Brookfield Property Partners L.P. (Re), 2021 CanLII 98014

July 2, 2021

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 PROPERTY PARTNERS L.P.

(BROOKFIELD PROPERTY PARTNERS)

AND BROOKFIELD PROPERTY PREFERRED L.P. (THE ISSUER)

DECISION

Background

The principal regulator in the Jurisdiction has received an application (the Application) from Brookfield Property Partners and the Issuer (collectively, the Filers) for a decision under the securities legislation of the principal regulator (the Legislation) granting exemptive relief for the Issuer and, in respect of (c), the insiders of the Issuer, from certain requirements including:

(a) the continuous disclosure requirements contained in the Legislation, including requirements under National Instrument 51-102 — Continuous Disclosure Obligations (NI 51-102), as amended from time to time (the Continuous Disclosure Requirements);

(b) the certification requirements contained in National Instrument 52-109 — Certification of Disclosure in Issuers’ Annual and Interim Filings, as amended from time to time (the Certification Requirements);

(c) the insider reporting requirements contained in the Legislation under section 107 of the Securities Act (Ontario) (the Act) as well as the requirement to file an insider profile and insider reports under National Instrument 55-102 — System for Electronic Disclosure by Insiders, as amended from time to time, in respect of insiders of the Issuer (the Insider Reporting Requirements);

(d) the requirements of the Legislation relating to audit committees, including, without limitation, National Instrument 52-110 — Audit Committees, as amended from time to time (the Audit Committee Requirements);

(e) the corporate governance disclosure requirements contained in National Instrument 58-101 — Disclosure of Corporate Governance Practices, as amended from time to time (the Corporate Governance Requirements and together with the Continuous Disclosure Requirements, Certification Requirements, Insider Reporting Requirements and Audit Committee Requirements, the Reporting Issuer Requirements);

(f) the disclosure requirements contained in paragraphs 1 to 4 and 6 to 8 of item 11 of Form 44-101F1 — Short Form Prospectus (Form 44-101F1) (the Incorporation by Reference Requirements);

(g) the disclosure requirements contained in item 6 of Form 44-101F1 (the Earnings Coverage Requirements); and

(h) the disclosure requirements contained in 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),

(collectively, the Exemption Sought),

in each case to accommodate the issuance by the Issuer of Class A Cumulative Redeemable Preferred Units (the New LP Preferred Units). The first series of New LP Preferred Units will be issued in connection with the Arrangement (as defined below). The New LP Preferred Units will be guaranteed by Brookfield Property Partners as well as Brookfield Property L.P. (the Holding LP), and each of the Holding Entities (as defined below).

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 Filers have 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 (collectively with the Jurisdiction, the Reporting Jurisdictions).

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. In this decision, “Brookfield Property Partners Related Entities” means, collectively, the Holding LP and subsidiary entities (as this term is defined in Multilateral Instrument 61-101 – Take-Over Bids and Special Transactions) of the Holding LP.

Representations

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

Brookfield Property Partners

1. Brookfield Property Partners is a Bermuda exempted limited partnership that was established on January 3, 2013.

2. The limited partnership units of Brookfield Property Partners (the BPY Units) are listed on the Nasdaq Stock Market (Nasdaq) and the Toronto Stock Exchange (TSX) under the symbols “BPY” and “BPY.UN”, respectively. As of June 8, 2021, there were 440,808,732 BPY Units issued and outstanding, and approximately 236,285,505 BPY Units, representing approximately 54% of the total issued and outstanding BPY Units, were beneficially and directly held by Canadian residents. In addition, the Class A Cumulative Redeemable Perpetual Preferred Units of Brookfield Property Partners (the BPY Preferred Units), Series 1, 2 and 3 trade on Nasdaq under the symbols “BPYPP”, “BPYPO” and “BPYPN”, respectively.

3. Brookfield Property Partners is a reporting issuer in the Reporting Jurisdictions and is not in default of any requirements under applicable securities legislation or the rules and regulations made pursuant thereto in the Reporting Jurisdictions.

4. Brookfield Property Partners is a 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 satisfies its continuous disclosure obligations by complying with U.S. federal securities laws as is permitted under NI 71-102.

5. The general partner of Brookfield Property Partners is Brookfield Property Partners Limited (BPY General Partner), a Bermuda company and also a wholly-owned subsidiary of Brookfield Asset Management Inc. (BAM). BPY General Partner holds a 0.02% general partnership interest in Brookfield Property Partners. The mind and management of BPY General Partner is located in Bermuda.

6. BAM, a Canadian company, is Brookfield Property Partners’ largest holder of BPY Units. As of June 8, 2021, BAM owned, directly or indirectly, 139,699,123 BPY Units and 451,365,017 Redemption-Exchange Units (defined below), collectively representing approximately 66% of the BPY Units (assuming the exchange of the Redemption-Exchange Units) or 61% on a fully-exchanged basis assuming the exchange of the Redemption-Exchange Units, the issued and outstanding class A preferred limited partnership units of the Holding LP (the Class A Preferred Units), series 1, 2 and 3 and the issued and outstanding exchangeable limited partnership units (the Exchange LP Units) of Brookfield Office Properties Exchange LP not held by subsidiaries of Brookfield Property Partners. As of June 8, 2021, BAM also owned, directly or indirectly, 138,875 general partner units of Brookfield Property Partners and 4,759,997 special limited partnership interests in the Holding LP.

7. Brookfield Property Partners’ assets consist of a 100% managing general partnership interest in the Holding LP, a Bermuda exempted limited partnership that was established on January 4, 2013 and an interest in BP US REIT LLC.

8. Brookfield Property Partners is the managing general partner of the Holding LP. The Holding LP owns, directly or indirectly, all of the common shares of Brookfield BPY Holdings Inc., an Ontario corporation (CanHoldco), Brookfield BPY Retail Holdings II Inc., an Ontario corporation (CanHoldco 2), BPY Bermuda Holdings Limited, a Bermuda company (Bermuda Holdco), BPY Bermuda Holdings II Limited, a Bermuda company (Bermuda Holdco 2), BPY Bermuda Holdings IV Limited, a Bermuda company (Bermuda Holdco 4), BPY Bermuda Holdings V Limited, a Bermuda company (Bermuda Holdco 5) and BPY Bermuda Holdings VI Limited (Bermuda Holdco 6 and, collectively with CanHoldco, CanHoldco 2, Bermuda Holdco, Bermuda Holdco 2, Bermuda Holdco 4 and Bermuda Holdco 5, the Holding Entities).

9. Brookfield Property Partners, the Holding LP and related entities have retained BAM (together with its subsidiaries other than Brookfield Property Partners and its subsidiaries, Brookfield) and its related entities to provide management, administrative and advisory services under a second amended and restated master services agreement dated as of August 27, 2018, as may be amended from time to time.

10. Brookfield Property Partners indirectly owns 100% of CanHoldco’s issued and outstanding securities except for all of issued and outstanding (i) Class A Senior Preference Shares, Series 1, which are held by Brookfield and (ii) Class B Junior Preference Shares, Series 1, which are held by Brookfield (collectively the Current Preference Shares). The Current Preference Shares have an aggregate voting entitlement of 2% of the aggregate votes entitled to be cast at a meeting of the shareholders. Brookfield Property Partners therefore indirectly controls 98% of the voting securities of CanHoldco.

The Issuer

11. The Issuer is an exempted limited partnership that was formed under the laws of Bermuda on April 13, 2021. The Issuer’s registered office is 73 Front Street, 5th Floor, Hamilton, HM 12, Bermuda and its sole general partner is the Holding LP.

12. The Issuer is intending to participate in a plan of arrangement (the Arrangement) of BPY Arrangement Corporation intended to, among other things, allow Brookfield to acquire, directly or indirectly, all of the issued and outstanding BPY Units, Exchange LP Units and shares of class A stock in the capital of Brookfield Property REIT Inc. (together, the Acquired Securities).

13. The Issuer was formed for the purposes of being an issuer of New LP Preferred Units and to provide the first series of such New LP Preferred Units as part of the consideration for the acquisition by Brookfield of the Acquired Securities in connection with the Arrangement. Following the issuance of New LP Preferred Units, the New LP Preferred Units will be listed on the TSX and the Nasdaq and the Issuer will become a reporting issuer in the jurisdictions of Canada in which Brookfield Property Partners is currently a reporting issuer.

14. The Issuer has not carried on any active business since formation other than activities related to the Arrangement.

15. The authorized capital of the Issuer currently consists of: (i) limited partnership units, (ii) general partnership units and (iii) New LP Preferred Units.

16. As of the date hereof, CanHoldco owns all of the issued and outstanding limited partnership units of the Issuer, the Holding LP owns 100% of the issued and outstanding general partnership units and there are no issued and outstanding New LP Preferred Units.

17. The New LP Preferred Units will have rights, restrictions and privileges determined by the Holding LP as the sole general partner of the Issuer.

18. In connection with the Arrangement, the Issuer will agree to issue the first series of New LP Preferred Units to holders of Acquired Securities, who so elect or are deemed to have elected pursuant to the terms of the plan of arrangement governing the Arrangement.

19. In connection with the issuance of the New LP Preferred Units, Brookfield Property Partners, the Holding LP, and each of the Holding Entities (collectively, the Guarantors) will each provide full and unconditional joint and several guarantees (collectively, the Guarantees) of the payments to be made by the Issuer in respect of the New LP Preferred Units as stipulated in agreements governing the rights of holders of the New LP Preferred Units, 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 security” in NI 51-102. The Guarantees in respect of the New LP Preferred Units will rank pari passu with certain senior preferred limited partnership units or preference shares of the Guarantors and junior to certain other obligations of the Guarantors. The Guarantees are expected to be in place by the time of the issuance of New LP Preferred Units at the completion of the Arrangement.

BAM

20. BAM is currently a reporting issuer under applicable Canadian securities laws, and will continue to be a reporting issuer upon completion of the Arrangement. BAM’s Class A limited voting shares are currently co-listed on the New York Stock Exchange (NYSE) under the symbol “BAM” and the TSX under the symbol “BAM.A.”.

21. After the completion of the Arrangement, Brookfield will directly and indirectly own all of the issued and outstanding BPY Units, and the BPY Units will be delisted from the TSX and the Nasdaq. The BPY Preferred Units will remain outstanding and listed on Nasdaq.

The Filers and the Holding LP and the Holding Entities

22. 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 Current Preference Shares. The Current Preference Shares are redeemable for cash at the option of CanHoldco, subject to certain limitations. The Current Preference Shares are entitled to vote with the common shares of CanHoldco. The Current Preference Shares are not equity securities as such term is defined in the Act. The voting rights attached to the Current Preference Shares represent 2% of the votes to be cast by shareholders of CanHoldco; therefore they should be disregarded when considering the overall relationship between Brookfield Property Partners, the Issuer, the Holding LP and the Holding Entities.

23. 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 Filers and the Holding LP. However, Brookfield Property Partners acts as the managing general partner of the Holding LP, holding a 100% managing general partnership interest in the Holding LP, and therefore controls the Holding LP directly. As a result, Brookfield Property Partners consolidates the Holding LP (and all of the Holding LP’s assets, including the Holding Entities) in its financial statements.

24. Brookfield Property Special L.P. (Property Special LP), a Brookfield subsidiary, holds a 0.53% special limited partnership interest (the Special Limited Partnership Units) in the Holding LP. An institutional investor holds Class A Preferred Units, series 1, 2 and 3. Brookfield Property Partners holds Class A Preferred Units, series 5, 6 and 7. The remaining limited partnership interests (the Redemption-Exchange Units) in the Holding LP are held by Brookfield. Property Special LP is the sole holder of the Special Limited Partnership Units. Brookfield is the sole holder of the Redemption-Exchange Units.

25. The Special Limited Partnership Units are non-voting interests in the Holding LP and are not redeemable or exchangeable. The Class A Preferred Units are non-voting interests in the Holding LP and series 1, 2 and 3 are exchangeable into BPY Units upon exchange, redemption or maturity. 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 BPY Unit multiplied by the number of Redemption-Exchange Units to be redeemed. In connection with the redemption, Brookfield Property Partners has the right to purchase all the Redemption-Exchange Units to be redeemed in exchange for BPY 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 is an economic interest in Brookfield Property Partners rather than the Holding LP.

26. BPY General Partner holds a 0.02% general partnership interest in Brookfield Property Partners and acts as the general partner of Brookfield Property Partners. BPY General Partner is wholly-owned by Brookfield.

27. The Guarantors will be “credit supporters” of the Issuer and the Issuer will be a “credit support issuer” when it issues New LP Preferred Units (as such terms are defined in NI 51-102).

28. The Issuer, and the relationship between the Issuer and Brookfield Property Partners, satisfies the requirements of section 13.4(2.1) of NI 51‑102 in all respects, other than: (i) the fact that the Issuer, the Holding LP and Brookfield Property Partners are partnerships and (ii) the fact that Brookfield Property Partners satisfies its continuous disclosure obligations by complying with U.S. federal securities law as is permitted under NI 71-102.

29. Brookfield Property Partners will not directly satisfy the definition of “parent credit supporter” (as defined in NI 51-102) when the Issuer issues New LP Preferred Units as a result of the indirect ownership of the Issuer through the Holding LP. Therefore, the New LP Preferred Units will not be “designated credit support securities” (as defined in Part 13.4 of NI 51-102). If the Requested Relief is granted, the Filers will (i) treat Brookfield Property Partners 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 (ii) treat the New LP Preferred Units 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 document.

30. The New LP Preferred Units will satisfy the definition of “designated credit support securities” (as defined in Part 13.4 of NI 51-102), but for the fact that Brookfield Property Partners will not directly satisfy the definition of “parent credit supporter” (as defined in Part 13.4 of NI 51‑102).

31. Brookfield Property Partners does not meet the test set forth in section 13.4(2)(a) of NI 51-102 as it does not directly 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, will be 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 Requested Relief 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 Brookfield Property Partners.

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 Brookfield Property Partners 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 Brookfield Property Partners 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 Brookfield Property Partners Related Entities, notwithstanding Brookfield Property Partners’ indirect ownership of such entities through the Holding LP,

(c) Brookfield Property Partners 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 Brookfield Property Partners and Brookfield will have any direct or indirect ownership of, or control or direction over, voting securities of the Holding LP,

(ii) no party other than Brookfield Property Partners, Brookfield and the Brookfield Property Partners 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 Brookfield Property Partners, Brookfield and the Brookfield Property Partners Related Entities, will have any direct or indirect ownership of, or control or direction over, voting securities of the Issuer,

(iv) Brookfield Property Partners 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 New LP Preferred Units that remain outstanding, files its financial statements pursuant to Part 4 of NI 51-102, except that Brookfield Property Partners 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

(v) other than the Current Preference Shares 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,

(d) section 13.4(4) of NI 51-102 does not apply to Brookfield Property Partners (the SEC Foreign Issuer Relief) if:

(i) Brookfield Property Partners continues to be a reporting issuer,

(ii) Brookfield Property Partners continues to be a SEC foreign issuer (as defined in section 1.1 of NI 71-102) and only relies on the exemptions in Part 4 of NI 71-102,

(iii) to the extent that Brookfield Property Partners 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 New LP Preferred Units 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 Brookfield Property Partners, including any minority interest adjustments,

(v) Brookfield Property Partners continues to 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 Brookfield Property Partners that is not reported or filed by Brookfield Property Partners on SEC Form 6-K,

(vi) Brookfield Property Partners continues to file 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) Brookfield Property Partners 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 Brookfield Property Partners has completed or has progressed to a state where a reasonable person would believe that the likelihood of Brookfield Property Partners 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 Brookfield Property Partners’ 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 Brookfield Property Partners or the Brookfield Property Partners Related Entities,

(iii) non-voting securities held by Brookfield,

(iv) 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,

(v) securities issued under exemptions from the prospectus requirements in section 2.35 of National Instrument 45-106 – Prospectus and Registration Exemptions, and

(vi) New LP Preferred Units, provided that the Guarantors have provided Guarantees in respect of such securities.

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

4. in respect of the Prospectus Disclosure Requirements so long as:

(a) any preliminary short form prospectus of the Issuer is in respect of an offering of New LP Preferred Units,

(b) the Issuer becomes, on or before the issuance of New LP Preferred Units to the public, and thereafter remains so long as any of the New LP Preferred Units issued to the public remain outstanding, an electronic filer under National Instrument 13-101 – System for Electronic Document Analysis and Retrieval (SEDAR),

(c) the Issuer creates a profile on SEDAR prior to the issuance of New LP Preferred Units to the public,

(d) the Issuer and Brookfield Property Partners 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 Brookfield Property Partners 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 Brookfield Property Partners Related Entities, notwithstanding Brookfield Property Partners’ indirect ownership of such entities through the Holding LP,

(iii) Brookfield Property Partners 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, and

(iv) 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 Brookfield Property Partners, including any minority interest adjustments,

(e) 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, Brookfield Property Partners, the BPY General Partner, the Holding LP, the Holding Entities and the Issuer,

(f) Brookfield Property Partners and the Issuer continue to satisfy the conditions for relief from the Continuous Disclosure Requirements set forth above,

(g) all of the outstanding voting securities of the Issuer are held directly or indirectly by the Holding LP, and

(h) 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 Brookfield Property Partners.

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

‘Lina Creta’

_______________ Lina Creta Manager, Corporate Finance Ontario Securities Commission

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

“Cecilia Williams” “Craig Hayman” Commissioner Commissioner Ontario Securities Commission Ontario Securities Commission