[Federal Register Volume 63, Number 137 (Friday, July 17, 1998)]
[Notices]
[Pages 38680-38681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19049]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Rel. No. 23312; 812-10824]


CypressTree Asset Management Corporation, Inc., North American 
Floating Income Fund, Inc., CypressTree Investment Management Company, 
Inc., and CypressTree Funds Distributors, Inc.; Notice of Application

July 10, 1998.
AGENCY: Securities and Exchange Commission (``SEC'').

ACTION: Notice of Application for Exemption under the Investment 
Company Act of 1940 (the ``Act'').

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SUMMARY OF APPLICATION: Applicants request an order under Section 6(c) 
granting an exemption from Sections 18(c) and 18(i) of the Act and rule 
23c-3 under the Act, and under Section 17(d) of the Act and rule 17d-1 
under the Act, to permit certain registered closed-end investment 
companies to issue multiple classes of shares, impose distribution and 
service fees, and early withdrawal charges. Applicants also request an 
amendment to a prior order.

APPLICANTS: CypressTree Asset Management Corporation, Inc. (``CAM''), 
North American Senior Floating Rate Fund, Inc. (the ``Fund''), and 
CypressTree Investment Management Company (``CypressTree''), and 
CypressTree Funds Distributors, Inc. (``Distributors'').

FILING DATES: The application was filed on October 22, 1997. Applicants 
have agreed to file an amendment during the notice period, the 
substance of which is reflected in this notice.

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 
request should be received by the SEC by 5:30 p.m. on August 4, 1998, 
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 of a hearing by 
writing to the SEC's Secretary.

ADDRESSES: Secretary, SEC, 450 5th Street, N.W., Washington, D.C. 
20549. Applicants: 125 High Street, Boston, Massachusetts 02110.

FOR FURTHER INFORMATION CONTACT:
Deepak T. Pai, Staff Attorney, at (202) 942-0574, or Edward P. 
Macdonald, 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 is available for a few at the 
SEC's Public Reference Branch, 450 Fifth Street, N.W., Washington, D.C. 
20549 (tel. 202-942-8090).

Applicant's Representations

    1. The Fund is a closed end management investment company 
registered under the Act and organized as a Maryland corporation. CAM, 
an investment adviser registered under the Investment Advisers Act of 
1940 (``Advisers Act''), will serve as investment adviser to the Fund. 
CAM will enter into a sub-advisory agreement with CypressTree, an 
investment adviser registered under the Advisers Act, pursuant to which 
CypressTree will select the investments made by the Fund. Distributors, 
a broker-dealer registered under the Securities Exchange Act of 1934 
(the ``Exchange Act''), will distribute the Fund's shares. Applicants 
request that the order also apply to any other registered closed-end 
management investment company for which CAM or CypressTree or any 
entity controlling, controlled by, or under control with CAM or 
CypressTree acts as investment adviser, sub-investment adviser, 
principal underwriter, or administrator.\1\
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    \1\ Any such investment company relying on this relief will do 
so in a manner consistent with the terms and conditions of this 
application. Applicants represent that each investment company 
presently intending to rely on the relief requested in this 
application is listed as an applicant.
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    2. The Fund's investment objective will be to provide as high a 
level of current income as is consistent with the preservation of 
capital. The Fund will invest primarily in senior secured floating rate 
loans made by commercial banks, investment banks, and finance companies 
to commercial and industrial borrowers (``Loans''). Under normal market 
conditions, the Fund will invest at least 80% of its total assets in 
Loans. Up to 20 percent of the Funds's total assets may be held in 
cash, invested in investment grade short-term and medium-term debt 
obligations, or invested in unsecured senior floating rate loans 
determined by CypressTree to have a credit quality at least equal to 
the loans.
    3. The Fund will continuously offer its shares to the public at net 
asset value (plus a sales load in certain cases as discussed below). 
Applicants were granted an order permitting the Fund and certain other 
registered closed-end investment companies to make monthly repurchase 
offers in reliance on rule 23c-3 under the Act (``Prior Order'').\2\
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    \2\ CypressTree Asset Management Corporation et al., Investment 
Company Act Release Nos. 23020 (February 4, 1998) and 23055 (March 
3, 1998) (order). Applicants request to amend the Prior Order to 
extend the relief granted in the Prior Order to any other registered 
closed-end investment company for which CAM or CypressTree or any 
entity controlling, controlled by or under common control with CAM 
or CypressTree acts as administrator or sub-investment adviser.
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    4. The Fund expects to offer three classes of shares. Class A 
Shares may be subject to a front-end sales charge. Class B Shares and 
Class C Shares will be offered without a front-end sales charge, but 
Shares accepted for repurchase that have been held for less than a 
certain period of time will be subject to early withdrawal charges 
(``EWCs'') payable to Distributors.\3\ After ten years, Class B Shares 
will automatically convert to

[[Page 38681]]

Class A Shares, and after eight years, Class C Shares will 
automatically convert to Class A Shares. Class A, Class B, and Class C 
Shares will be subject to an annual service fee of up to .25% of net 
assets. Class B and Class C Shares also will be subject to an annual 
distribution fee of up to .50% of net assets. Applicants represent that 
all of these fees will comply with the requirements of Rule2830(d) of 
the NASD Conduct Rules as if the Fund were an open-end investment 
company. Applicants also represent that the Fund intends to disclose in 
its prospectus the fees, expenses, and other characteristics of each 
class of shares offered for sale, as is required for open-end multi-
class funds under Form N1-A.
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    \3\ Class B Shares will be subject to EWCs that decline over 
time to 0% after the end of the fourth year that a shareholder owns 
Class B Shares. Class C Shares will be subject to early withdrawal 
charges of 1% during the first year that a shareholder owns Class C 
Shares.
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    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. Distribution fees, service fees, and 
incremental expenses that may be attributable to a particular class of 
shares, including transfer agent fees, printing and postage expenses, 
state and federal registration fees, administrative fees, legal fees, 
will be charged directly to the net assets of a particular 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 crate additional classes of shares in the future that may have 
different terms from Class B, Class C, and Class A Shares.
    6. The Fund may waive the EWCs for certain categories of 
shareholders or transactions to be established in the future. 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 exchange their shares for shares of 
the same class of other funds in the North American Group of investment 
companies. 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 
imposed on Class B Shares and Class C Shares as if they were contingent 
deferred sales charges (``CDSCs'').

Applicants' Legal Analysis

    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 company shall 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) because each class would be entitled to exclusive 
voting rights with respect to matters solely related to that class.
    3. 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. 
Applicants state that the imposition of an EWC on shares tendered for 
repurchase that have been held for less than a specified period may 
violate rule 23c-3(b)(1).
    4. Section 6(c) of the Act provides that the SEC may exempt any 
person, security, or transaction from any 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.
    5. Applicants request an exemption under section 6(c) of the Act 
from sections 18(c) and 18(i) of the Act and rule 23c-3(b)(1) to permit 
multiple classes of shares of the Fund and the imposition of EWCs.
    6. Applicants believe that the proposed allocation of expenses and 
voting rights among multiple classes in equitable and would not 
discriminate against any group of Fund 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 to any greater degree 
than open-end investment companies' multiple class systems that are 
permitted by rule 18f-3 under the Act. Applicants state that the Fund 
will comply with rule 18f-3 as if it were an open-end fund.
    7. Applicants further state that EWCs are functionally similar to 
CDSCs that open-end investment companies may charge under rule 6c-10 
under the Act. Applicants believe that EWCs may be necessary for 
Distributors to recover distribution costs and that EWCs may discourage 
shareholders from engaging in frequent trading, a practice that 
applicants believe imposes costs on other shareholders. Applicants will 
comply with rule 6c-10 under the Act as if the Fund were an open-end 
investment company.
    8. Section 17(d) of the Act and rule 17d-1 under the Act prohibit 
an affiliated person of a registered investment company, 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 SEC issues an order 
permitting the transaction. In reviewing applications submitted under 
section 17(d) and rule 17d-1, the SEC 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 to the extent to which the participation is on basis 
different from or less advantageous than that of other participants.
    9. Rule 17d-3 under the Act provides an exemption from section 
17(d) and rule 17d-1 to permit open-end funds to enter into 
distribution arrangements pursuant to rule 12b-1. Applicants also 
request an order under section 17(d) and rule 17d-1 to permit the Fund 
to impose asset-based distribution fees. Applicants have agreed to 
comply with rule 12b-1 as if the Fund were an open-end investment 
company.

Applicants' Condition

    Applicants agree that any order granting the requested relief shall 
be subject to the following condition:
    1. Applicants will comply with rules 18f-3, 12b-1, 6c-10, and 22d-1 
under the Act and NASD Conduct Rule 2830(d), as amended from time to 
time, as if those rules apply to closed-end investment companies.

    For the SEC, by the Division of Investment Management, under 
delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 98-19049 Filed 7-16-98; 8:45 am]
BILLING CODE 8010-01-M