National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Multilateral Instrument 61-101 Protection of Minority Security Holders in Special Transactions -- issuer holds all of its properties through limited partnership -- entity holds units in limited partnership which are exchangeable into and in all material respects the economic equivalent to the issuer's publicly traded units -- issuer may include entity's indirect interest in issuer when calculating market capitalization for the purposes of using the 25% market capitalization exemption for certain related party transactions -- relief granted subject to conditions.
Applicable Legislative Provisions
Multilateral Instrument 61-101 Protection of Minority Security Holders in Special Transactions, ss. 5.5(a), 5.7(1)(a), 9.1.
January 7, 2014
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
CT REAL ESTATE INVESTMENT TRUST
The securities regulatory authority or regulator in the Jurisdiction (the "Decision Maker") has received an application (the "Application") from the Filer for a decision under the securities legislation of the Jurisdiction (the "Legislation") that the Filer be granted an exemption pursuant to section 9.1 of Multilateral Instrument 61-101 -- Protection of Minority Security Holders in Special Transactions ("MI 61-101") from the minority approval and formal valuation requirements under Part 5 of MI 61-101 relating to any related party transaction of the Filer entered into indirectly through CT REIT Limited Partnership (the "Partnership") or any other subsidiary entity (as such term is defined in MI 61-101) of the Partnership, if that transaction would qualify for the transaction size exemptions set out in sections 5.5(a) and 5.7(1)(a) of MI 61-101 if the indirect equity interest in the Filer, which is held by Canadian Tire Corporation, Limited and its subsidiaries (collectively, "CTC") or any of its permitted transferees (as set out in the Partnership Agreement (as defined below)), in the form of exchangeable Class B limited partnership units of the Partnership, were included in the calculation of the Filer's market capitalization (the "Requested Relief").
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for the Application; and
(b) the 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 in Quebec.
Terms defined in National Instrument 14-101 -- Definitions, MI 11-102 and MI 61-101 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
1. The Filer is an unincorporated, closed-end real estate investment trust established under the laws of the Province of Ontario. The Filer was established pursuant to a declaration of trust dated July 15, 2013, which was subsequently amended and restated on October 22, 2013 (the "Declaration of Trust").
2. The Filer's head office is located at 2180 Yonge Street, P.O. Box 770, Station K, Toronto, Ontario M4P 2V8.
3. The Filer is a reporting issuer (or the equivalent thereof) in each province and territory of Canada and is currently not in default of any applicable requirements of the securities legislation thereunder.
4. The Filer is authorized to issue an unlimited number of trust units ("Units") and an unlimited number of special voting units ("Special Voting Units"). As at the date hereof, the Filer has 90,026,773 Units and 89,559,871 Special Voting Units issued and outstanding. The number of Special Voting Units outstanding at any point in time is equivalent to, and accompanies, the number of Exchangeable LP Units (defined below) issued and outstanding.
5. The Units are listed and posted for trading on the Toronto Stock Exchange (the "TSX") under the trading symbol "CRT.UN".
6. The Partnership is a limited partnership formed under the laws of the Province of Ontario and is governed by an amended and restated limited partnership agreement dated as of October 23, 2013 (the "Partnership Agreement"). The Partnership's head office is located at 2180 Yonge Street, Toronto, Ontario M4P 2V8.
7. The Partnership is not a reporting issuer (or the equivalent thereof) in any jurisdiction and none of its securities are listed or posted for trading on any stock exchange or other market.
8. The Partnership is authorized to issue (i) an unlimited number of Class A limited partnership units ("Class A LP Units"), of which 90,026,773 Class A LP Units are issued and outstanding as at the date hereof and are held by the Filer, (ii) an unlimited number of exchangeable Class B limited partnership units ("Exchangeable LP Units"), of which 89,559,871 Exchangeable LP Units are issued and outstanding as at the date hereof and are held by CTC, and (iii) an unlimited number of Class C limited partnership units ("Class C LP Units"), of which 1,800,000 Class C LP Units are issued and outstanding as at the date hereof and are held by CTC. The Exchangeable LP Units and Class C LP Units were issued to CTC in connection with the Filer's indirect acquisition of 256 properties (the "Transaction") from CTC in connection with the closing of the Filer's initial public offering on October 23, 2013.
9. The Exchangeable LP Units are, in all material respects, the economic equivalent of the Units on a per unit basis. Holders of Exchangeable LP Units are entitled to receive distributions equal to those paid by the Filer to holders of Units. The Exchangeable LP Units are exchangeable into Units on a one-for-one basis subject to customary anti-dilution adjustments and each is accompanied by a Special Voting Unit that entitles the holder to receive notice of, attend and vote together with the holders of Units at all meetings of voting unitholders of the Filer. The Exchangeable LP Units are transferable, subject to the satisfaction of the applicable conditions set forth in the Partnership Agreement. The Exchangeable Units are not exchangeable for securities other than Units nor are they redeemable for cash.
10. The operating business of the Filer is carried on by the Partnership. The principal activity of the Partnership is to own income-producing real estate assets. CT REIT GP Corp., the general partner of the Partnership and a wholly owned subsidiary of the Filer, manages and controls the operations and affairs of the Partnership and makes all decisions regarding the business and activities of the Partnership.
11. The Filer currently holds 100% of the Class A LP Units of the Partnership, whereas CTC currently holds 100% of the Exchangeable LP Units and the Class C LP Units. As at the date thereof, CTC holds an approximate 83% effective interest in the Filer on a fully-diluted basis through ownership of 59,711,094 Units and all of the 89,559,871 issued and outstanding Exchangeable LP Units.
12. It is anticipated that the Filer may from time to time enter into transactions with certain related parties, including CTC or any of its subsidiaries, indirectly through the Partnership or its subsidiaries.
13. If Part 5 of MI 61-101 applies to a related party transaction by an issuer and the transaction is not otherwise exempt:
(a) the issuer must obtain a formal valuation of the transaction in a form satisfying the requirements of MI 61-101 by an independent valuator; and
(b) the issuer must obtain approval of the transaction by disinterested holders of the affected securities of the issuer (requirements (a) and (b) are collectively referred to as the "Minority Protections").
14. A related party transaction that is subject to MI 61-101 may be exempt from the Minority Protections if, at the time the transaction is agreed to, neither the fair market value of the subject matter of, nor the fair market value of the consideration for, the transaction, exceeds 25% of the issuer's market capitalization (the "Transaction Size Exemption").
15. The Filer may not be entitled to rely on the Transaction Size Exemption available under the Legislation from the requirements relating to related party transactions in the Legislation because the definition of "market capitalization" in the Legislation does not contemplate securities of another entity that are exchangeable into equity securities of the issuer.
16. The Exchangeable LP Units represent part of the equity value of the Filer and provide the holder of the Exchangeable LP Units with economic rights which are, in all material respects, equivalent to the Units. The effect of CTC's exchange right is that CTC will receive Units upon the exchange of the Exchangeable LP Units. Moreover, the economic interests that underlie the Exchangeable LP Units are identical to those underlying the Units; namely, the assets held directly or indirectly by the Partnership.
17. If the Exchangeable LP Units are not included in the market capitalization of the Filer, the equity value of the Filer will be understated by the value of the interest in the Partnership represented by CTC's Exchangeable LP Units (approximately 49.9%). As a result, related party transactions by the Filer may be subject to the Minority Protections in circumstances where the fair market value of the transactions is effectively less than 25% of the fully-diluted market capitalization of the Filer.
18. Section 1.4 of MI 61-101 treats an operating entity of an "income trust", as such term is defined in National Policy 41-201 -- Income Trusts and Other Indirect Offerings ("NP 41-201"), on a consolidated basis with its parent trust entity for the purpose of determining which entities are related parties of the issuer and which transaction MI 61-101 should apply to. Section 1.2 of NP 41-201 provides that references to an "income trust" refer to a trust or other entity (including corporate and non-corporate entities) that issues securities which provide for participation by the holder in net cash flows generated by an underlying business owned by the trust or other entity. Therefore, it is consistent with MI 61-101 that securities of the operating entity, such as the Exchangeable LP Units, be treated on a consolidated basis for the purposes of the Transaction Size Exemption.
19. The inclusion of the Exchangeable LP Units when determining the Filer's market capitalization pursuant to MI 61-101 is consistent with the logic of including unlisted equity securities of the issuer which are convertible into listed securities of the issuer in determining an issuer's market capitalization in that both are securities that are considered part of the equity value of the issuer whose value is measured on the basis of the listed securities into which they are convertible or exchangeable.
The Decision Maker 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 Maker under the Legislation is that the Requested Relief be granted provided that:
(a) the applicable transaction would qualify for the Transaction Size Exemption contained in MI 61-101 if the Exchangeable LP Units were considered an outstanding class of equity securities of the Filer that were convertible into Units;
(b) there be no material change to the terms of the Exchangeable LP Units and the Special Voting Units, including the exchange rights associated therewith, as described above and in the Declaration of Trust, the Partnership Agreement and the Exchange Agreement, dated October 22, 2013, whether by amendment to such documents, contractual agreement or otherwise; and
(c) the applicable transaction is made in compliance with the rules and policies of the TSX or such other exchange upon which the Filer's securities trade;
(d) any annual information form or equivalent of the Filer that is required to be filed in accordance with applicable Canadian securities law contain the following disclosure, with any immaterial modifications as the context may require;
"Multilateral Instrument 61-101 -- Protection of Minority Security Holders in Special Transactions ("MI 61-101") provides a number of circumstances in which a transaction between an issuer and a related party may be subject to valuation and minority approval requirements. An exemption from such requirements is available when the fair market value of the transaction does not exceed 25% of the market capitalization of the issuer. CT Real Estate Investment Trust has been granted exemptive relief from the requirements of MI 61-101 that, subject to certain conditions, permits it to be exempt from the minority approval and valuation requirements for transactions that would have a value of less than 25% of CT Real Estate Investment Trust's market capitalization, if exchangeable Class B limited partnership units of CT REIT Limited Partnership held by Canadian Tire Corporation, Limited, including its subsidiaries, are included in the calculation of CT Real Estate Investment Trust's market capitalization. As a result, the 25% threshold, above which the minority approval and valuation requirements would apply, is increased to include the approximately 49.9% indirect exchangeable equity interest in CT Real Estate Investment Trust held by Canadian Tire Corporation, Limited, including its subsidiaries, in the form of exchangeable Class B limited partnership units of CT REIT Limited Partnership."