[Federal Register Volume 67, Number 67 (Monday, April 8, 2002)]
[Notices]
[Pages 16771-16775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8434]


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SECURITIES AND EXCHANGE COMMISSION

[Rel. No. IC-25508; 812-12612]


Investec Ernst & Company, et al.; Notice of Application

April 3, 2002.
AGENGY:  Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application under: (i) Section 6(c) of the 
Investment Company Act of 1940 (``Act'') for exemptions from sections 
2(a)(32), 2(a)(35), 22(d), and 26(a)(2)(C) of the Act and from rule 
22c-1 under the Act; (ii) sections 11(a) and 11(c) of the Act for 
approval of certain exchange and rollover privileges and conversion 
offers; and (iii) sections 6(c) and 17(b) of the Act for an exemption 
from section 17(a) of the Act.

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Summary of Application: Applicants request an order to permit certain 
unit investment trusts (``UITs'') to: (i) Impose sales charges on a 
deferred basis and waive the deferred sales charge in certain cases; 
(ii) offer unitholders certain exchange and rollover privileges and 
conversion offers; and (iii) sell portfolio securities of a terminating 
series of a UIT to a new series of that UIT.

Applicants: Investec Ernst & Company (``Sponsor'' or ``Investec''), EST 
Symphony Trust, The Pinnacle Family of Trusts, Equity Securities Trust, 
Mortgage Securities Trust, Municipal Securities Trust (including 
Insured Municipal Securities Trust), New York Municipal Trust, A 
Corporate Trust, Schwab Trusts, any future registered UIT sponsored or 
co-sponsored by Investec or an entity controlled by or under common 
control with Investec (the future UITs, together with the above-
specified UITs are ``Trusts'') and any presently outstanding or 
subsequently issued series of each Trust (each, a ``Series''). The 
requested order would supersede three prior orders (``Prior 
Orders'').\1\
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    \1\ Reich & Tang Distributors L.P., et al., Investment Company 
Act Release Nos. 22222 (Sept. 13, 1996) (notice) and 22273 (Oct. 9, 
1996) (order); Reich & Tang Distributors L.P., et al., Investment 
Company Act Release Nos. 22700 (June 11, 1997) (notice) and 22739 
(July 8, 1997) (order); and Reich & Tang Distributors L.P., et al. 
Investment Company Act Release Nos. 22840 (Oct. 3, 1977) (notice) 
and 22866 (Oct. 29, 1997) (order).

Filing Dates: The application was filed on August 16, 2001. Applicants 
have agreed to file an amendment during the notice period, the 
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substance of which is included in this notice.

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 April 23, 2002 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 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: Peter J. DeMarco, c/o Investec Ernst & Company, 
One Battery Park Plaza, 7th Floor, New York, New York 10004.

FOR FURTHER INFORMATION CONTACT: Laura J. Riegel, Senior Counsel, at 
(202) 942-0567 or Nadya B. Roytblat, Assistant Director, at (202) 942-
0564 (Division of Investment Management, Office of Investment Company 
Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the

[[Page 16772]]

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. Investec, a broker-dealer registered under the Securities 
Exchange Act of 1934, is the Sponsor to the existing Trusts.\2\ Each 
Trust is or will be a UIT registered under the Act.\3\ Each Series is 
or will be created by a trust indenture among the Sponsor, a banking 
institution or trust company as trustee (``Trustee''), and, for those 
Series that the Trustee does not also serve as evaluator, the 
evaluator.
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    \2\ On April 27, 2001, ING Funds Distributor, Inc. and ING 
Mutual Funds Management Co. LLC (collectively, ``ING'') transferred 
its UIT business to Investec. ING has acquired its UIT business from 
Reich & Tang Distributors, Inc. on February 9, 2000. On April 24, 
2001, Investec received a no-action letter allowing Investec to rely 
on the Prior Orders pending action by the Commission on the 
application until no later than April 24, 2002.
    \3\ All presently existing Trusts that currently intend to rely 
on the requested order have been named as applicants. Any other 
existing Trust or any Trust organized in the future that relies on 
the requested order will comply with the terms and conditions of the 
application.
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    2. The Sponsor acquires a portfolio of securities, which it 
deposits with the Trustee in exchange for certificates representing 
units of fractional undivided interest in the deposited portfolio 
(``Units''). The Units are then offered to the public through the 
Sponsor, underwriters and dealers at a public offering price which, 
during the initial offering period, is based upon the aggregate market 
value (the aggregate offering side evaluation for fixed income 
securities) of the underlying securities plus a front-end load sales 
charge. The sales charge currently ranges from 1.25% to 5.5% of the 
public offering price, generally depending upon the terms of the 
underlying securities
    3. The Sponsor maintains a secondary market for Units and 
continually offers to purchase Units at prices based upon the market 
value (the bid side evaluation for fixed income securities) of the 
underlying securities. Investors may purchase Units on the secondary 
market at the current public offering price plus a front-end sales 
charge. If the Sponsor discontinues maintaining such a market at any 
time for any Series, holders of the Units (``Unitholders''') of that 
Series may redeem their Units through the Trustee.

A. Deferred Sales Charge and Waiver of Deferred Sales Charge Under 
Certain Circumstances

    1. Applicants request an order to the extent necessary to permit 
them to impose a sales charge on a deferred basis (``deferred sales 
charge'' or ``DSC''). For each Series, the Sponsor would set a maximum 
sales charge per Unit, a portion of which may be collected ``up front'' 
(i.e., at the time an investor purchases the Units). The DSC would be 
collected subsequently in equal installments (``Installment Payments'') 
from Unitholders'' distributions on the Units. The Sponsor would not 
add any amount for interest or any similar or related charge to adjust 
for such deferral.
    2. In order to ensure that sufficient cash is available to make 
Installment Payments, a Series may hold securities, the proceeds from 
the maturity or sale of which may be used to make payments. Installment 
Payments will be collected from Unitholders by withholding the payment 
amount from Unitholders' distributions on Units, from proceeds of Unit 
redemptions or sales by the Unitholder, or by reducing the number of 
Units held by the Unitholder. The Installment Payment will be passed by 
the Trustee to the Sponsor at the time it is collected. The Trustee may 
advance an Installment Payment if, for example, it is due immediately 
before a dividend or interest payment is due on portfolio securities. 
The Trustee will be reimbursed when the Installment Payment is 
collected from the Unitholder.
    3. When a Unitholder redeems or sells Units, the Sponsor intends to 
deduct any unpaid DSC from the redemption or sale proceeds. When 
calculating the amount due, the Sponsor will assume that Units held for 
the longest time are redeemed or sold first. Applicants represent that 
the DSC collected at the time of redemption or sale, together with the 
Installment Payments and any amount collected up front, will not exceed 
the maximum sales charge per Unit. Under certain circumstances, the 
Sponsor may waive the collection of any unpaid DSC in connection with 
redemptions or sales of Units. These circumstances will be disclosed in 
the prospectus for the relevant Series and implemented in accordance 
with rule 22d-1 under the Act.
    4. Each Series offering Units subject to a DSC will state the 
maximum charge per Unit in its prospectus. In addition, the prospectus 
for such Series will include the table required by item 3 of Form N-1A 
(modified as appropriate to reflect the difference between UITs and 
open-end management investment companies) and a schedule setting forth 
the number and date of each Installment Payment, along with the 
duration of the collection period. The prospectus for that Series also 
will disclose that portfolio securities may be sold to pay an 
Installment Payment if distribution income is insufficient, and that 
securities will be sold pro rata or a specific security will be 
designated for sale.

B. Exchange Privilege, Rollover Privilege, and Conversion Offer

    1. Applicants propose to offer an exchange privilege to Unitholders 
of the Trusts at a reduced sales charge (``Exchange Privilege''). 
Unitholders would be able to exchange any or all of their Units in a 
Series of a Trust for Units in one or more available Series of the 
Trusts (``Exchange Series''). Applicants also propose a conversion 
offer (``Conversion Offer'') pursuant to which Unitholders may elect to 
redeem Units of any Series in which there is no active secondary market 
(``Redemption Series'') and apply the proceeds to the purchase of 
available Units of one or more Series of the Trusts (``Conversion 
Series''). In addition, applicants propose to offer a rollover 
privilege to Unitholders of the Trusts at a reduced sales charge 
(``Rollover Privilege''). Unitholders would be able to ``roll over'' 
their Units in a Series which is terminating (``Terminating Series'') 
for Units in one or more new Series of the Trusts (``Rollover 
Series'').
    2. To exercise the Exchange Privilege or Rollover Privilege, a 
Unitholder must notify the Sponsor. In order to exercise the Conversion 
Offer, a Unitholder must notify his or her retail broker. The 
Conversion Offer will be handled entirely through the Unitholder's 
retail broker and the retail broker must tender the Units to the 
Trustee of the Redemption Series for redemption and then apply the 
proceeds toward the purchase of Units of a Conversion Series. Exercise 
of the Exchange Privilege or Rollover Privilege is subject to the 
following conditions: (i) The Sponsor must be maintaining a secondary 
market in Units of the available Exchange Series or Rollover Series; 
(ii) at the time of the Unitholder's election to participate, there 
must be Units of the Exchange Series or Rollover Series to be acquired 
available for sale, either under the initial primary distribution or in 
the Sponsor's secondary market; (iii) exchanges will be in whole Units 
only; and (iv) for certain Series, Units may be obtained in blocks of 
certain sizes only.
    3. Unitholders who wish to exchange Units under the Exchange 
Privilege, the Rollover Privilege or the Conversion Offer within the 
first five months of purchase will not be eligible for the reduced 
sales charge. Such Unitholders

[[Page 16773]]

will be charged a sales load equal to the greater of: (i) the reduced 
sales load, or (ii) an amount which, when added to the sales charge 
paid by the Unitholder upon his or her original purchase of Units of 
the applicable Series, would equal the sales charge applicable to the 
direct purchase of the newly acquired Units, determined as of the date 
of purchase.

C. Purchase and Sale Transactions Between a Terminating Series and a 
New Series

    1. Each Terminating Series will have a date (``Rollover Date'') by 
which Unitholders of that Series may, at their option, redeem their 
Units and receive in return Units of a subsequent Series of the same 
type (``New Series''). The New Series will be created on or about the 
Rollover Date and will have a portfolio that contains securities, many, 
if not all, of which are actively traded (i.e., have had an average 
daily trading volume in the preceding six months of at least 500 shares 
equal in value to at least U.S. $25,000) on an exchange (a ``Qualified 
Exchange'') that is either (i) a national securities exchange that 
meets the qualifications of section 6 of the Securities Exchange Act of 
1934, (ii) a foreign securities exchange meeting the qualifications set 
forth in the proposed amendments to rule 12d3-1(d)(6) under the Act \4\ 
and releasing daily closing prices or (iii) the Nasdaq-National Market 
System (securities meeting the preceding tests are referred to as 
``Qualified Securities'').
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    \4\ Investment Company Act Rel. No. 17096 (Aug. 3, 1989) 
(proposing amendments to Rule 12d3-1). The proposed amended rule 
defined a ``Qualified Foreign Exchange'' as a stock exchange in a 
country other than the United States where: (i) trading generally 
occurred at least four days per week, (ii) there were limited 
restrictions on the ability of acquiring companies to trade their 
holdings on the exchange, (iii) the exchange had a trading volume in 
stocks for the previous year of at least U.S. $7.5 billion, and (iv) 
the exchange had a turnover ratio for the preceding year of at least 
20% of its market capitalization. The version of the amended rule 
that was adopted did not include the part of the proposed amendment 
defining the term ``Qualified Foreign Exchange.''
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    2. Applicants anticipate that there will be some overlap in the 
Qualified Securities selected for the portfolios of a Terminating 
Series and the related New Series. Absent the requested relief, a 
Terminating Series would, upon termination, sell its Qualified 
Securities on the applicable Qualified Exchange. Likewise, a New Series 
would acquire its Qualified Securities on the applicable Qualified 
Exchange. This procedure would result in Unitholders of both the 
Terminating Series and the New Series incurring brokerage commissions 
on the same Qualified Securities. Applicants accordingly request an 
order to the extent necessary to permit a Terminating Series to sell 
its portfolio securities to a New Series and to permit the New Series 
to purchase those securities.

Applicants' Legal Analysis

A. DSC and Waiver of DSC Under Certain Circumstances

    1. Section 4(2) of the Act defines a ``unit investment trust'' as 
an investment company that issues only redeemable securities. Section 
2(a)(32) of the Act defines a ``redeemable security'' as a security 
that, upon its presentation to the issuer, enables the holder to 
receive approximately his or her proportionate share of the issuer's 
current net assets or the cash equivalent of those assets. Rule 22c-1 
under the Act requires that the price of a redeemable security issued 
by a registered investment company for purposes of sale, redemption or 
repurchase be based on the security's current net asset value 
(``NAV''). Because the collection of any unpaid DSC may cause a 
redeeming Unitholder to receive an amount less than the NAV of the 
redeemed Units, applicants request relief from section 2(a)(32) and 
rule 22c-1.
    2. Section 22(d) of the Act and rule 22d-1 under the Act require a 
registered investment company and its principal underwriter and dealers 
to sell securities only at the current public offering price described 
in the investment company's prospectus, with the exception of sales of 
redeemable securities at prices that reflect scheduled variations in 
the sales load. Section 2(a)(35) of the Act defines the term ``sales 
load'' as the difference between the sales price and the portion of the 
proceeds invested by the depositor or trustee. Applicants request 
relief from sections 2(a)(35) and 22(d) to permit waivers, deferrals or 
other scheduled variations of the sales load.
    3. Under section 6(c) of the Act, the Commission may exempt classes 
of transactions, 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 state that their proposal meets 
the standards of section 6(c). Applicants state that the provisions of 
section 22(d) are intended to prevent (i) riskless trading in 
investment company securities due to backward pricing, (ii) disruption 
of orderly distribution by dealers selling shares at a discount, and 
(iii) discrimination among investors resulting from different prices 
charged to different investors. Applicants assert that the proposed DSC 
program will present none of these abuses. Applicants further state 
that all scheduled variations in the sales load will be disclosed in 
the prospectus of each Series and applied uniformly to all investors, 
and that applicants will comply with all the conditions set forth in 
rule 22d-1.
    4. Section 26(a)(2)(C) of the Act, in relevant part, prohibits a 
trustee or custodian of a UIT from collecting from the trust as an 
expense any payment to the trust's depositor or principal underwriter. 
Because the Trustee's payment of the DSC to the Sponsor may be deemed 
to be an expense under section 26(a)(2)(C), applicants request relief 
under section 6(c) from section 26(a)(2)(C) to the extent necessary to 
permit the Trustee to collect Installment Payments and disburse them to 
the Sponsor. Applicants submit that the relief is appropriate because 
the DSC is more properly characterized as a sales load.

B. Exchange Privilege, Conversion Offer and Rollover Privilege

    1. Sections 11(a) and (c) of the Act prohibit any offer of exchange 
by a UIT for the securities of another investment company unless the 
terms of the offer have been approved in advance by the Commission. 
Applicants request an order under sections 11(a) and 11(c) for 
Commission approval of the Exchange Privilege, the Conversion Offer and 
the Rollover Privilege.
    2. Applicants state that the Exchange Privilege and Rollover 
Privilege provide investors with a convenient means of transferring 
their interests at a reduced sales charge into Exchange Series and 
Rollover Series which suit their current investment objectives. 
Further, applicants state that the Conversion Offer provides 
Unitholders of a Series in which there is no active secondary market to 
redeem those Units and invest the proceeds at a reduced sales charge 
into Units of the Conversion Series in which there is an active 
secondary market. Applicants state that absent the Exchange Privilege, 
Rollover Privilege and Conversion Offer, Unitholders would be required 
to dispose of their Units, either in the secondary market (in the case 
of the Exchange Privilege and Rollover Privilege) or through 
redemption, and to reinvest, at the then fully applicable sales charge, 
into the chosen Series.
    3. Applicants represent that Unitholders will not be induced or 
encouraged to participate in the Exchange Privilege, Rollover 
Privilege,

[[Page 16774]]

or Conversion Offer through an active advertising or sale campaign. The 
Sponsor recognizes its responsibility to its customers against 
generating excessive commissions through churning and asserts that the 
sales charge collected will not be a significant economic incentive to 
salesmen to promote inappropriately the Exchange Privilege, Rollover 
Privilege or the Conversion Offer. Applicants state that the reduced 
sales charge will fairly and adequately compensate the Sponsor and the 
participating underwriters and brokers for their services and expenses 
in connection with the administration of the programs. Applicants 
further believe that the Exchange Privilege, Rollover Privilege, and 
Conversion Offer are 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.

C. Purchase and Sale Transactions Between a Terminating Series and a 
New Series

    1. Section 17(a) of the Act prohibits an affiliated person of a 
registered investment company from selling securities to, or purchasing 
securities from, the company. Section 2(a)(3) of the Act defines an 
``affiliated person'' of another person to include any person directly 
or indirectly controlling, controlled by, or under common control with 
the other person. Investec is or will be the Sponsor of each Series. 
Since the Sponsor of a Series may be deemed to control the Series, all 
of the Series may be deemed to be affiliated persons of each other.
    2. Rule 17a-7 under the Act was designed to permit registered 
investment companies which might be deemed affiliates by reason of 
common investment advisers, directors and/or officers, to purchase 
securities from or sell securities to one another at an independently 
determined price, provided that certain conditions are met. Paragraph 
(e) of the rule requires an investment company's board of directors 
(``Board'') to adopt and monitor procedures to assure compliance with 
the rule. Paragraph (f) of the rule requires that: (i) directors who 
are not interested persons under section 2(a)(19) of the Act constitute 
a majority of the Board; (ii) such directors select and nominate any 
other directors who are not interested persons under the Act; and (iii) 
any legal counsel for such directors be an ``independent legal 
counsel,'' as defined in rule 0-1(a)(6) under the Act. Because UITs do 
not have Boards, the Series would be unable to comply with these 
requirements. Applicants represent that they will comply with all of 
the provisions of rule 17a-7, other than paragraphs (e) and (f).
    3. Section 17(b) of the Act provides that the Commission will 
exempt a proposed transaction from section 17(a) if evidence 
establishes that: (i) the terms of the transaction are reasonable and 
fair and do not involve overreaching; (ii) the transaction is 
consistent with the policies of each registered investment company 
involved; and (iii) the transaction is consistent with the general 
purposes of the Act. Applicants request relief under sections 6(c) and 
17(b) to permit a Terminating Series to sell Qualified Securities to a 
New Series and permit the New Series to purchase the Qualified 
Securities.
    4. Applicants believe that the proposed transactions satisfy the 
requirements of sections 6(c) and 17(b). Applicants represent that 
purchases and sales between Series will be consistent with the policies 
of each Series. Applicants further state that permitting the proposed 
transactions would result in savings on brokerage fees for the Series.
    5. Applicants state that the condition that the Qualified 
Securities must be actively traded on a Qualified Exchange protects 
against overreaching. In addition, applicants state that the Sponsor 
will certify to the Trustee, within five days of each sale of Qualified 
Securities from a Terminating Series to a New Series: (i) That the 
transaction is consistent with the policy of both the Terminating 
Series and the New Series, as recited in their respective registration 
statements and reports filed under the Act; (ii) the date of the 
transaction; and (iii) the closing sales price on the Qualified 
Exchange for the sale date of the Qualified Securities. The Trustee 
will then countersign the certificate, unless, in the unlikely event 
that the Trustee disagrees with the closing sales price listed on the 
certificate, the Trustee immediately informs the Sponsor orally of such 
disagreement and returns the certificate within five days to the 
Sponsor with corrections duly noted. Upon the Sponsor's receipt of a 
corrected certificate, if the Sponsor can verify the corrected price by 
reference to an independently published list of closing sales prices 
for the date of the transactions, the Sponsor will ensure that the 
price of the Units of the New Series, and the distributions to 
Unitholders of the Terminating Series, accurately reflect the corrected 
price. To the extent that the Sponsor disagrees with the Trustee's 
corrected price, the Sponsor and the Trustee will jointly determine the 
correct sales price by reference to a mutually agreeable, independently 
published list of closing sales prices for the date of the transaction.

Applicants' Conditions

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

A. DSC and Waiver of DSC Under Certain Circumstances

    1. Each Series offering Units subject to a DSC will include in its 
prospectus the disclosure required in Form N-1A relating to deferred 
sales charges, modified as appropriate to reflect the differences 
between UITs and open-end investment companies, and a schedule setting 
forth the number and date of each installment payment.
    2. Any DSC imposed on Units issued by a Series will comply with the 
requirements of subparagraphs (1), (2) and (3) of rule 6c-10(a) under 
the Act.

B. Exchange Privilege, Conversion Offer and Rollover Privilege

    1. The prospectus of each Series offering exchanges, rollovers, or 
conversions and any sales literature or advertising that mentions the 
existence of the Exchange Privilege, Conversion Offer or Rollover 
Privilege will disclose that the Exchange Privilege, Conversion Offer 
or Rollover Privilege is subject to modification, termination or 
suspension without notice, except in limited cases.
    2. Whenever the Exchange Privilege, Conversion Offer or Rollover 
Privilege is to be terminated or its terms are to be amended 
materially, any holder of a security subject to that privilege will be 
given prominent notice of the impending termination or amendment at 
least 60 days prior to the date of termination or the effective date of 
the amendment, provided that: (a) no such notice need be given if the 
only material effect of an amendment is to reduce or eliminate the 
sales charge payable at the time of an exchange, to make one or more 
New Series eligible for the Exchange Privilege, Conversion Offer or 
Rollover Privilege, or to delete a Series which has terminated; and (b) 
no notice need be given if, under extraordinary circumstances, either 
(i) there is a suspension of the redemption of Units of the Series 
under section 22(e) of the Act and the rules and regulations 
promulgated under that section, or (ii) a Series temporarily delays or 
ceases the sale of its Units because it is unable to invest amounts 
effectively in accordance with applicable investment objectives, 
policies, and restrictions.
    3. An investor who purchases Units under the Exchange Privilege,

[[Page 16775]]

Conversion Offer or Rollover Privilege will pay a lower sales charge 
than that which would be paid for the Units by a new investor.

C. Purchase and Sale Transactions Between a Terminating Series and a 
New Series

    1. Each sale of Qualified Securities by a Terminating Series to a 
New Series will be effected at the closing price of the securities sold 
on a Qualified Exchange on the sale date, without any brokerage charges 
or other remuneration except customary transfer fees, if any.
    2. The nature and conditions of such transactions will be fully 
disclosed to investors in the appropriate prospectus of each 
Terminating Series and New Series.
    3. The Trustee of each Terminating Series and New Series will 
review the procedures discussed in the application relating to the sale 
of securities from a Terminating Series and the purchase of those 
securities for deposit in a New Series, and make such changes to the 
procedures as the trustee deems necessary to ensure compliance with 
paragraphs (a) through (d) of rule 17a-7.
    4. A written copy of these procedures and a written record of each 
transaction pursuant to this order will be maintained as provided in 
rule 17a-7(g).

    For the Commission, by the Division of Investment Management, 
under delegated authority.
J. Lynn Taylor,
Assistant Secretary.
[FR Doc. 02-8434 Filed 4-5-02; 8:45 am]
BILLING CODE 8010-01-P