Whiterock Real Estate Investment Trust (Re), 2012 CanLII 43127

Ontario Securities Commission

Headnote National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – exemption granted from continuous disclosure and certification requirements to a co-obligor of debentures – continuous disclosure of parent co-obligor will be provided in lieu. Applicable Legislative Provisions

National Instrument 51-102 Continuous Disclosure Obligations.

National Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings.

July 31, 2012

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 WHITEROCK REAL ESTATE INVESTMENT TRUST (the “Filer”)

DECISION

Background

The principal regulator has received an application from the Filer for a decision under the securities legislation of the principal regulator (the “Legislation”) granting the Filer relief (the “Exemptions Sought”) from the following:

1. the continuous disclosure requirements contained in National Instrument 51-102 – Continuous Disclosure Obligations (“NI 51-102”), as amended from time to time (the “Continuous Disclosure Requirements”); and

2. the certification requirements contained in National Instrument 52-109 – Certification of Disclosure in Issuers' Annual and Interim Filings (“NI 52-109”), as amended from time to time (the “Certification Requirements”).

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application),

1. the Ontario Securities Commission is the principal regulator for the application, and

2. 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, Québec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador.

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

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

1. The Filer is an unincorporated, open ended real estate investment trust created by a declaration of trust dated May 17, 2005.

2. The Filer’s head office is located at 30 Adelaide Street East, Suite 1600, Toronto, Ontario, M5C 3H1.

3. The Filer is a reporting issuer in all of the provinces of Canada.

4. Dundee is an unincorporated, open-ended real estate investment trust created by a declaration of trust dated May 9, 2003, as amended and restated.

5. Dundee’s head office is located at 30 Adelaide Street East, Suite 1600, Toronto, Ontario, M5C 3H1.

6. Dundee is a reporting issuer in all of the provinces of Canada.

7. On March 2, 2012, Dundee acquired the Filer. The acquisition was effected by means of a take-over bid by Dundee to acquire any or all of the outstanding units of the Filer, the acquisition by Dundee of all or substantially all of the assets of the Filer and the redemption by the Filer of all of its issued and outstanding units other than 100 units held by Dundee (the “Transaction”). The units of the Filer were delisted by the TSX as of the close of business on March 5, 2012.

8. As a result of the Transaction, all of the issued and outstanding units of the Filer are held by an affiliate of Dundee. The units of the Filer are the only voting securities of the Filer. Accordingly, Dundee is the beneficial owner of all the outstanding voting securities of the Filer.

9. In connection with the Transaction, Dundee (as successor to and co-obligor with the Filer) assumed the obligation for the due and punctual payment of all of the Filer’s debentures outstanding at the time of completion of the Transaction, the interest thereon and all other moneys payable under the indentures governing such debentures. Dundee also agreed to observe and perform all of the covenants and obligations of the Filer under such indentures and such debentures. Such debentures are collectively referred to in this decision as the “Dundee Debentures”.

10. The Filer remained as a co-obligor under the indentures governing the Dundee Debentures. The obligation of the Filer in respect of Dundee Debentures is limited to the obligation, as co-obligor with Dundee, for the due and punctual payment of the principal amount of Dundee Debentures, the interest thereon and all other moneys payable under the indentures governing such Dundee Debentures.

11. The obligations of Dundee and the Filer as co-obligors for the amounts payable pursuant to the Dundee Debentures (as referred to in paragraph 10) are joint and several.

12. As of June 14, 2012, the following principal amount of Dundee Debentures were issued and outstanding:

(a) $667,000 aggregate principal amount of 6% Redeemable Subordinated Convertible Debentures, Series F (CUSIP No. 265270AG3), which are referred to in this decision as the “Series F Debentures”;

(b) $1,669,000 aggregate principal amount of 7% 7.0% Series G Convertible Unsecured Subordinated Debentures (CUSIP No. 265270AF5), which are referred to in this decision as the “Series G Debentures”;

(c) $51,128,000 aggregate principal amount of 5.50% Series H Convertible Unsecured Subordinated Debentures (CUSIP No. 265270AH1), which are referred to in this decision as the “Series H Debentures”;

(d) $25,000,000 aggregate principal amount of 5.95% Senior Unsecured Debentures, Series K (CUSIP No. 265270AJ7); and

(e) $10,000,000 aggregate principal amount of 5.95% Senior Unsecured Debentures, Series L (CUSIP No. 265270AK4).

13. The Series F Debentures, Series G Debentures and Series H Debentures are convertible in accordance with their terms into units of Dundee.

14. The Filer has no assets other than a receivable from an affiliate in the amount of approximately $65.6 million. The Filer has no liabilities other than its obligations under the Dundee Debentures.

15. The Filer does not have any securities outstanding other than (i) the Dundee Debentures and (ii) the units of the Filer which are held by an indirect affiliate of Dundee.

16. No person or company has provided a guarantee or alternative credit support (as defined in section 13.4 of NI 51-102) in respect of the Dundee Debentures. No person or company, other than Dundee and the Filer, has any obligation for the due and punctual payment of the principal amount of Dundee Debentures, the interest thereon and all other moneys payable under the indentures governing such Dundee Debentures.

17. The Filer is not in default of any of its obligations under the Legislation other than its obligations to file audited financial statements, accompanying management’s discussion and analysis of financial condition and certificates of its Chief Executive Officer and Chief Financial Officer in respect of the fiscal year ended December 31, 2011 and the three months ended March 31, 2012.

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 Exemptions Sought are granted provided that:

1. In respect of the Exemption Sought from the Continuous Disclosure Requirements,

(a) Dundee is, and continues to be, a co-obligor for the due and punctual payment of the principal amount of the Dundee Debentures, the interest thereon and all other moneys payable under the indentures governing the Dundee Debentures;

(b) the Filer satisfies, and continues to satisfy, the conditions set out in subsection 13.4(2) of NI 51-102, except as modified as follows:

(i) any reference to parent credit supporter in section 13.4 of NI 51-102 shall mean Dundee;

(ii) any reference to credit support issuer in section 13.4 of NI 51-102 shall mean the Filer; and

(iii) any reference to designated credit support securities in section 13.4 of NI 51-102 shall include the Dundee Debentures;

(c) the Filer does not issue any additional Dundee Debentures nor any other securities in respect of which Dundee is a co-obligor; and

(d) The Filer does not issue any Designated Credit Support Securities (as defined in section 13.4 of NI 51-102).

2. In respect of the Exemption Sought from the Certification Requirements, the Filer satisfies, and continues to satisfy, the conditions in respect of the Exemption Sought from the Continuous Disclosure Requirements set forth above in paragraph 1.

“Jo-Anne Matear”

Jo-Anne Matear

Manager