Headnote National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions –Issuer does not satisfy conditions of exemption in section 13.4 of NI 51-102 and section 13.2 of Form 44-101F1 – Credit supporter’s accounting systems will not allow it to compile consolidated summary financial information for non-credit supporter subsidiaries that represent more than 3% of consolidated operations – Issuer exempt from certain continuous disclosure, certification, audit committee, and corporate governance requirements, subject to conditions – issuer exempt from certain form requirements under Form 44-101F1 in respect of short form base shelf prospectuses together with applicable prospectus supplements and pricing supplements in respect of the issuance by the issuer of medium term notes guaranteed by the credit supporter, subject to conditions
Applicable Legislative Provisions
National Instrument 44-101 Short Form Prospectus Distributions, s. 8.1 Form 44-101F1 Short Form Prospectus, s. 13.2 National Instrument 51-102 Continuous Disclosure Obligations, ss. 13.1 and 13.4 National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings, s. 8.6 National Instrument 52-110 Audit Committees, s. 8.1 National Instrument 58-101 Corporate Governance Practices, s. 3.1
DATE: July 26, 2012
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (THE JURISDICTION)
AND
IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF AMERICAN EXPRESS CREDIT CORPORATION (AMEX CREDIT USA) AND AMERICAN EXPRESS CANADA CREDIT CORPORATION (AMEX CREDIT CANADA AND TOGETHER WITH AMEX CREDIT USA, THE FILERS)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filers for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) for an exemption from the following requirements contained in the Legislation:
(a) the requirement under the Legislation that Amex Credit Canada comply with the requirements of National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102) (the Continuous Disclosure Relief);
(b) the requirement under the Legislation that Amex Credit Canada comply with the requirements of National Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings (the Certification Relief);
(c) the requirements under the Legislation that Amex Credit Canada comply with the requirements of National Instrument 52-110 Audit Committees (the Audit Committee Relief);
(d) the requirement under the Legislation that Amex Credit Canada comply with the requirements of National Instrument 58-101 Disclosure of Corporate Governance Practices (the Corporate Governance Relief); and
(e) the requirement under the Legislation that Amex Credit Canada: (i) include in Future Prospectuses (as defined below) filed with the securities regulatory authorities in each of the provinces of Canada for Future Offerings (as defined below) its earnings coverage ratios required under Item 6.1 of Form 44-101F1 promulgated under National Instrument 44-101 Short Form Prospectus Distributions (NI 44-101) and (ii) incorporate by reference in Future Prospectuses filed with the securities regulatory authorities in each of the provinces of Canada for Future Offerings any of the documents specified under paragraphs 1 through 4, 6, 7 and 8 of Item 11.1(1) of Form 44-101F1 (the Prospectus Disclosure Relief).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for the Application; and
(b) the Filers have provided notice that subsection 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Québec, and Saskatchewan.
Interpretation
Defined terms contained in National Instrument 14-101 Definitions have the same meaning in this decision unless otherwise set forth herein.
Representations
The decision is based on the following facts represented by the Filers:
Amex Credit USA is incorporated under the laws of the State of Delaware and was incorporated in 1962. Its principal executive offices are located at 200 Vesey Street, New York, New York, USA, 10285.
Amex Credit USA is a wholly-owned subsidiary of American Express Travel Related Services Company, Inc., which itself is a wholly-owned subsidiary of American Express Company.
Amex Credit USA is the beneficial owner of all of the outstanding voting securities of Amex Credit Canada.
Amex Credit USA is engaged in the business of financing non-interest-bearing charge cardmember receivables arising from the use of various American Express cards in the United States and in certain countries outside the United States. Amex Credit USA also finances certain interest-bearing and discounted revolving loans generated by cardmember spending on American Express credit cards issued in countries outside the United States.
Amex Credit USA has non-convertible debt securities outstanding with an "approved rating" (as defined in NI 44-101) and Amex Credit USA has not been the subject of an announcement by an "approved rating organization" (as defined in NI 51-102) that the "approved rating" given by the organization may be down-graded to a rating category that would not be an "approved rating".
Amex Credit USA has a class of securities registered under Section 12(b) of the United States Securities Exchange Act of 1934 (the 1934 Act).
Amex Credit USA has filed with the United States Securities and Exchange Commission (the SEC) all filings required to be made with the SEC under the 1934 Act, including without limitation, any required during the last 12 calendar months.
Amex Credit USA is not registered or required to be registered as an investment company under the United States Investment Company Act of 1940, as amended.
Amex Credit USA is not a commodity pool issuer as defined in National Instrument 71-101 Multijurisdictional Disclosure System (NI 71-101).
Amex Credit USA is not a reporting issuer or the equivalent in any of the provinces or territories of Canada.
Amex Credit USA has fully and unconditionally guaranteed the Notes (as defined below) and no other subsidiary of Amex Credit USA has provided a guarantee or alternative credit support for the Notes.
Amex Credit Canada is an indirect wholly-owned subsidiary of Amex Credit USA and is an unlimited liability company incorporated under the laws of the province of Nova Scotia on April 15, 2004. Its principal executive offices are located at 101 McNabb Street, Markham, Ontario, L3R 4H8.
Amex Credit Canada filed a final short form base shelf prospectus with the securities regulatory authorities in each of the provinces of Canada on October 28, 2005 (the 2005 Prospectus) and a MRRS Decision Document was issued in respect thereof on October 31, 2005.
Amex Credit Canada filed a final short form base shelf prospectus with the securities regulatory authorities in each of the provinces of Canada on February 12, 2008 (the 2008 Prospectus) and a MRRS Decision Document was issued in respect thereof on the same date.
Amex Credit Canada filed a final short form base shelf prospectus with the securities regulatory authorities in each of the provinces of Canada on May 27, 2010 (the 2010 Prospectus) and a receipt was issued under MI 11-102 in respect thereof on the same date.
The 2005 Prospectus, 2008 Prospectus and 2010 Prospectus each concerned the distribution by Amex Credit Canada of non-convertible medium term notes in respect of which Amex Credit USA has provided a full and unconditional guarantee of the payments to be made by Amex Credit Canada, as stipulated in the terms of the medium term notes or in an agreement governing the rights of holders of the medium term notes, that results in the holder of such medium term notes being entitled to receive payment from Amex Credit USA upon demand following any failure by Amex Credit Canada to make a payment (such medium term notes, together with similar medium term notes to be issued by Amex Credit Canada under any Future Prospectuses, the Notes).
Since October 31, 2005, Amex Credit Canada has issued non-convertible medium term notes under the 2005 Prospectus, 2008 Prospectus and 2010 Prospectus in the aggregate principal amount of Cdn. $4.675 billion and Cdn. $2.225 billion aggregate principal amount remain outstanding as of the date hereof.
Amex Credit Canada is a reporting issuer or the equivalent in each of the provinces of Canada.
Amex Credit Canada is not in default of any applicable requirements of securities legislation in any of the provinces of Canada.
Amex Credit Canada does not have any securities outstanding other than the types of securities listed in paragraph 13.4(2)(c) of NI 51-102.
Amex Credit Canada files in electronic format with the securities regulatory authorities in each of the provinces of Canada copies of all documents that Amex Credit USA is required to file with the SEC under the 1934 Act, at the same time or as soon as practicable after the filing by Amex Credit USA of those documents with the SEC.
Amex Credit Canada has no assets, operations, revenues or cash flows other than those related to the issuance, administration and repayment of the Notes and is a "finance subsidiary" as defined in Rule 3-10(h)(7) of Regulation S-X promulgated by the SEC and as defined in Item 13.1(1)(c) of Form 44-101F1.
The Notes have received an "approved rating" (as defined in NI 44-101) and the Notes have not been the subject of an announcement by an "approved rating organization" (as defined in NI 51-102) that the "approved rating" given by the organization may be down-graded to a rating category that would not be an "approved rating".
Amex Credit Canada meets the eligibility requirements set out in subsection 13.4(2) of NI 51-102 except that Amex Credit USA does not meet the test set forth in clause 13.4(2)(g)(i)(B) and it is unable to prepare the table required by clause 13.4(2)(g)(ii).
Amex Credit Canada meets the eligibility requirements of Item 13.2 of Form 44-101F1 except that Amex Credit USA does not meet the test set forth in Item 13.2(f)(i)(B) and it is unable to prepare the table required by Item 13.2(f)(ii) of Form 44-101F1.
Amex Credit Canada may in the future file additional short form base shelf prospectuses together with applicable prospectus supplements and pricing supplements with the securities regulatory authorities in each of the provinces of Canada (the Future Prospectuses) in respect of the issuance by Amex Credit Canada of additional medium term notes from time to time (the Future Offerings). All medium term notes issued by Amex Credit Canada pursuant to any Future Offering will have an "approved rating".
If Amex Credit Canada were incorporated under United States law, it would be permitted under section 3.2 of NI 71-101 to effect a direct offering of the Notes in Canada based on compliance with United States prospectus requirements with certain additional Canadian disclosure so long as Amex Credit USA fully and unconditionally guarantees payment of principal and interest due under such securities.
The requested Continuous Disclosure Relief, the Certification Relief, the Audit Committee Relief, the Corporate Governance Relief and the Prospectus Disclosure Relief is substantially the same as the relief granted pursuant to a decision of the securities regulatory authorities in each of the provinces of Canada dated April 30, 2007 (the 2007 Decision). The 2007 Decision is valid until December 31, 2012 and valid for Future Prospectuses filed prior to December 31, 2012.
Decision
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
Continuous Disclosure Relief
The decision of the principal regulator under the Legislation is that the Continuous Disclosure Relief is granted provided that:
(a) Amex Credit Canada and Amex Credit USA continue to satisfy all the conditions set forth in subsection 13.4(2) of NI 51-102, other than paragraph 13.4(2)(g), unless otherwise exempted therefrom;
(b) Amex Credit USA discloses in each of its quarterly reports on Form 10-Q and each of its annual reports on Form 10-K filed with the SEC and the securities regulatory authorities in each of the provinces of Canada, any significant restrictions on the ability of Amex Credit USA to obtain funds from its subsidiaries by dividend or loan;
(c) Amex Credit USA discloses in each of its quarterly reports on Form 10-Q and each of its annual reports on Form 10-K filed with the SEC and the securities regulatory authorities in each of the provinces of Canada: (i) the nature of any restrictions on the ability of consolidated subsidiaries and unconsolidated subsidiaries of Amex Credit USA to transfer funds to Amex Credit USA in the form of cash dividends, loans or advances (i.e., borrowing arrangements, regulatory constraints, foreign government, etc.) and (ii) the amount of "restricted net assets" (calculated in the manner specified in paragraph (d) below) for unconsolidated subsidiaries and consolidated subsidiaries of Amex Credit USA as of the end of its most recently completed fiscal year (with such amounts for unconsolidated subsidiaries and consolidated subsidiaries disclosed separately), provided that, the disclosure contemplated in paragraphs (c)(i) and (c)(ii) above are only required to be provided when the "restricted net assets" of consolidated and unconsolidated subsidiaries of Amex Credit USA, and Amex Credit USA's equity in undistributed earnings of 50% or less owned persons accounted for by the equity method, together exceed 25% of the consolidated net assets of Amex Credit USA as of the end of its most recently completed fiscal year;
(d) "Restricted net assets" shall be calculated in the manner specified in this paragraph (d). "Restricted net assets" of subsidiaries shall mean that amount of Amex Credit USA's proportionate share of net assets (after intercompany eliminations) reflected in the balance sheets of its consolidated and unconsolidated subsidiaries as of the end of the most recent fiscal year which may not be transferred to Amex Credit USA in the form of loans, advances or cash dividends by the subsidiaries without the consent of a third party (i.e., lender, regulatory agency, foreign government, etc.). Not all limitations on transferability of assets are considered to be restrictions for purposes of calculating "restricted net assets", which considers only specific third party restrictions on the ability of subsidiaries to transfer funds outside of the entity. For example, the presence of subsidiary debt which is secured by certain of the subsidiary's assets does not constitute a restriction for purposes of calculating "restricted net assets". However, if there are any loan provisions prohibiting dividend payments, loans or advances to Amex Credit USA by a subsidiary, these are considered restrictions for purposes of computing "restricted net assets". When a loan agreement requires that a subsidiary maintain certain working capital, net tangible asset, or net asset levels, or where formal compensating arrangements exist, there is considered to be a restriction because the lender's intent is normally to preclude the transfer by dividend or otherwise of funds to Amex Credit USA. Similarly, a provision which requires that a subsidiary reinvest all of its earnings is a restriction, since this precludes loans, advances or dividends in the amount of such undistributed earnings by the entity. Where restrictions on the amount of funds which may be loaned or advanced differ from the amount restricted as to transfer in the form of cash dividends, the amount least restrictive to the subsidiary shall be used. Redeemable preferred stocks and minority interests shall be deducted in computing net assets for purposes of these calculations;
(e) Amex Credit Canada continues to have minimal or no assets, operations, revenues or cash flows other than those related to the issuance, administration and repayment of the Notes; and
(f) Amex Credit USA includes in each quarterly report on Form 10-Q and each annual report on Form 10-K, a statement that the financial results of Amex Credit Canada are included in the consolidated financial results of Amex Credit USA.
Certification Relief
The further decision of the principal regulator under the Legislation is that the Certification Relief is granted provided that the Filers continue to satisfy the conditions of the Continuous Disclosure Relief, above.
Audit Committee Relief
The further decision of the principal regulator under the Legislation is that the Audit Committee Relief is granted provided that the Filers continue to satisfy the conditions of the Continuous Disclosure Relief, above.
Corporate Governance Relief
The further decision of the principal regulator under the Legislation is that the Corporate Governance Relief is granted provided that the Filers continue to satisfy the conditions of the Continuous Disclosure Relief, above.
Prospectus Disclosure Relief
The further decision of the principal regulator under the Legislation is that the Prospectus Disclosure Relief is granted provided that:
(a) Amex Credit Canada and Amex Credit USA satisfy the conditions set forth in Item 13.2 of Form 44-101F1 and NI 44-101, other than Item 13.2(f) of Form 44-101F1, unless otherwise exempted therefrom;
(b) Amex Credit USA provides the disclosure contemplated in paragraphs (b) and (c) of the Continuous Disclosure Relief granted above in each of its quarterly reports on Form 10-Q and each of its annual reports on Form 10-K incorporated by reference by Amex Credit Canada into any Future Prospectus filed with the securities regulatory authorities in each of the provinces of Canada in respect of any Future Offering;
(c) Amex Credit Canada has minimal or no assets, operations, revenues or cash flows other than those related to the issuance, administration and repayment of the Notes, at the time a Future Prospectus is filed in respect of a Future Offering; and
(d) each Future Prospectus includes a statement that the financial results of Amex Credit Canada are included in the consolidated financial results of Amex Credit USA.
“Jo-Anne Matear”
Manager, Corporate Finance Branch Ontario Securities Commission