Mutual Reliance Review System for Exemptive Relief Applications -- Application for a decision that an issuer be a reporting issuer - Issuer is the successor entity to Summit Real Estate Investment Trust (Summit REIT) as a result of a reorganization whereby issuer acquired substantially all of the assets and all of the material obligations and liabilities of Summit REIT - As a result of the reorganization, issuer became a reporting issuer in certain jurisdictions in Canada by operation of law - Issuer is applying for relief so that it will be a reporting isser in all of the jurisdictions in which Summit REIT is a reporting issuer - Summit REIT has applied to the securities regulatory authority or regulator in each jursidiction in which it is a reporting issuer to not be a reporting issuer - Requested relief granted.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(11).
June 1, 2007
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ALBERTA, ONTARIO, NEW BRUNSWICK AND
NEWFOUNDLAND AND LABRADOR
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
ING SUMMIT INDUSTRIAL FUND LP
MRRS DECISION DOCUMENT
The local securities regulatory authority or regulator (the "Decision Maker") in each of the Jurisdictions has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the "Legislation") that the Filer be a reporting issuer in each of the Jurisdictions (the "Requested Relief").
Under the Mutual Reliance Review System for Exemptive Relief Applications:
(a) the Ontario Securities Commission is the principal regulator for this application, and
(b) this MRRS decision document evidences the decision of each Decision Maker.
Defined terms contained in National Instrument 14-101 Definitions have the same meaning in this decision unless they are defined in this decision.
This decision is based on the following facts represented by the Filer:
1. The Filer is a limited partnership formed pursuant to the laws of the Province of Manitoba on March 22, 2007. The general partner of the Filer is ING Summit Industrial Fund GP Inc., a corporation formed pursuant to the laws of the Province of Ontario and which holds approximately a 0.1% interest in the Filer.
2. The head office of the Filer is located at 220 Bay Street, 12th Floor, Toronto, ON M5J 2W4.
3. In the fall of 2006, ING Real Estate Canada Trust ("INGREC") made a formal take-over bid (the "Offer") for all of the issued and outstanding units (the "Units") of Summit Real Estate Investment Trust ("Summit"), which Offer expired on October 11, 2006. In January 2007, INGREC successfully completed the acquisition of 100% of the Units by way of a subsequent acquisition transaction involving the redemption of all remaining Units not then owned by INGREC, resulting in INGREC being the sole Unitholder of the Filer.
4. Industrial LP is an indirect affiliate of INGREC and was formed in connection with a reorganization of Summit (which was completed effective April 1, 2007) which, through a series of steps, resulted in the Filer becoming the successor issuer to Summit (the "Reorganization").
5. Pursuant to the Reorganization, Industrial LP (i) acquired substantially all of the assets of the Filer and (ii) assumed all of the material obligations and liabilities of the Filer, including the Filer's obligations and liabilities under its outstanding 5.70% Series A senior unsecured debentures due November 10, 2011 in the aggregate principal amount of $115,000,000 and 5.38% Series B senior unsecured debentures due March 1, 2012 in the aggregate principal amount of $100,000,000 (collectively, the "Debentures"). The Debentures are not (and have never been) listed on any exchange or market. Summit no longer holds any material assets but remains a co-borrower of the Debentures.
6. Summit is a reporting issuer in each of the provinces in Canada, except Prince Edward Island (the "Reporting Jurisdictions"). Concurrent with the Filer's application for the Requested Relief, Summit has submitted an application to the securities regulatory authority or regulator in each of the Reporting Jurisdictions for a decision that Summit is not a reporting issuer under the securities legislation of the Reporting Jurisdictions.
7. As a result of the Reorganization, Industrial LP, by operation of law, became a reporting issuer in each of British Columbia, Saskatchewan, Manitoba, Québec and Nova Scotia but did not, by operation of law, automatically become a reporting issuer in any of the Jurisdictions.
8. The Filer is applying for the Requested Relief so that it will be a reporting issuer in all of the Reporting Jurisdictions.
9. The trust indenture dated as of November 10, 2004 (as amended) in respect of the Debentures provides that, in the event Summit ceases to be a reporting issuer, it will continue to provide financial statements to holders of the Debentures as if Summit were a reporting issuer. As successor issuer to Summit, the Filer has assumed this obligation to continue to provide financial statements.
10. As a reporting issuer, the Filer will provide holders of Debentures with continuous disclosure documents as required by the securities legislation of the Reporting Jurisdictions, including filings of interim and annual financial statements and the related management's discussion and analysis of the Filer.
11. Upon the occurrence of any material change to the Filer (including any material change involving the rights or obligations of Summit under the Debentures), the holders of the Debentures shall receive all relevant information from the material change reports required to be filed by the Filer under the securities legislation of the Reporting Jurisdictions.
12. The Filer is not in default of any of its obligations as a reporting issuer under Canadian securities legislation.
13. The Filer has no current intention to seek financing by way of a public offering of its securities.
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 under the Legislation is that the Requested Relief is granted.