Ford Auto Securitization Trust
Headnote
National Policy 11-206 Process for Cease to be a Reporting Issuer Applications -- issuer of asset backed notes deemed to no longer be a reporting issuer under securities legislation -- issuer has more than 50 securityholders worldwide, and more than 15 securityholders in Canada -- notes issued in Canada pursuant to minimum amount prospectus exemption and accredited investor prospectus exemptions -- issuer to continue to make monthly investor reports available to investors.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am.
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the "Jurisdiction") AND IN THE MATTER OF THE PROCESS FOR CEASE TO BE A REPORTING ISSUER APPLICATIONS AND IN THE MATTER OF FORD AUTO SECURITIZATION TRUST (the "Filer")
ORDER
Background
The principal regulator in the Jurisdiction has received an application from the Filer for an order under the securities legislation of the Jurisdiction (the "Legislation") that the Filer has ceased to be a reporting issuer in all the jurisdictions of Canada in which it is a reporting issuer (the "Order Sought").
Under the Process for Cease to be a Reporting Issuer Applications (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application; and
(b) the Filer has provided notice that subsection 4C.5(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador (collectively with Ontario, the "Jurisdictions").
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this order, unless otherwise defined herein.
Representations
This order is based on the following facts represented by the Filer:
1. The Filer was established under a declaration of trust on October 2, 2008, which declaration of trust was amended and restated as of June 26, 2009, and which declaration of trust was further amended and restated April 13, 2017 (collectively, the "Declaration of Trust"). The Declaration of Trust is governed by the laws of the Province of Ontario. Computershare Trust Company of Canada is the trustee (in such capacity, the "Issuer Trustee") of the Filer and is a trust company established under the laws of Canada and is licensed to carry on business as a trustee in all provinces and territories of Canada. The head office of the Issuer Trustee is 100 University Avenue, 8th Floor, Toronto, Ontario M5J 2Y1;
2. The Filer is a special purpose entity whose business is limited to acquiring from Ford Credit Canada Company ("FCCC", "Servicer", or "Seller") pools (each, a "Pool") of receivables consisting of retail conditional sale contracts secured by new and used cars, light trucks and utility vehicles. The Filer has issued asset-backed notes ("Notes") in series ("Series") with varying terms to finance the acquisition of the Pools and uses the collections on the receivables to pay its obligations on the Notes. The Filer pledges to BNY Trust Company of Canada, as indenture trustee (in such capacity, the "Indenture Trustee") each Pool for the benefit of the secured parties of the Series that finances the acquisition of such Pool;
3. The Filer is a reporting issuer in each of the Jurisdictions and is a "venture issuer" as defined in National Instrument 51-102 Continuous Disclosure Obligations;
4. The Filer is not in default of any of the requirements of the securities legislation in any of the Jurisdictions;
5. The Filer has no issued and outstanding securities other than the Notes;
6. In connection with each acquisition of a Pool, the Filer entered into a sale and servicing agreement with FCCC and Ford Motor Credit Company LLC, as performance guarantor (each, a "Sale and Servicing Agreement"), providing for, among other things, the preparation by the Servicer of a monthly servicing report (the "Monthly Investor Report") for the related noteholders containing financial and other information in respect of the Series of Notes and the related Pool.
7. In accordance with the terms of each Sale and Servicing Agreement, the Servicer is required to deliver the Monthly Investor Reports to the Indenture Trustee at least two business days before the related payment date. The Indenture Trustee, in accordance with the terms of the Indenture (as defined below), is required to deliver the Monthly Investor Reports on the related payment date to each noteholder of record for the applicable Series;
8. The Monthly Investor Report for a Series of Notes that has been distributed by way of private placement through the use of an offering memorandum (each such Series, a "Widely-Distributed Series" and such Notes, the "Widely-Distributed Notes") contains the information described below:
(a) collections on the receivables for the collection period allocated by interest and principal,
(b) fees and expenses payable to the indenture trustee and the issuer trustee,
(c) any servicing fee payable to a servicer,
(d) the amount of interest and principal payable and paid on each class of notes, in each case expressed as an aggregate amount and per $1,000 of principal amount,
(e) the regular principal payment and any priority principal payments,
(f) the principal amount of each class of notes at the beginning of the period and the end of the period and the note factors needed to compute the principal amount of each class of notes, in each case giving effect to all payments to be made on the payment date,
(g) the balance of the reserve account and the amount of any withdrawals from or deposits to the reserve account to be made on the payment date,
(h) information on the performance of the receivables for the collection period, including the pool balance, collections and the aggregate amount paid by FCCC to repurchase ineligible receivables, servicer impaired receivables or receivables modified by the servicer, the number of receivables remaining in the pool and the pool factor,
(i) delinquency, repossession and credit loss information on the receivables for the collection period,
(j) the targeted overcollateralization amount and the yield supplement overcollateralization amount, and
(k) the amount of available funds released to the seller as deferred purchase price for the receivables;
9. The Monthly Investor Report for a Series of Notes that has been distributed under a committed facility (each such Series, a "Committed Series" and such Notes, the "Committed Notes") without an offering document contains substantially similar information to that described in paragraph 8, subject to negotiation between the parties;
10. As of April 26, 2023, the Filer has 12 Series of Notes outstanding, being:
(a) Series 2021-A, Asset Backed Notes Class A-1, A-2, A-3, B and C
Widely-Distributed Notes issued by a Canadian offering memorandum and a U.S. supplement offering memorandum each dated October 19, 2021, the Filer issued in Canada and the U.S. CDN$275,930,000 0.475% asset backed class A-1 Notes, Series 2021-A, CDN$348,000,000 1.162% asset backed class A-2 Notes, Series 2021-A, CDN$177,450,000 1.636% asset backed class A-3 Notes, Series 2021-A, and in Canada CDN$25,310,000 2.106% asset backed class B Notes, Series 2021-A and CDN $16,870,000 2.700% asset backed class C Notes, Series 2021-A. The class A-1 Notes matured prior to the date of the application. The class A-2 Notes have a final forecasted payment date of May 15, 2024. The class A-3, B and C Notes have a final forecasted payment date of August 15, 2025. The prospectus exemption relied on was the accredited investor exemption contained in section 2.3 of NI 45-106.
(b) Series 2020-A, Asset Backed Notes Class A-1, A-2, A-3, B and C
Widely-Distributed Notes issued by a Canadian offering memorandum and a U.S. supplement offering memorandum each dated October 20, 2020, the Filer issued in Canada and the U.S. CDN$242,010,000 0.516% asset backed class A-1 Notes, Series 2020-A, CDN$305,900,000 0.887% asset backed class A-2 Notes, Series 2020-A, CDN$157,540,000 1.153% asset backed class A-3 Notes, Series 2020-A, and in Canada CDN$22,260,000 1.872% asset backed class B Notes, Series 2020-A and CDN $14,830,000 2.763% asset backed class C Notes, Series 2020-A. The class A-1 Notes matured prior to the date of the application. The class A-2 Notes have a final forecasted payment date of May 15, 2023. The class A-3, B and C Notes have a final forecasted payment date of July 15, 2024. The prospectus exemption relied on was the accredited investor exemption contained in section 2.3 of NI 45-106.
(c) Series 2019-B, Asset Backed Notes Class A-1, A-2, A-3, B and C
Widely-Distributed Notes issued by a Canadian offering memorandum and a U.S. supplement offering memorandum each dated October 22, 2019, the Filer issued in Canada and the U.S. CDN$205,950,000 2.099% asset backed class A-1 Notes, Series 2019-B, CDN$260,330,000 2.321% asset backed class A-2 Notes, Series 2019-B, CDN$134,070,000 2.472% asset backed class A-3 Notes, Series 2019-B, and in Canada CDN$18,950,000 2.992% asset backed class B Notes, Series 2019-B and CDN $12,620,000 3.338% asset backed class C Notes, Series 2019-B. The class A-1 and A-2 Notes matured prior to the date of the application. The class A-3, B and C Notes have a final forecasted payment date of September 15, 2023. The prospectus exemptions relied on were the accredited investor exemption contained in section 2.3 of NI 45-106 and the minimum amount investment exemption contained in section 2.10 of NI 45-106.
(d) Series 2019-A, Asset Backed Notes Class A-1, A-2, A-3, B and C
Widely-Distributed Notes issued by a Canadian offering memorandum and a U.S. supplement offering memorandum each dated April 16, 2019, the Filer issued in Canada and the U.S. CDN$184,770,000 2.198% asset backed class A-1 Notes, Series 2019-A, CDN$240,100,000 2.354% asset backed class A-2 Notes, Series 2019-A, CDN$125,190,000 2.552% asset backed class A-3 Notes, Series 2019-A, and in Canada CDN$17,370,000 2.855% asset backed class B Notes, Series 2019-A and CDN $11,580,000 3.151% asset backed class C Notes, Series 2019-A. The class A-1 and A-2 Notes matured prior to the date of the application. The class A-3, B and C Notes have a final forecasted payment date of May 15, 2023. The prospectus exemptions relied on were the accredited investor exemption contained in section 2.3 of NI 45-106 and the minimum amount investment exemption contained in section 2.10 of NI 45-106.
(e) Series 2022-R3 Asset Backed Notes
Committed Notes issued by way of private placement in Canada, the Filer issued CDN$1,005,000,000 asset backed Notes, Series 2022-R3, with a final forecasted payment date of April 15, 2026. The prospectus exemption relied on was the minimum amount investment exemption contained in section 2.10 of NI 45-106.
(f) Series 2022-R2 Asset Backed Notes
Committed Notes issued by way of private placement in Canada, the Filer issued CDN$779,000,000 asset backed Notes, Series 2022-R2, with a final forecasted payment date of January 15, 2026. The prospectus exemption relied on was the minimum amount investment exemption contained in section 2.10 of NI 45-106.
(g) Series 2022-R1 Asset Backed Notes
Committed Notes issued by way of private placement in Canada, the Filer issued CDN$1,255,000,000 asset backed Notes, Series 2022-R1, with a final forecasted payment date of December 15, 2025. The prospectus exemption relied on was the minimum amount investment exemption contained in section 2.10 of NI 45-106.
(h) Series 2021-R2 Asset Backed Notes
Committed Notes issued by way of private placement in Canada, the Filer issued CDN$1,639,000,000 asset backed Notes, Series 2021-R2, with a final forecasted payment date of June 16, 2025. The prospectus exemption relied on was the minimum amount investment exemption contained in section 2.10 of NI 45-106.
(i) Series 2021-R1 Asset Backed Notes
Committed Notes issued by way of private placement in Canada, the Filer issued CDN$1,399,000,000 asset backed Notes, Series 2021-R1, with a final forecasted payment date of January 15, 2025. The prospectus exemption relied on was the minimum amount investment exemption contained in section 2.10 of NI 45-106.
(j) Series 2020-R2 Asset Backed Notes
Committed Notes issued by way of private placement in Canada, the Filer issued CDN$1,336,000,000 asset backed Notes, Series 2020-R2, with a final forecasted date of May 15, 2024. The prospectus exemption relied on was the minimum amount investment exemption contained in section 2.10 of NI 45-106.
(k) Series 2020-R1 Asset Backed Notes
Committed Notes issued by way of private placement in Canada, the Filer issued CDN$519,000,000 asset backed Notes, Series 2020-R1, with a final forecasted payment date of January 16, 2024. The prospectus exemption relied on was the minimum amount investment exemption contained in section 2.10 of NI 45-106.
(l) Series 2019-R2 Asset Backed Notes
Committed Notes issued by way of private placement in Canada, the Filer issued CDN$649,000,000 asset backed Notes, Series 2019-R2, with a final forecasted payment date of June 15, 2023. The prospectus exemption relied on was the minimum amount investment exemption contained in section 2.10 of NI 45-106.
11. All Series of Notes previously offered by way of prospectus by the Filer in Canada have been paid in full, with the last such Series having been repaid on March 16, 2020;
12. The Filer has no current intention to issue any further Notes of any Series;
13. The Widely-Distributed Notes were issued in book-entry form and are represented by global certificates registered in a nominee name of CDS Clearing and Depository Services ("CDS"), with beneficial interests therein recorded in records maintained by CDS and its participants;
14. The Committed Notes were issued in definitive form registered in the name of the applicable noteholder. According to the records of the Filer and the Indenture Trustee, as of January 1, 2023, there were 13 unique investors in the Notes issued pursuant to the Committed Series, each of which is located in Canada;
15. In accordance with industry practice and custom, the Filer has obtained from Broadridge Financial Solutions Inc. ("Broadridge") a geographic survey of beneficial holders of the Widely-Distributed Notes as of January 6, 2023 (the "Geographic Report"), which provides information as to the number of noteholders and Widely-Distributed Notes held in each jurisdiction of Canada and in the United States and other foreign jurisdictions. Broadridge advises that its reported information is based on securityholder addresses of record identified in the files provided to it by the financial intermediaries holding Widely-Distributed Notes. Accordingly, insofar as such intermediaries do not accurately or completely respond to the survey, or address information is not representative of residency, the information is imperfect. The Geographic Report does not include Widely-Distributed Notes held by FCCC, which account for approximately 4.3% of the Widely-Distributed Notes outstanding;
16. The Geographic Report covers approximately 95.7% of the Widely-Distributed Notes outstanding and reports a total of 94 noteholders residing in the following jurisdictions:
(a) 59 in Canada holding 59.04% of the Widely-Distributed Notes reported;
(b) 31 in the United States holding 33.94% of the Widely-Distributed Notes reported; and
(c) 4 in other foreign jurisdictions holding 7.02% of the Widely-Distributed Notes reported.
17. The Canadian holders of the Widely-Distributed Notes represent approximately 59.04% of the Widely-Distributed Notes reported and approximately 62.77% of the number of beneficial investors reported for the Widely-Distributed Notes;
18. The Filer is not eligible to file under the simplified procedure under National Policy 11-206 Process for Cease to be a Reporting Issuer Application because it has at least 15 security-holders in Canada;
19. The Notes entitle the holders only to the payment of principal and interest, and do not entitle the holders to receive or to convert into other securities of the Filer, or to otherwise participate in the distribution of the assets of the Filer upon a liquidation or winding up. Holders of Notes do not have any recourse to the Filer;
20. The Widely-Distributed Notes are rated by designated rating agencies (as defined in National Instrument 44-101 -- Short Form Prospectus Distributions) ("Rating Agencies"). The Rating Agencies base their ratings of a Series of Notes primarily on the credit underlying the receivables, the level of enhancement established for each Series of Notes and, for certain Series of Notes, the subordination of the payments on subordinate classes of Notes, rather than by any independent assessment of the condition and performance, financial or otherwise, of the Filer. The Filer confirms that the Notes issued under each Widely-Distributed Series will continue to be rated by at least one Rating Agency after the Filer ceases to be a reporting issuer in Canada;
21. There is no obligation or covenant in any Sale and Servicing Agreement, the Indenture, the Notes or any offering memorandum delivered in connection with the Notes ("Offering Documents") for the Filer to maintain its status as a reporting issuer or the equivalent in any jurisdiction of Canada or to file management's discussion and analysis ("MD&A") or any other continuous disclosure documentation on SEDAR. No MD&A or any other continuous disclosure documentation was included or incorporated by reference in any Offering Document. The investors to whom the Notes were placed were sophisticated investors who had the opportunity to negotiate for such disclosure or filing obligations under the Indenture, the Notes or the Offering Documents as they saw fit. Such investors have determined that they did not require the Filer to maintain its reporting issuer status in Canada for the term of the Notes. No continuous disclosure of financial statements, MD&A or annual information forms is required under the prospectus exemptions pursuant to which the Notes were sold in Canada and the United States;
22. The disclosure in the Monthly Investor Reports for a Series of Notes and the related Pools provides all of the disclosure needed by the related noteholders since the disclosure in the Monthly Investor Reports for a series of Notes provides detailed financial and performance information on the related Series of Notes and the underlying Pools. Pursuant to the terms of the Sale and Servicing Agreements the Filer will continue to cause the Servicer to prepare the Monthly Investor Reports and, through the Indenture Trustee, make them available to noteholders. While under no obligation to do so, the Servicer makes available on the website of Ford Motor Credit Company the Monthly Investor Reports for each of the Widely-Distributed Series. The Filer confirms that the Servicer will continue this practice, regardless of the Filer's reporting issuer status;
23. No securities of the Filer, including the Notes, are listed, traded or quoted in Canada or another country on a marketplace (as defined in National Instrument 21-101 Marketplace Operation) or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported;
24. The Filer issued a news release on April 5, 2023, announcing that it has applied to the Ontario Securities Commission, as principal regulator, for a decision that it has ceased to be a reporting issuer in all jurisdictions of Canada and, if that decision is granted, the Filer will no longer be a reporting issuer in any jurisdiction of Canada. The Filer confirms that it received no comments in response to the news release; and
25. Upon granting of the Order Sought, the Filer will not be a reporting issuer or the equivalent in any jurisdiction of Canada.
Order
The principal regulator is satisfied that the order meets the test set out in the Legislation for the principal regulator to make the order.
The decision of the principal regulator under the Legislation is that the Order Sought is granted.