IM Ref. No. 201210101259
Based on the facts and representations provided in your letter dated October 10, 2012, we would not recommend enforcement action to the Securities and Exchange Commission (the “Commission”) against Erste Abwicklungsanstalt (“EAA”) under section 7(d) of the Investment Company Act of 1940 (“1940 Act”) if EAA operates in the manner described in your letter without registering with the Commission as an investment company under the 1940 Act. Our position is based particularly on your representations that:
(i) EAA, a winding-up agency created under German law by the German Federal Agency for Financial Market Stabilization (Bundesanstalt für Finanzmarktstabilisierung, the “FMSA”), is a structurally and financially independent public law institution that was established with a purely public policy purpose relating to the German government’s efforts to stabilize the financial markets after the onset of the financial crisis;
(ii) EAA’s principal purpose is to take over and dispose of or wind up assets, liabilities and other risk exposures of WestLB AG, a financially troubled German regional state-owned bank domiciled in the German state of North Rhine-Westphalia (“NRW”), and its German and foreign subsidiaries (“WestLB”) in order to stabilize WestLB and the financial markets;
(iii) once the transferred assets, liabilities and risk exposures of WestLB AG have been fully wound up or liquidated, EAA will itself be dissolved by order of the FMSA;
(iv) the German federal government and the German state of NRW, taken together, stand behind 100% of the obligations with respect to the securities issued by EAA; and
(v) EAA plans to offer debt securities in the United States as part of its U.S. dollar refinancing activities. EAA intends to limit investors in any distribution of debt securities in the United States to institutional accredited investors (meaning investors defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933) and to exclude all natural persons.
Our response expresses our views on enforcement action only, and does not express any conclusions with respect to the legal issues presented. You should note that any different facts or representations may require different conclusions.