Brookfield Infrastructure Partners L.P. (Re), 2013 CanLII 71005

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, 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 70.5% of an intermediate holding entity (a limited partnership) that indirectly owns the voting securities of each Issuer - When the characteristics of the limited partnership units of the holding limited partnership (including that the majority are held by the parent) 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 - Filer unable to rely on the exemption since the Issuer proposes to issue convertible preferred shares that are convertible into other preferred shares of the Issuer - Relief subject to conditions, including conditions relating to minority interest in holding limited partnership.

November 5, 2013

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 (NI 14-101)) (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 CDN Pref Issuer (as defined below) from the qualification requirements (the Qualification Requirements) of Part 2 of National Instrument 44-101 - Short Form Prospectus Distributions (NI 44-101), such that the CDN Pref Issuer is qualified to file a prospectus in the form of a short form prospectus;

(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 and together with the Incorporation by Reference Requirements and the Earnings Coverage Requirements, the Prospectus Disclosure Requirements),

in each case to accommodate: (a) the issuance by the Debt Issuers (as defined below) of debt securities guaranteed by the Guarantors (as defined below); (b) the issuance by the CDN Pref Issuer of preferred shares guaranteed by the Guarantors; and (c) an internal reorganization of the Filer (the Reorganization) as more particularly described below (collectively, the Exemption 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 NI 14-101 and MI 11-102 have the same meaning if used in this decision, unless otherwise defined. In this decision, “Filer’s Related Entities” means, collectively, the Holding LP (as defined below) and subsidiary entities (as this term is defined in Multilateral Instrument 61-101 - Protection of Minority Security Holders in Special Transactions (MI 61-101)) of the Holding LP.

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 (the 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 of the provinces and territories of Canada (collectively, the Jurisdictions) 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 70.5% 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 Holding Entities (as defined below) except New US Holdco have 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. Following the Reorganization, New US Holdco will also retain Brookfield for the provision of such services by becoming a party to the master services agreement.

7. The Filer is not in default of any requirement of the Legislation or equivalent legislation in any of the Jurisdictions.

8. In connection with an offering of debt securities by the Debt Issuers, the Filer applied for and was granted substantially the same exemptive relief as the Exemption Sought pursuant to a June 26, 2012 decision document (the 2012 Decision).

The Reorganization

9. Pursuant to the Reorganization, the Holding LP will incorporate a new subsidiary under the laws of the State of Delaware (New US Holdco).

10. New US Holdco will be authorized to issue 500,000 common shares initially and one preferred share (the New US Holdco Preferred Share). The Holding LP will own all of the common shares of New US Holdco. An indirect wholly-owned subsidiary of Brookfield will own the New US Holdco Preferred Share, which will have an aggregate value of US$5 million. The New US Holdco Preferred Share will be redeemable for cash at the option of New US Holdco, subject to certain limitations, and because of certain US tax implications, will be entitled to vote (one vote per share). The New US Holdco Preferred Share will not be an equity security as such term is defined in the Act. The issuance of the New US Holdco Preferred Share will be exempt from the requirements of MI 61-101 because the fair market value of that share will be less than 25% of the market capitalization of the Filer.

11. New US Holdco will own all of the issued and outstanding voting securities of Brookfield Infrastructure Corporation, currently a corporation incorporated under the laws of the State of Delaware, which will be converted to a Delaware limited liability company named Brookfield Infrastructure LLC in connection with the Reorganization (US Holdco). All of the issued and outstanding voting securities of US Holdco are currently owned by the Holding LP. In connection with the conversion, all of the issued and outstanding preferred shares of US Holdco will be converted into common shares of US Holdco.

12. Following the Reorganization, New US Holdco will execute a guarantee and become a guarantor of the Securities (as defined below) and US Holdco will continue to be a guarantor of the Existing Debt Securities (as defined below) pursuant to the existing guarantee to which it is a party.

13. Following the Reorganization, the Filer will no longer satisfy the conditions of the 2012 Decision because a party other than the Filer, Brookfield, the Infrastructure General Partner (as defined below) and the Holding LP will have a direct ownership of the voting securities of US Holdco.

The Issuers and the Holding LP

14. The Debt Issuers have issued $400 million aggregate principal amount of debt securities (the Existing Debt Securities) guaranteed by the Filer, the Holding LP and each of the Holding Entities except New US Holdco. The Debt Issuers may, subject to market conditions, issue additional debt securities (the New Debt Securities, and together with the Existing Debt Securities, the Debt Securities), any new series of which will be guaranteed by the Filer, the Holding LP and each of the Holding Entities except US Holdco.

15. The Existing Debt Securities were jointly issued, and any New Debt Securities will be jointly issued, by Brookfield Infrastructure Finance ULC, an Alberta unlimited liability company (the CDN Debt Issuer), Brookfield Infrastructure Finance LLC, a Delaware limited liability company (the US Issuer), Brookfield Infrastructure Finance Pty Ltd, a proprietary company limited by shares incorporated in Australia (the AUS Issuer) and Brookfield Infrastructure Finance Limited, a Bermuda corporation (the BRM Issuer, together with the CDN Debt Issuer, the US Issuer and the AUS Issuer, the Debt Issuers), each an entity that is in effect an indirect subsidiary of the Filer.

16. Brookfield Infrastructure Preferred Equity Inc. (the CDN Pref Issuer, and together with the Debt Issuers, the Issuers) will be an issuer of preferred shares (the Preferred Shares and together with the Debt Securities, the Securities), which will be guaranteed by the Filer, the Holding LP and each of the Holding Entities except US Holdco. No Preferred Shares are currently outstanding.

17. The Issuers were formed under the laws of their respective jurisdictions in May 2012 prior to the filing of a preliminary short form prospectus for an offering of Securities and are currently reporting issuers in all of the Jurisdictions and not in default of any requirement of the Legislation or equivalent legislation in any of the Jurisdictions.

18. The CDN Debt Issuer and the CDN Pref Issuer are each 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 is a wholly-owned subsidiary of US Holdco; and the AUS Issuer and the BRM Issuer are each wholly-owned subsidiaries of BIP Bermuda Holdings I Limited, a company incorporated under the laws of Bermuda (BRM Holdco, and together with Can Holdco, US Holdco and New US Holdco, the Holding Entities).

19. Following the Reorganization, the Holding LP will own all of the common shares of all the Holding Entities except US Holdco and Brookfield will own all of the preferred shares of all the applicable Holding Entities (the Holdco Preferred Shares). New US Holdco will own all of the common shares of US Holdco. The Holdco Preferred Shares will be redeemable for cash at the option of the Holding Entities, subject to certain limitations, and, except for the New US Holdco Preferred Share, will not be entitled to vote, except as required by law. The Holdco Preferred Shares will not be equity securities as such term is defined in the Act.

20. All of the outstanding voting securities of each Issuer are held directly or indirectly by the respective Holding Entity that is its parent.

21. The Filer owns approximately 70.5% of the outstanding limited partnership interest in the Holding LP with the remaining limited partnership interest held by Brookfield. The limited partnership units of the Holding LP held by Brookfield 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 limited partnership units of the Holding LP for a cash amount equal to the fair market value of one Unit multiplied by the number of limited partnership units of the Holding LP to be redeemed. In connection with the redemption, the Filer has the right to purchase all the limited partnership units of the Holding LP to be redeemed in exchange for Units on a one for one basis.

22. 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 an approximate 0.5% general partnership interest in the Holding LP and acts as the general partner of the Holding LP.

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

24. In December 2010, the Filer and Brookfield executed a voting 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 relating to any such entity, as applicable: (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. As a result, the Filer has consolidated the Holding LP (and all of the Holding LP’s assets, including the Holding Entities other than New US Holdco) into its financial statements. Following the Reorganization, New US Holdco will also be consolidated in the financial statements of the Filer.

25. On completion of the Reorganization, the Filer, the Holding LP and the Holding Entities will be “credit supporters” (as defined in NI 51-102).

26. Each of the Issuers operates as a financing company and has no significant assets or liabilities unrelated to the Securities and does not have any ongoing business operations of its own.

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

28. 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 Securities 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 Debt Securities, the Preferred Shares and the Resulting Preferred Shares (as defined below) 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 the decision.

29. The Preferred Shares will be issuable in one or more series having such rights, restrictions and privileges determined by the directors of the CDN Pref Issuer.

30. The Preferred Shares will satisfy the definition of “designated credit support securities” (as defined in NI 51-102), but for: (a) the fact that the Filer does not directly satisfy the definition of “parent credit supporter” (as defined in NI 51-102); and (b) the Preferred Shares may be convertible, in certain circumstances, at the option of the holder or the CDN Pref Issuer, into Preferred Shares of another series (the Resulting Preferred Shares).

31. The CDN Pref Issuer does not directly satisfy the eligibility criteria in Part 2 of NI 44-101 in order to be able to file a prospectus in the form of a short form prospectus for Preferred Shares that are convertible into Resulting Preferred Shares.

32. 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) of NI 51-102, is unable to meet the test set forth in section 13.4(2)(b)(ii) of NI 51-102.

33. The Issuers have filed a short form base shelf prospectus dated July 12, 2012 in each of the Jurisdictions, in reliance upon section 2.4 of NI 44-101 and National Instrument 44‑102 ‑ Shelf Distributions (NI 44‑102), which qualifies for distribution to the public C$750,000,000 of Securities. Any future prospectus will be prepared pursuant to the short form procedures contained in NI 44-101 and, if applicable, NI 44-102 and will comply with the requirements set out in Form 44-101F1 and, if applicable, NI 44-102, other than the Prospectus Disclosure Requirements.

34. The Debt Securities are governed by a trust indenture dated as of October 10, 2012 among the Debt Issuers and Computershare Trust Company of Canada, as trustee, as supplemented (the Indenture). Under the terms of the Indenture, the Debt Issuers are jointly and severally liable for the Debt Securities.

35. Following the Reorganization, the Filer, the Holding LP and each of the Holding Entities (other than US Holdco with respect to any new series of Securities) will, and other subsidiary entities (as defined in MI 61-101) of the Holding LP (collectively with the Filer, the Holding LP and each of the applicable Holding Entities, the Guarantors) may provide full and unconditional joint and several guarantees (collectively, the Guarantees) of the payments to be made by the Issuers in respect of the Debt Securities, the Preferred Shares and the Resulting Preferred Shares (if applicable), as stipulated in agreements governing the rights of holders of the Debt Securities, the Preferred Shares and the Resulting Preferred Shares (if applicable), that result in the holders of such securities being entitled to receive payment from the Guarantors 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.

Offering of Securities

36. At the time of the filing of any short form prospectus or shelf prospectus supplement in connection with an offering of Securities:

(a) each Issuer will comply with all of the filing requirements and procedures set out in NI 44-101, other than the Qualification Requirements in the case of the CDN Pref Issuer, and, if applicable, NI 44-102, except as permitted by the Legislation;

(b) the prospectus will be prepared in accordance with the short form prospectus requirements of NI 44-101 and, if applicable, NI 44-102 other than the Prospectus Disclosure 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 prospectus will incorporate by reference the documents of the Filer set forth under Item 11.1 of Form 44-101F1;

(f) 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 36(e) above; and

(g) 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.

37. Prior to issuing any New Debt Securities:

(a) the Filer will provide its Guarantee in respect of the New Debt Securities; and

(b) the Issuers will be jointly and severally liable for the New Debt Securities under the Indenture.

38. Prior to issuing any Preferred Shares, the Filer will provide its Guarantee in respect of such Preferred Shares and any Resulting Preferred Shares (if applicable).

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 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 the Filer notwithstanding its indirect ownership of the Issuers through the Holding LP,

(b) any reference to subsidiary credit supporter in section 13.4 of NI 51-102 shall be deemed to include the Holding Entities and their affiliates, including the Filer’s Related Entities, notwithstanding the Filer’s indirect ownership of such entities through the Holding LP,

(c) the Filer 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) the Voting Agreement remains in force with the terms described in paragraph 24 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 49.99%,

(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 the Holding LP,

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

(v) no party other than the Filer, Brookfield, the Infrastructure General Partner, the Holding LP and the Holding Entities and their affiliates, including the Filer and the Filer’s Related 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, if any Issuer has issued Debt Securities, Preferred Shares or Resulting Preferred Shares that remain outstanding, files its financial statements pursuant to Part 4 of NI 51-102, except that the Filer 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

(vii) other than the New US Holdco Preferred Share owned by Brookfield, the issued and outstanding voting securities of the Holding Entities and the Issuers 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 the Filer (the SEC Foreign Issuer Relief) 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,

(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,

(iv) if any Issuer has issued Debt Securities, Preferred Shares or Resulting 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 the Filer, including any minority interest adjustments,

(v) if any Issuer has issued Debt Securities, Preferred Shares or Resulting Preferred Shares that remain outstanding, the Filer files 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 Filer that is not reported or filed by the Filer on SEC Form 6-K,

(vi) if any Issuer has issued Debt Securities, Preferred Shares or Resulting Preferred Shares that remain outstanding, the Filer files 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) the Filer includes in the prospectus of each 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 the Filer has completed or has progressed to a state where a reasonable person would believe that the likelihood of the Filer 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 the Filer’s current annual financial statements included or incorporated by reference in the prospectus of each Issuer,

(viii) if the Debt Issuers complete a public offering of a new series of Debt Securities in Canada prior to the CDN Pref Issuer completing a public offering of Preferred Shares in Canada, the SEC Foreign Issuer relief will expire on the date that is the earlier of the day after the maturity date of the first new series of Debt Securities or the date that is seven years and six months after the date of this decision,

(ix) if the CDN Pref Issuer completes a public offering of Preferred Shares in Canada prior to the Debt Issuers completing a public offering of a new series of Debt Securities in Canada, the SEC Foreign Issuer relief will expire on the date that is the earlier of the day after the first at par redemption date of the first series of Preferred Shares or the date that is seven years and six months after the date of this decision, and

(x) if the Issuers have not completed a public offering of Preferred Shares or a new series of Debt Securities in Canada by the date that is five years after the date of this decision, the SEC Foreign Issuer relief will expire on the date that is five years after the date of this decision.

(e) the Issuers do not have to comply with the conditions in section 13.4(2)(c) of NI 51-102 if 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 the Filer’s 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) Debt Securities or Preferred Shares and Resulting Preferred Shares, provided that the Filer has provided Guarantees in respect of such securities.

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 Qualification Requirements, the Incorporation by Reference Requirement, the Earnings Coverage Requirements and the Subsidiary Credit Supporter Requirements so long as:

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

(b) the Issuers are qualified to file the preliminary short form prospectus under section 2.4 or section 2.5 of NI 44-101, except modified as follows:

(i) the CDN Pref Issuer does not have to comply with the condition in section 2.4 of NI 44-101 that the securities being distributed be non-convertible preferred shares if, on completion of any offering of Preferred Shares, it meets the conditions in paragraph 1(e) of this decision above,

(c) the Issuers remain, so long as any of the Securities issued to the public remain outstanding, electronic filers under National Instrument 13-101 — System for Electronic Document Analysis and Retrieval (SEDAR),

(d) the Issuers continue to maintain profiles on SEDAR,

(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 the Holding LP,

(ii) any reference to subsidiary credit supporter in section 13.3 of Form 44-101F1 shall be deemed to include the Holding Entities and their affiliates, including the Filer’s Related Entities, notwithstanding the Filer’s indirect ownership of such entities through the Holding LP,

(iii) the Filer 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 CDN Pref Issuer does not have to comply with the condition in section 13.3(1)(d) of Form 44-101F1 if, on completion of any offering of Preferred Shares, it meets the conditions in paragraph 1(e) of this decision above, and

(v) 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) any preliminary short form prospectus and final short form prospectus of the Issuers contain (or incorporate by reference a document containing) a corporate organizational 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 paragraphs 36, 37 and 38 above, as applicable,

(i) each of the Issuers will continue to operate as a financing company and have no significant assets or liabilities unrelated to the Securities and not have any ongoing business operations of its own,

(j) all of the outstanding voting securities of each Issuer are held directly or indirectly by the respective Holding Entity that is its parent, and

(k) the Issuers 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 Issuers that is not also a material change in the affairs of the Filer.

As to the Exemption Sought (other than from the Insider Reporting Requirements in the Securities Act (Ontario)).

“Shannon O’Hearn” Manager, Corporate Finance

Ontario Securities Commission

As to the Exemption Sought from the Insider Reporting Requirements in the Securities Act (Ontario).

“Anne Marie Ryan” “James D. Carnwath”

Commissioner Commissioner Ontario Securities Commission Ontario Securities Commission