Mutual Reliance Review System for Exemptive Relief Applications -- Issuer of asset-backed securities 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.
Multilateral Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings.
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ALBERTA, SASKATCHEWAN, MANITOBA, ONTARIO,
NOVA SCOTIA AND NEWFOUNDLAND AND LABRADOR
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
WINDSOR TRUST 2002-B
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 Windsor Trust 2002-B ("Windsor B") for a decision under 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 Multilateral Instrument 52-109 - Certification of Disclosure in Issuers' Annual and Interim Filings ("MI 52-109") shall not apply to it in respect of its 2004 financial year;
AND WHEREAS, pursuant to the MRRS decision document dated August 29, 2003 (the "Previous Decision"), Windsor B is exempted, on certain terms and conditions, from the requirements (the "Financial Statements Requirement") of the Legislation of the jurisdictions of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, Nova Scotia and Newfoundland and Labrador (the "Previous Decision Jurisdictions") concerning the preparation, filing and delivery of, among other things, unaudited interim financial statements and audited financial statements;
AND WHEREAS under 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 meanings set out in National Instrument 14-101- Definitions;
AND WHEREAS Windsor B has represented to the Decision Makers that:
1. Windsor B was established by The Canada Trust Company ("Canada Trust"), pursuant to the declaration of trust made as of October 10, 2002, and is governed by the laws of the Province of Ontario.
2. Canada Trust is the issuer trustee of Windsor B (in such capacity, the "Issuer Trustee"). The office of the Issuer Trustee at which it carries out its administrative functions as Issuer Trustee is Corporate Trust Services, 79 Wellington Street West, 8th Floor, Toronto-Dominion Centre, Toronto, Ontario M5K 1A2.
3. Windsor B is a "reporting issuer" or has equivalent status under the Legislation of the Jurisdictions and is not in default of any requirements of the Legislation in any Jurisdiction, except that Windsor B has not filed Interim Certificates for the three month period ended March 31, 2004.
4. Windsor B is a special purpose entity whose business is specifically restricted to: (a) acquiring from DaimlerChrysler Services Canada Inc. ("DCSCI") a pool of receivables consisting of loans to various obligors used to finance the purchase of automobiles and light-duty trucks ("Vehicles") originated in Canada by various automobile dealers of DaimlerChrysler Canada Inc. and other automobile manufacturers, and acquired by DCSCI, that meet certain eligibility requirements ("Receivables"), the interest of DCSCI in the Vehicles, the financing of the purchase of which gave rise to such Receivables, 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 (the "Related Security"), all collections with respect thereto (the "Collections") and all proceeds of the foregoing, (b) funding such acquisition, and (c) engaging in related activities. Windsor B does not presently, and will not, carry on any business other than the activities described above.
5. The financial year-end of Windsor B is December 31.
6. Windsor B purchased a pool of Receivables meeting certain eligibility criteria, together with the Related Security and the Collections with respect thereto and all proceeds of the foregoing (collectively, the "Windsor B Purchased Assets") from DCSCI pursuant to the receivables purchase agreement made as of November 13, 2002, between DCSCI, as seller, and Windsor B (the "Windsor B RPA"). The purchase by Windsor B of the Windsor B Purchased Assets was funded through the issuance of $225,000,000 principal amount of 3.584% Auto Loan Receivables-Backed Class A-1 Pay-Through Notes (the "Windsor B Pay-Through Notes") and $191,676,826 principal amount of 3.584% Auto Loan Receivables-Backed Class A-2 Pass-Through Notes (the "Windsor B Pass-Through Notes"), pursuant to a trust indenture dated November 13, 2002 between Windsor B and The Trust Company of Bank of Montreal, as indenture trustee. The Windsor B Pay-Through Notes were offered pursuant to a long-form prospectus dated November 7, 2002 filed with and receipted by the local securities regulatory authority or regulator in each of the provinces of Canada on November 7, 2002. The Windsor B Pass-Through Notes were issued pursuant to an exemption from the registration requirement and the prospectus requirement of the Securities Act (Ontario). The Windsor B Pay-Through Notes and the Windsor B Pass-Through Notes are herein collectively referred to as the "Windsor B Notes".
7. Windsor B currently has, and will continue to have, no material assets or liabilities other than its rights and obligations arising from the acquisition of the Windsor B Purchased Assets acquired with the proceeds of the Windsor B Notes.
8. Windsor B currently has no securities issued and outstanding other than the Windsor B Notes. The only holders of securities of Windsor B are, and will be, the holders of the Windsor B Notes.
9. The Windsor B RPA provides for, among other things, the administration, servicing and collection of the Windsor B Purchased Assets acquired pursuant thereto by DCSCI, as servicer (in such capacity, the "Servicer") and agent for Windsor B .
10. The Servicer is required pursuant to the Windsor B RPA to deliver or cause to be delivered to:
(a) Windsor B and such other persons as Windsor B may designate, in respect of the preceding fiscal year, a certificate of an officer of the Servicer (the "Annual Servicer's Compliance Certificate"), certifying that the Servicer complied in such year with its obligations under the Windsor B RPA except to the extent non-compliance therewith did not have an adverse effect; and
(b) Windsor B, the rating agencies and the Servicer on or before April 30 of each year, a report of a firm of independent chartered accountants (the "Annual Accountants' Servicing Report") to the effect that such firm has performed tests relating to retail receivables (including financing arrangements with obligors to finance their Vehicles) serviced for others, which procedures will be based upon the requirements of the Uniform Single Attestation Program for Mortgage Bankers, to the extent the procedures in such program are applicable to the servicing obligations set forth in the Windsor B RPA and, except as described in the report, disclosed no exceptions or errors in the records relating to such retail receivables that, in the firm's opinion, such program requires such firm to report.
11. Pursuant to the Previous Decision, Windsor B, or a representative or agent of Windsor B, must post on http://investor.chryslerfinancial.com and mail to holders of the Windsor B Notes who so request:
(a) on or before the second business day prior to the 15th day of each month, and file on SEDAR contemporaneously therewith, or cause to be filed on SEDAR contemporaneously therewith, the monthly report (the "Monthly Servicer Report") containing various items of information relating to the Windsor B Purchased Assets acquired with the proceeds of the Windsor B Notes and distributions from and deposits to the collection account and the pay-through protection account required by the Windsor B RPA to be made available to holders of the Windsor B Notes on a monthly basis;
(b) within 60 days of the end of each fiscal quarter of Windsor B, and file on SEDAR contemporaneously therewith, or cause to be filed on SEDAR contemporaneously therewith, interim management's discussion and analysis with respect to the pool of Windsor B Purchased Assets acquired with the proceeds of the Windsor B Notes; and
(c) within 140 days of the end of each fiscal year of Windsor B, and file on SEDAR contemporaneously therewith, or cause to be filed on SEDAR contemporaneously therewith, the following:
(i) annual management's discussion and analysis with respect to the pool of Windsor B Purchased Assets acquired with the proceeds of the Windsor B Notes;
(ii) the Annual Servicer's Compliance Certificate; and
(iii) the Annual Accountants' Servicing Report.
12. Windsor B is subject to section 3.1 of MI 52-109, which requires every reporting issuer to file for each interim period Interim Certificates, signed by the persons specified in section 3.1 of MI 52-109 (the "Certifying Officers").
13. The Interim Certificates require the Certifying Officers of Windsor B to certify as follows:
(a) he or she has reviewed the interim filings (as hereinafter defined) of Windsor B 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 Windsor B, as of the date and for the periods presented in the interim filings.
14. The term "interim filings" is defined in MI 52-109 to include the issuer's interim financial statements and interim MD&A filed under provincial and territorial securities legislation for the most recently completed interim period.
15. Pursuant to the Previous Decision, Windsor B is exempt from the Financial Statements Requirement of the securities legislation of the Previous Decision Jurisdictions (which include the Jurisdictions).
16. The Annual Servicer's Compliance Certificate and the Annual Accountants' Servicing Report of Windsor B provide assurance to the holders of the Windsor B Notes as to the accuracy of the Monthly Servicer Reports.
AND WHEREAS under the System, this MRRS Decision Document evidences the decision of each Decision Maker (collectively, the "Decision");
AND WHEREAS each Decision Maker 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 Windsor B in respect of the interim periods during its 2004 financial year provided that it is not required to prepare, file and deliver for such interim periods under the Legislation of the Jurisdictions, whether pursuant to exemptive relief, or otherwise.
August 30, 2004.