83_FR_46400 83 FR 46223 - Investment Company Act Release No. 33220; 812-14928 Broadstone Real Estate Access Fund and Broadstone Asset Management, LLC

83 FR 46223 - Investment Company Act Release No. 33220; 812-14928 Broadstone Real Estate Access Fund and Broadstone Asset Management, LLC

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 83, Issue 177 (September 12, 2018)

Page Range46223-46225
FR Document2018-19837

Federal Register, Volume 83 Issue 177 (Wednesday, September 12, 2018)
[Federal Register Volume 83, Number 177 (Wednesday, September 12, 2018)]
[Notices]
[Pages 46223-46225]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-19837]



[[Page 46223]]

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SECURITIES AND EXCHANGE COMMISSION


Investment Company Act Release No. 33220; 812-14928 Broadstone 
Real Estate Access Fund and Broadstone Asset Management, LLC

September 7, 2018.
    Notice of an application under section 6(c) of the Investment 
Company Act of 1940 (the ``Act'') for an exemption from sections 
18(a)(2), 18(c) and 18(i) of the Act, under sections 6(c) and 23(c)(3) 
of the Act for an exemption from rule 23c-3 under the Act, and for an 
order pursuant to section 17(d) of the Act and rule 17d-1 under the 
Act.

Summary of Application: Applicants request an order to permit certain 
registered closed-end management investment companies to issue multiple 
classes of shares and to impose asset-based distribution and/or service 
fees, early withdrawal charges (``Early Withdrawal Charges''), and 
early repurchase fees.

Applicants: Broadstone Real Estate Access Fund (the ``Initial Fund''), 
and Broadstone Asset Management, LLC (the ``Adviser'').

Filing Dates: The application was filed on July 11, 2018. Applicants 
have agreed to file an amendment during the notice period, the 
substance of which is reflected in this notice.

Hearing or Notification of Hearing: An order granting the requested 
relief will be issued unless the Commission orders a hearing. 
Interested persons may request a hearing by writing to the Commission's 
Secretary and serving applicants with a copy of the request, personally 
or by mail. Hearing requests should be received by the Commission by 
5:30 p.m. on September 27, 2018, and should be accompanied by proof of 
service on the applicants, in the form of an affidavit, or, for 
lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, 
hearing requests should state the nature of the writer's interest, any 
facts bearing upon the desirability of a hearing on the matter, the 
reason for the request, and the issues contested. Persons who wish to 
be notified of a hearing may request notification by writing to the 
Commission's Secretary.

Addresses: Secretary, U.S. Securities and Exchange Commission, 100 F 
Street NE, Washington, DC 20549-1090; Applicants: Broadstone Asset 
Management, Inc., 800 Clinton Square, Rochester, NY 14604.

For Further Information Contact: Stephan N. Packs, Senior Counsel, at 
(202) 551-6853, or David J. Marcinkus, Branch Chief, at (202) 551-6821 
(Division of Investment Management, Chief Counsel's Office).

Supplementary Information: The following is a summary of the 
application. The complete application may be obtained via the 
Commission's website by searching for the file number, or for an 
applicant using the Company name box, at http://www.sec.gov/search/search.htm or by calling (202) 551-8090.

Applicants' Representations

    1. The Initial Fund is a newly-formed Delaware statutory trust that 
is registered under the Act as a continuously offered, non-diversified, 
closed-end management investment company.
    2. The Adviser, a New York limited liability company, is registered 
as an investment adviser under the Investment Advisers Act of 1940. The 
Adviser serves as investment adviser to the Initial Fund.
    3. The applicants seek an order to permit the Funds (as defined 
below) to issue multiple classes of shares, each having its own fee and 
expense structure and to impose Early Withdrawal Charges, asset-based 
distribution and/or service fees with respect to certain classes.
    4. Applicants request that the order also apply to any 
continuously-offered registered closed-end management investment 
company, existing now or in the future, for which the Adviser, or any 
entity controlling, controlled by, or under common control with the 
Adviser, or any successor in interest to any such entity,\1\ acts as 
investment adviser and which operates as an interval fund pursuant to 
rule 23c-3 under the Act or provides periodic liquidity with respect to 
its shares pursuant to rule 13e-4 under the Securities Exchange Act of 
1934 (``Exchange Act'') (each, a ``Future Fund'' and together with the 
Initial Fund, the ``Funds'').\2\
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    \1\ A successor in interest is limited to an entity that results 
from a reorganization into another jurisdiction or a change in the 
type of business organization.
    \2\ Any Fund relying on this relief in the future will do so in 
a manner consistent with the terms and conditions of the 
application. Applicants represent that each entity presently 
intending to rely on the requested relief is listed as an applicant.
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    5. The Initial Fund intends to make a continuous public offering of 
its shares upon a declaration of effectiveness of its registration 
statement. Applicants state that additional offerings by any Fund 
relying on the order may be on a private placement or public offering 
basis. Shares of the Funds are not expected to be listed on any 
securities exchange nor quoted on any quotation medium and the Funds do 
not expect there to be a secondary trading market for their shares.
    6. If the requested relief is granted, the Initial Fund intends to 
continuously offer Class W Shares and Class I Shares, with each class 
having its own fee and expense structure. Because of the different 
distribution fees, services, and any other class expenses that may be 
attributable to the Class W and Class I Shares, the net income 
attributable to, and the dividends payable on, each class of shares may 
differ from each other.
    7. Applicants state that, from time to time, the Initial Fund may 
create additional classes of shares, the terms of which may differ from 
Class W and Class I Shares in the following respects: (i) The amount of 
fees permitted by different distribution plans or different service fee 
arrangements; (ii) voting rights with respect to a distribution plan of 
a class; (iii) different class designations; (iv) the impact of any 
class expenses directly attributable to a particular class of shares 
allocated on a class basis as described in the application; (v) any 
differences in dividends and net asset value resulting from differences 
in fees under a distribution plan or in class expenses; (vi) any Early 
Withdrawal Charge or other sales load structure; and (vii) exchange or 
conversion privileges of the classes as permitted under the Act.
    8. Applicants state that the Initial Fund has adopted a fundamental 
policy to repurchase a specified percentage of its shares (no less than 
5% and no more than 25%) at net asset value on a quarterly basis. Such 
repurchase offers will be conducted pursuant to rule 23c-3 under the 
Act. Each of the other Funds will likewise adopt fundamental investment 
policies in compliance with rule 23c-3 and make quarterly repurchase 
offers to its shareholders, or provide periodic liquidity with respect 
to its shares pursuant to rule 13e-4 under the Exchange Act.\3\ Any 
repurchase offers made by the Funds will be made to all holders of 
shares of each such Fund.
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    \3\ Applicants submit that rule 23c-3 and Regulation M under the 
Exchange Act permit an interval fund to make repurchase offers to 
repurchase its shares while engaging in a continuous offering of its 
shares pursuant to Rule 415 under the Securities Act of 1933, as 
amended.
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    9. Applicants represent that any asset-based service and/or 
distribution fees for each class of shares of the Funds will comply 
with the provisions of FINRA Rule 2341 (``FINRA Sales Charge

[[Page 46224]]

Rule'').\4\ Applicants also represent that each Fund will disclose in 
its prospectus the fees, expenses and other characteristics of each 
class of shares offered for sale by the prospectus, as is required for 
open-end multiple class funds under Form N-1A.\5\ As is required for 
open-end funds, each Fund will disclose its expenses in shareholder 
reports, and describe any arrangements that result in breakpoints in or 
elimination of sales loads in its prospectus.\6\ In addition, 
applicants will comply with applicable enhanced fee disclosure 
requirements for fund of funds, including registered funds of hedge 
funds.\7\
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    \4\ Any reference in the application to the FINRA Sales Charge 
Rule includes any successor or replacement to the FINRA Sales Charge 
Rule.
    \5\ In all respects other than class by class disclosure, each 
Fund will comply with the requirements of Form N-2.
    \6\ See Shareholder Reports and Quarterly Portfolio Disclosure 
of Registered Management Investment Companies, Investment Company 
Act Release No. 26372 (Feb. 27, 2004) (adopting release) (requiring 
open-end investment companies to disclose fund expenses in 
shareholder reports); and Disclosure of Breakpoint Discounts by 
Mutual Funds, Investment Company Act Release No. 26464 (June 7, 
2004) (adopting release) (requiring open-end investment companies to 
provide prospectus disclosure of certain sales load information).
    \7\ Fund of Funds Investments, Investment Company Act Rel. Nos. 
26198 (Oct. 1, 2003) (proposing release) and 27399 (Jun. 20, 2006) 
(adopting release). See also Rules 12d1-1, et seq. of the Act.
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    10. Each of the Funds will comply with any requirements that the 
Commission or FINRA may adopt regarding disclosure at the point of sale 
and in transaction confirmations about the costs and conflicts of 
interest arising out of the distribution of open-end investment company 
shares, and regarding prospectus disclosure of sales loads and revenue 
sharing arrangements, as if those requirements applied to the Fund. In 
addition, each Fund will contractually require that any distributor of 
the Fund's shares comply with such requirements in connection with the 
distribution of such Fund's shares.
    11. Each Fund will allocate all expenses incurred by it among the 
various classes of shares based on the net assets of the Fund 
attributable to each class, except that the net asset value and 
expenses of each class will reflect the expenses associated with the 
distribution plan of that class, service fees, and any other 
incremental expenses of that class. Expenses of a Fund allocated to a 
particular class of shares will be borne on a pro rata basis by each 
outstanding share of that class. Applicants state that each Fund will 
comply with the provisions of rule 18f-3 under the Act as if it were an 
open-end investment company.
    12. Applicants state that each Fund may impose an Early Withdrawal 
Charge on shares submitted for repurchase that have been held less than 
a specified period and may waive the Early Withdrawal Charge for 
certain categories of shareholders or transactions to be established 
from time to time. Applicants state that each Fund will apply the Early 
Withdrawal Charge (and any waivers or scheduled variations of the Early 
Withdrawal Charge) uniformly to all shareholders in a given class and 
consistently with the requirements of rule 22d-1 under the Act as if 
the Funds were open-end investment companies.
    13. Applicants state that shares of a Fund may be subject to an 
early repurchase fee (``Early Repurchase Fee'') at a rate of no greater 
than 2% of the aggregate net asset value of a shareholder's shares 
repurchased by the Fund if the interval between the date of purchase of 
the shares and the valuation date with respect to the repurchase of 
those shares is less than 90 days. Any Early Repurchase Fees will apply 
equally to all classes of shares of a Fund, consistent with section 18 
of the Act and rule 18f-3 thereunder. To the extent a Fund determines 
to waive, impose scheduled variations of, or eliminate any Early 
Repurchase Fee, it will do so consistently with the requirements of 
rule 22d-1 under the Act as if the Early Repurchase Fee were a 
contingent deferred sales load (defined below) and as if the Fund were 
an open-end investment company and the Fund's waiver of, scheduled 
variation in, or elimination of, any such Early Repurchase Fee will 
apply uniformly to all shareholders of the Fund regardless of class. 
Applicants state that the Initial Funds do not intend to impose an 
Early Repurchase Fee.
    14. Each Fund operating as an interval fund pursuant to rule 23c-3 
under the Act may offer its shareholders an exchange feature under 
which the shareholders of the Fund may, in connection with the Fund's 
periodic repurchase offers, exchange their shares of the Fund for 
shares of the same class of (i) registered open-end investment 
companies or (ii) other registered closed-end investment companies that 
comply with rule 23c-3 under the Act and continuously offer their 
shares at net asset value, that are in the Fund's group of investment 
companies (collectively, ``Other Funds''). Shares of a Fund operating 
pursuant to rule 23c-3 that are exchanged for shares of Other Funds 
will be included as part of the amount of the repurchase offer amount 
for such Fund as specified in rule 23c-3 under the Act. Any exchange 
option will comply with rule 11a-3 under the Act, as if the Fund were 
an open-end investment company subject to rule 11a-3. In complying with 
rule 11a-3, each Fund will treat an Early Withdrawal Charge as if it 
were a contingent deferred sales load.
    Applicants' Legal Analysis:

Multiple Classes of Shares

    1. Section 18(a)(2) of the Act provides that a closed-end 
investment company may not issue or sell a senior security that is a 
stock unless certain requirements are met. Applicants state that the 
creation of multiple classes of shares of the Funds may violate section 
18(a)(2) because the Funds may not meet such requirements with respect 
to a class of shares that may be a senior security.
    2. Section 18(c) of the Act provides, in relevant part, that a 
closed-end investment company may not issue or sell any senior security 
if, immediately thereafter, the company has outstanding more than one 
class of senior security. Applicants state that the creation of 
multiple classes of shares of the Funds may be prohibited by section 
18(c), as a class may have priority over another class as to payment of 
dividends because shareholders of different classes would pay different 
fees and expenses.
    3. Section 18(i) of the Act provides that each share of stock 
issued by a registered management investment company will be a voting 
stock and have equal voting rights with every other outstanding voting 
stock. Applicants state that multiple classes of shares of the Funds 
may violate section 18(i) of the Act because each class would be 
entitled to exclusive voting rights with respect to matters solely 
related to that class.
    4. Section 6(c) of the Act provides that the Commission may exempt 
any person, security or transaction or any class or classes of persons, 
securities or transactions from any provision of the Act, or from any 
rule or regulation under the Act, if and to the extent 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 and provisions of the Act. Applicants request an exemption under 
section 6(c) from sections 18(a)(2), 18(c) and 18(i) to permit the 
Funds to issue multiple classes of shares.
    5. Applicants submit that the proposed allocation of expenses 
relating to distribution and/or services and voting rights among 
multiple classes is equitable and will not discriminate

[[Page 46225]]

against any group or class of shareholders. Applicants submit that the 
proposed arrangements would permit a Fund to facilitate the 
distribution of its shares and provide investors with a broader choice 
of shareholder services. Applicants assert that the proposed closed-end 
investment company multiple class structure does not raise the concerns 
underlying section 18 of the Act to any greater degree than open-end 
investment companies' multiple class structures that are permitted by 
rule 18f-3 under the Act. Applicants state that each Fund will comply 
with the provisions of rule 18f-3 as if it were an open-end investment 
company.

Early Withdrawal Charges

    1. Section 23(c) of the Act provides, in relevant part, that no 
registered closed-end investment company shall purchase securities of 
which it is the issuer, except: (a) On a securities exchange or other 
open market; (b) pursuant to tenders, after reasonable opportunity to 
submit tenders given to all holders of securities of the class to be 
purchased; or (c) under other circumstances as the Commission may 
permit by rules and regulations or orders for the protection of 
investors.
    2. Rule 23c-3 under the Act permits a registered closed-end 
investment company (an ``interval fund'') to make repurchase offers of 
between five and twenty-five percent of its outstanding shares at net 
asset value at periodic intervals pursuant to a fundamental policy of 
the interval fund. Rule 23c-3(b)(1) under the Act permits an interval 
fund to deduct from repurchase proceeds only a repurchase fee, not to 
exceed two percent of the proceeds, that is paid to the interval fund 
and is reasonably intended to compensate the fund for expenses directly 
related to the repurchase. A Fund will not impose a repurchase fee on 
investors who purchase and tender their shares.
    3. Section 23(c)(3) provides that the Commission may issue an order 
that would permit a closed-end investment company to repurchase its 
shares in circumstances in which the repurchase is made in a manner or 
on a basis that does not unfairly discriminate against any holders of 
the class or classes of securities to be purchased.
    4. Applicants request relief under section 6(c), discussed above, 
and section 23(c)(3) from rule 23c-3 to the extent necessary for the 
Funds to impose Early Withdrawal Charge on shares of the Funds 
submitted for repurchase that have been held for less than a specified 
period.
    5. Applicants state that the Early Withdrawal Charges they intend 
to impose are functionally similar to contingent deferred sales loads 
imposed by open-end investment companies under rule 6c-10 under the 
Act. Rule 6c-10 permits open-end investment companies to impose 
contingent deferred sales loads, subject to certain conditions. 
Applicants note that rule 6c-10 is grounded in policy considerations 
supporting the employment of contingent deferred sales loads where 
there are adequate safeguards for the investor and state that the same 
policy considerations support imposition of Early Withdrawal Charges in 
the interval fund context. In addition, applicants state that Early 
Withdrawal Charges may be necessary for the distributor to recover 
distribution costs. Applicants represent that any Early Withdrawal 
Charge imposed by the Funds will comply with rule 6c-10 under the Act 
as if the rule were applicable to closed-end investment companies. The 
Funds will disclose Early Withdrawal Charges in accordance with the 
requirements of Form N-1A concerning contingent deferred sales loads.

Asset-Based Distribution and/or Service Fees

    1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit 
an affiliated person of a registered investment company, or an 
affiliated person of such person, acting as principal, from 
participating in or effecting any transaction in connection with any 
joint enterprise or joint arrangement in which the investment company 
participates unless the Commission issues an order permitting the 
transaction. In reviewing applications submitted under section 17(d) 
and rule 17d-1, the Commission considers whether the participation of 
the investment company in a joint enterprise or joint arrangement is 
consistent with the provisions, policies and purposes of the Act, and 
the extent to which the participation is on a basis different from or 
less advantageous than that of other participants.
    2. Rule 17d-3 under the Act provides an exemption from section 
17(d) and rule 17d-1 to permit open-end investment companies to enter 
into distribution arrangements pursuant to rule 12b-1 under the Act. 
Applicants request an order under section 17(d) and rule 17d-1 under 
the Act to the extent necessary to permit the Fund to impose asset-
based distribution and/or service fees. Applicants have agreed to 
comply with rules 12b-1 and 17d-3 as if those rules applied to closed-
end investment companies, which they believe will resolve any concerns 
that might arise in connection with a Fund financing the distribution 
of its shares through asset-based distribution and/or service fees.
    For the reasons stated above, applicants submit that the exemptions 
requested under section 6(c) are necessary and appropriate in the 
public interest and are consistent with the protection of investors and 
the purposes fairly intended by the policy and provisions of the Act. 
Applicants further submit that the relief requested pursuant to section 
23(c)(3) will be consistent with the protection of investors and will 
insure that applicants do not unfairly discriminate against any holders 
of the class of securities to be purchased. Finally, applicants state 
that the Funds' imposition of asset-based distribution and/or service 
fees is consistent with the provisions, policies and purposes of the 
Act and does not involve participation on a basis different from or 
less advantageous than that of other participants.
    Applicants' Condition:
    Applicants agree that any order granting the requested relief will 
be subject to the following condition:
    Each Fund relying on the order will comply with the provisions of 
rules 6c-10, 12b-1, 17d-3, 18f-3, 22d-1, and, where applicable, 11a-3 
under the Act, as amended from time to time, as if those rules applied 
to closed-end management investment companies, and will comply with the 
FINRA Sales Charge Rule, as amended from time to time, as if that rule 
applied to all closed-end management investment companies.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-19837 Filed 9-11-18; 8:45 am]
 BILLING CODE 8011-01-P



                                                                       Federal Register / Vol. 83, No. 177 / Wednesday, September 12, 2018 / Notices                                                      46223

                                               SECURITIES AND EXCHANGE                                 (Division of Investment Management,                      quoted on any quotation medium and
                                               COMMISSION                                              Chief Counsel’s Office).                                 the Funds do not expect there to be a
                                                                                                       SUPPLEMENTARY INFORMATION: The                           secondary trading market for their
                                               Investment Company Act Release No.                      following is a summary of the                            shares.
                                               33220; 812–14928 Broadstone Real                        application. The complete application                       6. If the requested relief is granted, the
                                               Estate Access Fund and Broadstone                       may be obtained via the Commission’s                     Initial Fund intends to continuously
                                               Asset Management, LLC                                   website by searching for the file                        offer Class W Shares and Class I Shares,
                                               September 7, 2018.                                      number, or for an applicant using the                    with each class having its own fee and
                                                  Notice of an application under section               Company name box, at http://                             expense structure. Because of the
                                               6(c) of the Investment Company Act of                   www.sec.gov/search/search.htm or by                      different distribution fees, services, and
                                               1940 (the ‘‘Act’’) for an exemption from                calling (202) 551–8090.                                  any other class expenses that may be
                                               sections 18(a)(2), 18(c) and 18(i) of the               Applicants’ Representations                              attributable to the Class W and Class I
                                               Act, under sections 6(c) and 23(c)(3) of                                                                         Shares, the net income attributable to,
                                                                                                          1. The Initial Fund is a newly-formed                 and the dividends payable on, each
                                               the Act for an exemption from rule
                                                                                                       Delaware statutory trust that is                         class of shares may differ from each
                                               23c–3 under the Act, and for an order
                                                                                                       registered under the Act as a                            other.
                                               pursuant to section 17(d) of the Act and
                                                                                                       continuously offered, non-diversified,
                                               rule 17d–1 under the Act.                                                                                           7. Applicants state that, from time to
                                                                                                       closed-end management investment
                                               SUMMARY OF APPLICATION: Applicants
                                                                                                       company.                                                 time, the Initial Fund may create
                                               request an order to permit certain                         2. The Adviser, a New York limited                    additional classes of shares, the terms of
                                               registered closed-end management                        liability company, is registered as an                   which may differ from Class W and
                                               investment companies to issue multiple                  investment adviser under the                             Class I Shares in the following respects:
                                               classes of shares and to impose asset-                  Investment Advisers Act of 1940. The                     (i) The amount of fees permitted by
                                               based distribution and/or service fees,                 Adviser serves as investment adviser to                  different distribution plans or different
                                               early withdrawal charges (‘‘Early                       the Initial Fund.                                        service fee arrangements; (ii) voting
                                               Withdrawal Charges’’), and early                           3. The applicants seek an order to                    rights with respect to a distribution plan
                                               repurchase fees.                                        permit the Funds (as defined below) to                   of a class; (iii) different class
                                               APPLICANTS: Broadstone Real Estate                      issue multiple classes of shares, each                   designations; (iv) the impact of any class
                                               Access Fund (the ‘‘Initial Fund’’), and                 having its own fee and expense                           expenses directly attributable to a
                                               Broadstone Asset Management, LLC (the                   structure and to impose Early                            particular class of shares allocated on a
                                               ‘‘Adviser’’).                                           Withdrawal Charges, asset-based                          class basis as described in the
                                               FILING DATES: The application was filed                 distribution and/or service fees with                    application; (v) any differences in
                                               on July 11, 2018. Applicants have                       respect to certain classes.                              dividends and net asset value resulting
                                               agreed to file an amendment during the                     4. Applicants request that the order                  from differences in fees under a
                                               notice period, the substance of which is                also apply to any continuously-offered                   distribution plan or in class expenses;
                                               reflected in this notice.                               registered closed-end management                         (vi) any Early Withdrawal Charge or
                                               HEARING OR NOTIFICATION OF HEARING: An                  investment company, existing now or in                   other sales load structure; and (vii)
                                               order granting the requested relief will                the future, for which the Adviser, or any                exchange or conversion privileges of the
                                               be issued unless the Commission orders                  entity controlling, controlled by, or                    classes as permitted under the Act.
                                               a hearing. Interested persons may                       under common control with the                               8. Applicants state that the Initial
                                               request a hearing by writing to the                     Adviser, or any successor in interest to                 Fund has adopted a fundamental policy
                                               Commission’s Secretary and serving                      any such entity,1 acts as investment                     to repurchase a specified percentage of
                                               applicants with a copy of the request,                  adviser and which operates as an                         its shares (no less than 5% and no more
                                               personally or by mail. Hearing requests                 interval fund pursuant to rule 23c–3                     than 25%) at net asset value on a
                                               should be received by the Commission                    under the Act or provides periodic                       quarterly basis. Such repurchase offers
                                               by 5:30 p.m. on September 27, 2018,                     liquidity with respect to its shares                     will be conducted pursuant to rule
                                               and should be accompanied by proof of                   pursuant to rule 13e–4 under the                         23c–3 under the Act. Each of the other
                                               service on the applicants, in the form of               Securities Exchange Act of 1934                          Funds will likewise adopt fundamental
                                               an affidavit, or, for lawyers, a certificate            (‘‘Exchange Act’’) (each, a ‘‘Future                     investment policies in compliance with
                                               of service. Pursuant to rule 0–5 under                  Fund’’ and together with the Initial                     rule 23c–3 and make quarterly
                                               the Act, hearing requests should state                  Fund, the ‘‘Funds’’).2                                   repurchase offers to its shareholders, or
                                               the nature of the writer’s interest, any                   5. The Initial Fund intends to make a                 provide periodic liquidity with respect
                                               facts bearing upon the desirability of a                continuous public offering of its shares                 to its shares pursuant to rule 13e–4
                                               hearing on the matter, the reason for the               upon a declaration of effectiveness of its               under the Exchange Act.3 Any
                                               request, and the issues contested.                      registration statement. Applicants state                 repurchase offers made by the Funds
                                               Persons who wish to be notified of a                    that additional offerings by any Fund                    will be made to all holders of shares of
                                               hearing may request notification by                     relying on the order may be on a private                 each such Fund.
                                               writing to the Commission’s Secretary.                  placement or public offering basis.                         9. Applicants represent that any asset-
                                               ADDRESSES: Secretary, U.S. Securities                   Shares of the Funds are not expected to                  based service and/or distribution fees
                                               and Exchange Commission, 100 F Street                   be listed on any securities exchange nor                 for each class of shares of the Funds will
                                               NE, Washington, DC 20549–1090;                                                                                   comply with the provisions of FINRA
daltland on DSKBBV9HB2PROD with NOTICES




                                                                                                         1 A successor in interest is limited to an entity
                                               Applicants: Broadstone Asset                            that results from a reorganization into another
                                                                                                                                                                Rule 2341 (‘‘FINRA Sales Charge
                                               Management, Inc., 800 Clinton Square,                   jurisdiction or a change in the type of business
                                               Rochester, NY 14604.                                    organization.                                              3 Applicants submit that rule 23c–3 and
                                                                                                         2 Any Fund relying on this relief in the future will   Regulation M under the Exchange Act permit an
                                               FOR FURTHER INFORMATION CONTACT:
                                                                                                       do so in a manner consistent with the terms and          interval fund to make repurchase offers to
                                               Stephan N. Packs, Senior Counsel, at                    conditions of the application. Applicants represent      repurchase its shares while engaging in a
                                               (202) 551–6853, or David J. Marcinkus,                  that each entity presently intending to rely on the      continuous offering of its shares pursuant to Rule
                                               Branch Chief, at (202) 551–6821                         requested relief is listed as an applicant.              415 under the Securities Act of 1933, as amended.



                                          VerDate Sep<11>2014   18:41 Sep 11, 2018   Jkt 244001   PO 00000   Frm 00088   Fmt 4703   Sfmt 4703   E:\FR\FM\12SEN1.SGM     12SEN1


                                               46224                    Federal Register / Vol. 83, No. 177 / Wednesday, September 12, 2018 / Notices

                                               Rule’’).4 Applicants also represent that                18f–3 under the Act as if it were an                  for such Fund as specified in rule 23c–
                                               each Fund will disclose in its                          open-end investment company.                          3 under the Act. Any exchange option
                                               prospectus the fees, expenses and other                    12. Applicants state that each Fund                will comply with rule 11a–3 under the
                                               characteristics of each class of shares                 may impose an Early Withdrawal                        Act, as if the Fund were an open-end
                                               offered for sale by the prospectus, as is               Charge on shares submitted for                        investment company subject to rule
                                               required for open-end multiple class                    repurchase that have been held less than              11a–3. In complying with rule 11a–3,
                                               funds under Form N–1A.5 As is                           a specified period and may waive the                  each Fund will treat an Early
                                               required for open-end funds, each Fund                  Early Withdrawal Charge for certain                   Withdrawal Charge as if it were a
                                               will disclose its expenses in shareholder               categories of shareholders or                         contingent deferred sales load.
                                               reports, and describe any arrangements                  transactions to be established from time                Applicants’ Legal Analysis:
                                               that result in breakpoints in or                        to time. Applicants state that each Fund
                                                                                                                                                             Multiple Classes of Shares
                                               elimination of sales loads in its                       will apply the Early Withdrawal Charge
                                               prospectus.6 In addition, applicants will               (and any waivers or scheduled                            1. Section 18(a)(2) of the Act provides
                                               comply with applicable enhanced fee                     variations of the Early Withdrawal                    that a closed-end investment company
                                               disclosure requirements for fund of                     Charge) uniformly to all shareholders in              may not issue or sell a senior security
                                               funds, including registered funds of                    a given class and consistently with the               that is a stock unless certain
                                               hedge funds.7                                           requirements of rule 22d–1 under the                  requirements are met. Applicants state
                                                  10. Each of the Funds will comply                    Act as if the Funds were open-end                     that the creation of multiple classes of
                                               with any requirements that the                          investment companies.                                 shares of the Funds may violate section
                                               Commission or FINRA may adopt                              13. Applicants state that shares of a              18(a)(2) because the Funds may not
                                               regarding disclosure at the point of sale               Fund may be subject to an early                       meet such requirements with respect to
                                                                                                       repurchase fee (‘‘Early Repurchase Fee’’)             a class of shares that may be a senior
                                               and in transaction confirmations about
                                                                                                       at a rate of no greater than 2% of the                security.
                                               the costs and conflicts of interest arising
                                                                                                       aggregate net asset value of a                           2. Section 18(c) of the Act provides,
                                               out of the distribution of open-end                                                                           in relevant part, that a closed-end
                                               investment company shares, and                          shareholder’s shares repurchased by the
                                                                                                       Fund if the interval between the date of              investment company may not issue or
                                               regarding prospectus disclosure of sales                                                                      sell any senior security if, immediately
                                               loads and revenue sharing                               purchase of the shares and the valuation
                                                                                                       date with respect to the repurchase of                thereafter, the company has outstanding
                                               arrangements, as if those requirements                                                                        more than one class of senior security.
                                               applied to the Fund. In addition, each                  those shares is less than 90 days. Any
                                                                                                       Early Repurchase Fees will apply                      Applicants state that the creation of
                                               Fund will contractually require that any                                                                      multiple classes of shares of the Funds
                                               distributor of the Fund’s shares comply                 equally to all classes of shares of a
                                                                                                       Fund, consistent with section 18 of the               may be prohibited by section 18(c), as
                                               with such requirements in connection                                                                          a class may have priority over another
                                                                                                       Act and rule 18f–3 thereunder. To the
                                               with the distribution of such Fund’s                                                                          class as to payment of dividends
                                                                                                       extent a Fund determines to waive,
                                               shares.                                                                                                       because shareholders of different classes
                                                                                                       impose scheduled variations of, or
                                                  11. Each Fund will allocate all                                                                            would pay different fees and expenses.
                                                                                                       eliminate any Early Repurchase Fee, it
                                               expenses incurred by it among the                                                                                3. Section 18(i) of the Act provides
                                                                                                       will do so consistently with the
                                               various classes of shares based on the                                                                        that each share of stock issued by a
                                                                                                       requirements of rule 22d–1 under the
                                               net assets of the Fund attributable to                                                                        registered management investment
                                                                                                       Act as if the Early Repurchase Fee were
                                               each class, except that the net asset                                                                         company will be a voting stock and
                                                                                                       a contingent deferred sales load (defined
                                               value and expenses of each class will                                                                         have equal voting rights with every
                                                                                                       below) and as if the Fund were an open-
                                               reflect the expenses associated with the                end investment company and the                        other outstanding voting stock.
                                               distribution plan of that class, service                Fund’s waiver of, scheduled variation                 Applicants state that multiple classes of
                                               fees, and any other incremental                         in, or elimination of, any such Early                 shares of the Funds may violate section
                                               expenses of that class. Expenses of a                   Repurchase Fee will apply uniformly to                18(i) of the Act because each class
                                               Fund allocated to a particular class of                 all shareholders of the Fund regardless               would be entitled to exclusive voting
                                               shares will be borne on a pro rata basis                of class. Applicants state that the Initial           rights with respect to matters solely
                                               by each outstanding share of that class.                Funds do not intend to impose an Early                related to that class.
                                               Applicants state that each Fund will                    Repurchase Fee.                                          4. Section 6(c) of the Act provides that
                                               comply with the provisions of rule                         14. Each Fund operating as an interval             the Commission may exempt any
                                                                                                       fund pursuant to rule 23c–3 under the                 person, security or transaction or any
                                                 4 Any reference in the application to the FINRA
                                                                                                       Act may offer its shareholders an                     class or classes of persons, securities or
                                               Sales Charge Rule includes any successor or
                                               replacement to the FINRA Sales Charge Rule.
                                                                                                       exchange feature under which the                      transactions from any provision of the
                                                 5 In all respects other than class by class           shareholders of the Fund may, in                      Act, or from any rule or regulation
                                               disclosure, each Fund will comply with the              connection with the Fund’s periodic                   under the Act, if and to the extent such
                                               requirements of Form N–2.                               repurchase offers, exchange their shares              exemption is necessary or appropriate
                                                 6 See Shareholder Reports and Quarterly Portfolio
                                                                                                       of the Fund for shares of the same class              in the public interest and consistent
                                               Disclosure of Registered Management Investment          of (i) registered open-end investment
                                               Companies, Investment Company Act Release No.
                                                                                                                                                             with the protection of investors and the
                                               26372 (Feb. 27, 2004) (adopting release) (requiring     companies or (ii) other registered                    purposes fairly intended by the policy
                                               open-end investment companies to disclose fund          closed-end investment companies that                  and provisions of the Act. Applicants
                                               expenses in shareholder reports); and Disclosure of     comply with rule 23c–3 under the Act                  request an exemption under section 6(c)
                                               Breakpoint Discounts by Mutual Funds, Investment        and continuously offer their shares at                from sections 18(a)(2), 18(c) and 18(i) to
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                                               Company Act Release No. 26464 (June 7, 2004)
                                               (adopting release) (requiring open-end investment       net asset value, that are in the Fund’s               permit the Funds to issue multiple
                                               companies to provide prospectus disclosure of           group of investment companies                         classes of shares.
                                               certain sales load information).                        (collectively, ‘‘Other Funds’’). Shares of               5. Applicants submit that the
                                                 7 Fund of Funds Investments, Investment
                                                                                                       a Fund operating pursuant to rule 23c–                proposed allocation of expenses relating
                                               Company Act Rel. Nos. 26198 (Oct. 1, 2003)
                                               (proposing release) and 27399 (Jun. 20, 2006)
                                                                                                       3 that are exchanged for shares of Other              to distribution and/or services and
                                               (adopting release). See also Rules 12d1–1, et seq. of   Funds will be included as part of the                 voting rights among multiple classes is
                                               the Act.                                                amount of the repurchase offer amount                 equitable and will not discriminate


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                                                                       Federal Register / Vol. 83, No. 177 / Wednesday, September 12, 2018 / Notices                                                 46225

                                               against any group or class of                             5. Applicants state that the Early                  companies, which they believe will
                                               shareholders. Applicants submit that                    Withdrawal Charges they intend to                     resolve any concerns that might arise in
                                               the proposed arrangements would                         impose are functionally similar to                    connection with a Fund financing the
                                               permit a Fund to facilitate the                         contingent deferred sales loads imposed               distribution of its shares through asset-
                                               distribution of its shares and provide                  by open-end investment companies                      based distribution and/or service fees.
                                               investors with a broader choice of                      under rule 6c–10 under the Act. Rule                     For the reasons stated above,
                                               shareholder services. Applicants assert                 6c–10 permits open-end investment                     applicants submit that the exemptions
                                               that the proposed closed-end                            companies to impose contingent                        requested under section 6(c) are
                                               investment company multiple class                       deferred sales loads, subject to certain              necessary and appropriate in the public
                                               structure does not raise the concerns                   conditions. Applicants note that rule                 interest and are consistent with the
                                               underlying section 18 of the Act to any                 6c–10 is grounded in policy                           protection of investors and the purposes
                                               greater degree than open-end                            considerations supporting the                         fairly intended by the policy and
                                               investment companies’ multiple class                    employment of contingent deferred                     provisions of the Act. Applicants further
                                               structures that are permitted by rule                   sales loads where there are adequate                  submit that the relief requested
                                               18f–3 under the Act. Applicants state                   safeguards for the investor and state that            pursuant to section 23(c)(3) will be
                                               that each Fund will comply with the                     the same policy considerations support                consistent with the protection of
                                               provisions of rule 18f–3 as if it were an               imposition of Early Withdrawal Charges                investors and will insure that applicants
                                               open-end investment company.                            in the interval fund context. In addition,            do not unfairly discriminate against any
                                                                                                       applicants state that Early Withdrawal                holders of the class of securities to be
                                               Early Withdrawal Charges                                Charges may be necessary for the                      purchased. Finally, applicants state that
                                                  1. Section 23(c) of the Act provides,                distributor to recover distribution costs.            the Funds’ imposition of asset-based
                                               in relevant part, that no registered                    Applicants represent that any Early                   distribution and/or service fees is
                                               closed-end investment company shall                     Withdrawal Charge imposed by the                      consistent with the provisions, policies
                                               purchase securities of which it is the                  Funds will comply with rule 6c–10                     and purposes of the Act and does not
                                               issuer, except: (a) On a securities                     under the Act as if the rule were                     involve participation on a basis different
                                               exchange or other open market; (b)                      applicable to closed-end investment                   from or less advantageous than that of
                                               pursuant to tenders, after reasonable                   companies. The Funds will disclose                    other participants.
                                               opportunity to submit tenders given to                  Early Withdrawal Charges in accordance                   Applicants’ Condition:
                                               all holders of securities of the class to               with the requirements of Form N–1A                       Applicants agree that any order
                                               be purchased; or (c) under other                        concerning contingent deferred sales                  granting the requested relief will be
                                               circumstances as the Commission may                     loads.                                                subject to the following condition:
                                               permit by rules and regulations or                      Asset-Based Distribution and/or Service                  Each Fund relying on the order will
                                               orders for the protection of investors.                 Fees                                                  comply with the provisions of rules
                                                  2. Rule 23c–3 under the Act permits                                                                        6c–10, 12b–1, 17d–3, 18f–3, 22d–1, and,
                                                                                                          1. Section 17(d) of the Act and rule
                                               a registered closed-end investment                                                                            where applicable, 11a–3 under the Act,
                                                                                                       17d–1 under the Act prohibit an
                                               company (an ‘‘interval fund’’) to make                                                                        as amended from time to time, as if
                                                                                                       affiliated person of a registered
                                               repurchase offers of between five and                                                                         those rules applied to closed-end
                                                                                                       investment company, or an affiliated
                                               twenty-five percent of its outstanding                                                                        management investment companies,
                                                                                                       person of such person, acting as
                                               shares at net asset value at periodic                   principal, from participating in or                   and will comply with the FINRA Sales
                                               intervals pursuant to a fundamental                     effecting any transaction in connection               Charge Rule, as amended from time to
                                               policy of the interval fund. Rule 23c–                  with any joint enterprise or joint                    time, as if that rule applied to all closed-
                                               3(b)(1) under the Act permits an interval               arrangement in which the investment                   end management investment
                                               fund to deduct from repurchase                          company participates unless the                       companies.
                                               proceeds only a repurchase fee, not to                  Commission issues an order permitting                   For the Commission, by the Division of
                                               exceed two percent of the proceeds, that                the transaction. In reviewing                         Investment Management, under delegated
                                               is paid to the interval fund and is                     applications submitted under section                  authority.
                                               reasonably intended to compensate the                   17(d) and rule 17d–1, the Commission                  Eduardo A. Aleman,
                                               fund for expenses directly related to the               considers whether the participation of                Assistant Secretary.
                                               repurchase. A Fund will not impose a                    the investment company in a joint                     [FR Doc. 2018–19837 Filed 9–11–18; 8:45 am]
                                               repurchase fee on investors who                         enterprise or joint arrangement is                    BILLING CODE 8011–01–P
                                               purchase and tender their shares.                       consistent with the provisions, policies
                                                  3. Section 23(c)(3) provides that the                and purposes of the Act, and the extent
                                               Commission may issue an order that                      to which the participation is on a basis              SECURITIES AND EXCHANGE
                                               would permit a closed-end investment                    different from or less advantageous than              COMMISSION
                                               company to repurchase its shares in                     that of other participants.
                                               circumstances in which the repurchase                      2. Rule 17d–3 under the Act provides               [Investment Company Act Release No.
                                               is made in a manner or on a basis that                                                                        33219; 812–14767]
                                                                                                       an exemption from section 17(d) and
                                               does not unfairly discriminate against                  rule 17d–1 to permit open-end                         PIMCO Flexible Credit Income Fund, et
                                               any holders of the class or classes of                  investment companies to enter into                    al.
                                               securities to be purchased.                             distribution arrangements pursuant to
                                                  4. Applicants request relief under                   rule 12b–1 under the Act. Applicants                  September 6, 2018.
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                                               section 6(c), discussed above, and                      request an order under section 17(d) and              AGENCY: Securities and Exchange
                                               section 23(c)(3) from rule 23c–3 to the                 rule 17d–1 under the Act to the extent                Commission (‘‘Commission’’).
                                               extent necessary for the Funds to                       necessary to permit the Fund to impose                ACTION: Notice.
                                               impose Early Withdrawal Charge on                       asset-based distribution and/or service
                                               shares of the Funds submitted for                       fees. Applicants have agreed to comply                  Notice of an application under section
                                               repurchase that have been held for less                 with rules 12b–1 and 17d–3 as if those                6(c) of the Investment Company Act of
                                               than a specified period.                                rules applied to closed-end investment                1940 (the ‘‘Act’’) for an exemption from


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Document Created: 2018-09-12 02:06:17
Document Modified: 2018-09-12 02:06:17
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
DatesThe application was filed on July 11, 2018. Applicants have agreed to file an amendment during the notice period, the substance of which is reflected in this notice.
ContactStephan N. Packs, Senior Counsel, at (202) 551-6853, or David J. Marcinkus, Branch Chief, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
FR Citation83 FR 46223 

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