Waypoint Investment Partners Inc. (Re), 2022 CanLII 119160

December 13, 2022

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 Waypoint Investment Partners Inc. (Waypoint)

and the Top Funds (as defined below)

DECISION

Background

The principal regulator in the Jurisdiction has received an application from Waypoint and its affiliates (collectively, the Filer) and on behalf of the Top Funds for a decision under the securities legislation of the Jurisdiction (the Legislation):

For Existing Structures and Future-oriented Relief

1. exempting the Public Top Funds (as defined below) from the restrictions in paragraphs 2.5(2)(a) or 2.5(2)(a.1), as applicable, and 2.5(2)(c) of National Instrument 81-102 Investment Funds (NI 81-102) that prohibit a mutual fund that is a reporting issuer from investing in securities of an investment fund that is not subject to NI 81-102 and that is not a reporting issuer, to permit the Public Top Funds to invest in the Underlying Pooled Funds (collectively, the Related Pooled Fund Relief);

2. exempting the Top Funds, with respect to investments in the Underlying Private Issuers, from the restriction in the Legislation which prohibits:

(a) an investment fund from knowingly making an investment in a person or company in which the investment fund, alone or together with one or more related investment funds, is a substantial security holder;

(b) an investment fund from knowingly making an investment in an issuer in which:

i. any officer or director of the investment fund, its management company or distribution company or an associate of any of them; or

ii. any person or company who is a substantial security holder of the investment fund, its management company or its distribution company,

has a significant interest; and

(c) an investment fund, its management company or its distribution company from knowingly holding an investment described in paragraph (a) or (b) above (collectively, the Related Private Issuer Relief);

3. exempting the Filer, with respect to investments by the Top Funds in securities of the Underlying Private Issuers, from the restriction in paragraph 13.5(2)(a) of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103) that prohibits a registered adviser from knowingly causing an investment portfolio managed by it, including an investment fund for which it acts as adviser, to invest in securities of any issuer in which a responsible person or an associate of a responsible person is a partner, officer or director, unless the fact is disclosed to the client and the written consent of the client to the investment is obtained before the purchase (the Consent Requirement Relief);

4. exempting the Filer, from the requirement in section 117(1) of the OSA to prepare a report in accordance with the requirements of the Legislation of every transaction of purchase of securities from or sale of securities to any related person or company with respect to investments by the Top Funds in the Underlying Investments (the Reporting Relief); and

For Existing Structure Only

5. exempting the Filer, with respect to investments by the Existing Pooled Top Fund in the SPV that are made by way of loans, from the restriction in paragraph 13.5(2)(c) of NI 31-103 that prohibits a registered adviser from knowingly causing an investment portfolio managed by it, including an investment fund for which it acts as adviser, to provide a loan to a responsible person or an associate of a responsible person (the Related Debt Relief).

The Related Pooled Fund Relief, the Related Private Issuer Relief, the Consent Requirement Relief, the Reporting Relief and the Related Debt Relief are collectively referred to as the Requested Relief.

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

(a) the Ontario Securities Commission is the principal regulator for the 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 by the Filer in each of the other provinces and territories of Canada (together with the Jurisdiction, the Jurisdictions).

Interpretation

Terms defined in MI 11-102, NI 31-103, National Instrument 14-101 Definitions, NI 81-102 and National Instrument 81-107 Independent Review Committee for Investment Funds (NI 81-107) have the same meaning if used in this decision, unless otherwise defined.

For the purposes of this decision, the following terms have the following meaning:

Existing Pooled Top Fund means the Waypoint Private Credit Fund LP, an existing investment fund managed by the Filer that is not a reporting issuer.

Existing Public Top Funds means the existing investment funds managed by the Filer that are reporting issuers subject to NI 81-102 and NI 81-107.

Existing Underlying Investments means, collectively, the Existing Underlying Private Issuer and the Existing Underlying Pooled Fund.

Existing Underlying Pooled Fund means the Waypoint Private Credit Fund LP.

Existing Underlying Private Issuer means the Waypoint Private Debt Fund LP.

Future Pooled Top Fund means any future investment funds managed by the Filer that are not, or will not be, reporting issuers.

Future Public Top Funds means any future investment funds that are, or will be, reporting issuers managed by the Filer and that are subject to NI 81-102 and NI 81-107.

Future Underlying Pooled Funds means future investment funds managed by the Filer that are not, or will not be, reporting issuers.

Future Underlying Private Issuers means future collective investment schemes that are not, or will not be, reporting issuers and are not investment funds.

Pooled Top Funds means, collectively, the Existing Pooled Top Fund and the Future Pooled Top Funds.

Public Top Funds means, collectively, the Existing Public Top Funds and the Future Public Top Funds.

SPV means PLC Equipment Finance Fund, LLC, and its successors and assigns.

Top Funds means, collectively, the Public Top Funds and the Pooled Top Funds.

Underlying Investments means, collectively, the Underlying Pooled Funds and the Underlying Private Issuers.

Underlying Pooled Funds means, collectively, the Existing Underlying Pooled Funds and the Future Underlying Pooled Funds.

Underlying Private Issuers means, collectively, the Existing Underlying Private Issuer and the Future Underlying Private Issuers.

Representations

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

The Filer

1. The Filer is a corporation formed under the laws of Ontario with its head office located in Toronto, Ontario. The Filer is registered as an investment fund manager in the provinces of Ontario, Quebec and Newfoundland and Labrador and as an adviser in the category of portfolio manager and as an exempt market dealer in each of the provinces of Canada.

2. The Filer is the investment fund manager (IFM) and portfolio manager (PM) of the Existing Public Top Funds and the Existing Pooled Top Fund and the Filer will be the IFM and/or PM of the Future Public Top Funds and the Future Pooled Top Funds.

3. The Filer is also the manager of the Existing Underlying Private Issuer and the Filer will be the manager of the Future Underlying Private Issuers.

4. An officer and/or director of the Filer may have a "significant interest" (as such term is defined in section 110(2)(a) of the OSA) in an Underlying Private Issuer from time to time. A person or company who is a substantial security holder of a Top Fund or the Filer, may also have a significant interest in an Underlying Private Issuer from time to time.

5. The Filer is, or will be, a "responsible person" of each Top Fund as that term is defined in NI 31-103. Since the Filer is the manager of each Underlying Private Issuer, the Filer acts in a capacity in relation to the Underlying Private Issuer similar to a "partner, officer or director" of the Underlying Private Issuer, as contemplated in paragraph 13.5(2)(a) of NI 31-103. In addition, a "responsible person" of each Top Fund may be an officer and/or director of an Underlying Private Issuer, including, for greater certainty, an officer and/or director of the general partner of an Underlying Private Issuer where the Underlying Private Issuer is structured as a limited partnership. In addition, an Underlying Private Issuer may be an "associate" of the Filer where the Filer beneficially owns, directly or indirectly, voting securities carrying more than 10% of the voting securities of the Underlying Private Issuer, as contemplated in paragraph 13.5(2)(c) of NI 31-103.

6. The Filer is not a reporting issuer in any of the Jurisdictions and is not in default of securities legislation in any of the Jurisdictions.

The Public Top Funds

7. Each Public Top Fund is, or will be, an investment fund organized and governed by the laws of a Jurisdiction.

8. The securities of each Public Top Fund are, or will be, qualified for distribution in one or more of the Jurisdictions and distributed to investors pursuant to a simplified prospectus, an annual information form, prospectus, ETF Facts, and/or Fund Facts, prepared in accordance with National Instrument 41-101 General Prospectus Requirements or National Instrument 81-101 Mutual Fund Prospectus Disclosure, as applicable.

9. Each Public Top Fund is, or will be, a reporting issuer under the securities legislation of one or more Jurisdictions and is or will be subject to NI 81-102.

10. The investment objectives and strategies of each Public Top Fund permit or will permit the Public Top Fund to invest in one or more of the Underlying Investments.

11. The Existing Public Top Funds are valued and redeemable daily.

12. The Filer has established an independent review committee (an IRC) for the Public Top Funds, in accordance with NI 81-107.

13. The Existing Public Top Funds are not in default of securities legislation in any of the Jurisdictions.

The Pooled Top Funds

14. The Existing Pooled Top Fund is formed as a limited partnership under the laws of Ontario. Each Future Top Pooled Fund will be formed as a limited partnership, trust or corporation governed by the laws of a Jurisdiction or a foreign jurisdiction.

15. Each Pooled Top Fund is not, or will be not, a reporting issuer under the securities legislation of one or more Jurisdictions.

16. The securities of each Pooled Top Fund are, or will be, distributed solely to investors pursuant to exemptions from the prospectus requirements in accordance with National Instrument 45-106 – Prospectus Exemptions (NI 45-106) and the Legislation. Each Pooled Top Fund has, or will have, an offering memorandum or statement of investment policies and guidelines that is provided or made available to investors. Each investor is, or will be, responsible for making its own investment decisions regarding its purchases and/or redemptions of securities of a Pooled Top Fund.

17. The investment objective of the Existing Pooled Top Fund is to provide investors with a steady stream of income with minimal volatility by obtaining exposure primarily to a diversified portfolio of U.S. and Canadian-based equipment finance receivables and related rights (the Equipment Receivables Portfolios) and/or securities that provide exposure to the equipment financing sector. To achieve this investment objective, the Existing Pooled Top Fund currently makes secured loans to the SPV and the proceeds of such loans are used by the SPV to acquire the Equipment Receivables Portfolios.

18. To the extent that a Pooled Top Fund wishes to invest in an Underlying Private Issuer, the investment objectives and strategies of such Pooled Top Fund will permit it to do so.

19. Each Pooled Top Fund is, or will be, an investment fund for the purposes of the Legislation.

20. The Existing Pooled Top Fund is not in default of securities legislation in any of the Jurisdictions.

The Underlying Investments

The Underlying Pooled Funds

21. The Existing Underlying Pooled Fund is formed as a limited partnership under the laws of Ontario. Each Future Underlying Pooled Fund will be formed as a limited partnership, trust or corporation governed by the laws of a Jurisdiction or a foreign jurisdiction.

22. The Underlying Pooled Funds are not, or will not be, reporting issuers in any of the Jurisdictions. Units of the Underlying Pooled Funds and securities of the Underlying Private Issuers are, or will be, distributed solely to investors in Canada pursuant to exemptions from the prospectus requirements in accordance with NI 45-106 and the Legislation.

23. The Existing Underlying Pooled Fund has an offering memorandum that is provided to investors. Any Future Underlying Pooled Fund will have an offering memorandum that will be provided to investors.

24. The investment objective of the Existing Underlying Pooled Fund is to achieve a steady stream of income with minimal volatility by obtaining exposure primarily to a diversified portfolio of U.S. and Canadian-based equipment finance receivables and related rights and/or securities that provide exposure to the equipment financing sector.

25. The Filer calculates or will calculate the net asset value (NAV) for the Underlying Pooled Funds in accordance with Part 14 of National Instrument 81-106 – Investment Fund Continuous Disclosure (NI 81-106).

26. The Existing Underlying Pooled Fund is not in default of the securities legislation of any of the Jurisdictions.

27. The Existing Underlying Pooled Fund is valued monthly and redeemable quarterly, subject to a lock-up period and limitations on redemptions depending on the amounts being redeemed.

The Underlying Private Issuers

28. The Existing Underlying Private Issuer is a collective investment vehicle that is established as a limited partnership under the laws of Ontario. Future Underlying Private Issuers may be structured as limited partnerships, trusts or corporations governed by the laws of a Jurisdiction or a foreign jurisdiction.

29. The Underlying Investments are not, or will not be, reporting issuers in any of the Jurisdictions. Units of the Underlying Pooled Funds and securities of the Underlying Private Issuers are, or will be, distributed solely to investors in Canada pursuant to exemptions from the prospectus requirements in accordance with NI 45-106 and the Legislation.

30. The Existing Underlying Private Issuer has an offering memorandum that is provided to investors. Any Future Underlying Private Issuer will have an offering memorandum that will be provided to investors.

31. The investment objective of the Existing Underlying Private Issuer is to achieve superior risk-adjusted returns with minimal volatility and low correlation to most traditional asset classes, primarily by investing in a portfolio comprised of asset-based loans of companies based primarily in Canada and/or the United States. In order to achieve its investment objective, the Existing Underlying Private Issuer will actively invest in a portfolio consisting primarily of privately placed senior and subordinated securities (with or without conversion or other equity participation features) and equity securities of primarily mid-market North American companies. These securities are generally unrated or non-investment grade and entail greater risk but offer a higher rate of return than higher rated securities. The Existing Underlying Private Issuer will make investments in a portfolio of securities that have the potential to achieve an internal rate of return in excess of 10%-15% per annum before management fees, carried interest and operating expenses.

32. Each Underlying Private Issuer provides, or will provide, exposure to non-traditional asset classes, such as private credit.

33. The Underlying Private Issuers are not considered to be investment funds under securities law but, in certain respects, operate in a manner similar to an investment fund. The Underlying Private Issuers are, or will be, administered by the Filer, as manager or an affiliate of the Filer. The Filer or an affiliate of the Filer, as manager of the Underlying Private Issuers, calculates, or will calculate, a NAV which will be used for the purposes of determining the purchase and redemption price of any securities of the Underlying Private Issuers purchased by a Top Fund.

34. The Existing Underlying Private Issuer produces audited financial statements on an annual basis, in accordance with generally accepted accounting principles with a qualified auditing firm as the auditor of those financial statements. The Filer expects to have access to audited financial statements prepared in respect of most underlying assets that are invested in by the Underlying Private Issuers.

35. The Existing Underlying Private Issuer is not in default of the securities legislation of any of the Jurisdictions.

36. The Existing Underlying Private Issuer is valued monthly and redeemable quarterly, subject to a lock-up period, early redemption penalties and limitations on redemptions depending on the amounts being redeemed.

The SPV

37. The SPV is a limited liability company formed under the law of Delaware, United States. The SPV is not a reporting issuer in any of the Jurisdictions and is not an investment fund as defined in the Legislation.

Necessity for Requested Relief

Related Pool Fund Relief

38. Absent the Requested Relief, a Public Top Fund would by prohibited by paragraphs 2.5(2)(a) or 2.5(2)(a.1), as applicable, and 2.5(2)(c) of NI 81-102 from purchasing or holding securities of an Underlying Pooled Fund because the Underlying Pooled Funds are not reporting issuers subject to NI 81-102.

Related Issuer Relief

39. The amount invested from time to time, directly or indirectly, in an Underlying Private Issuer by a Top Fund, together with one or more other Top Funds (collectively, the Other Top Funds), may exceed 20% of the outstanding voting securities of such Underlying Private Issuer. As a result, a Top Fund could, together with one or more Other Top Funds, become a substantial security holder of an Underlying Private Issuer. Each Top Fund and the Other Top Funds are "related investment funds", as such term is defined in section 106(1) of the OSA by virtue of common management by the Filer.

40. The proposed investment structure may result in a Top Fund, directly or indirectly, investing in an Underlying Private Issuer in which an officer or director of Waypoint has a significant interest and/or a Top Fund, directly or indirectly, investing in an Underlying Private Issuer in which a person or company who is a substantial security holder of the Top Fund or Waypoint, has a significant interest.

41. In the absence of the Related Issuer Relief, each Top Fund would be precluded from directly or indirectly purchasing and holding securities of an Underlying Private Issuer due to the investment restrictions contained in the Legislation.

Consent Requirement Relief

42. The proposed investment structure may also result in a Top Fund directly or indirectly investing in an Underlying Private Issuer in which a responsible person or an associate of a responsible person is a partner, officer or director, or performs a similar function or occupies a similar position.

43. In the absence of the Consent Requirement Relief, Waypoint would be precluded from causing a Top Fund to directly or indirectly invest in an Underlying Private Issuer in these circumstances unless the consent of each investor in the Top Fund is obtained. Each Top Fund may have a large number of investors and, as a result, obtaining the consent of each such investor is not practical.

Reporting Relief

44. Under the Legislation, every management company shall, in respect of each investment fund to which it provides services or advice, file a report of every transaction of purchase or sale of securities between the investment fund and any related person or company within 30 days after the end of the month in which it occurs.

45. In the absence of the Reporting Relief, the Filer, acting as the management company (as defined in the Legislation) of the Top Funds would be required to file a report of every purchase and sale of securities of the Underlying Private Issuers by the Top Funds or every purchase or sale effected by the Top Funds through any related person or company with respect to which the related person or company received a fee either from the Top Funds or from the other party to the transaction or from both within 30 days after the end of the month in which such purchase or sale occurs (the Reporting Requirement).

46. It would be costly and time-consuming for the Top Funds to comply with the Reporting Requirement, the costs of which will ultimately be borne by the investors.

47. NI 81-106 requires the Public Top Funds to prepare and file annual and interim management reports of fund performance that include a discussion of transactions involving related parties to the Public Top Funds. Such disclosure is similar to that required under the Reporting Requirement and fulfills its objective to inform the general public about the transactions involving related parties to the Public Top Funds.

Related Debt Relief

48. The Existing Pooled Top Fund invests in the SPV by way of loans. Waypoint was recently acquired by a company that indirectly wholly owns the SPV. As a result, the SPV became an "associate of a responsible person" (i.e., an associate of Waypoint). Under the Legislation, a registered adviser is prohibited from knowingly causing an investment portfolio managed by it, including an investment fund for which it acts as adviser, to provide a loan to a responsible person or an associate of a responsible person.

49. The investments made by the Existing Pooled Top Fund into the SPV are structured as loans instead of equity investments for U.S. tax reasons, and ultimately benefits the investors in the Existing Pooled Top Fund.

50. In the absence of the Related Debt Relief, Waypoint would be precluded from causing the Existing Pooled Top Fund to directly or indirectly invest in the SPV by way of loans.

51. Any potential conflict of interests that may arise from the relationship between the SPV and the Existing Pooled Top Fund will be managed and mitigated by ensuring that the loans made by the Existing Pooled Top Fund to the SPV are conducted at market terms. Waypoint, while directing the Existing Pooled Top Fund to invest in the SPV by way of loans, will at all times act in the best interest of the Existing Pooled Top Fund.

Generally

52. An investment by a Public Top Fund in an Underlying Investment or by a Pooled Top Fund in an Underlying Private Issuer will only be made if the investment is, or will be, compatible with the investment objectives of the Top Fund and allows, or will allow, the Top Fund to obtain exposure to asset classes in which the Top Fund may otherwise invest directly.

53. The Filer believes that the investment by a Public Top Fund in an Underlying Investment or by a Pooled Top Fund in an Underlying Private Issuer will provide the Top Fund with an efficient and cost-effective manner of pursuing portfolio diversification and asset diversification instead of purchasing securities directly. The Top Fund will gain access to the expertise of the portfolio adviser or manager of the applicable Underlying Investment as well as to the investment strategies and asset classes of the Underlying Investment.

54. The Filer does not anticipate that any management fees or incentive fees payable by a Top Fund with respect to an investment in an Underlying Investment that, to a reasonable person, would duplicate a fee payable by an Underlying Investment for the same service.

55. The Filer does not anticipate that any sales fees or redemption fees would be payable by a Top Fund in relation to its purchases or redemptions of securities of an Underlying Investment, unless the Top Fund redeems its securities of an Underlying Investment during a lock-up period, in which case an early redemption fee may be payable by the Top Fund.

56. The Public Top Fund will comply with section 2.4 of NI 81-102 with respect to illiquid investments and the Filer expects to include an investment by a Public Top Fund in an Underlying Investment in its basket of illiquid securities for the purposes of this section.

57. The value of the underlying portfolio assets and liabilities of the Existing Underlying Investments is determined by SGGG Fund Services Inc., which is arm's length to the Filer and the Underlying Investments, on a monthly basis. Similar third-party valuations will be carried out in respect of the underlying portfolio assets and liabilities of each future Underlying Investment.

58. Investments in securities by a Public Top Fund in an Underlying Investment or by a Pooled Top Fund in an Underlying Private Issuer will be effected at an objective price. The Filer's policies and procedures provide that an objective price, for this purpose, will be the NAV per security of the applicable class or series of the Underlying Investment.

59. No Top Fund will actively participate in the business or operations of an Underlying Investment.

60. In addition, a Public Top Fund will not invest, directly or indirectly, in an Underlying Pooled Fund unless, at the time of purchase, at least 20% of the units of such Underlying Pooled Fund are directly or indirectly held by unitholders that are not affiliated or associated with the Filer (not including any holdings made through the Public Top Fund).

61. Where applicable, a Public Top Fund's investment in an Underlying Investment will be disclosed to investors in such Public Top Fund's quarterly portfolio holding reports, financial statements and/or fund facts documents.

62. A Pooled Top Fund's investment in an Underlying Private Issuer will be disclosed to investments in such Pooled Top Fund's offering memorandum or other disclosure document.

63. An investment in the Underlying Investments represents the business judgement of a responsible person uninfluenced by considerations other than the best interests of the investors in the Top Funds.

64. No Underlying Investment will be a Top Fund.

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 Requested Relief is granted provided that:

(a) a direct or indirect investment by a Public Top Fund in an Underlying Investment will be compatible with the fundamental investment objectives and strategies of the Public Top Fund and included as part of the calculation for the purposes of the illiquid asset restriction in section 2.4 of NI 81-102;

(b) a direct or indirect investment by a Pooled Top Fund in an Underlying Private Issuer or by the Existing Pooled Top Fund in the SPV will be compatible with the fundamental investment objectives and strategies of such Pooled Top Fund;

(c) no Public Top Fund will purchase or hold a security of an Underlying Investment unless at the time of purchase, the Underlying Investment holds no more than 10% of its NAV in securities of investment funds or the Underlying Investment:

(i) has adopted a fundamental investment objective to track the performance of an investment fund or similar investment product;

(ii) purchases or holds securities of a "money market fund" (as defined in NI 81-102); or

(iii) purchases or holds securities that are "index participation units" (as defined in NI 81-102) issued by an investment fund;

(d) no Pooled Top Fund will purchase or hold a security of an Underlying Private Issuer unless at the time of purchase, the Underlying Private Issuer holds no more than 10% of its NAV in securities of investment funds or the Underlying Private Issuer:

(i) has adopted a fundamental investment objective to track the performance of an investment fund or similar investment product;

(ii) purchases or holds securities of a "money market fund" (as defined in NI 81-102); or

(iii) purchases or holds securities that are "index participation units" (as defined in NI 81-102) issued by an investment fund;

(e) no management fees or incentive fees will be payable by a Top Fund that, to a reasonable person, would duplicate a fee payable by an Underlying Investment for the same service;

(f) no sales fees or redemption fees are payable by a Top Fund in relation to its purchases or redemptions of securities of an Underlying Investment, unless the Top Fund redeems its securities of an Underlying Investment during a lock-up period, in which case an early redemption fee may be payable by the Top Fund;

(g) the Filer will not cause the securities of an Underlying Investment held by a Public Top Fund or the securities of an Underlying Private Issuer held by a Pooled Top Fund to be voted at any meeting of the holders of such securities, except that the Filer may arrange for the securities the Top Fund holds of an Underlying Investment to be voted by the beneficial owners of the securities of the Top Fund who are not the Filer or an officer, director or substantial securityholder of the Filer;

(h) the prospectus of each Public Top Fund discloses, or will disclose in the next renewal or amendment thereto following the date of a decision evidencing the Requested Relief, the fact that the Public Top Fund may invest, directly or indirectly, in an Underlying Investment, which are investment vehicles managed by the Filer;

(i) a disclosure document, including an offering memorandum where available, of a Pooled Top Fund shall be provided to each new investor in a Pooled Top Fund prior to the time of investment or prior to the Requested Relief being relied on by such Top Fund, and will disclose:

(i) that a Pooled Top Fund may purchase securities of one or more applicable Underlying Private Issuers or will make loans to the SPV, as applicable;

(ii) that the Filer, or an affiliate of the Filer, is the manager and/or portfolio manager of both the Pooled Top Fund and the Underlying Private Issuer;

(iii) that the Pooled Top Fund may invest all, or substantially all, of its assets in securities of Underlying Private Issuers;

(iv) the fees, expenses and any performance or special incentive distributions payable by the Underlying Private Issuer in which a Pooled Top Fund invests;

(v) the process or criteria used to select the Underlying Private Issuer, if applicable;

(vi) for each officer, director and/or substantial securityholder of the Filer or of a Pooled Top Fund, that has a significant interest in an applicable Underlying Private Issuer, and for the officers and directors and substantial securityholders who together in aggregate hold a significant interest in an applicable Underlying Private Issuer, the approximate amount of the significant interest they hold, on an aggregate basis, expressed as a percentage of the applicable Underlying Private Issuer's NAV, and the potential conflicts of interest that may arise from such relationship;

(vii) that investors are entitled to receive from the Filer, on request and free of charge, a copy of the offering memorandum or other similar disclosure document of the Underlying Private Issuer, if available; and

(viii) that investors are entitled to receive from the Filer, on request and free of charge, the annual audited financial statements and interim financial reports relating to the Underlying Private Issuer in which the Pooled Top Fund invests, as applicable available;

(j) the IRC of the Public Top Funds will review and provide its approval, including by way of standing instructions, for the purchase of units of the Underlying Investments, directly or indirectly, by the Public Top Funds, in accordance with section 5.2(2) of NI 81-107;

(k) the manager of each Public Top Fund complies with section 5.1 of NI 81-107 and the manager and the IRC of each Public Top Fund complies with section 5.4 of NI 81-107 for any standing instructions the IRC provides in connection with the transactions;

(l) if the IRC becomes aware of an instance where a Filer, in its capacity as manager of a Public Top Fund, did not comply with the terms of this decision, or a condition imposed by securities legislation or the IRC in its approval, the IRC of such Public Top Fund will, as soon as practicable, notify in writing the securities regulatory authority or regulator in the jurisdiction under which the Public Top Fund is organized;

(m) where applicable, a Public Top Fund's investment in an Underlying Investment, whether direct or indirect will be disclosed to investors in such Public Top Fund's quarterly portfolio holding reports, financial statements and/or fund facts/ETF facts documents;

(n) where an investment is made by a Public Top Fund in an Underlying Investment, the annual and interim management reports of fund performance for the Public Top Fund will disclose the name of the related person in which an investment is made, being an Underlying Investment;

(o) where an investment is made by a Public Top Fund in an Underlying Investment, the records of portfolio transactions maintained by the Public Top Fund include, separately for every portfolio transaction effected by a Public Top Fund by the Filer or through any affiliate of the Filer, the name of the related person in which an investment is made, being an Underlying Investment;

(p) where an investment is made by a Pooled Top Fund in an Underlying Private Issuer, the records of portfolio transactions maintained by the Pooled Top Fund include, separately for every portfolio transaction effected by a Pooled Top Fund by the Filer, the name of the related person in which an investment is made, being an Underlying Private Issuer;

(q) a Pooled Top Fund will invest in, and redeem, securities of each Underlying Private Issuer at the NAV of the applicable securities of the Underlying Private Issuer, which will be based on the valuation of the applicable portfolio assets to which the Underlying Private Issuer has exposure, independently determined by an arm's length third party;

(r) any loans made by the Existing Pooled Top Fund to the SPV in the future will continue to be made on market terms as if they were arm's length parties; and

(s) each Underlying Pooled Fund complies with Part 14 of NI 81-106 for so long as it is held by a Public Top Fund.

"Darren McKall"

Darren McKall Manager, Investment Funds and Structured Products Branch Ontario Securities Commission

Application # 2022/0191 SEDAR Project No. 3368745