Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Notices 63989

1Applicant represents that AFC does not

constitute a ‘‘partnership’’ or ‘‘joint venture’’ within

the meaning of rule 3a–5(a)(4) under the Act and

is substantially equivalent to a U.S. corporation for

the purposes of rule 3a–5(b)(2) under the Act.

8. Section 17(d) and rule 17d–1

prohibit affiliated persons from

participating in joint arrangements with

a registered investment company unless

authorized by the SEC. In passing on

applications for such orders, rule 17–d

provides that the SEC will consider

whether the participation of such

investment company is consistent with

the provisions, policies, and purposes of

the Act and the extent to which such

participation is on a basis different from

or less advantageous than that of other

participants. Applicant asserts that the

Eligible Trustees will neither directly

nor indirectly receive benefits that

would otherwise inure to Acorn or its

shareholders because (a) a Fund may

choose to invest in Shares, (b) amounts

credited to the Deferral Account will be

adjusted to reflect income, gains, and

losses relating to the investment of the

assets of such Fund, and (c) such

income, gains, or losses will be identical

to what any shareholder in that Fund

would receive whose shares were not

subject to the Plan. Applicants contend

that deferral of an Eligible Trustee’s

compensation in accordance with the

Plan would essentially maintain the

parties, viewed both separately and in

their relationship to one another, in the

same position as if the compensation

were paid on a current basis and then

invested in the Shares.

For the Commission, by the Division of

Investment Management, under delegated

authority.

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 97–31620 Filed 12–2–97; 8:45 am]

BILLING CODE 8010–01–M

SECURITIES AND EXCHANGE

COMMISSION

[Investment Company Act Release No.

22912; 812–10348]

AFC (USA) I, Inc.; Notice of Application

November 26, 1997.

AGENCY: Securities and Exchange

Commission (‘‘SEC’’).

ACTION: Notice of application for

exemption under section 6(c) of the

Investment Company Act of 1940 (the

‘‘Act’’) from all provisions of the Act.

SUMMARY OF THE APPLICATION: Applicant,

AFC (USA) I, Inc., requests an order that

would permit it to sell certain debt

securities and use the proceeds to

finance the business activities of its

parent company, Airbus Finance

Company Limited.

FILING DATES: The application was filed

on November 13, 1996, and amended on

July 17, 1997 and November 24, 1997.

HEARING OR NOTIFICATION OF HEARING: An

order granting the application will be

issued unless the SEC orders a hearing.

Interested persons may request a

hearing by writing to the SEC’s

Secretary and serving applicant with a

copy of the request, personally or by

mail. Hearing requests should be

received by the SEC by 5:30 p.m. on

December 22, 1997, and should be

accompanied by proof of service on

applicants, in the form of an affidavit or,

for lawyers, a certificate of service.

Hearing requests should state the nature

of the writer’s interest, the reason for the

request, and the issues contested.

Persons who wish to be notified of a

hearing may request notification by

writing to the SEC’s Secretary.

ADDRESSES: Secretary, SEC, 450 Fifth

Street, N.W., Washington, D.C. 20549.

Applicant, c/o Catharine Ennis, George’s

Dock House, 2nd Floor, International

Financial Services Center, Dublin 1,

Ireland.

FOR FURTHER INFORMATION CONTACT:

Kathleen L. Knisely, Staff Attorney, at

(202) 942–0517, or Mary Kay Frech,

Branch Chief, at (202) 942–0564

(Division of Investment Management,

Office of Investment Company

Regulation).

SUPPLEMENTARY INFORMATION: The

following is a summary of the

application. The complete application

may be obtained for a fee at the SEC’s

Public Reference Branch, 450 Fifth

Street, N.W., Washington, DC 20549,

(tel. 202–942–8090).

Applicant’s Representations

1. Applicant is a Delaware

corporation formed in July, 1996. All of

applicant’s outstanding voting securities

are owned by Airbus Finance Company

Limited (‘‘AFC’’). AFC, a limited

liability company incorporated under

the laws of Ireland, provides sales

financing support to the customers of

Airbus Industrie G.I.E. (‘‘Airbus

Industrie’’).1 AFC and Airbus Industrie

are each owned indirectly by

Aerospatiale S.N.I., Daimler-Benz A.G.

(‘‘Daimler-Benz’’), British Aerospace plc

(‘‘BAe’’), and Construcciones

Aeronauticas S.A. (‘‘CASA’’).

2. Applicant was organized to engage

in financing activities to provide funds

for use in the operations of AFC.

Applicant proposes to obtain funds

through the offer and sale of its debt

securities in the United States and

European or other overseas markets, and

to lend the proceeds to AFC.

3. Due to the nature of capital

markets, applicant may, from time to

time, issue securities in amounts in

excess of the amounts required by AFC

at any given time. However, at least

85% of the cash or cash equivalents

raised by applicant will be loaned to

AFC as soon as practicable, but in no

event later than six months after

applicant’s receipt of the cash or cash

equivalents. Amounts that are not

loaned to AFC will be invested in

government securities, securities of AFC

or a company controlled by AFC (or, in

the case of a partnership or joint

venture, the securities of the partners or

participants in the joint venture), or

debt securities which are exempted

from the provisions of the Securities Act

of 1933 by section 3(a)(3) of that Act.

4. Any issuance of debt securities by

applicant to the public in the United

States will be unconditionally

guaranteed by AFC as to the timely

payment of principal, interest, and

premium, if any (a ‘‘Guarantee’’).

Guarantee will provide each holder of

debt securities issued by applicant a

direct right of action against AFC to

enforce AFC’s obligations under the

Guarantee without first proceeding

against applicant.

5. Until AFC has achieved a specified

long-term debt rating at or above

investment grade (the ‘‘AFC Rating’’),

any debt securities issued by applicant

to the public in the United States also

will be unconditionally guaranteed on a

separate basis by each of Aerospatiale

S.N.I., Daimler-Benz, BAe, and CASA,

or any additional or substitute indirect

owner of AFC as to the timely payment

of principal of, interest, and premium,

if any, on the debt securities.

6. In the future applicant may obtain

funds through the offer and sale of nonvoting preferred stock. Applicant will

guarantee such stock with a guarantee

complying with rule 3a–5(a)(2) under

the Act.

Applicant’s Legal Analysis

1. Rule 3a–5 under the Act provides

an Exemption from the definition of

investment company for certain

companies organized primarily to

finance the business operations of their

parent companies or companies

controlled by their parent companies.

Rule 3a–5 is premised on the notion that

it is appropriate to exempt a finance

subsidiary from all provisions of the Act

when the primary purpose of the

finance subsidiary is to finance the

business operations of its parent
63990 Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Notices

2See Investment Company Act Release No. 14275

(Dec. 14, 1984) (release adopting rule 3a–5 under

the Act).

3 Id. at 49443.

4 Id.

company or other subdiaries of its

parent and when the purchaser of the

finance subsidiary’s securities

ultimately looks to the parent and not to

the finance subsidiary for repayment.2

Rule 3a–5(b)(2)(i) defines ‘‘parent

company’’ to be a corporation,

partnership, or joint venture that is not

considered an investment company

under section 3(a) or that is exempted

by order from the definition of

investment company by section 3(b) or

by the rules or regulations under section

3(a) of Act.

2. AFC is not a ‘‘parent company’’

within the definition in rule 3a–

5(b)(2)(i) because AFC meets the

definition of investment company in

section 3(a) of the Act and is excepted

from that definition by section 3(c)(6) of

the Act. Applicant, therefore, is unable

to rely on rule 3a–5 and seeks an

exemption from all provisions of the

Act.

3. In the release adopting rule 3a–5,

the Commission stated that it may be

appropriate to grant exemptive relief to

the finance subsidiary of an issuer

exempted from the definition of

investment company under section 3(c)

of the Act, but only on a case-by-case

basis upon an examination of all

relevant facts.3 According to the

adopting release, the concern was that a

company could be considered not an

investment company under section 3(c)

of the Act and still be engaged primarily

in investment company activities.4

4. Section 6(c) of the Act provides, in

pertinent part, that the SEC may,

conditionally or unconditionally,

exempt any person or class of persons

from any provision or provisions of the

Act to the extent that the 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. Applicant states

that AFC is not engaged primarily in

investment company activities, but that

its principal activity is the provision of

sales financing for Airbus Industrie

customers. In addition, if AFC were

itself to issue the securities that are to

be issued by applicant and use the

proceeds for its own purposes or

advance them to its subsidiaries, AFC

would not be subject to regulation under

the Act. While AFC has chosen instead

to use applicant as a financing vehicle,

the Guarantee ensures that holders of

applicant’s securities will have direct

recourse against AFC. Accordingly,

applicant submits that the relief

requested satisfies the section 6(c)

standard.

Applicant’s Condition

Applicant agrees that the order

granting the requested relief shall be

subject to the condition that:

Applicant will comply with all of the

provisions of rule 3a–5 under the Act,

except that AFC will not meet the

portion of the definition of ‘‘parent

company’’ in rule 3a–5(b)(2)(i) solely

because it is excluded from the

definition of investment company under

section 3(c)(6) of the Act and is engaged

primarily, directly or through majority

owned subsidiaries, in one or more of

the businesses described in section

3(c)(5)(A) and/or section 3(c)(5)(B) of

the Act.

For the Commission, by the Division of

Investment Management, under delegated

authority.

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 97–31686 Filed 12–2–97; 8:45 am]

BILLING CODE 8010–01–M

SECURITIES AND EXCHANGE

COMMISSION

Issuer Delisting; Notice of Application

to Withdraw From Listing and

Registration; (American Restaurant

Partners, L.P., Class A Units of Limited

Partnership Interests) File No. I–9606

November 26, 1997.

American Restaurant Partners, L.P.

(‘‘Company’’) has filed an application

with the Securities and Exchange

Commission (‘‘Commission’’), pursuant

to Section 12(d) of the Securities

Exchange Act of 1934 (‘‘Act’’) and Rule

12d2–2(d) promulgated thereunder, to

withdraw the above specified security

(‘‘Security’’) from listing and

registration on the American Stock

Exchange, Inc. (‘‘Amex’’ or

‘‘Exchange’’).

The reasons cited in the application

for withdrawing the Security from

listing and registration include the

following:

The Company has complied with

Amex Rule 18 by filing with the

Exchange a certified copy of the

preambles and resolutions adopted by

the general partners of the Company

authorizing the withdrawal of the

Security from listing and registration on

the Amex, and by setting forth in detail

to the Exchange the reasons for the

proposed withdrawals, and the facts

supporting the withdrawal.

In making the decision to withdraw

its Security from listing and registration

on the Amex, the Company considered

the facts set forth below and determined

that the withdrawal would be in the best

interests of the holders of the Security.

The Company’s decision to withdraw

the Security from listing and registration

on the Amex is based on a change in the

federal income tax laws that will,

effective January 1, 1998, subject the

Company to taxation as a corporation if

the Company’s Security remains listed

on the Exchange. Under a grandfather

clause that expires December 31, 1997,

the Company is sheltered from the

Internal Revenue Code provisions

which tax publicly traded limited

partnerships as corporations. To avoid

taxation as a corporation, the Company

must immediately withdraw its Security

from listing and registration on the

Amex so that the Security is no longer

traded on an established securities

market by the end of 1997.

The Company has represented that it

intends to establish a qualified matching

service in accordance with Department

of Treasury regulations so that holders

of the Security may exchange their

interests. The Company has further

represented that it may put into effect a

redemption and repurchase agreement

to provide holders of the Security with

another means for exchanging their

interests.

The Company shall continue to send

annual and quarterly reports containing

financial statements to holders of the

Security so long as it is obligated to do

so under the Act.

By letter dated November 12, 1997,

the Amex informed the Company that

the Exchange has no objection to the

withdrawal of the Company’s Security

from listing and registration on the

Amex.

Any interested person may, on or

before December 18, 1997, submit by

letter to the Secretary of the Securities

and Exchange Commission, 450 Fifth

Street, N.W., Washington, D.C. 20549,

facts bearing upon whether the

application has been made in

accordance with the rules of the

Exchange and what terms, if any, should

be imposed by the Commission for the

protection of investors. The

Commission, based on the information

submitted to it, will issue an order

granting the application after the date

mentioned above, unless the

Commission determines to order a

hearing on the matter.