Schooner Trust - MRRS Decision

le 31 mai 2004

MRRS Decision

Headnote

Mutual Reliance Review System for Exemptive Relief Applications -- Issuer of asset-backed securities previously granted an exemption from the requirements to file financial statements, MD&A and AIFs -- 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, NEWFOUNDLAND AND LABRADOR

AND

IN THE MATTER OF

THE MUTUAL RELIANCE REVIEW SYSTEM

FOR EXEMPTIVE RELIEF APPLICATIONS

AND

IN THE MATTER OF

SCHOONER TRUST

MRRS DECISION DOCUMENT

WHEREAS pursuant to an MRRS decision document dated February 1, 2001, as amended by an MRRS decision document dated May 2, 2003 (the "Previous Decision"), Schooner Trust (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 (the local securities regulatory authority or regulator in each such jurisdiction, collectively, the "Previous Decision Makers") concerning, inter alia, the preparation, filing and delivery of interim and annual financial statements ("Financial Statements");

AND 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 the Issuer for a decision pursuant to the securities legislation of the Jurisdictions (the "Legislation") that the provisions of Multilateral Instrument 52-109 - Certification of Disclosure in Issuers' Annual and Interim Filings ("MI 52-109") concerning the filing of interim certificates ("Interim Certificates") shall not apply to the Issuer in respect of the 2004 financial year of the Issuer;

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 the Issuer has represented to the Decision Makers that:

1. The Issuer is a special purpose trust which was established by CIBC Mellon Trust Company (the "Issuer Trustee") under the laws of the Province of Ontario pursuant to a declaration of trust dated as of July 5, 2000, the beneficiary of which is a registered charity. The only security holders of the Issuer are and will be the holders (the "Certificateholders") of its asset-backed securities ("Certificates").

2. The Issuer Trustee is located in Toronto, Ontario and the head office of The Toronto -Dominion Bank, the administrative agent of the Issuer, is located in Toronto, Ontario.

3. The financial year-end of the Issuer is December 31.

4. The Issuer filed short form prospectuses (collectively, the "Prospectus") dated October 24, 2000, August 2, 2001, December 4, 2002, May 21, 2003 and January 15, 2004 with each of the Canadian provincial securities regulatory authorities for the issuance of approximately $189,550,000, $214,660,425, $253,955,000, $430,150,000 and $437,575,000, respectively, aggregate principal amount of Commercial Mortgage Pass-Through Certificates, Series 2000-1, Series 2001-1, Series 2002-1, Series 2003-CC1 and Series 2004-CCF1, respectively, (the "Issued Certificates") and received receipts for the Prospectus from each of the Canadian provincial securities regulatory authorities.

5. The Issuer is a reporting issuer, or the equivalent, in each of the provinces of Canada that provides for a reporting issuer regime and to its knowledge is currently not in default of any applicable requirements under the securities legislation thereunder.

6. The Issuer does not carry on any activities other than issuing Certificates and purchasing assets in connection thereto (the "Assets").

7. The Issuer has no material assets or liabilities other than its rights and obligations arising from acquiring Assets and in respect of the Issued Certificates.

8. The Issuer will file a notice with the applicable securities regulatory authorities or regulators pursuant to section 13.2 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.

9. For each offering of Certificates, the Issuer and, among others, the master servicer (the "Master Servicer") for all of the Assets in a given pool, the special servicer (the "Special Servicer"), where applicable, the custodian on behalf of all Certificateholders and a reporting agent (the "Reporting Agent") will enter into a pooling and servicing agreement, or a similar agreement, (the "Pooling and Servicing Agreement") providing for, among other things, the preparation by the Master Servicer, the Special Servicer, where applicable, and the Reporting Agent of periodic reports (the "Reports") to Certificateholders containing financial and other information in respect of the applicable pool of Assets and Certificates.

10. Pursuant to the Pooling and Serving Agreement and as disclosed in the Prospectus, the Reports are prepared by the Reporting Agent based solely on information provided by the Master Servicer and the Special Servicer, where applicable.

11. Pursuant to the Pooling and Servicing Agreement in respect of the Issued Certificates and as contemplated in the Previous Decision:

(a) the Master Servicer shall deliver annually a statement of compliance (the "Compliance Certificate") signed by a senior officer of each applicable Master Servicer or other party acting in a similar capacity on behalf of the Issuer for the applicable pool of Assets, certifying that the Master Servicer or such other party acting in a similar capacity has fulfilled all of its obligations under the related Pooling and Servicing Agreement during the year or, if there has been a default, specifying each such default and the status thereof; and

(b) the Master Servicer shall obtain annually an accountants' report (the "Accountants' Reports") in form and content acceptable to the Previous Decision Makers prepared by a firm of independent public or chartered accountants acceptable to the Previous Decision Makers respecting compliance by the Master Servicer (or such other party acting in a similar capacity) with the Uniform Single Attestation Program (USAP) (except that the Master Servicer does not have to have in effect a fidelity bond and errors and omissions policy required under Article VII of the USAP so long as it maintains a minimum rating of "A" (or its equivalent) from prescribed rating organizations) or such other servicing standard acceptable to the Previous Decision Makers.

12. Sections 3.1 and 5.2 of MI 52-109 require the Issuer to file, in respect of the interim periods of its 2004 financial year, the Interim Certificates in Form 52-109F2 or Form 52-109FT2.

13. 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.

14. "Interim filings" is defined in MI 52-109 to include interim financial statements filed under provincial and territorial securities legislation.

15. The applicable individuals acting in the capacity of officers of the Issuer cannot sign the Interim Certificates, and thus the Issuer cannot file them, because the Issuer does not file Financial Statements pursuant to the relief granted under the Previous Decision.

16. The applicable individuals acting in the capacity of officers of the Issuer are unable to certify in respect of the Reports because, as stated above and pursuant to the Pooling and Servicing Agreement, the Issuer and such officers do not participate in the preparation of the Reports other than reviewing the Reports and informing the Reporting Agent of any errors that they are aware of.

17. The Compliance Certificate and Accountants' Reports provide assurance to Certificateholders in respect of the accuracy of the Reports.

AND WHEREAS pursuant to 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 pursuant to the Legislation is that the Issuer is exempted from the requirements of MI 52-109 concerning the filing of Interim Certificates in respect of the 2004 financial year of the Issuer, provided that the Issuer is not required to prepare, file and deliver Financial Statements under the securities legislation of the Jurisdictions, whether pursuant to exemptive relief, or otherwise.

May 31, 2004.

"Erez Blumberger"