Securities Law & Instruments

Headnote

Issuer exempt from requirement to pay participation fees, subject to conditions.

Ontario Rules Cited

Ontario Securities Commission Rule 13-502 Fees.

IN THE MATTER OF

ONTARIO SECURITIES COMMISSION

RULE 13-502 FEES

AND

IN THE MATTER OF

ROYAL BANK OF CANADA AND

RBC CAPITAL TRUST

 

ORDER

WHEREAS the Director has received an application from Royal Bank of Canada (the "Bank") and RBC Capital Trust (the "Trust") for an order, pursuant to Section 6.1 of Ontario Securities Commission Rule 13-502 Fees (the "Fees Rule"), that the requirement to pay a participation fee under Section 2.2 of the Fees Rule shall not apply to the Trust, subject to certain terms and conditions.

AND WHEREAS as the Bank and the Trust have represented to the Director that:

1. The Trust is a closed-end trust established under the laws of the Province of Ontario by The Royal Trust Company as trustee (the "Trustee"), pursuant to an amended and restated declaration of trust dated July 24, 2000 as supplemented as of December 6, 2000.

2. The Trust has a financial year-end of December 31.

3. The Trust is a reporting issuer in Ontario and, to its knowledge, is not in default of any requirement under the securities legislation of the Province of Ontario.

4. The Bank is the administrative agent of the Trust pursuant to an administration and advisory agreement dated June 21, 2000 and, in such capacity, provides advice and counsel with respect to the administration of the day-to-day operations of the Trust and other matters as may be requested by the Trustee from time to time.

5. The outstanding securities of the Trust consist of (i) Special Trust Securities (the "Special Trust Securities"), which are voting securities of the Trust, (ii) Trust Capital Securities -- Series 2010 (the "TruCS Series 2010"), and (iii) Trust Capital Securities -- Series 2011 (the "TruCS Series 2011" and together with the TruCS Series 2010, the "TruCS", and the TruCS together with the Special Trust Securities, the "Trust Securities"). All outstanding Special Trust Securities are held by the Bank. The Trust distributed 650,000 TruCS Series 2010 in a public offering pursuant to a prospectus dated July 17, 2000 and 750,000 TruCS Series 2011 in a public offering pursuant to a prospectus dated November 29, 2000 (collectively, the "Offerings"). The TruCS are listed on the Toronto Stock Exchange.

6. The Trust is a special purpose vehicle established solely for the purpose of effecting the Offerings in order to provide the Bank with a cost-effective means of raising capital for Canadian financial institution regulatory purposes. The assets and liabilities of the Trust are reported on the consolidated balance sheet of the Bank. The Trust does not carry on any independent business activities other than to acquire and hold assets to generate income for distribution to holders of the Trust Securities.

7. Pursuant to the MRRS Decision Document dated May 14, 2002 (the "Continuous Disclosure Exemption") granted to the Trust by the Ontario Securities Commission, as principal regulator, on behalf of itself and other decision makers (collectively, the "Decision Makers"), the Decision Makers determined that the requirement contained in the securities legislation of the Province of Ontario and in other applicable jurisdictions (collectively, the "Legislation"):

(a) to file interim financial statements and audited annual financial statements with the Decision Makers and deliver such statements to the holders of Trust Securities;

(b) to make an annual filing, where applicable, with the Decision Makers in lieu of filing an information circular;

(c) to file an annual report and an information circular with the Decision Maker in the Province of Quebec and deliver such report or information circular to holders of Trust Securities resident in the Province of Quebec;

(d) to prepare and file an annual information form, including management's discussion and analysis (the "MD&A"), with the Decision Makers and send such MD&A to holders of Trust Securities;

shall not apply to the Trust for so long as:

(i) the Bank remains a reporting issuer under the Legislation;

(ii) the Bank sends its annual financial statements, interim financial statements, annual management discussion and analysis and interim management discussion and analysis to holders of Trust Securities and its annual report to holders of Trust Securities resident in the Province of Quebec at the same time and in the same manner as if the holders of Trust Securities were holders of the common shares of the Bank;

(iii) all outstanding securities of the Trust are either Trust Capital Securities or Special Trust Securities;

(iv) the rights and obligations of holders of additional series of Trust Capital Securities are the same in all material reports as the rights and obligations of the holders of the TruCS as of the date of the Continuous Disclosure Exemption; and

(v) the Bank is the beneficial owner of all Special Trust Securities;

provided that if a material change occurs in the affairs of the Trust the Continuous Disclosure Exemption shall expire 30 days after the date of such change.

8. The Trust was established by the Bank in order to comply with the regulatory requirements of the Office of the Superintendent of Financial Institutions ("OSFI") relating to the issuance of innovative Tier 1 capital instruments (as contained in OSFI's Principles Governing Inclusion of Innovative Instruments in Tier 1 Capital dated August 2001 (the "OSFI Guideline")).

9. OSFI maintains strict guidelines and standards with respect to the capital adequacy requirements of federally regulated financial institutions, including the Bank, and, in particular, specifies minimum required amounts of Tier 1 capital to be maintained by such institutions. Tier 1 capital consists of common shareholders' equity, qualifying non-cumulative perpetual preferred shares, qualifying innovative instruments and qualifying non-controlling interests arising on consolidation from Tier 1 capital instruments. Innovative instruments, such as the TruCS, must satisfy the detailed requirements of the OSFI Guideline to be included in Tier 1 capital. Accordingly, the innovative instruments (TruCS) must be issued by a special purpose vehicle (RBC Capital Trust), which is a consolidated non-operating entity whose primary purpose is to raise innovative Tier 1 capital (the Trust is included in the financial statements of the Bank on a fully-consolidated basis). OSFI approved the inclusion of the TruCS Series 2010 and TruCS Series 2011 as Tier 1 capital of the Bank on July 20, 2000 and November 24, 2000, respectively. Proposed amendments to Canadian accounting rules may result in the Bank being precluded from consolidating the assets and liabilities of RBC Capital Trust in its Canadian GAAP financial statements, however, OSFI has confirmed that the TruCS will continue to be treated as qualifying innovative Tier 1 instruments notwithstanding the implementation of these amendments.

10. No continuous disclosure documents concerning only the Trust will be filed with the OSC unless the conditions in the Continuous Disclosure Exemption are not satisfied.

11. The Trust would be required (but for this Order) to pay participation fees under the Fees Rule.

12. The Bank does not currently intend to issue additional securities through the Trust.

THE ORDER of the Director under the Fees Rule is that the requirement to pay a participation fee under Section 2.2 of the Fees Rule shall not apply to the Trust, for so long as:

(i) the Bank and the Trust continue to satisfy all of the conditions contained in the Continuous Disclosure Exemption;

(ii) the Bank does not issue further securities out of the Trust; and

(iii) the capitalization of the Trust represented by the TruCS is included in the participation fee calculation applicable to the Bank.

February 27, 2004.

"Iva Vranic"