Issuer of 104 Units representing ownership interests in an apartment building deemed to cease to be a reporting issuer. Units are transferred only in connection with purchases of apartments by new owners. Registration relief for trades in Units subject to certain condition. Fee relief for ss. 74(1) application.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, as am, ss. 25, 53, 74(1), s. 83.
Business Corporations Act, R.S.O. 1990, Chapter B.16, as am, s. 1(6).
Applicable Ontario Rules
OSC Rule 13-502 Fees, s. 6.1.
IN THE MATTER OF
THE SECURITIES ACT
R.S.O. 1990, CHAPTER 55.5, AS AMENDED
IN THE MATTER OF
ONTARIO SECURITIES COMMISSION
RULE 13-502 FEES
IN THE MATTER OF
WESTMOUNT TOWERS II
ORDER AND RULING
UPON the application of Westmount Towers II ("Westmount") for the following:
1. an order of the Commission pursuant to section 83 of the Securities Act (Ontario) (the "Act") that Westmount be deemed to have ceased to be a reporting issuer under the Act;
2. a ruling of the Commission pursuant to subsection 74(1) of the Act that trades in Units (as hereinafter defined) are not subject to section 25 of the Act; and
3. a decision of the Director pursuant to section 6.1 of Ontario Securities Commission Rule 13-502, Fees ("Rule 13-502") that Westmount be exempt from paying the required fee for the application made pursuant to subsection 74(1) of the Act;
AND UPON considering the application and the recommendation of the staff of the Commission;
AND UPON Westmount representing to the Commission and the Director that:
1. Westmount was created on June 25, 1985 as an unincorporated co-ownership arrangement and became a reporting issuer in Ontario under the Act on June 25, 1985 by virtue of a receipt being issued for a prospectus (the "Prospectus") dated June 25, 1985. Westmount is not a reporting issuer in any other jurisdiction in Canada.
2. Westmount Towers II Inc. was incorporated on March 6, 1985 under the laws of Ontario to purchase a residential apartment building together with the land upon which it is situated at 65 Westmount Road North, Waterloo, Ontario (the "Property") and to hold the Property as bare trustee for the Unitholders (defined below).
3. Westmount offered 104 units (the "Units") pursuant to the Prospectus, each Unit representing an undivided interest in the Property. Westmount has not issued any securities other than the Units issued under the Prospectus and does not intend to issue any additional securities in the future.
4. The Units are divided into 16 Class A Units, 85 Class B Units and 3 Class C Units which entitle the holders thereof (the "Unitholders") to exclusive occupation of a one bedroom, two bedroom or three bedroom apartment (each, an "Apartment"), respectively, the exclusive use of an underground parking space, and the right, in common with other Unitholders, to use the common areas of the Property, all subject to the rights of any existing tenant in the Apartment.
5. The Unitholders entered into a unitholders' agreement (the "Unitholders' Agreement") which was appended as Schedule "A" to the Prospectus, and regulates, among other things, the terms of occupancy and transfers of Units and provides for the rights of Unitholders.
6. Pursuant to the Unitholders' Agreement, a Unitholder cannot assign, sell or pledge his or her Unit unless the purchaser of the Unit becomes a party to the Unitholders' Agreement. An existing Unitholder must obtain the consent of the Advisory Board of Westmount before assigning, selling or otherwise transferring his or her Unit.
7. A transfer of Units occurs only in the following circumstances:
(a) in the event that a Unitholder transfers his Unit to a purchaser who becomes a party to the Unitholders' Agreement; or
(b) in the event the Advisory Board sells a defaulting Unitholder's Unit pursuant to the Unitholders' Agreement.
8. The Units are not listed and posted for trading on a marketplace, as defined in National Instrument 21-101 Marketplace Operation.
AND UPON the Commission being satisfied to do so would not be prejudicial to the public interest,
IT IS HEREBY ORDERED pursuant to section 83 of the Act that Westmount is deemed to have ceased to be a reporting issuer under the Act;
AND IT IS RULED pursuant to subsection 74(1) of the Act that a trade in Units is not subject to section 25 of the Act, provided that there is no material change to the business of Westmount and that trading of Units is limited to:
(a) trades by a Unitholder who transfers his Unit to a purchaser who becomes a party to the Unitholders' Agreement; or
(b) trades to a purchaser where the Advisory Board sells a defaulting Unitholder's Unit pursuant to the Unitholders' Agreement.
February 15, 2005.
"Paul M. Moore"
"Susan Wolburgh Jenah"
AND UPON the Director being satisfied that to do so would not be prejudicial to the public interest;
IT IS THE DECISION of the Director, pursuant to section 6.1 of the Rule 13-502, that Westmount is exempt from the requirement in section 4.1 of the Fees Rule to pay an activity fee for the filing of the application made pursuant to subsection 74(1) of the Act.
February 15, 2005.