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Column Canada Issuer Corporation - MRRS Decision
Headnote
Mutual Reliance Review System for Exemptive Relief Applications -- Issuer of mortgage pass-through certificates previously granted an exemption from the requirements to file annual and interim financial statements, subject to certain conditions -- issuer granted an exemption from the requirement under Multilateral Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings to file interim certificates for the 2004 financial year.
Applicable Instruments
Multilateral Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings.
National Instrument 51-102 Continuous Disclosure Obligations.
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ALBERTA, SASKATCHEWAN, MANITOBA,
ONTARIO, NOVA SCOTIA AND NEWFOUNDLAND
AND LABRADOR
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
COLUMN CANADA ISSUER CORPORATION
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the "Decision Maker") in each of Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia and Newfoundland and Labrador (collectively, the "Jurisdictions") has received an application from Column Canada Issuer Corporation (the "Issuer") for a decision pursuant to the securities legislation of the Jurisdictions (the "Legislation") that the requirements contained in the Legislation to file interim certificates ("Interim Certificates") with the Decision Makers under section 3.1 of Multilateral Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings ("MI 52-109") shall not apply to the Issuer in respect of its 2004 financial year, 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, unless otherwise defined, the terms herein have the meaning set out in National Instrument 14-101 Definitions;
AND WHEREAS pursuant to an MRRS decision document dated January 7, 2003 (the "Previous Decision"), the Issuer is exempted, on certain terms and conditions, from the requirements of the securities legislation in the jurisdictions of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, Nova Scotia and Newfoundland and Labrador concerning, inter alia, the preparation, filing and delivery of interim and annual financial statements;
AND WHEREAS the Issuer has delivered a notice dated May 25, 2004 to the applicable securities regulatory authorities or regulators under subsection 13.2(2) of National Instrument 51-102 Continuous Disclosure Obligations stating that it intends to rely on the Previous Decision to the same extent and on the same conditions as contained in the Previous Decision;
AND WHEREAS the Issuer has represented to the Decision Makers that:
1. The Issuer was incorporated under the laws of Canada on January 30, 2002. The Issuer is a wholly-owned indirect subsidiary of Credit Suisse Group, a corporation incorporated under the laws of Switzerland.
2. The Issuer is a reporting issuer, or the equivalent, in each of the provinces of Canada that provides for a reporting issuer regime and is not in default of any requirements of the Legislation.
3. The head office of the Issuer is located in Toronto, Ontario.
4. The financial year-end of the Issuer is December 31.
5. The Issuer was incorporated solely to act as a vehicle for carrying out activities related to issuing asset-backed securities in respect of Custodial Property (as such term is defined in paragraph 6 hereof) acquired by the Issuer.
6. The articles of incorporation of the Issuer restrict the activities of the Issuer to the acquisition of various categories of commercial and multifamily residential mortgages, hypothecs or other charges on real or immovable property situated in Canada and originated by parties other than the Issuer (the "Custodial Property"). The Issuer funds the acquisition of the Custodial Property by issuing asset-backed securities, including Certificates, that receive distributions from the Custodial Property acquired by the Issuer, and that evidence an undivided co-ownership interest in the Custodial Property. The Custodial Property is held by a custodian and the recourse of Certificate holders is limited to the Custodial Property and any proceeds thereof.
7. The only security holders of the Issuer, excluding Column Canadian Holdings, Inc., which owns all of its issued and outstanding voting securities, are and will be the holders of the Issuer's asset-backed securities issued from time to time in respect of Custodial Property (the "Certificates").
8. The Issuer currently has and will have no material assets or liabilities other than its rights and obligations under certain of the material contracts related to the Certificates, and transactions relating to other asset-backed securities issued by the Issuer from time to time in respect of Custodial Property.
9. The Issuer will not carry on any activities other than activities related to issuing asset-backed securities that will receive distributions from the cash flows from the Custodial Property acquired by the Issuer.
10. For each offering of Certificates, the Issuer will enter into a pooling and servicing agreement (the "Pooling and Servicing Agreement") with a reporting agent (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 governing the rights of Certificate holders. The Pooling and Servicing Agreement will provide for the fulfillment of certain administrative functions relating to the Certificates, such as providing periodic reports to Certificate holders and maintaining a register of Certificate holders.
11. The Reporting Agent provides, and will continue to provide, on a website to be identified in the relevant short form prospectus of the Issuer, the financial and other information prescribed therein to be made available to Certificate holders on a monthly basis, such information to include information relating to distributions made in that month, as well as Commercial Mortgage Securities Association reports that would be specified in the relevant short form prospectus, together with such additional information as may be prescribed by the Decision Makers (the "Distribution Date Statement"), and the Issuer has contemporaneously filed or caused to be reasonable contemporaneously filed, and will continue to contemporaneously file or cause to be reasonably contemporaneously filed, after receipt of such information as contained in the Distribution Date Statement from the Reporting Agent, a summary of such information as contained in the Distribution Date Statement on the System for Electronic Document Analysis and Retrieval ("SEDAR").
12. Within 60 days of the end of each fiscal quarter of the Issuer, or such lesser period as may be required under applicable laws, the Issuer or its duly appointed representative or agent will post on the applicable website and file on SEDAR, and mail to Certificate holders who so request, interim management discussion and analysis with respect to the applicable Custodial Property pool included in the Issuer's AIF filed with the Decision Makers (as supplemented by any short form prospectuses filed by the Issuer during the intervening period).
13. Within 140 days of the end of each fiscal year of the Issuer, or such lesser period as may be required under applicable laws, the Issuer or its duly appointed representative or agent will post on the applicable website and file on SEDAR, and mail to Certificate holders who so request:
(a) cumulative financial and other information as prescribed by the Decision Makers for the last completed fiscal year with respect to the applicable Custodial Property pool;
(b) annual management discussion and analysis with respect to the applicable Custodial Property pool included in the Issuer's AIF filed with the Decision Makers (as supplemented by any short form prospectuses filed by the Issuer during the intervening period);
(c) an annual statement of compliance (the "Compliance Certificate") signed by a senior officer of each applicable Master Servicer, Special Servicer or other party acting in a similar capacity on behalf of the Issuer for the applicable Custodial Property pool certifying that the Master Servicer, the Special Servicer or such other party acting in a similar capacity has fulfilled all of its obligations under the applicable Pooling and Servicing Agreement during the year, or, if there has been a default, specifying each such default and the nature and status thereof; and
(d) an annual accountants' report (the "Accountants' Report") in form and content acceptable to the Decision Makers prepared by a firm of independent public or chartered accountants respecting compliance by the Master Servicer, the Special Servicer or such other party acting in a similar capacity with the Uniform Single Attestation Program or such other servicing standard acceptable to the Decision Makers during the year.
14. Form 52-109FT2 requires the certifying officer to certify as follows:
(a) he or she has reviewed the interim filings (as defined in MI 52-109) of the Issuer for the applicable interim period;
(b) based on his or her knowledge, the interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the interim filings; and
(c) based on his or her knowledge, the interim financial statements together with the other financial information included in the interim filings fairly present in all material respects the financial condition, results of operations and cash flows of the Issuer, as of the date and for the periods presented in the interim filings.
15. "Interim filings" is defined in MI 52-109 to include interim financial statements filed under provincial and territorial securities legislation.
16. The Previous Decision exempts the Issuer from the requirements to file interim financial statements. The information that is to be disclosed in interim financial statements is not relevant to the holders of Certificates because such holders only have recourse to the Custodial Property and do not have any recourse to the Issuer.
17. The Issuer and its officers do not participate in the preparation of the Distribution Date Statements other than reviewing the Distribution Date Statements and informing the Reporting Agent of any errors that they are aware of.
18. The Compliance Certificate and Accountants' Report provide assurance to the holders of Certificates in respect of the accuracy of the Distribution Date Statements.
AND WHEREAS under the System, this MRRS Decision Document evidences the decision of each Decision Maker (collectively, the "Decision");
AND WHEREAS each of the Decision Makers is satisfied that the test contained in the Legislation that provides the 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 the Legislation to file Interim Certificates with the Decision Makers under section 3.1 of MI 52-109 shall not apply to the Issuer in respect of the interim periods during its 2004 financial year provided that the Issuer is not required to prepare, file and deliver interim financial statements for such interim periods under the Legislation, whether pursuant to exemptive relief or otherwise.
May 28, 2004.
"Erez Blumberger"