HSBC Bank Canada & HSBC Canada Asset Trust - MRRS Decision
Headnote
Exemptions from certain continuous disclosure requirements granted to a trust on specified conditions where becauseof the terms of the trust a security holder's return depends upon the financial condition of the sponsoring bank and notthat of the trust. Trust offered trust units to the public in order to provide the bank with a cost effective means of raisingcapital for Canadian bank regulatory purposes; trust holds a portfolio of assets consisting primarily of mortgages andinterests in mortgages; unitholders are entitled to fixed semi-annual non- cumulative distributions but no distributionsare payable if the bank fails to pay dividends on its preferred shares and if distributions are not paid the bank isprevented from paying dividends on its preferred shares; trust units are not redeemable but are exchangeable at theoption of the holder after a fixed term for a series of preferred shares of the bank and trust units are non-voting;
Specifically, exemptions granted from the requirements to:
(a) file interim financial statements and audited annual financial statements and send such statements tounitholders;
(b) make an annual filing in lieu of filing an information circular;
(c) file an annual report and an information circular with the Decision Maker in Quebec and deliver such report orinformation circular to unitholders; and
(d) prepare and file an annual information form ("AIF"), including management's discussion and analysis ("MD&A")of the financial condition and results of operation of the trust and send such MD&A to unitholders
for so long as
(i) the bank remains a reporting issuer;
(ii) the bank sends its annual financial statements, interim financial statements, annual management discussionand analysis and interim management discussion and analysis to unitholders and its annual report tounitholders resident in the Province of Quebec at the same time and in the same manner as if the unitholderswere holders of common shares of the bank;
(iii) all outstanding securities of the trust are of the type presently issued;
(iv) the rights and obligations of holders of additional securities are the same in all material respects as the rightsand obligations of the holders of securities outstanding at the date of the relief is granted; and
(v) the bank and its affiliates are the beneficial owner of all voting securities of the trust
provided that the relief expires 30 days after the occurrence of a material change in the affairs of the trust.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c.S.5, as am., ss 77, 78,79, 80(b)(iii),81.
Applicable Ontario Rules Cited
OSC Rule 51-501- AIF and MD&A
OSC Rule 52-501- Financial Statements
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
BRITISH COLUMBIA, ALBERTA, SASKATCHEWAN,
MANITOBA, ONTARIO, QUEBEC, NOVA SCOTIA
AND NEWFOUNDLAND
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
HSBC BANK CANADA AND
HSBC CANADA ASSET TRUST
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the "Decision Maker", and collectively the"Decision Makers") in each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec,Nova Scotia and Newfoundland (the "Jurisdictions") has received an application (the "Application") from HSBC BankCanada (the "Bank") and HSBC Canada Asset Trust (the "Trust") for a decision, pursuant to the securities legislationof the Jurisdictions (the "Legislation"), that the requirements contained in the Legislation to:
(a) file interim financial statements and audited annual financial statements (collectively, "FinancialStatements") with the Decision Makers and deliver such statements to the security holders of theTrust;
(b) make an annual filing ("Annual Filing") with the Decision Makers in lieu of filing an information circular,where applicable;
(c) file an annual report ("Annual Report") and an information circular with the Decision Maker in Quebecand deliver such report or information circular to the security holders of the Trust resident in Quebec;and
(d) prepare and file an annual information form ("AIF"), including management's discussion and analysis("MD&A") of the financial condition and results of operation of the Trust and send such MD&A tosecurity holders of the Trust;
shall not apply to the Trust, subject to certain terms and conditions;
AND WHEREAS pursuant to the Mutual Reliance Review System for Exemptive Relief Applications (the"System"), the Ontario Securities Commission is the principal regulator for this application;
AND WHEREAS the Bank and the Trust represented to the Decision Makers that:
HSBC Bank Canada
1. The Bank is a Canadian chartered bank incorporated under the Bank Act (Canada) (the "Bank Act"), is areporting issuer or equivalent under the Legislation and is not in default of any requirement of the Legislation.
2. The authorized capital of the Bank consists of 993,677,000 common shares ("Bank Common Shares") and anunlimited number of Class 1 Preferred Shares, issuable in series (the "Bank Class 1 Preferred Shares") andan unlimited number of Class 2 Preferred Shares issuable in series. As at December 31, 2000, 456,168,000Bank Common Shares were outstanding, and the following series of Bank Preferred Shares were outstanding:5,000,000 Bank Class 1 Preferred Shares Series A. No Bank Class 2 Preferred Shares are outstanding.
3. The Bank Class 1 Preferred Shares Series A are listed and posted for trading on The Toronto Stock Exchange(the "TSE").
HSBC Canada Asset Trust
4. The Trust is a closed-ended trust established under the laws of the Province of British Columbia by HSBC TrustCompany (Canada) ("Trustee"), as trustee, pursuant to a declaration of trust made as of May 26, 2000 asamended and restated on June 28, 2000 (the "Declaration of Trust"). The Trustee is an indirect, wholly-ownedsubsidiary of the Bank.
5. The beneficial interests of the Trust are divided into two classes of units, issuable in series, designated as TrustCapital Securities ("HSBC HaTS") and Special Trust Securities ("Special Trust Securities" and, collectively withHSBC HaTS, "Trust Securities").
6. The Trust was established solely for the purpose of effecting the Offering (as defined below) and possible futureofferings of securities in order to provide the Bank with a cost effective means of raising capital for Canadianbank regulatory purposes. The Trust does not and will not carry on any operating activity other than inconnection with the Offering and any future offerings.
7. The Trust is a reporting issuer, or the equivalent, in each of the Jurisdictions and is not in default of anyrequirement of the Legislation.
HSBC HaTS
8. The Trust distributed 200,000 HSBC Canada Asset Trust Securities - Series 2010 ("HSBC HaTS - Series 2010")in the Jurisdictions under a long form prospectus (the "Prospectus") dated June 21, 2000 (the "Offering"). TheProspectus also qualified certain other related securities for distribution in the Jurisdictions, including theAutomatic Exchange Right (as defined below).
9. The HSBC HaTS - Series 2010 are listed and posted for trading on the TSE.
10. The Trust also issued and sold an aggregate of 200,001 Special Trust Securities to the Bank in connection withthe Offering.
11. The business objective of the Trust is to acquire and hold assets ("Trust Assets") primarily from the Bank or itsaffiliates which may consist of: (a) undivided co-ownership interests in one or more pools of Canada Mortgageand Housing Corporation ("CMHC") insured first mortgages on residential property situated in Canada; (b)certain mortgage-backed securities; (c) CMHC - insured first mortgages on residential property; and (d) to theextent that the proceeds of the assets of the Trust are not invested in the assets referred to above in (a), (b)or (c), money and certain debt obligations that are qualified investments under the Income Tax Act (Canada)for trusts governed by certain deferred income plans.
12. Subject to paragraph 13, each HSBC HaTS - Series 2010 entitles the holder ("HSBC HaTS Holders") to receivea fixed cash distribution (a "Distribution") payable by the Trust on the last day of June and December of eachyear (each such day, a "Distribution Date") and each period from and including the Distribution Date to butexcluding the next Distribution Date (a "Distribution Period").
13. HSBC HaTS Holders are not entitled to receive Distributions in respect of a particular Distribution Date if theBank has not declared regular cash dividends on its preferred shares in the appropriate Reference DividendDeclaration Month (as defined in the Prospectus).
14. The Bank has covenanted, pursuant to the Bank Share Exchange Agreement (as defined below) that, if on theDistribution Date the Trust fails to pay in full Distributions on the HSBC HaTS - Series 2010 to which the HSBCHaTS Holders are entitled, the Bank will not declare dividends of any kind on its preferred shares until a specificperiod of time has elapsed from the Distribution Date.
15. Upon the occurrence of certain adverse tax events or events relating to the treatment of HSBC HaTS - Series2010 for capital purposes prior to June 30, 2005, HSBC HaTS - Series 2010 will be redeemable, at the optionof the Trust and with the approval of the Superintendent of Financial Institutions (Canada) (the"Superintendent") and the Financial Services Authority (United Kingdom) ("FSA"), in whole (but not in part) fora cash amount.
16. On June 30, 2005 and on any subsequent Distribution Date, the HSBC HaTS - Series 2010 will be redeemablein whole (but not in part) for a cash amount, at the option of the Trust and subject to the approval of theSuperintendent and the FSA.
17. The terms of the HSBC HaTS - Series 2010 do not provide for an exchange at the option of the holder of theHSBC HaTS - Series 2010 into Bank Preferred Shares. Rather, after December 31, 2010 the effective annualyield of the HSBC HaTS - Series 2010 will be reset, as follows. Unless the Bank has failed to declare dividendson any of its shares, the Trust will make non-cumulative semi-annual cash distributions to the holders of HSBCHaTS - Series 2010 in amounts to provide an effective annual yield of 7.78% to December 31, 2010. For eachDistribution Date after December 31, 2010, the effective annual yield will be reset to an amount determined bymultiplying $1,000 by one half of the sum of the Bankers' Acceptance Rate (as defined in the Prospectus) forthe Distribution Period immediately preceding such Distribution Date plus 2.37%, payable on the last day ofJune and December of each year commencing June 30, 2011 provided that Bank has not failed to declaredividends on any of its shares in the appropriate Reference Dividend Declaration Month.
18. Each HSBC HaTS - Series 2010 will be automatically exchanged (the "Automatic Exchange Right") without theconsent of the holder, for one Bank Preferred Share Series A1 if: (i) an application for a winding-up order inrespect of the Bank pursuant to the Winding-up and Restructuring Act (Canada) is filed by the Attorney Generalof Canada or a winding-up order in respect of the Bank pursuant to that Act is granted by a court; (ii) theSuperintendent has taken control of the Bank or its assets pursuant to the Bank Act; (iii) the Superintendentadvises the Bank in writing that the Superintendent is of the opinion that the Bank has a risk-based Tier 1Capital ratio of less than 5.0% or a risk-based total Capital ratio of less than 8.0%; or (iv) the Superintendentdirects the Bank pursuant to the Bank Act to increase its capital or to provide additional liquidity and the Bankelects to cause the exchange as a consequence of the issuance of such direction or the Bank does not complywith such direction to the satisfaction of the Superintendent within the time specified in such direction.
19. As set forth in the Declaration of Trust, HSBC HaTS are non-voting except in certain limited circumstances andSpecial Trust Securities entitle the holders to vote.
20. Except to the extent that Distributions are payable to HSBC HaTS Holders and, other than in the event oftermination of the Trust (as set forth in the Declaration of Trust), HSBC HaTS Holders have no claim orentitlement to the income of the Trust or the Trust Assets.
21. In certain circumstances (as described in paragraph 18 above), including at a time when the Bank's financialcondition is deteriorating or proceedings for the winding-up of the Bank have been commenced, the HSBCHaTS - Series 2010 will be automatically exchanged for Bank Class 1 Preferred Shares Series A without theconsent of HSBC HaTS Holders. As a result, HSBC HaTS Holders will have no claim or entitlement to the TrustAssets, other than indirectly in their capacity as preferred shareholders of the Bank.
22. HSBC HaTS Holders may not take any action to terminate the Trust.
23. The Trust has not requested relief for the purposes of filing a short form prospectus pursuant to NationalInstrument 44-101 -- Short Form Prospectus Distributions ("NI 44-101") (including, without limitation, any reliefwhich would allow the Trust to use the Bank's AIF as a current AIF of the Trust) and no such relief is providedby this Decision Document from any of the requirements of NI 44-101.
AND WHEREAS pursuant to the System this MRRS Decision Document evidences the decision of eachDecision Maker (collectively, the "Decision");
AND WHEREAS each of the Decision Makers is satisfied that the test contained in the Legislation that providesthe Decision Maker with the jurisdiction to make the Decision has been met;
THE DECISION of the Decision Makers under the Legislation is that the requirement contained in theLegislation:
(a) to file Financial Statements with the Decision Makers and deliver such statements to holders of TrustSecurities;
(b) to make an Annual Filing, where applicable, with the Decision Makers in lieu of filing an informationcircular;
(c) to file an Annual Report and an information circular with the Decision Maker in Quebec and deliversuch report or information circular to holders of Trust Securities resident in Quebec;
(d) to prepare and file an AIF, including MD&A, with the Decision Makers and send such MD&A to holdersof Trust Securities;
shall not apply to the Trust for so long as:
(i) the Bank remains a reporting issuer under the Legislation;
(ii) the Bank sends its annual financial statements, interim financial statements, annual managementdiscussion and analysis and interim management discussion and analysis to holders of TrustSecurities and its Annual Report to holders of Trust Securities resident in the Province of Quebec atthe same time and in the same manner as if the holders of Trust Securities were holders of BankClass 1 Preferred Shares Series A;
(iii) all outstanding securities of the Trust are either HSBC HaTS or Special Trust Securities;
(iv) the rights and obligations of holders of additional series of HSBC HaTS are the same in all materialrespects as the rights and obligations of the holders of HSBC HaTS - Series 2010 at the date hereof;and
(v) the Bank is the beneficial owner of all Special Trust Securities;
and provided that if a material change occurs in the affairs of the Trust, this Decision shall expire 30 days afterthe date of such change.
May 17, 2001.
"John Hughes"