Pursuant to National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions, the fund and its manager are exempted from the dealer registration requirement for certain limited trading activities to be carried out by these parties in connection with a warrant offering by the fund, as the limited trading activities involve: i) the forwarding of a short form prospectus and the distribution of warrants to acquire units to existing holders of units and ii) the subsequent distribution of units to existing holders of warrants, upon their exercise of the warrants, through an appropriately registered dealer.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 25(1), 74(1).
Multilateral Instrument 11-102 Passport System, s. 4.7(1).
National Instrument 45-106 Prospectus and Registration Exemptions, ss. 2.1, 3.1, 3.42, 8.5.
National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations, s. 8.5.
June 18, 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 TIMBERCREEK GLOBAL REAL ESTATE FUND (the Fund) and TIMBERCREEK ASSET MANAGEMENT LTD. (the Manager) (together with the Fund, the Filers)
The principal regulator in the Jurisdiction has received an application from the Filers for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) exempting the Filers from the dealer registration requirement in the Legislation in respect of certain trades (the Warrant Offering Activities) to be carried out by the Manager, on behalf of the Fund, in connection with a proposed offering (the Warrant Offering) of warrants (the Warrants) to acquire Class A units (the Class A Units) of the Fund, to be made pursuant to a short-form (final) prospectus (the Warrant Prospectus).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
1. the Ontario Securities Commission is the principal regulator for this application; and
2. each Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon by the Filer in British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador (collectively, the Passport Jurisdictions).
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filers:
1. The Fund is a trust established by declaration of trust under the laws of the province of Ontario.
2. The head office of each of the Filers is located in Toronto, Ontario.
3. The Manager is the manager and promoter of the Fund.
4. The Manager was appointed manager for the Fund and performs management and administrative services for the Fund pursuant to a management agreement between the Manager and the Fund.
5. The Fund is a reporting issuer in each of the provinces of Canada and is not in default of securities legislation in any jurisdiction.
6. The Fund is subject to certain investment restrictions that among other things, limit the securities that may be acquired for the investment portfolio of the Fund.
7. The Fund is not considered to be a mutual fund under securities legislation of the provinces and territories of Canada and the Fund neither is, nor has been, in continuous distribution.
8. The Fund's initial public offering was conducted through the full service investment dealer channel and its units were issued and are held in the book based system of CDS Clearing and Depositary Services (CDS).
9. The authorized capital of the Fund consists of an unlimited number of transferable, redeemable units of an unlimited number of classes (Units), each of which represents an equal, undivided beneficial interest in the net assets of the Fund allocable to that class. The Class A Units are listed and posted for trading on the Toronto Stock Exchange (TSX).
10. The investment objectives of the Fund are to provide holders of Units with quarterly distributions and to preserve capital while providing the opportunity for long-term capital appreciation for holders of Units.
11. The Fund's portfolio consists primarily of premier real estate securities including common equity, preferred shares and debt of both public and private real estate investment trusts and real estate companies in Canada, the United States, the United Kingdom, Continental Europe, Japan, Australia, Hong Kong, Singapore and other countries.
12. In connection with the Warrant Offering, the Fund has filed a preliminary short form prospectus dated June 10, 2014 under the securities legislation of Ontario and each of the Passport Jurisdictions. Under the Warrant Offering, each holder of Class A Units, as at a specified record date, will be entitled to receive, for no consideration, one Warrant for each Class A Unit held by such holder.
13. Holders of Warrants will be entitled, upon the exercise of such Warrants, to subscribe for Class A Units, pursuant to subscription privileges provided for in the Warrants, at a subscription price specified in the Warrant Prospectus. Two Warrants will entitle the holder to subscribe for one Class A Unit under a basic subscription privilege. Holders of Warrants who exercise Warrants under the basic subscription privilege may also subscribe, pro rata, for additional Class A Units that are not subscribed for by other holders under the basic subscription privilege, pursuant to the terms of an additional subscription privilege. The term for the exercise of Warrants (including both the basic subscription privilege and the additional subscription privilege) will not exceed six months.
14. The Fund intends to apply to list the Warrants, to be distributed under the Warrant Prospectus, on the TSX.
15. The Warrant Offering Activities will consist of:
a. the distribution of the Warrant Prospectus and the issuance of Warrants to the holders of Class A Units (as at the record date specified in the Warrant Prospectus), after the Warrant Prospectus has been filed, and receipts obtained, under the securities legislation of Ontario and each of the Passport Jurisdictions; and
b. the distribution of Class A Units to holders of Warrants, upon the exercise of such Warrants by the holder, through a registered dealer that is registered in a category that permits the registered dealer to make such distribution.
16. The Fund is in the business of trading by virtue of its portfolio investing and trading activities. As a result, its capital raising activities, including the Warrant Offering Activities, would require each of the Filers to register as a dealer in the absence of this decision (or another available exemption from the dealer registration requirement).
17. Section 8.5 of National Instrument 45-106 Prospectus and Registration Exemptions (NI 45-106) provides that the exemptions from the dealer registration requirements set out in section 3.1 [Rights offering] and section 3.42 [Conversion, exchange, or exercise] of NI 45-106 no longer apply.
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 Fund, and the Manager acting on behalf of the Fund, are not subject to the dealer registration requirement in respect of the Warrant Offering Activities.