request that the 
order also apply to any other registered closed-end management 
investment company that may be organized in the future for which the 
Investment Adviser, or any entity controlling, controlled by, or under 
common control with the Investment Adviser acts as principal 
underwriter or investment adviser and which operates as an interval 
fund pursuant to rule 23c-3 under the Act.\1\
---------------------------------------------------------------------------

    \1\ Any registered closed-end management investment company 
relying on this relief in the future will do so in a manner 
consistent with the terms and conditions of the application. 
Applicants represent that each entity presently intending to rely on 
the requested relief is listed as an applicant.
---------------------------------------------------------------------------

    2. The Fund's investment objective is to provide a high level of 
monthly income. The Fund investment primarily in floating rate secured 
senior loans made by commercial banks, investment banks, finance 
companies and other lenders only to corporations or other business 
entities organized under U.S. laws or located in the U.S. (``Senior 
Loans''). Under normal circumstances, at least 80% of the Fund's total 
assets are invested in Senior Loans. The Fund may also invest up to 20% 
of its total assets in unsecured loans; subordinated loans; corporate 
debt securities; equity securities; and loans made to, or debt 
securities issued by, corporations or other business entities organized 
or located outside the U.S. Under normal circumstances, the Fund may 
also invest up to 10% of its total assets in cash and short-term 
instruments.
    3. The Fund intends to continuously offer its shares to the public 
at net asset value, plus any applicable sales charges. The Funds shares 
will not be offered or traded in the secondary market and will not be 
listed on any exchange or quoted on any quotation medium. The Fund 
intends to operate as an ``interval fund'' pursuant to rule 23c-3 under 
the Act and to make quarterly repurchase offers to its shareholders.
    4. The Fund seeks the flexibility to be structured as a multiple-
class fund and currently intends to offer four classes of shares. The 
Fund will offer Class B shares at net asset value without a front-end 
sales charge, but subject to an early withdrawal charge (``EWC'') on 
shares that are repurchased by the Fund within five years of the date 
of purchase. The Fund will offer Class C shares at net asset value 
without a front-end sales charge, but subject to an EWC on shares that 
are repurchased by the Fund within one year of the date of purchase. 
The Fund will also offer Class A and Class Q shares at net asset value 
without a front-end sales charge, and without a distribution fee or an 
EWC. Class A shares will only be available to investors upon the 
automatic conversion of Class B shares eight years after date of 
purchase or through exchange of Class A shares of certain other Pilgrim 
funds. Class A, Class B, Class C, and Class Q shares will be subject to 
an annual service fee of up to 0.25% of average daily net assets. Class 
B and Class C shares will be subject to an annual distribution fee of 
up to 0.75% of average daily net assets. Applicants represent that 
these service fees and asset-based distribution fees will comply with 
the provision of rule 2830(d) of the Conduct Rules of the National 
Association of Securities Dealers, Inc. (``NASD Sales Charge Rule''). 
The Fund may in the future offer additional classes of shares with a 
front-end sales charge, an EWC, and/or asset-based service or 
distribution fees. Applicants also represent that the Fund will 
disclose in its prospectus, the fees, expenses and other 
characteristics of each class of shares offered for sale by the 
prospectus, as is required for open-end multi-class funds under Form N-
1A.
    5. All expenses incurred by the Fund will be allocated among the 
various classes of shares based on the net assets of the Fund 
attributable to each class, except that the net asset value and 
expenses of each class will reflect distribution fees, service fees, 
and any other incremental expenses of that class. Expenses of the Fund 
allocated to a particular class of shares will be borne on a pro rata 
basis by each outstanding share of that class. The Fund may create 
additional classes of shares in the future that may have different 
terms from Class A, Class B, Class C and Class Q shares. Applicants 
state that the Fund will comply with the provisions of rule 18f-3 under 
the Act as if it were an open-end investment company.
    6. The Fund may waive the EWC for certain categories of 
shareholders or transactions to be established from time to time. With 
respect to any waiver of, scheduled variation in, or elimination of the 
EWC, the Fund will comply with rule 22d-1 under the Act as if the Fund 
were an open-end investment company.
    7. The Fund may offer its shareholders an exchange feature under 
which shareholders of the Fund may, during the Fund's quarterly 
repurchase periods, exchange their shares for shares of the same class 
of other registered open-end investment companies or registered closed-
end investment companies that comply with rule 23c-3 under the Act and 
continuously offer their shares at net asset value, and that are in the 
Pilgrim group of investment companies. Fund shares so exchanged will 
count as part of the repurchase offer amount as specified in rule 23c-3 
under the Act. Any exchange option will comply with rule 11a-3 under 
the Act as if the Fund were an open-end investment company subject to 
that rule. In complying with rule 11a-3, the Fund will treat the EWCs 
as if they were a contingent deferred sales charge (``CDSC'').

Applicants' Legal Analysis

Multiple Classes of Shares

    1. Section 18(c) of the Act provides, in relevant part, that a 
closed-end investment company may not issue or sell any senior security 
if, immediately thereafter, the company has outstanding more than one 
class of senior security. Applicants state that the creation of 
multiple classes of shares of the Fund may be prohibited by section 
18(c).
    2. Section 18(i) of the Act provides that each share of stock 
issued by a registered management investment company will be a voting 
stock and have equal voting rights with every other outstanding voting 
stock. Applicants state that multiple classes of shares of the Fund may 
violate section 18(i) of the Act because each class would be entitled 
to exclusive voting rights with respect to matters solely related to 
that class.
    3. Section 6(c) of the Act provides that the Commission may exempt 
any person, security or transaction from any

[[Page 13815]]

provision of the Act, if and 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. Applicants request an exemption under 
section 6(c) from sections 18(c) and 18(i) to permit the Fund to issue 
multiple classes of shares.
    4. Applicants submit that the proposed allocation of expenses and 
voting rights among multiple classes is equitable and will not 
discriminate against any group or class of shareholders. Applicants 
submit that the proposed arrangements would permit the Fund to 
facilitate the distribution of its securities and provide investors 
with a broader choice of shareholder services. Applicants assert that 
their proposal does not raise the concerns underlying section 18 of the 
Act to any greater degree than open-end investment companies' multiple 
class structures that are permitted by rule 18f-3 under the Act. 
Applicants state that the Fund will comply with the provisions of rule 
18f-3 as if it were an open-end investment company.

Early Withdrawal Charges

    5. Section 23(c) of the Act provides, in relevant part, that no 
registered closed-end investment company will purchase securities of 
which it is the issuer, except: (i) On a securities exchange or other 
open market; (ii) pursuant to tenders, after reasonable opportunity to 
submit tenders given to all holders of securities of the class to be 
purchased; or (iii) under other circumstances as the Commission may 
permit by rules and regulations or orders for the protection of 
investors.
    6. Rule 23c-3 under the Act permits a registered closed-end 
investment company (an ``interval fund'') to make repurchase offers of 
between five and twenty-five percent of its outstanding shares at net 
asset value at periodic intervals pursuant to a fundamental policy of 
the interval fund. Rule 23c-3(b)(1) under the Act provides that an 
interval fund may deduct from repurchase proceeds only a repurchase 
fee, not to exceed two percent of the proceeds, that is reasonably 
intended to compensate the fund for expenses directly related to the 
repurchase.
    7. Section 23(c)(3) provides that the Commission may issue an order 
that would permit a closed-end investment company to repurchase its 
shares in circumstances in which the repurchase is made in a manner or 
on a basis that does not unfairly discriminate against any holders of 
the class or classes of securities to be purchased. As noted above, 
section 6(c) provides that the Commission may exempt any person, 
security or transaction from any provision of the Act, if and to the 
extent that 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. 
Applicants request relief under sections 6(c) and 23(c) from rule 23c-3 
to permit them to impose EWCs on shares submitted for repurchase that 
have been held for less than a specified period.
    8. Applicants believe that the requested relief meets the standards 
of sections 6(c) and 23(c)(3). Rule 6c-10 under the Act permits open-
end investment companies to impose CDSCs, subject to certain 
conditions. Applicants state that EWCs are functionally similar to 
CDSCs imposed by open-end investment companies under rule 6c-10. 
Applicants state that EWCs may be necessary for the Investment Adviser 
to recover distribution costs. Applicants will comply with rule 6c-10 
as if that rule applied to closed-end investment companies. The Fund 
also will disclose EWCs in accordance with the requirements of Form N-
IA concerning CDSCs. Applicants further state that the Fund will apply 
the EWC (and any waivers or scheduled variations of the EWC) uniformly 
to all shareholders in a given class and consistently with the 
requirements of rule 22d-1 under the Act.

Asset-Based Distribution Fees

    9. Section 17(d) of the Act and rule 17d-1 under the Act prohibit 
an affiliated person of a registered investment company or an 
affiliated person of such person, acting as principal, from 
participating in or effecting any transaction in connection with any 
joint enterprise or joint arrangement in which the investment company 
participates unless the Commission issues an order permitting the 
transaction. In reviewing applications submitted under section 17(d) 
and rule 17d-1, the Commission considers whether the participation of 
the investment company in a joint enterprise or joint arrangement is 
consistent with the provisions, policies and purposes of the Act, and 
the extent to which the participation is on a basis different from or 
less advantageous than that of other participants.
    10. Rule 17d-3 under the Act provides an exemption from section 
17(d) and rule 17d-1 to permit open-end investment companies to enter 
into distribution arrangements pursuant to rule 12b-1 under the Act. 
Applicants request an order under section 17(d) and rule 17d-1 under 
the Act to permit the Fund to impose asset-based distribution fees. 
Applicants have agreed to comply with rules 12b-1 and 17d-3 as if those 
rules applied to closed-end investment companies.

Applicants' Condition

    Applicants agree that any order granting the requested relief will 
be subject to the following condition:
    Applicants will comply with the provisions of rules 6c-10, 11a-3, 
12b-1, 17d-3, 18f-3, and 22d-1 under the Act, as amended from time to 
time, as if those rules applied to closed-end management investment 
companies, and will comply with the NASD Sales Charge Rule, as amended 
from time to time.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 01-5538 Filed 3-6-01; 8:45 am]
BILLING CODE 8010-01-M