Investment Company Act of 1940 — Rule 17d-1
RESPONSE OF THE OFFICE OF INVESTMENT COMPANY REGULATION
IM Ref. No. 2010-1-ICR
Your letter of December 29, 2010 requests our assurance that we would not recommend enforcement action to the Securities and Exchange Commission (the “Commission”) against Nuveen Asset Management, Inc. (“NAM”), First American Investment Funds, Inc. (“FAIF”) and its series (collectively, the “Funds”) and U.S. Bank, N.A. (the “Bank”, and collectively with NAM and the Funds, the “Requestors”) under rule 17d-1 under the Investment Company Act of 1940 (“Act”), if the Requestors rely on the Existing Order (as defined below) under the circumstances described below.
Each Fund is an open-end management investment company registered under the Act. FAF Advisors, Inc. (“FAF”), a wholly-owned subsidiary of the Bank, currently serves as the investment adviser for each Fund. You state that the Bank owns, controls or holds with power to vote 5% or more of the shares of one or more of the Funds.1 You state that the Bank is an affiliated person, or an affiliated person of an affiliated person, as defined in section 2(a)(3) of the Act, of each Fund. You state that the Bank currently serves as the Funds’ securities lending agent, and, as compensation for its services as such, receives a percentage of the income derived from each Fund’s securities lending activities, pursuant to an order issued by the Commission under rule 17d-1 under the Act (“Existing Order”).2
You state that on July 29, 2010, the Bank and FAF entered into an agreement with NAM, its parent company, Nuveen Investments, Inc. (“Nuveen”), and the parent company of Nuveen, Windy City Investments Holdings, L.L.C. (“Windy City”), pursuant to which FAF agreed to sell its long term asset management business (other than its closed-end fund business) to NAM (“Transaction”). You also state that, pursuant to the terms of the agreement, upon the closing of the Transaction (“Closing”), which is expected to occur prior to January 1, 2011, a wholly-owned subsidiary of U.S. Bancorp (the indirect parent company of the Bank) will become the owner of approximately 9.5 percent of NAM’s ultimate parent company, Windy City. You state that upon Closing, NAM will become the investment adviser to the Funds. You state further that the Bank will continue to own, control or hold with power to vote 5 percent or more of the shares of one or more Funds. Accordingly, you state that, after the Closing, the Bank will continue to be an affiliated person, or an affiliated person of an affiliated person, of each Fund.
You state that, after the Closing, NAM, the Bank and the Funds will not be able to rely on the Existing Order with respect to the Bank’s services as lending agent for the Funds unless the relief requested in your letter is granted. You state that the Funds would not be able to participate as lenders in the Bank’s securities lending program after the Closing. You state that finding and retaining an unaffiliated securities lending agent to take the place of the Bank after the Closing would take time and that it would not be in the best interests of the Funds to cease all securities lending activities during that process.
You therefore seek our assurances that we would not recommend enforcement action to the Commission under rule 17d-1 under the Act, subject to the conditions specified in your letter, if NAM, the Funds and the Bank rely on the Existing Order during the period beginning on the date of the Closing and ending one year from the date of this letter (“Interim Period”).3
Based on the facts and representations set forth in your letter, and, in particular, the conditions specified in your letter, we would not recommend enforcement action to the Commission under rule 17d-1 under the Act, if NAM, the Funds and the Bank rely on the Existing Order during the Interim Period.
This response expresses the Division of Investment Management’s position on enforcement action only, and does not purport to express any legal conclusions on the questions presented. Facts or conditions different from those presented in your letter might require a different conclusion.
Office of Investment Company Regulation
December 30, 2010
1 You state that the Bank may beneficially own more than 25 percent of the voting securities of one or more Funds and, therefore, may be deemed to “control” such Funds within the meaning of section 2(a)(9) of the Act.
2 First American Investment Funds, Inc., et al, Investment Company Act Release Nos. 22181 (Aug. 28, 1996) (notice) and 22245 (Sep. 24, 1996) (order).
3 The relief sought by your letter would apply to the Funds and any other series of FAIF advised by NAM established after the Closing.
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