Staff Letter (No-Action Relief under Section 17(f) of the Investment Company Act of 1940 and Rule 17f-2 thereunder)
Jan. 15, 2021
Investment Company Act of 1940 - Section 17(f) and Rule 17f-2
K&L Gates LLP
January 13, 2021
Response of the Chief Counsel’s Office
Division of Investment Management
Your letter dated January 13, 2021 requests our assurance that we would not recommend enforcement action to the Securities and Exchange Commission under Section 17(f) of the Investment Company Act of 1940, as amended (“1940 Act”), and paragraphs (b) - (f) of rule 17f-2 thereunder, against certain registered management investment companies or series thereof (collectively, the “Funds”), or their directors or officers, if the Funds, each acting as self-custodian of its assets, maintain Loan Interests (as defined below) in the manner described in your letter rather than in strict compliance with paragraphs (b) - (e) of rule 17f-2 and do not comply with the requirement under paragraph (f) of rule 17f-2.
You represent that the Funds invest in, among other things, term or delayed draw corporate loans (“Loans”) that are originated, negotiated and structured by one or more primary lenders (“Primary Lenders”) typically consisting of banks, insurance companies or other financial institutions. Pursuant to the specific terms and conditions in the Credit Agreement, Primary Lenders may sell interests in a Loan (“Loan Interests”) to third parties, such as the Funds. As discussed further in the letter, the Loan Interests are not transferred to the purchasing Fund until a multi-step settlement process has been completed.
You represent that Funds do not receive any securities certificate or other tangible token of ownership that could be custodied with its custodian or, that if endorsed and delivered to a subsequent purchaser or other third party, could be used by that third party to evidence its own right to a Fund’s Loan Interest. You further represent that possession of the Loan Documents would be of no value to a purchaser or other purported transferee of a Fund’s Loan Interests. The Loan Interests are reflected on the records that are maintained on behalf of the Borrower, typically by the Administrative Agent, for the purpose of identifying the owners of all Loan Interests and the principal amount of the Loan attributable to each.
As rule 17f-2 assumes actual physical possession of underlying securities (i.e., the certificates), you propose that the Funds cease providing the Loan Documents to their custodian for safekeeping, recognizing that the Funds would be subject to rule 17f-2 under the 1940 Act, subject to the representations described in your letter as a means of complying with the vaulting, access, notification, and verification conditions of the rule. You argue that given the volume of transactions and frequency of refinancings and paydowns, which can occur daily, it has become extremely burdensome to maintain copies of the Loan Documents and amendments with the Funds’ custodians. You also state that many custodians have become reluctant to safekeep paper documents like the Loan Documents.
You represent that each Fund currently is subject to an annual audit during which the independent public accountant confirms all of the Fund’s investments, including its investments in Loan Interests, and reconciles the Loan Interests to the Fund’s account records. The independent auditor relies on controls testing as reported in the Service Organization Controls Report (SOC 1) on Adviser’s fund accounting system and controls around trade authorization, trade confirmation, position reconciliation, cost roll-forward, and the systematic calculation of realized gains and losses. You believe that the representations made in your letter adequately respond to the protections that Section 17(f) and rule 17f-2 were intended to provide. You request no-action assurances only with respect to Loan Interests in which the Fund invests.
Based on your facts and representations, particularly your representations that the Funds are complying with audit requirements, we would not recommend enforcement action to the Commission under Section 17(f) of the 1940 Act or rule 17f-2 thereunder against the Funds, or their directors or officers, if the Funds maintain custody of Loan Interests pursuant to rule 17f-2 in the manner, and subject to the representations, described in your letter. This response expresses our view on enforcement action only and does not express any legal or interpretive position on the issues presented. Because our position is based upon all of your facts and representations, any different facts or representations may require a different conclusion.
The statements in this letter represent the views of the Division of Investment Management. This letter is not a rule, regulation, or statement of the Commission, and the Commission has neither approved nor disapproved its content.
Elizabeth G. Miller
The Funds are advised and/or sub-advised by an investment adviser (“Adviser”) and/or one of its affiliates, as applicable. The Adviser and certain of its affiliates are investment advisers that are registered with the Commission under the Investment Advisers Act of 1940, as amended (“Advisers Act”).
Rule 17f-2(b) provides, in relevant part, that all securities and similar investments “shall be deposited in the safekeeping of, or in a vault or other depository maintained by, a bank or other company whose functions and physical facilities are supervised by Federal or State authority.”
Rule 17f-2(d) provides, in relevant part, that “no person shall be authorized or permitted to have access to the securities and similar investments . . . except pursuant to a resolution of the board of directors of such investment company.” Furthermore each resolution may not “designate more than five persons who shall be either officers or responsible employees of such company and shall provide that access to such investments shall be had only by two or more such persons jointly, at least one of whom shall be an officer . . . ”
Rule 17f-2(e) requires, in relevant part, that when depositing securities or similar investments in or withdrawing them from the depository or when ordering their withdrawal and delivery from the safekeeping of the bank or other company, each person “shall sign a notation in respect of such deposit, withdrawal or order which shall show (1) the date and time of the deposit, withdrawal or order, (2) the title and amount of the securities or other investments deposited, withdrawn or ordered to be withdrawn, and an identification thereof by certificate numbers or otherwise, (3) the manner of acquisition of the securities or similar investments deposited or the purpose for which they have been withdrawn, ordered to be withdrawn, and (4) if withdrawn and delivered to another person the name of such person.”
Finally, rule 17f-2(f) provides, in relevant part, that the securities and similar investments must be “verified by actual examination by an independent public accountant retained by the investment company at least three times during each fiscal year, at least two of which shall be chosen by such accountant without prior notice to such company.”
The terms of the Loans are typically set out in a credit agreement (“Credit Agreement”) between the borrower, which is typically an operating company (the “Borrower”), the administrative agent (which is typically one or more of the Primary Lenders, or another financial institution, which administers the Loans on behalf of the lending syndicate (“Administrative Agent”)), and the Primary Lenders.
For purposes of this letter, Loan Interests do not include interests in collateralized loan obligations. A Fund receives Loan Documents that together evidence the fact that the Fund purchased a particular Loan Interest and the terms on which it did so. An assignment agreement, a countersigned Institutional Allocation Confirmation (in some cases), and a funding memorandum or similar document are collectively the “Loan Documents.”
This process typically includes: (1) settlement coordination under which the seller, the purchasing Fund and the Administrative Agent for the Loan Interest coordinate the proposed settlement date and other terms of the transfer; (2) counter-signature of an assignment agreement by the Administrative Agent; (3) communication of the details of the proposed transaction to the parties for review and confirmation; (4) transmission of information as to funding the purchase price needed to settle the transaction; (5) final verification by parties prior to funding; and (6) wire transfer of the purchase price and recordation of the purchasing Fund’s interest on the ownership records maintained by the Administrative Agent on behalf of the Borrower.
See, e.g., rule 17f-2(b) (stating that securities and similar investments shall be placed in a vault and physically segregated at all times).
You have not asked about, and we have not taken any view regarding, rule 206(4)-2 under the Advisers Act and its application to, among other instruments, privately offered securities.