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Brookfield Property Partners L.P. and Brookfield Property Split Corp.
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Filers wants to put in place a credit support issuer structure, but are unable to rely on the exemption for credit support issuers in applicable securities legislation -- Relief granted from continuous disclosure requirements, certification requirements, insider reporting requirement, audit committee requirements and corporate governance requirements -- Relief also granted from short form prospectus requirements, incorporation by reference requirement, earnings coverage requirements and subsidiary credit supporter requirements -- Filers unable to rely on exemption for credit support issuers in applicable securities legislation since Brookfield Property Partners is the managing general partner of and controls an intermediate holding entity (a limited partnership) that indirectly owns the voting securities of the Issuer -- When the characteristics of the limited partnership units of the holding limited partnership (including that the majority are held by the parent) are considered, control and direction of the holding limited partnership is held by Brookfield Property Partners as if Brookfield Property Partners beneficially owned all the outstanding voting securities of the holding limited partnership -- Relief subject to conditions, including conditions relating to minority interest in holding limited partnership.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, ss. 107, 121(2)(a)(ii).
National Instrument 44-101 Short Form Prospectus Distributions, s. 8.1.
Form 44-101F1 Short Form Prospectus, ss. 6.1, 11.1(1), 12.1, 13.3.
National Instrument 51-102 Continuous Disclosure Obligations, ss. 13.1, 13.4.
National Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings, s. 8.6.
National Instrument 52-110 Audit Committees, s. 8.1.
National Instrument 55-102 System for Electronic Disclosure by Insiders (SEDI), s. 6.1.
National Instrument 55-104 Insider Reporting Requirements and Exemptions, s. 10.1(2).
National Instrument 58-101 Disclosure of Corporate Governance Practices, s. 3.1.
June 20, 2014
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (THE JURISDICTION) AND IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS AND IN THE MATTER OF BROOKFIELD PROPERTY PARTNERS L.P. (BROOKFIELD PROPERTY PARTNERS) AND BROOKFIELD PROPERTY SPLIT CORP. (BOP SPLIT)
DECISION
Background
The principal regulator in the Jurisdiction has received an application (the Application) from Brookfield Property Partners and BOP Split (collectively, the Filers) for a decision under the securities legislation of the principal regulator (the Legislation) granting exemptive relief for the Issuer (as defined below) and, in respect of (c), the insiders of the Issuer, from certain requirements including:
(a) the continuous disclosure requirements contained in the Legislation, including requirements under National Instrument 51-102 -- Continuous Disclosure Obligations (NI 51-102), as amended from time to time (the Continuous Disclosure Requirements);
(b) the certification requirements contained in National Instrument 52-109 -- Certification of Disclosure in Issuers' Annual and Interim Filings, as amended from time to time (the Certification Requirements);
(c) the insider reporting requirements contained in the Legislation under sections 107 and 109 of the Securities Act (Ontario) (the Act) as well as the requirement to file an insider profile and insider reports under National Instrument 55-102 -- System for Electronic Disclosure by Insiders, as amended from time to time, in respect of insiders of the Issuer (the Insider Reporting Requirements);
(d) the requirements of the Legislation relating to audit committees, including, without limitation, National Instrument 52-110 -- Audit Committees, as amended from time to time (the Audit Committee Requirements);
(e) the corporate governance disclosure requirements contained in National Instrument 58-101 -- Disclosure of Corporate Governance Practices, as amended from time to time (theCorporate Governance Requirements and together with the Continuous Disclosure Requirements, Certification Requirements, Insider Reporting Requirements and Audit Committee Requirements, the Reporting Issuer Requirements);
(f) the disclosure requirements contained in paragraphs 1 to 4 and 6 to 8 of item 11 of Form 44-101F1 -- Short Form Prospectus (Form 44-101F1) (theIncorporation by Reference Requirements);
(g) the disclosure requirements contained in item 6 of Form 44-101F1 (the Earnings Coverage Requirements); and
(h) the disclosure requirements contained in item 12 of Form 44-101F1 (the Subsidiary Credit Supporter Requirements and together with the Incorporation by Reference Requirements and the Earnings Coverage Requirements, the Prospectus Disclosure Requirements),
in each case to accommodate the issuance by the successor of BOP Split (the Issuer) of Class A senior preferred shares (the Senior Preferred Shares) in connection with the Arrangement (as defined below) and thereafter, from time to time (collectively, theExemption Sought). The Senior Preferred Shares are guaranteed by Brookfield Property Partners as well as Brookfield Property L.P. (the Holding LP), Brookfield Office Properties Inc. (BPO) and each of the Holding Entities (as defined below).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this Application; and
(b) Brookfield Property Partners has provided notice that section 4.7(1) of Multilateral Instrument 11-102 -- Passport System (MI 11-102) is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, the Northwest Territories, Yukon and Nunavut (collectively with the Jurisdiction, the Reporting Jurisdictions).
Interpretation
Terms defined in National Instrument 14-101 -- Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined. In this decision, "Brookfield Property Partners Related Entities" means, collectively, the Holding LP and subsidiary entities (as this term is defined in Multilateral Instrument 61-101 -- Take-Over Bids and Special Transactions) of the Holding LP.
Representations
This decision is based on the following facts represented by the Filers:
Brookfield Property Partners
1. Brookfield Property Partners is a Bermuda exempted limited partnership that was established on January 3, 2013.
2. The limited partnership units of Brookfield Property Partners (the Units) are listed on the New York Stock Exchange (NYSE) and the Toronto Stock Exchange (TSX) under the symbols "BPY" and "BPY.UN", respectively. As of June 10, 2014, following the completion of the Arrangement (defined below), there were 230,980,011 Units issued and outstanding, and approximately 156,047,425 Units, representing approximately 68% of the total issued and outstanding Units, were beneficially and directly held by Canadian residents.
3. Brookfield Property Partners is a reporting issuer, or the equivalent, in the Reporting Jurisdictions and is not in default of any requirements under applicable securities legislation or the rules and regulations made pursuant thereto in the Reporting Jurisdictions.
4. Brookfield Property Partners is a SEC foreign issuer within the meaning of section 1.1 of National Instrument 71-102 -- Continuous Disclosure and Other Exemptions Relating to Foreign Issuers (NI 71-102) and satisfies its continuous disclosure obligations by complying with U.S. federal securities laws as is permitted under NI 71-102.
5. The general partner of Brookfield Property Partners is Brookfield Property Partners Limited (BPY General Partner), a Bermuda company and also a wholly-owned subsidiary of Brookfield Asset Management Inc. (BAM). BPY General Partner holds a 0.1% general partnership interest in Brookfield Property Partners. The mind and management of BPY General Partner is located in Bermuda.
6. BAM, a Canadian company, is Brookfield Property Partners' largest holder of Units. As of June 10, 2014, following the completion of the Arrangement (defined below), BAM owned, directly or indirectly, 45,249,931 Units, 138,875 general partner units of Brookfield Property Partners, 432,649,105 Redemption Exchange Units (defined below) and 4,759,997 special limited partnership interests in the Holding LP, collectively representing an approximate 67% interest in Brookfield Property Partners (on a fully-exchanged basis) including the indirect general partnership interest held in Brookfield Property Partners held by BPY General Partner. BAM is located in Ontario, and as such Ontario is the jurisdiction in Canada with which Brookfield Property Partners has its most significant connection and, in accordance with Section 3.6 of National Policy 11-203 -- Process For Exemptive Relief Applications in Multiple Jurisdictions, the Ontario Securities Commission is the principal regulator for the Application.
7. Brookfield Property Partners' sole asset is a 100% managing general partnership interest in the Holding LP.
8. Brookfield Property Partners is the managing general partner of the Holding LP, a Bermuda exempted limited partnership that was established on January 4, 2013. The Holding LP owns all of the common shares of Brookfield BPY Holdings Inc., an Ontario corporation (CanHoldco), Brookfield BPY Retail Holdings II Inc., an Ontario corporation (CanHoldco 2), BPY Bermuda Holdings Limited, a Bermuda Company (Bermuda Holdco), and BPY Bermuda Holdings II Limited, a Bermuda company (Bermuda Holdco 2 and, collectively with CanHoldco, CanHoldco 2 and Bermuda Holdco, the Holding Entities).
9. Brookfield Property Partners, the Holding LP and the Holding Entities have retained BAM (together with its subsidiaries other than Brookfield Property Partners and its subsidiaries, Brookfield) and its related entities to provide management, administrative and advisory services under an amended and restated master services agreement dated January 1, 2014.
10. Prior to the Offer (defined below), Brookfield Property Partners indirectly owned securities of BPO representing a 51% voting interest in BPO; upon the completion of the Arrangement (defined below), Brookfield Property Partners now indirectly owns 100% of the issued and outstanding voting securities of BPO.
BOP Split
11. BOP Split was incorporated under the Business Corporations Act (British Columbia) on December 9, 2013 as an indirect subsidiary of Brookfield Property Partners. The registered and head office of BOP Split is located at 1500 Royal Centre, 1055 West Georgia Street, P.O. Box 11117, Vancouver, British Columbia, V6E 4N7.
12. BOP Split was incorporated in relation to the offer dated February 11, 2014 (the Offer) by Brookfield Property Partners, Brookfield Office Properties Exchange LP (Exchange LP) and BOP Split (collectively, the Offerors) to purchase any or all of the issued and outstanding common shares (BPO Common Shares) of BPO other than BPO Common Shares held by the Offerors and their subsidiaries.
13. BOP Split was incorporated for the purposes of being an issuer of preferred shares and owning the Offerors' additional investment in BPO Common Shares acquired pursuant to the Offer.
14. Prior to the Arrangement, BOP Split was an investment holding company. Its principal investments were: (i) 179,395,307 BPO Common Shares, which BPO Common Shares were acquired in connection with the Offer and which represented approximately 35.35% of the issued and outstanding BPO Common Shares and (ii) 6,419,611 Class A limited partnership units of Exchange LP (Exchange LP Class A Units), which represented 100% of the issued and outstanding Exchange LP Class A Units.
15. Prior to the Arrangement, the authorized share capital of BOP Split consisted of: (i) an unlimited number of Class A common shares (the Class A Common Shares), (ii) an unlimited number of Class B common shares (theClass B Common Shares, and, together with the Class A Common Shares, the Common Shares), (iii) an unlimited number of Class A junior preferred shares, of which 60,000,000 Series 1 Class A junior preferred shares were authorized for issuance (theClass A Junior Preferred Shares), (iv) an unlimited number of Class B junior preferred shares, of which 40,000,000 Series 1 Class B junior preferred shares were authorized for issuance (theClass B Junior Preferred Shares), (v) an unlimited number of Class C junior preferred shares, of which 20,000,000 Series 1 Class C junior preferred shares were authorized for issuance (the Class C Junior Preferred Shares) and (vi) an unlimited number of Class D junior preferred shares, of which 30,000,000 Series 1 Class D junior preferred shares were authorized for issuance (the Class D Junior Preferred Shares, and, together with the Class A Junior Preferred Shares, the Class B Junior Preferred Shares and the Class C Junior Preferred Shares, the Junior Preferred Shares).
16. Prior to the Arrangement, the Common Shares were the only voting shares of BOP Split.
17. Prior to the Arrangement, Brookfield Property Partners indirectly owned all of the outstanding Common Shares and Junior Preferred Shares, and therefore indirectly controlled 100% of the voting securities of BOP Split. Prior to the Arrangement, BOP Split directly owned 100% of the issued and outstanding Exchange LP Class A Units, and indirectly owned 100% of the voting securities of BOP Exchange GP ULC, the general partner of Exchange LP and an Alberta unlimited liability corporation; therefore BOP Split controlled Exchange LP.
The Issuer
18. BOP Split participated in a plan of arrangement (the Arrangement) on June 9, 2014, which, among other things, allowed the Offerors to acquire the BPO Common Shares not acquired in the Offer. Concurrently with the Arrangement, BOP Split amalgamated (the Amalgamation) with Brookfield Property Split Holdings Corp., BOP 1BOX Ltd. and BOP 2BOX Ltd. Brookfield Property Split Holdings Corp., BOP 1BOX Ltd. and BOP 2BOX Ltd are each investment holding companies and were each a direct or indirect subsidiary of BOP Split at the time of the Amalgamation. An amalgamation does not terminate the existence of any of the amalgamating corporations; BOP Split, Brookfield Property Split Holdings Corp., BOP 1BOX Ltd. and BOP 2BOX Ltd. all continue their existence as the amalgamated corporation, the Issuer, after the Amalgamation. The Issuer has the same legal name as BOP Split prior to the Amalgamation, Brookfield Property Split Corp.
19. The Issuer exists under the Business Corporations Act (British Columbia). The Issuer is an indirect subsidiary of Brookfield Property Partners. The head office of the Issuer is located at Brookfield Place, 181 Bay Street, Suite 330, Toronto, ON M5J 2T3, and the registered office of the Issuer is located at 1500 Royal Centre, 1055 West Georgia Street, P.O. Box 11117, Vancouver, British Columbia, V6E 4N7.
20. The Issuer is an investment holding company. The Issuer's principal investments are: (i) the 179,395,307 BPO Common Shares and 6,419,611 Exchange LP Class A Units held by BOP Split prior to the Arrangement, (ii) a 40.5% interest in Brookfield Canada Office Properties, (iii) a 9.8% interest in Brookfield Office Properties Canada LP and (iv) the 2,871,221 BPO Common Shares and 125,644 Exchange LP Class A Units acquired in connection with the Arrangement.
21. The authorized share capital of the Issuer is substantially the same as BOP Split and consists of: (i) an unlimited number of Class A common shares (the Class A Issuer Common Shares), (ii) an unlimited number of Class B common shares (the Class B Issuer Common Shares, and, together with the Class A Issuer Common Shares, the Issuer Common Shares), (iii) an unlimited number of Class A junior preferred shares (the Class A Issuer Junior Preferred Shares), (iv) an unlimited number of Class B junior preferred shares (the Class B Issuer Junior Preferred Shares), (v) an unlimited number of Class C junior preferred shares (the Class C Issuer Junior Preferred Shares), (vi) an unlimited number of Class D junior preferred shares (the Class D Issuer Junior Preferred Shares, and, together with the Class A Issuer Junior Preferred Shares, the Class B Issuer Junior Preferred Shares and the Class C Issuer Junior Preferred Shares, theIssuer Junior Preferred Shares) and (vii) an unlimited number of Senior Preferred Shares.
22. Brookfield Property Partners indirectly owns all of the Issuer Common Shares and Issuer Junior Preferred Shares, and therefore indirectly controls 100% of the voting securities of the Issuer.
23. The Issuer is a reporting issuer in the Reporting Jurisdictions as, upon the completion of the Arrangement, it issued Senior Preferred Shares to the public, and the Issuer is, accordingly, subject to the continuous disclosure and insider reporting requirements of the Legislation applicable to reporting issuers. Accordingly, the Exemption Sought relates to exemptions from the continuous disclosure and insider reporting requirements of the Legislation which are applicable to the Issuer.
The Senior Preferred Shares and the Relationship between Brookfield Property Partners, the Holding LP, BPO and the Holding Entities
24. The Senior Preferred Shares are non-convertible and are issuable in one or more series having such rights, restrictions and privileges determined by the directors of the Issuer.
25. In connection with the Arrangement, the Issuer issued 1,000,000 of each of Series 1, Series 2, Series 3 and Series 4 Senior Preferred Shares to public holders of BPO preferred shares who so elected. Additional series of Senior Preferred Shares may be issued to the public from time to time in the future.
26. Brookfield Property Partners, the Holding LP, BPO, and the Holding Entities each provided full and unconditional joint and several guarantees (collectively, the Guarantees) of the payments to be made by the Issuer in respect of the Senior Preferred Shares, as stipulated in agreements governing the rights of holders of the Senior Preferred Shares, that result in the holders of such securities being entitled to receive payment from Brookfield Property Partners, the Holding LP, BPO, and each of the Holding Entities (collectively, the Guarantors) within 15 days of any failure by the Issuer to make a payment, as contemplated by paragraph (d) of the definition of "designated credit support security" in NI 51-102.
27. The Holding LP owns all of the issued and outstanding common shares of all the Holding Entities and Brookfield owns all of the issued and outstanding preferred shares of all the Holding Entities (the Holdco Preferred Shares). The Holdco Preferred Shares are redeemable for cash at the option of the Holding Entities, subject to certain limitations. The Holdco Preferred Shares are entitled to vote with the common shares of the applicable Holding Entity. The Holdco Preferred Shares are entitled to vote because of certain US tax implications. The Holdco Preferred Shares are not equity securities as such term is defined in the Act. The voting rights attached to the Holdco Preferred Shares represent 3% of the votes to be cast by shareholders of CanHoldco and 1% of the votes to be cast by shareholders of the other Holding Entities; therefore they should be disregarded when considering the overall relationship between Brookfield Property Partners, the Holding LP, the Holding Entities and the Issuer.
28. The definitions of "subsidiary" and "beneficial ownership of securities" that apply under the Act only refer to the ownership or control of companies, as opposed to partnerships, and do not clearly capture the relationship that exists among Brookfield Property Partners, the Holding LP and the Issuer. However, Brookfield Property Partners acts as the managing general partner of the Holding LP, holding a 100% managing general partnership interest in the Holding LP, and therefore controls the Holding LP directly. Further, the Holding LP owns, directly or indirectly, all of the equity and voting securities of the Holding Entities (other than as described in representation 27 above). As a result, Brookfield Property Partners consolidates the Holding LP (and all of the Holding LP's assets, including the Holding Entities) in its financial statements.
29. Brookfield Property Special L.P. (Property Special LP) holds a 0.7% special limited partnership interest in the Holding LP with the remaining limited partnership interest held by Brookfield, directly or indirectly. The special limited partnership units of the Holding LP (the Special Limited Partnership Units) are non-voting interests in the Holding LP and are not redeemable or exchangeable. Property Special LP is the sole holder of the Special Limited Partnership Units.
30. The limited partnership units of the Holding LP held by Brookfield (the Redemption-Exchange Units) are subject to a redemption-exchange mechanism pursuant to which Brookfield has the right to require that the Holding LP redeem all or a portion of its Redemption-Exchange Units for a cash amount equal to the fair market value of one Unit multiplied by the number of Redemption-Exchange Units to be redeemed. In connection with the redemption, Brookfield Property Partners has the right to purchase all the Redemption-Exchange Units to be redeemed in exchange for Units on a one for one basis. The characteristics of the redemption-exchange mechanism associated with Brookfield's Redemption-Exchange Units are such that the economic interest of Brookfield is an economic interest in Brookfield Property Partners rather than the Holding LP.
31. BPY General Partner holds a 0.1% general partnership interest in Brookfield Property Partners and acts as the general partner of Brookfield Property Partners. BPY General Partner is wholly owned by Brookfield.
32. Prior to the completion of the Arrangement, BPO was a reporting issuer, or the equivalent, in the Reporting Jurisdictions (except for the Northwest Territories, Yukon and Nunavut). After the Arrangement, BPO continues to be a reporting issuer, or the equivalent, in the Reporting Jurisdictions (except for the Northwest Territories, Yukon and Nunavut) as it continues to have preferred shares and senior debt issued to the public. BPO is not in default of any requirements under applicable securities legislation or the rules and regulations made pursuant thereto in such Reporting Jurisdictions. Prior to the Arrangement, the BPO Common Shares were listed on the NYSE and the TSX under the symbol "BPO". After the Arrangement, Brookfield Property Partners now indirectly owns all of the issued and outstanding BPO Common Shares and therefore BPO is an indirect wholly-owned subsidiary of Brookfield Property Partners. The BPO Common Shares are expected to be de-listed from the TSX and the NYSE prior to July 2014.
33. Brookfield Property Partners, the Holding LP and the Holding Entities were "credit supporters" when the Issuer issued the Senior Preferred Shares (as defined in Part 13.4 of NI 51-102).
34. Management expects that the Issuer will continue to serve as an investment holding company and that the Issuer will make additional investments financed through dispositions of existing investments or through issuances of additional securities. In the course of its activities, the Issuer may: (i) seek control block positions in other entities from time to time, (ii) borrow money and incur debt and (iii) enter into related party transactions with members of the Brookfield group.
35. The Issuer became a "credit support issuer" when it issued the Senior Preferred Shares (as defined in Part 13.4 of NI 51-102).
36. The Issuer, and the relationship between the Issuer and Brookfield Property Partners, satisfies the requirements of section 13.4(2.1) of NI 51-102 in all respects, other than: (i) the fact that the Holding LP and Brookfield Property Partners are partnerships, (ii) the Redemption-Exchange Units of the Holding LP are held by Brookfield and (iii) the fact that Brookfield Property Partners satisfies its continuous disclosure obligations by complying with U.S. federal securities law as is permitted under NI 71-102.
37. Brookfield Property Partners does not directly satisfy the definition of "parent credit supporter" (as defined in Part 13.4 of NI 51-102) in relation to the Issuer and the Senior Preferred Shares as a result of the indirect ownership of the Issuer through the Holding LP. Therefore, the Senior Preferred Shares are not "designated credit support securities" (as defined in Part 13.4 of NI 51-102). If the Exemption Sought is granted, Brookfield Property Partners and the Issuer will (i) treat Brookfield Property Partners as a "parent credit supporter" and comply with the conditions in section 13.4(2.1) of NI 51-102 that apply to parent credit supporters and (ii) treat the Senior Preferred Shares as "designated credit support securities" and comply with the conditions in section 13.4(2.1) of NI 51-102 that apply to designated credit support securities, in accordance with the terms and conditions of this decision.
38. The Senior Preferred Shares satisfy the definition of "designated credit support securities" (as defined in Part 13.4 of NI 51-102), but for the fact that Brookfield Property Partners does not directly satisfy the definition of "parent credit supporter" (as defined in Part 13.4 of NI 51-102).
39. Brookfield Property Partners does not meet the test set forth in section 13.4(2)(a) of NI 51-102 as it does not directly satisfy the definition of "parent credit supporter" (as defined in Part 13.4 of NI 51-102) and, by virtue of section 13.4(4) of NI 51-102, Brookfield Property Partners is unable to meet the test set forth in section 13.4(2)(b)(ii) of NI 51-102 as it satisfies its continuous disclosure obligations by complying with U.S. federal securities law as is permitted under NI 71-102. Therefore, the Exemption Sought is required in order for the provisions of section 13.4 of NI 51-102 to apply to the Issuer, and the relationship between the Issuer and Brookfield Property Partners.
Decision
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Exemption Sought is granted provided that:
1. in respect of the Continuous Disclosure Requirements, the Issuer and Brookfield Property Partners continue to satisfy the conditions set out in subsection 13.4(2.1) of NI 51-102, except as modified as follows:
(a) any reference to parent credit supporter in section 13.4 shall be deemed to include Brookfield Property Partners notwithstanding its indirect ownership of the Issuer through the Holding LP,
(b) any reference to subsidiary credit supporter in section 13.4 of NI 51-102 shall be deemed to include BPO and the Holding Entities and their affiliates, including Brookfield Property Partners and the Brookfield Property Partners Related Entities, notwithstanding Brookfield Property Partners' indirect ownership of such entities through the Holding LP,
(c) Brookfield Property Partners does not have to comply with the conditions in section 13.4(2)(a) and section 13.4(2.1)(b) of NI 51-102 if:
(i) no party other than Brookfield Property Partners and Brookfield will have any direct or indirect ownership of, or control or direction over, voting securities of the Holding LP,
(ii) no party other than Brookfield Property Partners, Brookfield and the Holding LP will have any direct or indirect ownership of, control or direction over, voting securities of the Holding Entities,
(iii) no party other than Brookfield Property Partners and the Brookfield Property Partners Related Entities, will have any direct or indirect ownership of, or control or direction over, voting securities of the Issuer,
(iv) Brookfield Property Partners consolidates in its financial statements the Holding LP, BPO, the Holding Entities and the Issuer as well as any entities consolidated by any of the foregoing and, if the Issuer has issued Senior Preferred Shares that remain outstanding, files its financial statements pursuant to Part 4 of NI 51-102, except that Brookfield Property Partners does not have to comply with the conditions in section 4.2 of NI 51-102 if it files such financial statements on or before the date that it is required to file its Form 20-F with the U.S. Securities and Exchange Commission (SEC), and
(v) the issued and outstanding voting securities of BPO, the Holding Entities and the Issuer are 100% owned, directly or indirectly, by their respective parent companies or entities,
(d) section 13.4(4) of NI 51-102 does not apply to Brookfield Property Partners (the SEC Foreign Issuer Relief) if:
(i) Brookfield Property Partners continues to be a reporting issuer,
(ii) Brookfield Property Partners continues to be a SEC foreign issuer (as defined in section 1.1 of NI 71-102) and only relies on the exemptions in Part 4 of NI 71-102,
(iii) to the extent that Brookfield Property Partners complies with the foreign private issuer disclosure regime under U.S. securities law, it does not rely on any exemption from that regime,
(iv) if the Issuer has issued Senior Preferred Shares that remain outstanding, the summary financial information referred to in section 13.4(2.1)(c) of NI 51-102 will be reconciled to the consolidated financial statements of Brookfield Property Partners, including any minority interest adjustments,
(v) Brookfield Property Partners continues to file a material change report as set out in Part 7 of NI 51-102 in respect of any material change in the affairs of Brookfield Property Partners that is not reported or filed by Brookfield Property Partners on SEC Form 6-K,
(vi) Brookfield Property Partners continues to file an interim financial report as set out in Part 4 of NI 51-102 and the Management Discussion and Analysis as set out in Part 5 of NI 51-102 for each period commencing on the first day of the financial year and ending nine, six or three months before the end of the financial year,
(vii) Brookfield Property Partners includes in any prospectus of the Issuer, financial statements or other information about any acquisition that would have been or would be a significant acquisition for the purposes of Part 8 of NI 51-102 that Brookfield Property Partners has completed or has progressed to a state where a reasonable person would believe that the likelihood of Brookfield Property Partners completing the acquisition is high if the inclusion of the financial statements is necessary for the prospectus to contain full, true and plain disclosure of all material facts relating to the securities being distributed. The requirement to include financial statements or other information must be satisfied by including or incorporating by reference (a) the financial statements or other information as set out in Part 8 of NI 51-102, or (b) satisfactory alternative financial statements or other information, unless at least 9 months of the operations of the acquired business or related businesses are incorporated into Brookfield Property Partners' current annual financial statements included or incorporated by reference in the prospectus of the Issuer,
(e) the Issuer does not have to comply with the conditions in section 13.4(2)(c) of NI 51-102 if the Issuer does not issue any securities and does not have any securities outstanding other than:
(i) designated credit support securities,
(ii) securities issued to and held by Brookfield Property Partners or the Brookfield Property Partners Related Entities,
(iii) debt securities issued to and held by banks, loan corporations, loan and investment corporations, savings companies, trust corporations, treasury branches, saving or credit unions, financial services cooperatives, insurance companies or other financial institutions,
(iv) securities issued under exemptions from the prospectus requirements in section 2.35 of National Instrument 45-106 -- Prospectus and Registration Exemptions, and
(v) Senior Preferred Shares, provided that the Guarantors have provided Guarantees in respect of such securities.
2. in respect of the Certification Requirements, the Audit Committee Requirements and the Corporate Governance Requirements, Brookfield Property Partners and the Issuer continue to satisfy the conditions for relief from the Continuous Disclosure Requirements set forth above.
3. in respect of the Insider Reporting Requirements, an insider of the Issuer can only rely on the Exemption Sought so long as:
(a) the insider complies with the conditions in sections 13.4(3)(b) and (c) of NI 51-102, and
(b) Brookfield Property Partners and the Issuer continue to satisfy the conditions for relief from the Continuous Disclosure Requirements set forth above.
4. in respect of the Prospectus Disclosure Requirements so long as:
(a) any preliminary short form prospectus of the Issuer is in respect of an offering of Senior Preferred Shares,
(b) the Issuer becomes, on or before the issuance of Senior Preferred Shares to the public, and thereafter remains so long as any of the Senior Preferred Shares issued to the public remain outstanding, an electronic filer under National Instrument 13-101 -- System for Electronic Document Analysis and Retrieval (SEDAR),
(c) the Issuer creates a profile on SEDAR prior to the issuance of Senior Preferred Shares to the public,
(d) the Issuer and Brookfield Property Partners satisfy the conditions set out in section 13.3 of Form 44-101F1, except as modified as follows:
(i) any reference to parent credit supporter in section 13.3 of Form 44-101F1 shall be deemed to include Brookfield Property Partners notwithstanding its indirect ownership of the Issuer through the Holding LP,
(ii) any reference to subsidiary credit supporter in section 13.3 of Form 44-101F1 shall be deemed to include BPO, the Holding Entities and their affiliates, including Brookfield Property Partners and the Brookfield Property Partners Related Entities, notwithstanding Brookfield Property Partners' direct ownership of such entities through the Holding LP,
(iii) Brookfield Property Partners does not have to comply with the conditions in sections 13.3(1)(e) and 13.3(1)(f) of Form 44-101F1 if it meets the conditions in paragraph 1(c) of this decision above,
(iv) the summary financial information referred to in section 13.3(1)(g) of Form 44-101F1 will be reconciled to the consolidated financial statements of Brookfield Property Partners, including any minority interest adjustments,
(e) any preliminary short form prospectus and final short form prospectus of the Issuer contains (or incorporates by reference a document containing) a corporate organizational chart showing the ownership and control relationships among Brookfield, Brookfield Property Partners, the BPY General Partner, the Holding LP, the Holding Entities, BPO, and the Issuer,
(f) Brookfield Property Partners and the Issuer continue to satisfy the conditions for relief from the Continuous Disclosure Requirements set forth above,
(g) all of the outstanding voting securities of the Issuer are held directly or indirectly by the respective Holding Entity that is its parent, and
(h) the Issuer will issue a news release and file a material change report as set out in Part 7 of NI 51-102 in respect of any material change in the affairs of the Issuer that is not also a material change in the affairs of Brookfield Property Partners.
As to the Exemption Sought (other than from the Insider Reporting Requirements in the Securities Act (Ontario)).
"Sonny Randhawa"
Manager, Corporate Finance
Ontario Securities Commission
As to the Exemption Sought from the Insider Reporting Requirements in the Securities Act (Ontario).
"Edwin P. Kerwin"
Commissioner
Ontario Securities Commission
"Deborah Leckman"
Commissioner
Ontario Securities Commission