October 17, 2002
Karen L. Anderberg
Dechert Price & Rhoads
1775 Eye St.
Washington. DC 20006-2401
Re: ING Senior Income Fund
File No. TP 02-112
Dear Ms. Anderberg:
In regard to your letter dated October 11, 2002, as supplemented by
conversations with the staff, you request an exemption from Rule 102 of
Regulation M, to allow ING Senior Income Fund (the "Fund") to conduct a
rescission offer while concurrently offering shares to the public at their
public offering price. We have attached a copy of your letter to this
response to avoid reciting the facts. Unless otherwise noted, each defined
term in this letter has the same meaning as defined in your letter.
As a consequence of the continuous offering (Continuous Offering) of
the shares (Shares) of the Fund, the Fund is engaged in a distribution of
Shares subject to Rule 102 of Regulation M. As a result, bids for or
purchases of Shares or any "reference security" by the Fund, or by an
"affiliated purchaser" of the Fund, that are not specifically excepted or
exempted from the provisions of Rule 102, are prohibited during the
"restricted period" specified in Rule 102.1 The Rescission Offer is not eligible for the
exception contained in paragraph (b)(2)(ii) of Rule 102 for periodic
tender offers conducted by closed-end investment companies.
Nevertheless, based upon your representations and the facts presented,
- the Rescission Offer will be conducted to qualify for the exemption
described in Rule 13e-4(h)(6);
- the Rescission Offer will be directed at a limited number of persons
and will not be publicized;
- Rescission Shares will be repurchased at the price that the buyer
paid for the Shares, plus interest; and
- there is no potential for price manipulation of the Shares because
there is no trading market for the Shares, and it is not anticipated
that one will develop.
Based on the facts and representations that you have made, the
Rescission Offer does not appear to result in any of the abuses that Rule
102 is designed to prevent. Accordingly, on the basis of these facts and
representations, but without necessarily concurring in your analysis, the
Commission hereby grants the Fund an exemption from Rule 102 of Regulation
M pursuant to paragraph (e) thereof to permit the Funds to conduct the
Rescission Offer as described.
The foregoing exemption from Rule 102 is based solely on your
representations and the facts presented to the staff, and is strictly
limited to the application of this rule to the Rescission Offer. In the
event that any material change occurs with respect to any of those facts
or representations, the Rescission Offer should be discontinued, pending
presentation of the facts for our consideration.
In addition, your attention is directed to the anti-fraud and
anti-manipulation provisions of the Exchange Act, particularly Sections
10(b) and 14(e), and Rule 10b-5 thereunder. Responsibility for compliance
with these and any other applicable provisions of the federal securities
laws must rest with the participants in the various transactions. The
Division expresses no view with respect to any other questions that the
rescission offer may raise, including, but not limited to, the adequacy of
disclosure concerning, and the applicability of any other federal or state
laws to, the rescission offer.
For the Commission, by the
Division of Market
pursuant to delegated authority,
James A. Brigagliano
1 The terms "reference security," "affiliated purchaser"
and "restricted period" are defined in Rule 100 of Regulation M.
Incoming LetterThe incoming
letter is attached in PDF format.