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Column Canada Issuer Corporation - MRRS Decision
Headnote
Mutual Reliance Review System - issuer of mortgagepass-through certificates exempt from the requirement to prepare,file and deliver annual report, where applicable, interim andannual financial statements and annual filing, where applicablein lieu of an information circular subject to conditions, includingthe requirement to prepare, file and deliver monthly and annualreports regarding performance of pool of assets.
Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c. S.5, as am.,77, 78, 79, 80(b)(iii) and 81(2).
National Instruments Cited
National Instrument 44-101 Short Form ProspectusDistributions
National Instrument 54-101 Communication withBeneficial Owners of Securities of a Reporting Issuer.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
BRITISH COLUMBIA, ALBERTA,SASKATCHEWAN, MANITOBA,
ONTARIO, QUÉBEC, NOVASCOTIA AND NEWFOUNDLAND AND LABRADOR
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
COLUMN CANADA ISSUER CORPORATION
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker") in eachof British Columbia, Alberta, Saskatchewan, Manitoba, Ontario,Québec, Nova Scotia and Newfoundland and Labrador (the"Jurisdictions") has received an application fromColumn Canada Issuer Corporation (the "Issuer") fora decision pursuant to the securities legislation of the Jurisdictions(the "Legislation") that the provisions of the Legislationconcerning the preparation, filing and delivery of an annualreport, where applicable, interim and annual financial statementsand the annual filing, where applicable, in lieu of an informationcircular, shall not apply to the Issuer in connection with offeringsof mortgage pass-through certificates of the Issuer (the "Certificates");
AND WHEREAS pursuant to the Mutual RelianceReview System for Exemptive Relief Applications (the "MRRS"),the Issuer has selected the Ontario Securities Commission asthe Principal Regulator for this application;
AND WHEREAS the Issuer has representedto the Decision Makers that:
1. The Issuer was incorporated under the lawsof Canada on January 30, 2002. The Issuer is a wholly-ownedindirect subsidiary of Credit Suisse Group, a corporationincorporated under the laws of Switzerland. The head officeof the Issuer is located in Toronto, Ontario.
2. The Issuer was incorporated solely to actas a vehicle for carrying out activities related to issuingasset-backed securities in respect of Custodial Property (assuch term is defined in paragraph 3 hereof) acquired by theIssuer.
3. The articles of incorporation of the Issuerrestrict the activities of the Issuer to the acquisition ofvarious categories of commercial and multifamily residentialmortgages, hypothecs or other charges on real or immovableproperty situated in Canada and originated by parties otherthan the Issuer (the "Custodial Property"). TheIssuer funds the acquisition of the Custodial Property byissuing asset-backed securities, including Certificates, thatreceive distributions from the Custodial Property acquiredby the Issuer, and that evidence an undivided co-ownershipinterest in the Custodial Property. The Custodial Propertyis held by a custodian and the recourse of Certificate holdersis limited to the Custodial Property and any proceeds thereof.
4. As of the date of this Decision Document,the Issuer has issued (i) $292,242,000 (approximate) aggregateamount of Commercial Mortgage Pass Through Certificates, Series2002-CCL1, designated as Classes A-1, A-2, B, C, D, E andA-X, each with an Approved Rating by an Approved Rating Organization(as such terms are defined in National Instrument 44-101 ShortForm Prospectus Distributions ("NI44-101"), to thepublic in Canada pursuant to a short form prospectus datedJuly 25, 2002 and (ii) $17,829,347 aggregate amount of CommercialMortgage Pass Through Certificates, Series 2002-CCL1, designatedas Classes F, G, H, J and K, on a private placement basisin Canada pursuant to a confidential offering memorandum datedJuly 25, 2002.
5. The Issuer is a special purpose corporation,the only securityholders of which, excluding Column CanadianHoldings, Inc., which owns all of its issued and outstandingvoting securities, are and will be the holders of the Certificatesand the holders of the Issuer's offer asset-backed securitiesissued from time to time in respect of Custodial Property.
6. The Issuer currently has and will haveno material assets or liabilities other than its rights andobligations under certain of the material contracts relatedto the Certificates, and transactions relating to other asset-backedSecurities issued by the Issuer from time to time in respectof Custodial Property. The Issuer will not carry on any activitiesother than activities related to issuing asset-backed securitiesthat will receive distributions from the cash flows from theCustodial Property acquired by the Issuer. Certificate holderswill only have recourse to the Custodial Property and willnot have any recourse to the Issuer.
7. No director or officer of the Issuer orany associate thereof is indebted to the Issuer, nor has anydirector, officer, or any other insider, or any associateor affiliate thereof, entered into a material contract withthe Issuer, other than as previously disclosed in documentsfiled with the Decision Makers.
8. No insider of the Issuer, or associateor affiliate of such insider, has a direct or indirect interestin any transaction which has materially affected or whichwould materially affect the Issuer, other than as previouslydisclosed in documents filed with the Decision Makers.
9. The auditors of the Issuer are KPMG LLP.
10. Certificates sold to the public pursuantto a short form prospectus have been, and will continue tobe, sold on the basis of an Approved Rating by an ApprovedRating Organization (as such terms are defined in NI44-101)which will from time to time independently review such ratingbased on the performance of the Custodial Property.
11. The information that is to be disclosedin the interim and annual financial statements of the Issueris not relevant to the holders of Certificates because suchholders only have recourse to the Custodial Property and donot have any recourse to the Issuer.
12. For each offering of Certificates, theIssuer will enter into a pooling and servicing agreement (the"Pooling and Servicing Agreement") with a reportingagent (the "Reporting Agent"), a master servicer(the "Master Servicer") and a special servicer (the"Special Servicer"), among others, providing for,among other things, the issuance of Certificates and governingthe rights of Certificate holders. The Pooling and ServicingAgreement will provide for the fulfillment of certain administrativefunctions relating to the Certificates, such as providingperiodic reports to Certificate holders and maintaining aregister of Certificate holders.
13. There will be no annual meetings of Certificateholders since the Pooling and Servicing Agreement providesthat only the holders of a certain percentage of Certificatesof each series of the Issuer have the right to direct theMaster Servicer and the Special Servicer to take certain actionsunder the Pooling and Servicing Agreement with respect tosuch series of Certificates.
14. The Reporting Agent provides, and willcontinue to provide, on a website to be identified in therelevant short form prospectus of the Issuer, the financialand other information prescribed therein to be made availableto Certificate holders on a monthly basis, such informationto include information relating to distributions made in thatmonth, as well as Commercial Mortgage Securities Associationreports that would be specified in the relevant short formprospectus, together with such additional information as maybe prescribed by the Decision Makers (the "DistributionDate Statement"), and the Issuer has contemporaneouslyfiled or caused to be reasonable contemporaneously filed,and will continue to contemporaneously file or cause to bereasonably contemporaneously filed, after receipt of suchinformation as contained in the Distribution Date Statementfrom the Reporting Agent, a summary of such information ascontained in the Distribution Date Statement on the Systemfor Electronic Document Analysis and Retrieval ("SEDAR").
15. In the past few years, the Canadian marketfor asset-backed securities has matured and investors havebecome familiar with the types of reports that are providedto holders of such securities and where such reports are available.
16. Notwithstanding paragraph 14 hereof, theIssuer may amend the contents of the financial and other informationposted on the Reporting Agent's website and filed on SEDARto prevent the disclosure of the name or address of a mortgagedproperty or any obligor under a mortgage loan as may be requiredby confidentiality agreements or other obligations of confidentialitybinding on the Issuer.
17. On not less than an annual basis, theIssuer will request intermediaries to deliver a notice toCertificate holders pursuant to the procedures stipulatedby National Instrument 54-101 Communication with BeneficialOwners of Securities of a Reporting Issuer, advising Certificateholders that the monthly information prescribed in paragraph14 hereof, the quarterly information prescribed in paragraph18 hereof and the annual information prescribed in paragraph19 hereof is available on SEDAR and on a website, the websiteaddress, and that Certificate holders may request that papercopies of such reports be provided to them by ordinary mail.
18. Within 60 days of the end of each fiscalquarter of the Issuer, or such lesser period as may be requiredunder applicable laws, the Issuer or its duly appointed representativeor agent will post on the applicable website and file on SEDAR,and mail to Certificate holders who so request, interim managementdiscussion and analysis with respect to the applicable CustodialProperty pool included in the Issuer's Annual InformationForm filed with the Decision Makers (as supplemented by anyshort form prospectuses filed by the Issuer during the interveningperiod).
19. Within 140 days of the end of each fiscalyear of the Issuer, or such lesser period as may be requiredunder applicable laws, the Issuer or its duly appointed representativeor agent will post on the applicable website and file on SEDAR,and mail to Certificate holders who so request:
(a) cumulative financial and other informationas prescribed by the Decision Makers for the last completedfiscal year with respect to the applicable Custodial Propertypool;
(b) annual management discussion and analysiswith respect to the applicable Custodial Property pool includedin the Issuer's Annual Information Form filed with the DecisionMakers (as supplemented by any short form prospectuses filedby the Issuer during the intervening period);
(c) an annual statement of compliance signedby a senior officer of each applicable Master Servicer,Special Servicer or other party acting in a similar capacityon behalf of the Issuer for the applicable Custodial Propertypool certifying that the Master Servicer, the Special Serviceror such other party acting in a similar capacity has fulfilledall of its obligations under the applicable Pooling andServicing Agreement during the year, or, if there has beena default, specifying each such default and the nature andstatus thereof; and
(d) an annual accountants' report in formand content acceptable to the Decision Makers prepared bya firm of independent public or chartered accountants respectingcompliance by the Master Servicer, the Special Serviceror such other party acting in a similar capacity with theUniform Single Attestation Program or such other servicingstandard acceptable to the Decision Makers during the year.
20. Unless a material change takes place inthe business or affairs of the Issuer, the Custodial Propertyor the Certificates, Certificate holders will obtain adequateand relevant financial information regarding the Certificatesfrom the information described in paragraphs 14, 18 and 19hereof.
21. The Issuer will issue press releases andfile material change reports in accordance with the requirementsof the Legislation in respect of material changes in its affairs,in respect of changes in the status (including defaults inpayments due to Certificate holders) of the Custodial Propertyunderlying the Certificates which may reasonably be consideredto be material to Certificate holders and in respect of adowngrade in the rating of any of the Certificates by an ApprovedRating Agency.
22. Fees payable in connection with the filingof annual financial statements will be paid at the time that,and in respect of, the annual financial information specifiedin paragraph 19 hereof is filed.
23. The provision of information to Certificateholders on a monthly, quarterly and annual basis as describedin paragraphs 14, 18 and 19 hereof will meet the objectivesof allowing the Certificate holders to monitor and make informeddecisions about their investment.
AND WHEREAS pursuant to the MRRS, thisDecision Document evidences the decision of each Decision Maker(collectively, the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Maker with the jurisdiction to make theDecision has been met;
AND WHEREAS each of the Decision Makersis of the opinion that it would not be prejudicial to the publicinterest to grant this Decision;
THE DECISION of the Decision Makers pursuantto the Legislation is that the requirements contained in theLegislation concerning the preparation, filing and deliveryof an annual report, where applicable, interim and annual financialstatements and the annual filing, where applicable, in lieuof an information circular, shall be waived in connection withofferings of Certificates, provided that:
(a) the Issuer complies with paragraphs14, 17, 18, 19, 21 and 22 hereof; and
(b) the exemption from the requirementsof the Legislation concerning the preparation, filing anddelivery of an annual report, where applicable, and theannual filing, where applicable, in lieu of an informationcircular, shall terminate sixty days after the occurrenceof a material change in any of the representations of theIssuer contained in paragraphs 5 through 8, inclusive, hereof,unless the Issuer satisfies the Decision Makers that theexemption should continue.
January 7, 2003.
"Robert W. Korthals" "MaryTheresa McLeod"