Calculation of participation fees payable by special purpose trust -- only outstanding securities of the trust are asset backed securities in the form of "pass-through notes" and "pay-through notes" -- only one holder of the pass-through notes and there is no intention to transfer such notes -- order exempting trust from including pass-through notes when calculation of the capitalization of the trust.
Applicable Ontario Rules
Ontario Securities Commission Rule 13-502 Fees.
IN THE MATTER OF
THE SECURITIES ACT R.S.O. 1990,
c. S.5, AS AMENDED (THE "ACT")
ONTARIO SECURITIES COMMISSION
RULE 13-502 FEES ("RULE 13-502")
IN THE MATTER OF
WINDSOR AUTO TRUST
(Section 6.1 of Rule 13-502)
WHEREAS the Ontario Securities Commission (the "Commission") has received an application from Windsor Auto Trust (the "Trust"), pursuant to section 6.1 of Rule 13-502 Fees, for an order exempting, in part, the Trust from the requirement to pay participation fees calculated in the manner prescribed by Part 2 of Rule 13-502.
AND WHEREAS, unless otherwise defined, the terms herein have the meanings set out in National Instrument 14-101 Definitions;
AND WHEREAS the Trust has represented to the Commission that:
1. The Trust was established by The Canada Trust Company ("Canada Trust"), pursuant to an amended and restated declaration of trust made as of October 14, 2003, under the laws of the Province of Ontario. Canada Trust is the issuer trustee of the Trust.
2. The Trust is a special purpose trust whose business is specifically limited to, (a) purchasing or otherwise acquiring from time to time from DaimlerChrysler Services Canada Inc. ("DCSCI") receivables arising under contracts for the purchase of automobiles and light-duty trucks ("Financed Vehicles") sold by dealerships located within Canada that meet certain eligibility requirements of DCSCI ("Receivables"), all related security, including the interest of DCSCI in the Financed Vehicles and all guarantees or other security interests or liens and property subject thereto from time to time, if any, purporting to secure payment of the Receivables ("Related Security"), all collections with respect thereto, and all proceeds of the foregoing (collectively, "Purchased Assets"), (b) holding, servicing, enforcing and disposing Purchased Assets, and (c) engaging in incidental or ancillary activities.
3. For each securitization transaction, a pool of Purchased Assets will be identified. Each purchase or other acquisition by the Trust from DCSCI of Purchased Assets will be funded wholly or partially with borrowed funds or by issuing securities, including asset-backed securities, pursuant to a trust indenture dated October 14, 2003 (the "Trust Indenture"), between the Trust and BNY Trust Company of Canada (the "Indenture Trustee") and a supplement to the Trust Indenture that creates and issues one or more asset-backed securities of any series (collectively, the "Notes").
4. On October 29, 2003, the Trust purchased from DCSCI a pool of Receivables, all Related Security and collections with respect thereto and all proceeds of the foregoing, pursuant to a receivables purchase agreement made as of October 29, 2003, between DCSCI, as seller, and the Trust, and funded that purchase through the issuance of $150,000,000, 2.996% Auto Loan Receivables-Backed Class A-1 Pay-Through Notes, Series 2003-A (the "Class A-1 Pay-Through Notes"), $250,000,000, 3.938% Auto Loan Receivables-Backed Class A-2 Pay-Through Notes, Series 2003-A (together with the Class A-1 Pay-Through Notes, the "Series 2003-A Pay-Through Notes") and $164,894,888, 3.593% Auto Loan Receivables-Backed Class A-3 Pass-Through Notes (the "Class A-3 Pass-Through Notes" and together with the Series 2003-A Pay-Through Notes, the "Series 2003-A Notes"), pursuant to the Trust Indenture and a supplement to the Trust Indenture made as of October 29, 2003, between the Trust and the Indenture Trustee.
5. The Series 2003-A Pay-Through Notes were distributed to the public pursuant to a short form prospectus dated October 22, 2003 filed with and receipted by the local securities regulatory authority or regulator in each of the provinces of Canada on October 23, 2003.
6. The Class A-3 Pass-Through Notes were distributed to Computershare Trust Company of Canada in its capacity as trustee of King Street Funding Trust (the "Purchaser"), pursuant to an exemption from the "registration requirement" and the "prospectus requirement" of the Securities Act (Ontario).
7. The Series 2003-A Pay-Through Notes are monthly-pay amortizing notes. The Class A-3 Pass-Through Notes were issued to support the controlled amortization of the Series 2003-A Pay-Through Notes for the benefit of the holders of the Series 2003-A Pay-Through Notes.
8. The Trust currently has no securities issued and outstanding other than the Series 2003-A Notes. None of the Series 2003-A Notes is traded on, and there is no current intention to have any of the Series 2003-A Notes or the Notes of any other series traded on, any exchange or quotation system.
9. The Trust is a reporting issuer in, among other provinces, Ontario and is not in default of any of the requirements of the securities legislation of Ontario.
10. Pursuant to section 2.2 of Rule 13-502, a reporting issuer in Ontario must pay, for each of its financial years, the participation fee shown in Appendix A to Rule 13-502 that applies to the reporting issuer according to the capitalization of the reporting issuer, as determined as at the end of its previous financial year.
11. The Trust is a "Class 2 reporting issuer" within the meaning of Rule 13-502. The capitalization of the Trust for each of its financial years will include the Pass-Through Notes, unless this order is made.
AND UPON considering the application and the recommendation of staff;
IT IS ORDERED, pursuant to section 6.1 of Rule 13-502, that for purposes of calculating the capitalization of the Trust pursuant to Part 2 of Rule 13-502, the Class A-3 Pass-Through Notes shall not be included in any such calculation, provided that the Class A-3 Pass-Through Notes continue to be held by the Purchaser or any person or company over which the Purchaser provides, directly or indirectly, the principal direction or influence over the business and affairs of such person or company by virtue of being the Purchaser.
March 25, 2004.