Brookfield Infrastructure Partners L.P. (Re), 2018 CanLII 109324

October 29, 2018

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 BIP Investment Corporation (the Issuer) and, in respect of (c), the insiders of the Issuer, from the following requirements:

(a) the requirements of National Instrument 51-102 — Continuous Disclosure Obligations (NI 51-102) (the Continuous Disclosure Requirements);

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

(c) the insider reporting requirement (as defined in National Instrument 14-101 — Definitions (NI 14-101)) (the Insider Reporting Requirements);

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

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

(f) 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 qualification requirements (the Qualification Requirements) of Part 2 of NI 44-101, such that the Issuer is qualified to file a prospectus in the form of a short form prospectus;

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

(i) the requirement to include in a short form prospectus the earnings coverage ratios under item 6 of Form 44-101F1 (the Earnings Coverage Requirements); and

(j) the requirement to include in a short form prospectus the disclosure of one or more subsidiary credit supporters required by item 12 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 the issuance by the Issuer of Senior Preferred Shares (Issuer Senior Preferred Shares) guaranteed by the Guarantors (as defined below) as more particularly described below (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 earliest of: (a) the date on which the Issuer and/or the Filer issues a news release announcing that the Issuer has entered into an agreement relating to an offering of Issuer Senior Preferred Shares; (b) the date on which the Issuer and/or the Filer otherwise publicly announces an offering of Issuer Senior Preferred Shares; (c) the date on which the Issuer files a preliminary short form prospectus qualifying the distribution of Issuer Senior Preferred Shares; (d) 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 (e) 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 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. The Filer’s authorized capital also includes Class A preferred limited partnership units (Class A Preferred Units), issuable in series, and general partnership units.

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) and is and has been satisfying its continuous disclosure obligations by complying with U.S. federal securities laws as is permitted under NI 71-102, subject to the conditions set forth in paragraph 1(d) of the operative section of the decision in Re: Brookfield Infrastructure Partners L.P. (2014), 37 O.S.C.B. 2325. The Filer will continue to satisfy its continuous disclosure obligations by complying with U.S. federal securities laws as is permitted under NI 71-102, subject to the conditions set forth under paragraph 1(d) of the operative section of this decision.

4. The Filer’s sole asset is its managing general partnership interest and preferred limited partnership interest in Brookfield Infrastructure L.P. (Holding LP), a Bermuda exempted limited partnership that was established on August 17, 2007.

5. Brookfield Infrastructure Partners Limited, a Bermuda company, holds the general partner interest in the Filer and is wholly-owned by Brookfield (as defined below).

6. The Filer, the Holding LP and the Holding Entities (as defined below) 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.

7. To its knowledge, the Filer is not in default of any requirement of the Legislation or equivalent legislation in any of the Jurisdictions.

The Issuer

8. The Issuer was incorporated under the Business Corporations Act (British Columbia) on August 31, 2018 as an indirect subsidiary of the Filer. The registered and head office of the Issuer is located at 1500 Royal Centre, 1055 West Georgia Street, P.O. Box 11117, Vancouver, British Columbia, V6E 4N7.

9. The Issuer is an investment holding company. The Issuer’s principal investments will initially consist of indirect interests in: (a) the Western Canadian natural gas gathering and processing business of Enbridge Inc. (the Canadian Midstream Business), the provincially regulated portion of which was acquired by the Filer and its institutional partners on October 1, 2018 with the federally regulated portion to be acquired mid-2019; and (b) Enercare Inc. (Enercare), which was acquired by the Filer and its institutional partners on October 16, 2018. The Canadian Midstream Business includes natural gas processing facilities and gathering pipelines with connectivity to markets in the United States and Canada. Enercare is a provider of residential energy infrastructure, such as water heaters, heating, ventilation, air conditioning systems and other home services across Canada and the United States.

10. Management expects that the Issuer will continue to serve as an investment holding company and that the Issuer will make additional investments financed through dispositions of existing investments or through issuances of additional securities. In the course of its activities, the Issuer may: (a) seek control block positions in other entities from time to time; (b) borrow money and incur debt; and (c) enter into related party transactions with members of the Brookfield group.

11. The authorized share capital of the Issuer consists of: (a) an unlimited number of common shares (the Issuer Common Shares); (b) an unlimited number of Issuer Senior Preferred Shares; and (c) an unlimited number of junior preferred shares (the Issuer Junior Preferred Shares).

12. The Filer indirectly owns all the Issuer Common Shares and therefore indirectly controls 100% of the voting securities of the Issuer. The Filer indirectly owns all the Issuer Junior Preferred Shares. No Issuer Senior Preferred Shares are currently outstanding.

13. Prior to the issuance of a receipt for a final short form prospectus of the Issuer qualifying the distribution of the Issuer Senior Preferred Shares, the Issuer will not be a reporting issuer in any of the Jurisdictions.

14. It is proposed that the Issuer distribute the Issuer Senior Preferred Shares to the public pursuant to a short form prospectus in respect of the distribution of the Issuer Senior Preferred Shares, filed in the Jurisdictions, in reliance upon sections 2.4 and/or sections 2.5 of NI 44-101 and, if applicable, National Instrument 44-102 — Shelf Distributions (NI 44-102). The short form 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.

15. The Issuer will become a reporting issuer in the Jurisdictions in connection with its proposed issuance of Senior Preferred Shares to the public, and the Issuer accordingly, will be subject to the continuous disclosure and insider reporting requirements of the Legislation applicable to reporting issuers. Accordingly, the Exemption Sought relates to exemptions from the continuous disclosure and insider reporting requirements of the Legislation that will apply to the Issuer.

The Issuer Senior Preferred Shares and the Relationship between the Filer, Holding LP and the Holding Entities

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

17. The Issuer Senior Preferred Shares may be convertible, in certain circumstances, at the option of the holder or the Issuer, into Issuer Senior Preferred Shares of another series (the Resulting Preferred Shares).

18. The Issuer Senior Preferred Shares and the Resulting Preferred Shares may also be convertible, in certain circumstances, into: (a) Units; (b) non-convertible Class A Preferred Units; or (c) Class A Preferred Units that are convertible into Class A Preferred Units of another series (the Convertible Preferred Units). All of the Units, non-convertible Class A Preferred Units and Convertible Preferred Units are securities of the Filer and the Convertible Preferred Units are only convertible into non-convertible securities of the Filer or convertible securities of the Filer that are in turn only convertible into other securities of the Filer.

19. The Filer, the Holding LP, Brookfield Infrastructure Holdings (Canada) Inc. (Can Holdco), Brookfield Infrastructure US Holdings I Corporation (US Holdco) and BIP Bermuda Holdings I Limited (BRM Holdco, and together with Can Holdco and US Holdco, the Holding Entities) 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 Holding Entities, the Guarantors) may, provide full and unconditional joint and several guarantees (collectively, the Guarantees) of the payments to be made by the Issuer in respect of the Issuer Senior Preferred Shares and the Resulting Preferred Shares (if applicable), as stipulated in agreements governing the rights of holders of the Issuer Senior Preferred Shares and the Resulting Preferred Shares (if applicable), that will result in the holders of such securities being entitled to receive payment from the Guarantors within 15 days of any failure by the Issuer to make a payment, as contemplated by paragraph (d) of the definition of “designated credit support securities” in NI 51-102.

20. The Holding LP owns, directly or indirectly, all of the issued and outstanding common shares of all the Holding Entities and Brookfield owns all of the issued and outstanding preferred shares of all the Holding Entities (the Holdco Preferred Shares). The Holdco Preferred Shares are redeemable for cash at the option of the Holding Entities, subject to certain limitations, and, except for the preferred share of US Holdco (the US Holdco Preferred Share), are not entitled to vote, except as required by law. The US Holdco Preferred Share is entitled to one vote because of certain US tax implications. The Holdco Preferred Shares are not equity securities as such term is defined in contained the Securities Act (Ontario) (the Act). Since the voting rights attached to the US Holdco Preferred Share represent less than 1% of the overall votes to be cast by shareholders of US Holdco, it should be disregarded when considering the overall relationship between the Filer, the Holding LP, US Holdco and the Issuer.

21. The definitions of “subsidiary” and “beneficial ownership of securities” that apply under the Act only refer to the ownership or control of companies, as opposed to partnerships, and do not clearly capture the relationship that exists among the Filer, the Holding LP and the Issuer. However, the Filer acts as the managing general partner of the Holding LP, holding a managing general partnership interest in the Holding LP, and controls the Holding LP directly through its 70.2% managing general partnership interest. Further, the Holding LP owns, directly or indirectly, all of the equity and voting securities of the Holding Entities (other than as described in representation 22 above). As a result, the Filer consolidates the Holding LP (and all of the Holding LP’s assets, including the Holding Entities) in its financial statements. Any voting rights of the Filer with respect to the approval or rejection of the following matters in respect of the Holding LP will be voted by the Filer in its sole discretion: (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 Holding LP; or (v) any commitment or agreement to do any of the foregoing.

22. All of the outstanding voting securities of the Issuer are owned, directly or indirectly, by Can Holdco.

23. The Filer is the managing general partner of the Holding LP and holds an approximate 70.2% managing general partnership interest in the Holding LP. Brookfield holds a 29.4% limited partnership interest in the Holding LP and an additional 0.4% special general partnership interest in the Holding LP.

24. The limited partnership units of the Holding LP owned by Brookfield (the Redemption-Exchange Units) 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 Redemption-Exchange Units for a cash amount equal to the fair market value of one Unit multiplied by the number of Redemption-Exchange Units to be redeemed. In connection with the redemption, the Filer has the right to purchase all the Redemption-Exchange Units to be redeemed in exchange for Units on a one for one basis. The characteristics of the redemption-exchange mechanism associated with Brookfield’s Redemption-Exchange Units are such that the economic interest of Brookfield represented by the Redemption-Exchange Units is an economic interest in the Filer rather than the Holding LP.

25. Brookfield Infrastructure Special L.P. (Infrastructure Special LP) is the special general partner of the Holding LP. The special general partnership units of the Holding LP that are owned by Infrastructure Special LP (the Special General Partnership Units) are not redeemable or exchangeable. The holder of the Special General Partnership Units is entitled to receive distributions in proportion to its 0.4% special general partnership interest, plus additional incentive distributions from the Holding LP. Infrastructure Special LP has delegated to the Filer, as managing general partner of the Holding LP, all of the rights, powers and authority granted to it as a general partner under applicable law. Accordingly, all management powers over the activities and affairs of the Holding LP are exclusively vested in the Filer, except as expressly otherwise provided in the limited partnership agreement of the Holding LP.

26. The Filer, the Holding LP and the Holding Entities will be “credit supporters” (as defined in Part 13.4 of NI 51-102) when the Issuer issues the Issuer Senior Preferred Shares.

27. The Issuer will be a “credit support issuer” (as defined in Part 13.4 of NI 51-102) when it issues the Issuer Senior Preferred Shares.

28. The Issuer, and the relationship between the Issuer and the Filer, will satisfy the requirements of section 13.4(2.1) of NI 51-102 in all respects, other than the fact that: (a) the Holding LP and the Filer are partnerships; (b) the Special General Partnership Units of the Holding LP are owned by Brookfield; (c) certain Issuer Preferred Shares may be convertible, in certain circumstances, into Resulting Preferred Shares; and (c) the Filer satisfies its continuous disclosure obligations by complying with U.S. federal securities law as is permitted under NI 71-102.

29. The Filer will not technically satisfy the definition of “parent credit supporter” (as defined in Part 13.4 of NI 51-102) in relation to the Issuer and the Issuer Senior Preferred Shares as a result of the indirect ownership of the Issuer through the Holding LP. Therefore, the Issuer Senior Preferred Shares will not be “designated credit support securities” (as defined in Part 13.4 of NI 51-102). If the Exemption Sought is granted, the Filer and the 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 Issuer Senior Preferred Shares and the Resulting Preferred Shares 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.

30. The Issuer Senior Preferred Shares will satisfy the definition of “designated credit support securities” (as defined in Part 13.4 of NI 51-102), but for the fact that: (a) the Filer does not technically satisfy the definition of “parent credit supporter” (as defined in Part 13.4 of NI 51-102); and (b) the Issuer Senior Preferred Shares may be convertible, in certain circumstances, into Resulting Preferred Shares.

31. The Issuer does not satisfy the eligibility criteria in Part 2 of NI 44-101 (and thus the shelf qualification requirements in Part 2 of NI 44-102) in order to be able to file a prospectus in the form of a short form prospectus (and thus a short form base shelf prospectus) for Issuer Senior Preferred Shares that are convertible into Resulting Preferred Shares.

32. For Issuer Senior Preferred Shares that are convertible into Resulting Preferred Shares or Convertible Preferred Units, the Issuer will not satisfy the requirement in item 13.3(d) of Form 44-101F1, which requires that Preferred Units only be convertible into non-convertible securities of the Filer.

33. The Filer does not meet the test set forth in section 13.4(2)(a) of NI 51-102 as it does not technically satisfy the definition of “parent credit supporter” (as defined in Part 13.4 of NI 51-102) and, by virtue of section 13.4(4) of NI 51-102, the Filer is unable to meet the test set forth in section 13.4(2)(b)(ii) of NI 51-102 as it satisfies its continuous disclosure obligations by complying with U.S. federal securities law as is permitted under NI 71-102. Therefore, the Exemption Sought is required in order for the provisions of section 13.4 of NI 51-102 to apply to the Issuer, and the relationship between the Issuer and the Filer.

Offering of Securities

34. At the time of the filing of any short form prospectus or shelf prospectus supplement in connection with an offering of Issuer Senior Preferred Shares:

(a) the Issuer will comply with all of the filing requirements and procedures set out in NI 44-101, other than the Qualification Requirements, 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 be a reporting issuer under the Legislation;

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

(e) 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 (d) above; and

(f) 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.

35. Prior to issuing any Issuer Senior Preferred Shares, the Filer will provide its Guarantee in respect of such Issuer Senior 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, the Issuer and the Filer continue to satisfy the conditions set out in section 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 Issuer 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) no party other than the Filer, Brookfield and Infrastructure Special LP will have any direct or indirect ownership of, or control or direction over, voting securities of the Holding LP,

(ii) no party other than the Filer, Brookfield, Infrastructure Special LP, 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,

(iii) no party other than the Filer, Brookfield, Infrastructure Special LP, the Holding LP, the Holding Entities and their affiliates, including the Filer’s Related Entities, will have any direct or indirect ownership of, or control or direction over, voting securities of the Issuer,

(iv) the Filer consolidates in its financial statements the Holding LP, the Holding Entities and the Issuer as well as any entities consolidated by any of the foregoing and, if the Issuer has issued Issuer Senior 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),

(v) other than the US Holdco Preferred Share owned by Brookfield, the issued and outstanding voting securities of the Holding Entities and the Issuer are 100% owned, directly or indirectly, by their respective parent companies or entities, and

(vi) Brookfield does not have any direct or indirect ownership of, or control or direction over, any securities of the Holding LP other than Redemption-Exchange Units, Special General Partnership Units and non-voting securities of the Holding LP,

(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 the Issuer has issued Issuer Senior 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 the Issuer has issued Issuer Senior 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 the Issuer has issued Issuer Senior 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, and

(vii) the Filer includes in any prospectus of the 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 the Issuer,

(e) the Issuer does not have to comply with the conditions in section 13.4(2)(c) of NI 51-102 if the 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) Issuer Senior Preferred Shares and Resulting Preferred Shares, provided that (A) the Filer has provided its Guarantees in respect of such securities and (B) such securities are not convertible into any security other than Resulting Preferred Shares, Issuer Senior Preferred Shares, Units, Class A Preferred Units and/or Convertible Preferred Units.

2. in respect of the Certification Requirements, the Audit Committee Requirements and the Corporate Governance Requirements, the Filer and the 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 the 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 the 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 Qualification Requirements and the Prospectus Disclosure Requirements so long as:

(a) any preliminary short form prospectus of the Issuer is in respect of an offering of Issuer Senior Preferred Shares,

(b) the Issuer is qualified to file a preliminary short form prospectus under section 2.4 of NI 44-101, except modified as follows:

(i) the 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 Issuer Senior Preferred Shares, such Issuer Senior Preferred Shares are only convertible into Resulting Preferred Shares, Units, Class A Preferred Units and/or Convertible Preferred Units, the Issuer meets the conditions in paragraph 1(e) of this decision above, and 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,

(c) the Issuer becomes, on or before the issuance of any Issuer Senior Preferred Shares to the public, and thereafter remains, so long as any of the Issuer Senior Preferred Shares or Resulting Preferred Shares (as applicable) issued to the public remain outstanding, an electronic filer under National Instrument 13-101 — System for Electronic Document Analysis and Retrieval (SEDAR),

(d) the Issuer creates a profile on SEDAR prior to the issuance of Issuer Senior Preferred Shares to the public and files the notice required by section 2.8 of NI 44-101 concurrently with the filing of a preliminary short form prospectus,

(e) the Issuer 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 Issuer 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 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 Issuer Senior Preferred Shares, such Issuer Senior Preferred Shares are only convertible into Resulting Preferred Shares, Units, Class A Preferred Units and/or Convertible Preferred Units and the Issuer continues to meet 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 Issuer contains (or incorporates by reference a document containing) a corporate organizational chart showing the ownership and control relationships among Brookfield, the Filer, Brookfield Infrastructure Partners Limited, Infrastructure Special LP, the Holding LP, the Holding Entities and the Issuer,

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

(h) the Issuer and the Filer, as applicable, comply with the requirements in paragraphs 19, 34 and 35 above, and

(i) the Issuer 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 Issuer 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)).

Furthermore, the decision of the principal regulator is that the Confidentiality Sought as to the Exemption Sought (other than from the Insider Reporting Requirements in the Securities Act (Ontario)) is granted.

“Michael Balter”

_________________________ Michael Balter Manager, Corporate Finance

Ontario Securities Commission

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

Furthermore, the decision of the principal regulator is that the Confidentiality Sought as to the Exemption Sought from the Insider Reporting Requirements in the Act is granted.

“William Furlong” “Philip Anisman”

Commissioner Commissioner Ontario Securities Commission Ontario Securities Commission