[Federal Register Volume 66, Number 188 (Thursday, September 27, 2001)]
[Notices]
[Pages 49433-49435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24180]


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SECURITIES AND EXCHANGE COMMISSION

[Rel. No. IC-25167; 812-12500]


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

September 21, 2001.
AGENCY: Securities and Exchange Commission (``Commission'')

ACTION: Notice of application for an order under sections 6(c) and 
23(c)(3) of the Investment Company Act of 1940 (the ``Act'') for an 
exemption from rule 23c-3 under the Act.

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SUMMARY OF APPLICATION: Applicants request an order under sections 6(c) 
and 23(c) of the Act for an exemption from certain provisions of rule 
23c-3 to permit a registered closed-end investment company to make 
repurchase offers on a monthly basis.

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

FILING DATES: The application was filed on April 18, 2001, and amended 
on August 31, 2001, September 18, 2001 and September 20, 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 applicant with a copy of the request, personally or by 
mail. Hearing requests should be received by the Commission by 5:30 
p.m. on October 16, 2001, 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 Commission's Secretary.

ADDRESSES: Secretary, Commission, 450 Fifth Street, NW, Washington, DC 
20549-0609.
    Applicants: William H. Rivoir III, Esq., Senior Vice President and 
Secretary, ING Pilgrim Investments, LLC, 7337 East Doubletree Ranch 
Road, Scottsdale, AZ 85258.

FOR FURTHER INFORMATION CONTACT: Jaea F. Hahn, Senior Counsel, at (202) 
942-0614, 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 20549-0102 (tel. 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. 
ING Pilgrim Investments, an investment adviser registered under the 
Investment Advisers Act of 1940 (the ``Advisers Act''), serves as 
investment adviser to the Fund. ING Pilgrim Securities, a broker-dealer 
registered under the Securities Exchange Act of 1934, distributes the 
Fund's shares. ING Pilgrim Investments and ING Pilgrim Securities are 
both indirect, wholly owned subsidiaries of ING Groep N.V.
    2. The Fund's investment objective is to provide a high level of 
monthly income. The Fund invests primarily in U.S. dollar denominated, 
floating rate secured senior loans made only to corporations or other 
business entities organized under U.S. laws or located in the U.S. 
(``Loans''). Under normal market conditions, the Fund will invest at 
least 80% its total assets in Loans. The Fund may also invest up to 20% 
of its total assets in unsecured loans, subordinated loans, corporate 
debt securities, loans made to, or debt securities issued by, 
corporations or other business entities organized or located outside 
the U.S., equity securities incidental to investment in loans, and 
other investment companies

[[Page 49434]]

such as money market funds. Under normal circumstances, the Fund may 
also invest up to 10% of its total assets in cash and short-term 
instruments.
    3. The Fund continuously offers four classes of share to the public 
at net asset value. The Fund operates as an ``interval fund'' pursuant 
to rule 23c-3 under the Act, and currently makes quarterly tender 
offers to repurchase its shares. Applicants propose that the Fund offer 
to repurchase a portion of its shares at one-month intervals, rather 
than the three, six, or twelve-month intervals specified by rule 23c-3. 
The Fund's shares are offered without any initial sales charges, but 
certain classes of shares carry deferred sales charges and asset-based 
distribution fees.\1\ 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. The Fund's shares are not offered 
or traded in the secondary market and are not listed on any exchange or 
quoted on any quotation medium.
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    \1\ The Fund currently offers Class A, B, C and Q shares. Each 
class of shares is subject to annual asset-based service fees. Class 
B and C shares are subject to early withdrawal charges (``EWCs'') 
and an annual distribution fee. The Fund previously obtained 
exemptive relief from the Commission as it relates to the imposition 
of EWCs. See In the Matter of ING Pilgrim Investments, LLC, et al., 
Rel. No. IC-24881 (Feb. 28, 2001) (notice), Rel. No. IC-24916 (Mar. 
27, 2001) (order).
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    4. The Fund will disclose in its prospectus its fundamental policy 
to make monthly offers to repurchase a portion of its securities at net 
asset value, less deduction of a repurchase fee, if any, as permitted 
by rule 23c-3(b)(1) and the imposition of EWCs as permitted pursuant to 
exemptive relief previously granted by the Commission. The policy will 
be changeable only by a majority vote of the holders of the Fund's 
outstanding voting securities. Under the fundamental policy, the 
repurchase offer amount will be determined by the Fund's board of 
trustees (the ``Board'') prior to each repurchase offer. A majority of 
the Board will consist of persons who are not interested persons of the 
Fund. Under its fundamental policy, the Fund will make monthly offers 
to repurchase not less than 5% of its outstanding shares at the time of 
the repurchase request deadline. The Fund will not repurchase more than 
25% in the aggregate of its outstanding shares in any one-quarter 
period.
    5. The Fund's prospectus will state the monthly repurchase request 
deadline, which will be the tenth business day of every month and the 
maximum number of days between each repurchase request deadline and the 
repurchase pricing date. The Fund's repurchase pricing date will 
normally be the same date as the repurchase request deadline and 
pricing will be determined after close of business on that date.
    6. The Fund will make payment for the repurchased shares in cash on 
or before the repurchase payment deadline, which will be no later than 
five business days or seven calendar days (whichever period is shorter) 
after the repurchase pricing date. The Fund expects to make payment on 
the first business day following the repurchase pricing date. The Fund 
will make payment for shares repurchased in the previous month's 
repurchase offer at least five business days before sending 
notification of the next repurchase offer. The Fund does not presently 
intend to deduct any repurchase fees from the repurchase proceeds 
payable to tendering shareholders.
    7. The Fund will provide shareholders with notification of each 
repurchase offer no less than seven days and no more than fourteen days 
prior to the repurchase request deadline. The notification will include 
all information required by rule 23c-3(b)(4). The Fund will file the 
notification and the Form N-23c-3 with the Commission within 3 business 
days after the sending the notification to the Fund's shareholders.
    8. The Fund will not suspend or postpone a repurchase offer except 
pursuant to the vote of a majority of its disinterested trustees, and 
only under limited circumstances, as provided in rule 23c-3(b)(3)(i). 
the Fund will not condition a repurchase offer upon tender of any 
minimum amount of shares. In addition, the Fund will comply with the 
pro rata and other allocation requirements of rule 23c-3(b)(5) if 
shareholders tender more than the repurchase offer amount. Further, the 
Fund will permit tenders to be withdrawn or modified at any time until 
the repurchase request deadline, but will not permit tenders to be 
withdrawn or modified thereafter.
    9. From the time the Fund sends its notification to shareholders of 
the repurchase offer until the repurchase pricing date, a percentage of 
the Fund's asset equal to at least 100% of the repurchase offer amount 
will consist of: (a) Assets, which may include Loans, that can be sold 
or disposed of in the ordinary course of business at approximately the 
price at which the Fund has valued such investment within a period 
equal to the period between the repurchase request deadline and the 
repurchase payment deadline; or (b) assets, including Loans, that 
mature by the next repurchase payment deadline. In the event the Fund's 
assets fail to comply with this requirement, the Board will cause the 
Fund to take such action as it deems appropriate to ensure compliance.
    10. In compliance with the asset coverage requirements of section 
18 of the Act, any senior security issued by the Fund or other 
indebtedness of the Fund will either mature by the next repurchase 
pricing date or provide for the Fund's ability to call or repay such 
indebtedness by the next repurchase pricing date, either in whole or in 
part, without penalty or premium, as necessary to permit the Fund to 
complete the repurchase offer in an amount determined by the Board.
    11. The Fund's Board has adopted written procedures to ensure that 
the fund's portfolio assets are sufficiently liquid so that the Fund 
can comply with its fundamental policy on repurchases and the liquidity 
requirements of rule 23c-3(b)(10)(i). the Board will review the overall 
composition of the portfolio and make and approve such changes to the 
procedures as it deems necessary.

Applicants' Legal Analysis

    1. Section 6(c) of the Act provides that the Commission may exempt 
any person, security, or transaction from any provision of the Act or 
rule thereunder, 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.
    2. Section 23(c) of the Act provides in relevant part that no 
registered closed-end investment company shall purchase any securities 
of any class of which it is the issuer except: (a) On securities 
exchange or other open market; (b) pursuant to tenders, after 
reasonable opportunity to submit tenders given to all holders of 
securities of the class to be purchased; or (c) under other 
circumstances as the Commission may permit by rules and regulations or 
orders for the protection of investors.
    3. Rule 23c-3 under the Act permits a registered closed-end 
investment company to make repurchase offers at net asset value to its 
shareholders at periodic intervals pursuant to a fundamental policy of 
the investment company. ``Periodic interval'' is defined in rule 23c-
3(a)(1) as an interval of three, six, or twelve months. An interval 
fund may not suspend or postpone a repurchase offer except by vote of 
the fund's directors/trustees, and then only under limited 
circumstances. Rule 23c-3(b)(4) requires that notification of each 
repurchase offer be sent to shareholders no less than 21 days and no 
more than

[[Page 49435]]

42 days before the repurchase request deadline. Rule 23c-3(a)(3) 
provides that a repurchase offer amount may be between 5% and 25% of 
the common stock outstanding on the repurchase request deadline.
    4. Applicants request an order pursuant to sections 6(c) and 23(c) 
of the Act exempting them from rule 23c-3(a)(1) to the extent necessary 
to permit the Fund to make monthly repurchase offers. Applicants also 
request an exemption from the notice provisions of rule 23c-3(b)(4) to 
the extent necessary to permit the Fund to send notification of an 
upcoming repurchase offer to shareholders at least seven days but no 
more than fourteen days in advance of the repurchase request deadline.
    5. Applicants contend that monthly repurchase offers are in the 
shareholders' best interests and consistent with the policies 
underlying rule 23c-3. Applicants assert that monthly repurchase offers 
will provide investors with more liquidity than quarterly repurchase 
offers. Applicants assert that shareholders will be better able to 
manage their investments and plan transactions, because if they decide 
to forego a repurchase offer, they will only need to wait one month for 
the next offer. Applicants also contend that the Fund's management will 
be able to better manage the Fund's Loan portfolio, because repurchase 
offers will become part of a routine that is expected to provide 
management with more regular and predictable liquidity requirement.
    6. Applicants propose to send notification to shareholders at least 
seven days, but no more than fourteen days, in advance of a repurchase 
request deadline. Applicants assert that, because the Fund intends to 
price on the repurchase request deadline and pay on the next business 
day, the entire procedure can be completed before the next notification 
is sent out to shareholders; thus avoiding any overlap. Applicants 
believe that these procedures will eliminate any possibility of 
investor confusion. Applicants also state that monthly repurchase 
offers will be accepted as a fundamental feature of the Fund, and the 
Fund's prospectus will provide a clear explanation of the repurchase 
program.
    7. Applicants believe that both the primary and secondary markets 
for Loans have experience sufficient growth in recent years that the 
Fund will have adequate liquidity to support monthly repurchases. 
Applicants state that over the past decade, the Loan market has 
expanded significantly, with greater volumes and a significantly larger 
number of buyers and sellers. Applicants contend that the depth and 
efficiency of these markets, together with the portfolio manager's 
experience and judgment, will enable the Fund to maintain fully liquid 
assets at levels that will meet or exceed the requirements of rule 23c-
3.
    8. Applicants submit that for the reasons given above the requested 
relief is necessary and appropriate in the public interest and is 
consistent with the protection of investors and the purposes fairly 
intended by the policy and provisions of the Act.

Applicants' Conditions

    Applicants agree that any order granting the requested relief shall 
be subject to the following conditions:
    1. The Fund will not make a repurchase offer pursuant to rule 23c-
3(b) for a repurchase offer amount of more than 5% in any one-month 
period, and not more than 25% in the aggregate in any one-quarter 
period of its outstanding shares. The Fund may repurchase additional 
tendered shares pursuant to rule 23c-3(b)(5) only to the extent the 
aggregate of the percentages of additional shares so repurchased does 
not exceed 2% in any given one-quarter period.
    2. Payment for repurchased shares will occur at least five business 
days before notification of the next repurchase offer is sent to 
shareholders of the Fund.
    3. The Fund will maintain an investment policy that requires, under 
normal conditions, that at least 80% of the value of its total assets 
will be invested in Loans.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 01-24180 Filed 9-26-01; 8:45 am]
BILLING CODE 8010-01-M