[Federal Register Volume 61, Number 239 (Wednesday, December 11, 1996)] [Notices] [Pages 65252-65254] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-31396] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Rel. No. IC-22372; 812-10374] Sirrom Capital Corporation; Notice of Application December 5, 1996. AGENCY: Securities and Exchange Commission (``SEC''). ACTION: Notice of application for exemption under the Investment Company Act of 1940 (``Act''). ----------------------------------------------------------------------- APPLICANT: Sirrom Capital Corporation. RELEVANT ACT SECTIONS: Exemption requested under sections 6(c) from sections 12(d)(1) 18(a), 19(b), and 61(a) of the Act. SUMMARY OF APPLICATION: Applicant requests an order to permit it to form a wholly-owned subsidiary that would operate as a special purpose bankruptcy remote subsidiary and borrow funds under a new credit facility. FILING DATE: The application was filed on October 1, 1996, and amended on December 5, 1996. 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 requests should be received by the SEC by 5:30 p.m. on December 30, 1996, and should be accompanied by proof of service on applicant, 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 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. Applicant, 500 Church Street, Suite 200, Nashville, Tennessee 37219. FOR FURTHER INFORMATION CONTACT: Courtney S. Thornton, Senior Counsel, at (202) 942-0583, or Mary Kay Frech, 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 may be obtained for a fee at the SEC's Public Reference Branch. Applicant's Representations 1. Applicant is a closed-end, internally managed investment company that has elected to be treated as a business development company (``BDC'') pursuant to section 54 of the Act. As a BDC, applicant furnishes capital to small businesses through loans to, and investments in, small companies.\1\ Applicant typically makes its loans in the form of secured debt with a relatively high fixed interest rate and with warrants to purchase equity securities of the borrower. In the past, applicant has funded its loan originations with financing from the SBA and a syndicate of commercial banks. Applicants already has borrowed a significant portion of the debt [[Page 65253]] financing available to it from these sources, however, and needs to establish an alternative source of financing. --------------------------------------------------------------------------- \1\ applicant also makes loans to small, privately-owned companies through Sirrom Investments, Inc. (``Investments''), a wholly-owned, closed-end investment company that is licensed as a small business investment company (``SBIC'') by the Small Business Administration (``SBA''). Applicant previously obtained an order with respect to the establishment of Investments and certain of its activities (the ``SBIC Order''). Investment Company Act Release Nos. 22016 (June 13, 1996) (notice) and 22057 (July 9, 1996) (order). --------------------------------------------------------------------------- 2. Applicant has signed a commitment letter with ING Capital Markets (``ING'') to establish a credit facility in the amount of $100 million. To provide ING with collateral that would be clearly and legally separate from that pledged to other lenders, applicant intends to form a special purpose, bankruptcy remote subsidiary (``Newco''). Newco will be a Delaware corporation and a registered closed-end investment company. Applicant will transfer to Newco at least $20 million in loans as a capital contribution. In consideration of such transfer, Newco will issue to applicant 1,000 shares of its common stock, comprising all of its issued and outstanding shares. Newco's activities will be limited to: (a) Purchasing secured loans to small businesses and related warrants from applicant; (b) owning and holding such loans and warrants; (c) funding the purchases of such loans and warrants by borrowing from financial institutions; and (d) activities ancillary to such activities. The directors and officers of Newco will be identical to those of applicant, except that Newco will have no more than two directors who are not directors or affiliated persons of applicant. Applicant states that this arrangement is necessary to permit Newco to obtain the opinions required to secure an investment grade rating from one or more nationally recognized rating agencies for the commercial paper to be issued by ING. 3. Newco would borrow funds under the ING credit facility, and would use such funds to purchase new loans and related warrants from applicant. Newco would pledge these loans and warrants to an indenture trustee as collateral to secure the funds loaned by ING. ING in turn would fund borrowings under the credit facility by issuing commercial paper secured by the pool of loans and warrants owned by Newco. Newco would pay a spread to ING over the rate paid on the commercial paper issued, along with other fees to originate and administer the credit facility. 4. The following kinds of inter-company transactions may arise in the future between applicant and Newco: (a) Applicant may make additional investments in Newco either as contributions to capital, purchases of additional stock, or loans; (b) from time to time Newco will pay dividends and make other distributions to applicant with respect to its investment in the stock of Newco, including capital gains dividends; (c) applicant and Newco may from time to time hold loans made to the same borrower; (d) Newco will purchase portions of applicant's portfolio investments in accordance with the terms of the credit facility; and (e) applicant may repurchase all or a portion of portfolio investments held by Newco at such time as they are released from the pool of collateral established under the credit facility. Applicant's Legal Analysis 1. Section 12(d)(1). Section 12(d)(1)(A) of the Act prohibits any registered investment company from purchasing or otherwise acquiring the securities of another investment company, except as permitted by that section. In addition, section 12(d)(1)(C) prohibits any investment company from purchasing or otherwise acquiring any security issued by a registered closed-end investment company if the acquiring company (and any affiliated investment companies) would own more than 10% of the voting stock of the closed-end investment company. 2. Because applicant will acquire all of the capital stock of Newco, may make loans or advances to it, and may guarantee its indebtedness (which also could be considered as the acquisition of its debt securities), applicant requests an exemption from section 12(d)(1). Applicant asserts that its acquisition of Newco's securities will not compromise the objectives of section 12 or harm the public interest because it has agreed that it will exercise its rights as the shareholder of Newco on matters requiring shareholder approval only as directed by its shareholders. Accordingly, applicant believes that the relationship of its shareholders to Newco's activities will be no different than if it were to carry out such activities directly. 3. Sections 18(a) and 61(a). Section 18(a) of the Act prohibits a closed-end investment company from issuing any class of senior security unless the company complies with the asset coverage requirements set forth in the section. ``Asset coverage'' is defined in section 18(h) as the ratio that the value of the total assets of an issuer, less all liabilities not represented by senior securities, bears to the aggregate amount of senior securities of such issuer. Section 61 applies section 18, with certain modifications, to a BDC. 4. Applicant is a BDC, and Newco is a closed-end investment company. Both will be subject to the asset coverage requirements of section 18(a) on an individual basis, although these requirements are modified by section 61(a) with respect to applicant as a BDC. Applicant also is subject to the asset coverage requirements of section 18(a) on a consolidated basis because it may be an indirect issuer of senior securities with respect to any indebtedness of Newco. Accordingly, applicant would be required to treat as its own all assets held directly by itself and Newco (with the value of its investment in Newco eliminated). Applicant also would be required to treat as its own any liabilities of Newco (with intercompany receivables and liabilities eliminated), including liabilities of Newco in respect of senior securities. 5. Applicant seeks an exemption from sections 18(a) and 61(a) to permit the issuance of senior securities as described in the application. Applicant submits that, absent an exemption from the consolidated asset coverage requirements of sections 18(a) as modified by section 61(a), its ability to obtain financing would be restricted. Applicant believes that such an exemption is in the public interest because Newco's activities will in all material respects have the same economic effect with respect to applicant's shareholders as if applicant had engaged in them directly. 6. Section 19(b). Section 19(b) of the Act prohibits any investment company from distributing long-term capital gains more than once every 12 months. Because the warrants held as collateral for funds borrowed under the credit facility may be released from the collateral pool upon repayment of the small business loan related thereto, Newco would be free to transfer any such warrant to applicant or sell it to a third party, thereby potentially realizing a long-term capital gain. Applicant asserts that it and Newco effectively will be one company, and that no purpose would be served by limiting distributions from Newco to one per year. Applicant also submits that more frequent distributions would permit it to more efficiently manage its internal cash flow, resulting in administrative cost savings and, thus, a benefit to its shareholders. Accordingly, applicant seeks an exemption from section 19(b). 7. Section 6(c). Section 6(c) permits the SEC to exempt any person or transaction from any provision of the Act, if 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 of the Act. The relationship of applicant's shareholders to the activities to be carried out by Newco will be no different than if such activities were carried out by applicant because (a) Newco will be a wholly-owned subsidiary of applicant, and (b) applicant has agreed that it will exercise its rights as the shareholder of Newco [[Page 65254]] on matters required by the Act to be approved by shareholders only as directed by its shareholders. Accordingly, applicant believes that the requested exemptions meet the section 6(c) standards. Applicant's Conditions Applicant agrees that any exemptive relief granted will be subject to the following conditions: 1. Applicant at all times will own and hold, beneficially and of record, all of the outstanding voting capital stock of Newco. 2. Applicant will not cause or permit Newco to change any of its fundamental investment policies, or take any other action referred to in section 13(a) of the Act, unless such action shall have been authorized by applicant after approval of such action by a vote of a majority of applicant's outstanding voting securities. 3. No person shall serve or act as investment adviser to Newco under circumstances subject to section 15 of the Act unless applicant's directors and shareholders shall have taken the action with respect thereto also required to be taken by Newco's directors and shareholders. 4. Newco shall have two directors who are not directors of applicant as long as a majority of its board of directors consists of directors who are also directors of applicant. Notwithstanding the foregoing, the board of directors of Newco will be elected by applicant as the sole shareholder of Newco, and such board will be composed of the same persons that serve as directors of applicant except to the extent noted above. 5. Applicant will not itself issue, and will not cause or permit Newco to issue, any senior security or sell any senior security of which applicant or Newco is the issuer except as hereinafter set forth: (a) applicant and Newco may issue and sell to banks, insurance companies, and other financial institutions their secured or unsecured promissory notes or other evidences of indebtedness in consideration of any loan, or any extension or renewal thereof made by private arrangement, provided the following conditions are met: (i) such notes or evidences of indebtedness are not intended to be publicly distributed, (ii) such notes or evidences of indebtedness are not convertible into, exchangeable for, or accompanied by any options to acquire any equity security (except that, with respect to applicant, the restrictions in this clause (ii) shall not be applicable except to the extent they are applicable generally to BDCs), and (iii) immediately after the issuance or sale of any such notes or evidence of indebtedness by either applicant or Newco, applicant and Newco, on a consolidated basis, and applicant individually, shall have the asset coverage that would be required by section 18(a) if applicant and Newco each had elected to become a BDC pursuant to section 54 of the Act; and (b) in addition, Newco may borrow from applicant. None of the borrowings set forth in clause (b) above shall be deemed senior securities for purposes of any order issued pursuant to the application. 6. Applicant will file with the SEC the financial statements required by the federal securities laws on a consolidated basis as to applicant and Newco. Applicant will provide to its shareholders financial statements on a consolidated basis as to applicant and Newco, except when unconsolidated financial statements are required under generally accepted accounting principles. For the Commission, by the Division of Investment Management, pursuant to delegated authority. Margaret H. McFarland, Deputy Secretary. [FR Doc. 96-31396 Filed 12-10-96; 8:45 am] BILLING CODE 8010-01-M