Brookfield Infrastructure Partners L.P., 2011 CanLII 50237

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions - Filer wants to put in place a credit support issuer structure, but is 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 including notice of intention requirement, incorporation by reference requirement, earnings coverage requirements and subsidiary credit supporter requirements – Filer unable to rely on exemption for credit support issuers in applicable securities legislation since Filer only owns 71% of an intermediate holding entity (a limited partnership) that indirectly owns 100% of the voting securities of the credit support issuers - When the characteristics of the limited partnership units of the holding limited partnership (including that the majority are held by the Filer) are viewed together with a voting agreement, control and direction of the holding limited partnership is held by the Filer as if the Filer beneficially owned all the outstanding voting securities of 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 and 121(2)(a)(ii) National Instrument 44-101 Short Form Prospectus Distributions, ss. 2.5, 2.8 and 8.1(2) Form 44-101F1 Short Form Prospectus, ss. 6.1, 11.1(1), 12.1 and 13.3 National Instrument 51-102 Continuous Disclosure Obligations, ss. 13.1(2) and 13.4 National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings, ss. 8.5 and 8.6(2) National Instrument 52-110 Audit Committees, ss. 1.2(g) and 8.1(2) National Instrument 55-102 System for Electronic Disclosure by Insiders (SEDI), s. 6.1(2) National Instrument 55-104 Insider Reporting Requirements and Exemptions, s. 10.1(2) National Instrument 58-101 Disclosure of Corporate Governance Practices, ss. 1.3(c) and 3.1(2)

May 10th, 2011

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 INFRASTRUCTURE PARTNERS L.P. (THE FILER)

DECISION

Background

The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) exempting:

(a) the Issuers (as defined below) from the requirements of National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102)(the Continuous Disclosure Requirements);

(b) the Issuers from the requirements of National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109)(the Certification Requirements);

(c) insiders of the Issuers from the insider reporting requirement (as defined in National Instrument 14-101 Definitions)(the Insider Reporting Requirements);

(d) the Issuers from the requirements of National Instrument 52-110 Audit Committees (NI 52-110)(the Audit Committee Requirements);

(e) the Issuers from the requirements of National Instrument 58-101 Disclosure of Corporate Governance Practices (NI 58-101)(the Corporate Governance Requirements);

(f) the Issuers from the requirement in section 2.8 of National Instrument 44-101 Short Form Prospectus Distributions (NI 44-101) to file a notice of intention to file a short form prospectus no fewer than 10 business days prior to a filing of a preliminary short form prospectus (the Notice of Intention Requirement);

(g) the Issuers from the requirement to incorporate by reference into a short form prospectus the documents under paragraphs 1 to 4 and 6 to 8 of subsection 11.1(1) of Form 44-101F1 Short Form Prospectus (Form 44-101F1)(the Incorporation by Reference Requirements);

(h) the Issuers from the requirement to include in a short form prospectus the earnings coverage ratios under section 6.1 of Form 44-101F1 (the Earnings Coverage Requirements); and

(i) the Issuers from the requirement to include in a short form prospectus the disclosure of one or more subsidiary credit supporters required by section 12.1 of Form 44-101F1 (the Subsidiary Credit Supporter Requirements),

in each case to accommodate the issuance of debentures (the Convertible Debentures) by multiple issuers that will be exchangeable, in certain circumstances, for limited partnership units of the Filer (collectively, the Exemption Sought).

Furthermore, the principal regulator in the Jurisdiction has received a request from the Filer for a decision that the application and this decision be kept confidential and not be made public until the earlier of: (i) the date on which any Issuer and/or the Filer issues a news release announcing that an Issuer has entered into a bought deal relating to an offering of Convertible Debentures; (ii) the date on which any Issuer and/or the Filer otherwise publicly announces an offering of Convertible Debentures; (iii) the date on which any Issuer files a preliminary short form prospectus relating to an offering of Convertible Debentures; (iv) the date on which the Filer advises the principal regulator that there is no longer any need for the application and this decision to remain confidential; and (v) the date that is 90 days after the date of this decision (the Confidentiality Sought).

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) 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 British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, the Northwest Territories, Yukon and Nunavut.

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.

Representations

This decision is based on the following facts represented by the Filer:

The Filer

1. The Filer is a Bermuda exempted limited partnership that was established on May 21, 2007.

2. The limited partnership units of the Filer are listed on the New York Stock Exchange and the Toronto Stock Exchange under the symbols “BIP” and “BIP.UN”, respectively.

3. The Filer is a reporting issuer in all provinces and territories of Canada and is an 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).

4. The Filer’s sole asset is an approximate 71% limited partnership interest in Brookfield Infrastructure L.P. (the Holding LP), a Bermuda exempted limited partnership that was established on August 17, 2007.

5. Brookfield Infrastructure Partners Limited (the Managing General Partner) holds the general partner interest in the Filer.

6. The Filer, the Holding LP and the Holdings Entities (as defined below) all retained Brookfield Asset Management, Inc. (together with its subsidiaries other than the Filer and its subsidiaries, Brookfield) and its related entities to provide management, administrative and advisory services under a master services agreement.

7. The Filer is not in default of any requirement in securities legislation in any jurisdiction.

The Issuers and the Holding LP

8. The Convertible Debentures will be: (a) issued by indirect subsidiaries of the Filer, including an Alberta unlimited liability company (the CDN Issuer), a Delaware limited liability company (the US Issuer) and a Bermuda corporation (the BRM Issuer, together with the CDN Issuer, the US Issuer and any other similar issuer, the Issuers); and (b) guaranteed by the Filer, as well as the Holding LP and each of the Holding Entities (as defined below).

9. The Issuers will all be formed under the laws their respective jurisdictions prior to the filing of a preliminary short form prospectus for any offering of Convertible Debentures.

10. The CDN Issuer will be a wholly-owned subsidiary of Brookfield Infrastructure Holdings (Canada) Inc., a company incorporated under the laws of the Province of Ontario (Can Holdco), the US Issuer will be a wholly-owned subsidiary of Brookfield Infrastructure Corporation, a company incorporated under the laws of the State of Delaware (US Holdco) and the BRM Issuer will be a wholly-owned subsidiary of BIP Bermuda Holdings I Limited, a company incorporated under the laws of Bermuda (BRM Holdco, and together with Can Holdco and US Holdco, the Holding Entities). Any other Issuer will be a wholly-owned subsidiary of one of the Holding Entities.

11. Prior to the issuance of a receipt for a final short form prospectus of the Issuers qualifying the distribution of the Convertible Debentures, none of the Issuers will be a reporting issuer in any of the jurisdictions of Canada.

12. The Holding LP owns all of the common shares of the Holding Entities. Brookfield owns all the preferred shares of the Holding Entities (the Preferred Shares). The Preferred Shares are redeemable for cash at the option of the Holding Entities, subject to certain limitations and are not entitled to vote, except as required by law. The Preferred Shares are not equity securities as such term is defined in the Act.

13. Each of the Issuers will operate as a financing company and will have no significant assets or liabilities unrelated to the Convertible Debentures and will not have any ongoing business operations of its own. Each of the Issuers will be wholly-owned by the Holding Entities which are subsidiaries of the Holding LP. The Holding LP owns all the equity and voting securities of the Holding Entities. The Filer owns approximately 71% of the outstanding limited partnership interest in the Holding LP with the remaining limited partnership interest held by Brookfield. The limited partnership units held by Brookfield are subject to a redemption-exchange mechanism pursuant to which Brookfield has the right to require the Holding LP to redeem all or a portion of its Holding LP limited partnership units for a cash amount equal to the fair market value of one BIP limited partnership unit multiplied by the number of Holding LP limited partnership units to be redeemed. In connection with the redemption, BIP has the right to purchase all the Holding LP limited partnership units to be redeemed in exchange for BIP limited partnership units, on a one for one basis.

14. The Managing General Partner has a 0.01% general partnership interest in the Filer and acts as the general partner of the Filer and Brookfield Infrastructure GP L.P. (the Infrastructure General Partner) has a 1% general partnership interest in the Holding LP and acts as the general partner of the Holding LP.

15. The Managing General Partner and the Infrastructure General Partner are wholly-owned by Brookfield.

16. In December 2010, the Filer and Brookfield executed a voting rights agreement (the Voting Agreement) pursuant to which Brookfield agreed that any voting rights with respect to the Holding LP and the Infrastructure General Partner (including its general partner) will be voted in accordance with the direction of the Filer with respect to (a) the election of directors of the general partner of the Infrastructure General Partner (provided such directors meet the eligibility requirements stipulated in the by-laws of the general partner) and (b) the approval or rejection of the following matters: (i) any sale of all or substantially all of its assets, (ii) any merger, amalgamation, consolidation, business combination or other material corporate transaction, except in connection with any internal reorganization that does not result in a change of control, (iii) any plan or proposal for a complete or partial liquidation or dissolution, or any reorganization or any case, proceeding or action seeking relief under any existing laws or future laws relating to bankruptcy or insolvency, (iv) any amendment to the limited partnership agreement of the Filer or the Holding LP or (v) any commitment or agreement to do any of the foregoing.

17. All of the outstanding interests in or shares of each Issuer, when issued, will be held directly by the respective Holding Entity.

18. The Holding LP will be a “credit supporter” (as defined in NI 51-102).

19. Each Holding Entity will be a “credit supporter” (as defined in NI 51-102).

20. Each Issuer will be a “credit support issuer” (as defined in NI 51-102).

21. The Convertible Debentures will be exchangeable, in certain circumstances, for limited partnership units of the Filer.

22. The Filer does not directly satisfy the definition of “parent credit supporter” (as defined in NI 51-102) as a result of the indirect ownership of the Issuers through the Holding LP. Therefore, the Convertible Debentures will not be “designated credit support securities” (as defined in NI 51-102). If the Exemption Sought is granted, the Filer and each Issuer will: (a) treat the Filer 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 (b) treat the Convertible Debentures 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.

23. The Filer does not meet the test set forth in section 13.4(2)(a) of NI 51-102 and, by virtue of section 13.4(4), is unable to meet the test set forth in section 13.4(2)(b)(ii) of NI 51-102.

24. It is proposed that the Issuers distribute the Convertible Debentures to the public pursuant to a short form prospectus in respect of the distribution of the Convertible Debentures, filed in each of the jurisdictions of Canada, in reliance upon section 2.5 of NI 44-101. The short form prospectus will be prepared pursuant to the short form procedures contained in NI 44-101 and will comply with the requirements set out in Form 44-101F1, other than the Incorporation by Reference Requirements, the Earnings Coverage Requirements and the Subsidiary Credit Supporter Requirements.

25. The Convertible Debentures will be governed by a trust indenture (the Indenture), to be entered into among the Issuers and a trustee. Under the terms of the Indenture, the Issuers will be co-obligors and will be jointly and severally liable for the Convertible Debentures.

26. The Filer, the Holding LP and each of the Holding Entities (and any direct subsidiaries of the Holding LP acquired or formed after the date of the Indenture) will provide full and unconditional guarantees (the Guarantees) of the payments to be made by the Issuers in respect of the Convertible Debentures, as stipulated in agreements governing the rights of holders of the securities, that result in the holders of such securities being entitled to receive payment from the Filer, the Holding LP and each of the Holding Entities within 15 days of any failure by the Issuers to make a payment, as contemplated by paragraph (d) of the definition of “designated credit support security” in NI 51-102.

27. An application will be made to list the Convertible Debentures on the Toronto Stock Exchange (the TSX).

Offering of Convertible Debentures

28. At the time of the filing of any short form prospectus in connection with offerings of Convertible Debentures:

(a) each Issuer will comply with all of the filing requirements and procedures set out in NI 44-101 other than the Notice of Intention Requirement, except as permitted by the Legislation;

(b) the prospectus will be prepared in accordance with the short form prospectus requirements of NI 44-101 other than the Incorporation by Reference Requirements, the Earnings Coverage Requirements and the Subsidiary Credit Supporter Requirements, except as permitted by the Legislation;

(c) the Filer will continue to exercise its voting rights in accordance with the Voting Agreement;

(d) the Filer will continue to be a reporting issuer under the Legislation;

(e) the Filer will continue to provide the Guarantees;

(f) the Issuers will continue to be co-obligors under the Indenture and will be jointly and severally liable for the Convertible Debentures;

(g) the prospectus will incorporate by reference the documents of the Filer set forth under Item 11.1 of Form 44-101F1;

(h) the prospectus disclosure required by Item 11 of Form 44-101F1 will be addressed by incorporating by reference the Filer’s public disclosure documents referred to in paragraph 28(g) above; and

(i) the Filer will continue to satisfy all of the criteria in section 2.2 of NI 44-101, as applicable pursuant to Part 4 of NI 71-102.

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, each Issuer and the Filer continues 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 the Filer notwithstanding its indirect ownership of the Issuers through Holding LP,

(b) the Filer does not have to comply with the condition in section 13.4(2)(a) of NI 51-102 if

(i) the Voting Agreement remains in force with the terms described in paragraph 16 above and the Voting Agreement is disclosed in the Filer’s AIF (as defined in NI 51-102),

(ii) the aggregate ownership interest of Brookfield and the Infrastructure General Partner in the Holding LP does not exceed 49%,

(iii) no party other than the Filer, Brookfield and the Infrastructure General Partner will have any direct or indirect ownership of, or control or direction over, voting securities of Holding LP,

(iv) no party other than the Filer, Brookfield, the Infrastructure General Partner and Holding LP will have any direct or indirect ownership of, or control or direction over, voting securities of the Holding Entities,

(v) no party other than the Filer, Brookfield, the Infrastructure General Partner and the Holding Entities will have any direct or indirect ownership of, or control or direction over, voting securities of the Issuers,

(vi) the Filer consolidates in its financial statements the Holding LP, the Holding Entities and the Issuers as well as any entities consolidated by any of the foregoing, and

(vii) the issued and outstanding voting securities of the Holding Entities and the Issuers are 100% owned by their respective parent companies or entities,

(c) the Filer does not have to comply with the restriction in section 13.4(4) of NI 51- 102 if

(i) the Filer continues to be a reporting issuer,

(ii) the Filer continues to be a SEC foreign issuer (as defined in NI 71-102) and only relies on the exemptions in Part 4 of NI 71-102, and

(iii) to the extent that the Filer complies with the foreign private issuer disclosure regime under U.S. securities law, it does not rely on any exemption from that regime,

(d) each 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 the Filer or an affiliate of the Filer, and

(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, and

(e) 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 the Filer, including any minority interest adjustments;

2. in respect of the Certification Requirements, the Audit Committee Requirements and the Corporate Governance Requirements, the Filer and each 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 an 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) the Filer and each Issuer continue to satisfy the conditions for relief from the Continuous Disclosure Requirements set forth above;

4. in respect of the Notice of Intention Requirement, the Incorporation by Reference Requirement, the Earnings Coverage Requirements and the Subsidiary Credit Supporter Requirements,

(a) the preliminary short form prospectus of the Issuers is in respect of an offering of Convertible Debentures,

(b) the Issuers are qualified to file the preliminary short form prospectus under section 2.5 of NI 44-101,

(c) the Issuers become, on or before the filing of the preliminary short form prospectus, and thereafter remain so long as any of the Convertible Debentures issued to the public remain outstanding, electronic filers under National Instrument 13-101 System for Electronic Document Analysis and Retrieval (SEDAR),

(d) the Issuers create profiles on SEDAR and file the notices required by section 2.8 of NI 44-101 prior to filing the preliminary short form prospectus,

(e) the Issuers and the Filer 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 the Filer notwithstanding its indirect ownership of the Issuers through Holding LP,

(ii) the Filer does not have to comply with the condition in section 13.3(1)(e) of Form 44-101F1 if it meets the conditions in paragraph 1(b) of this decision above, and

(iii) 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 the Filer, including any minority interest adjustments,

(f) the preliminary short form prospectus and final short form prospectus of the Issuers contain (or incorporate by reference a document containing) a corporate organization chart showing the ownership and control relationships among Brookfield, the Filer, the Managing General Partner, the Infrastructure General Partner, the Holding LP, the Holding Entities and the Issuers,

(g) the Filer and each Issuer continue to satisfy the conditions for relief from the Continuous Disclosure Requirements set forth above,

(h) the Issuers and the Filer, as applicable, comply with paragraph 28 above,

(i) the Holding LP (or a wholly-owned subsidiary thereof) is or remains the direct owner of all of the outstanding common shares of the Holding Entities,

(j) all of the outstanding interests in or shares of each Issuer, when issued, will be held directly by a Holding Entity,

(k) the Issuers will operate as a financing company and will have no significant assets or liabilities unrelated to the Convertible Debentures and will not have any ongoing business operations of their own, and

(l) the Issuers will issue a news release and file a material change report in accordance with 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 the Filer.

Furthermore, the decision of the principal regulator is that the Confidentiality Sought is granted.

As to the Exemption Sought (other than from the Insider Reporting Requirements in the Securities Act (Ontario)) and the Confidentiality Sought in this regard:

“Michael Brown” Assistant Manager, Corporate Finance Ontario Securities Commission

As to the Exemption Sought from the Insider Reporting Requirements in the Securities Act (Ontario) and the Confidentiality Sought in this regard:

“Christopher Portner” Commissioner Ontario Securities Commission

“Kevin J. Kelly” Commissioner Ontario Securities Commission