Nature of the investment

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1 March 2014 Real Estate and Capital Markets Bulletin The Mrtgage Investment Crpratin - an Alternative Lender Intrductin In 1973, the federal gvernment intrduced measures aimed at stimulating investments in residential mrtgages by the private sectr. One f thse was the intrductin in the Incme Tax Act (ITA) f the "Mrtgage Investment Crpratin" ("MIC"), a crpratin subject t a special tax regime. Generally, it prvides its sharehlders with mnthly distributins frm a mrtgage prtfli generating stable cash flws n a lng-term basis as if they directly wned this asset. Opprtunities t Be Had in Québec? In prvinces ther than Québec, there exist several mrtgage funds, bth listed and unlisted n the Trnt Stck Exchange, many f which are MICs. Thus, in Québec, there are n MICs with exchange-listed securities, nr prbably any unlisted MICs. In the rest f Canada, there are eight MICs listed n ne f the stck exchanges f the TMX Grup and a significant number f unlisted MICs. Amng thse that are nt exchange-listed, there is a mrtgage fund with a mrtgage prtfli f mre than ne billin dllars, namely Rmspen Mrtgage Investment Fund. Fr a listed MIC, its shares are a permanent surce f capital since they usually are nt subject t redemptin requests by its sharehlders. Als, fr the investrs, these securities are freely tradable n a stck exchange. McMillan s.e.n.c.r.l., s.r.l./llp 1000 Sherbrke O./W., #2700, Mntréal, Québec, Canada H3A 3G4 t f Lawyers Patent & Trade-mark Agents Avcats Agents de brevets et de marques de cmmerce Vancuver Calgary Trnt Ottawa Mntréal Hng Kng mcmillan.ca

2 Page 2 Nature f the investment MICs, whether r nt listed, are crpratins subject t a special tax regime. The MIC's assets usually include nly mrtgages generating interest and, ccasinally, capital gains. Generally, the incme generated by the mrtgage prtfli (interest and capital gains) is nt taxed in the hands f the MIC but in thse f its sharehlders. The purpse f such single level f taxatin is t place the investrs in the same tax psitin as if they wned the mrtgages directly. What makes the MIC attractive fr investrs is the stability f its cash flw. A study cnducted by Dundee Capital Markets 1 reveals the fllwing findings regarding the nature f MICs, mainly thse listed n a stck exchange: 2 On average, 80% f their mrtgages are first-ranking. On average, the rati f the amunt f lans t the value f encumbered prperty is 54%, a large safety cushin in the event that lenders shuld run int difficulty. Lans are generally shrt-term, frm 18 t 36 mnths. Where interest rates are flating, they prvide a prtectin against interest rate increases. Furthermre, the shrt-term nature f the lans is anther frm f prtectin against rate fluctuatins. The prvisin fr lsses is n average 0.4% f the prtfli value. By way f cmparisn, frm 2008 t 2012, the allwance fr dubtful accunts f Canadian and American banks std at 0.9% and 4.37%. 1 Dundee Capital Markets, Mrtgage Investment Crpratins (MICs), Stable Yield Frm Mrtgage Investments, July 4, Based n a sample f seven exchange-listed MICs as at July 4, 2013 alng with Rmspen Investment Fund, an unlisted mutual fund trust which has a mrtgage prtfli f mre than 1 billin dllars.

3 Page 3 Lans generally remain repayable at any time. Therefre, the lender runs a certain risk f prepayment which is mitigated by the shrt-term nature f the lans. Typical Structure (1) Sme MICs are cntrlled by their prmter. (2) Shares r debentures. (3) Bank financing is usually used t finance the lans granted which will ultimately be repaid after the clsing f subsequent runds f financing with the public (e.g. warehusing f mrtgage lans t be refinanced), as well as the wrking capital. A management agreement may set ut annual fees, perfrmance bnuses, the sharing f the lan riginatin fees and service fees. In sme cases, the prmter is als a sharehlder f the MIC. Taxatin The MIC is a cnduit fr incme tax purpses. Mre precisely, it may deduct frm its incme dividends that it pays t its sharehlders. The crpratin may als deduct fifty percent f dividends riginating frm its capital gains realized during the year. The net result f this tax rule is that the MIC shuld nt have any taxes t pay n its incme if it distributes all f its incme as dividends t its sharehlders. Fr a sharehlder, dividends received, ther than thse related t capital gains, are deemed t be interest n bnds and nt dividends frm a crpratin. As fr net capital gains realized during the year which the MIC has chsen t distribute t its sharehlders, they are deemed t be capital gains realized by the

4 Page 4 sharehlder, nly 50% f which are t be included in the cmputatin f their incme. Eligible Investments The shares f a MIC are investments eligible fr a number f deferred incme plans, and TFSAs. It is an interesting investment fr these plans where they receive dividends (deemed t be interest) befre incme taxes. Mrtgage Investment Crpratin A crpratin is a MIC if, fr a taxatin year, it meets all f the fllwing cnditins thrughut the year: Residence and Incrpratin It was incrprated in, and is a resident f, Canada. Restricted Activities Its sle activity is the investment f its funds and it des nt manage r develp real r immvable prperty. Therefre, it may wn real r immvable prperty, subject t the restrictins described belw, but may nt manage r carry ut activities related t its develpment. Canadian Prperty Nne f its prperty cnsisted f the fllwing: indebtedness secured by real r immvable prperty situated utside Canada; indebtedness wed by nn-residents, except fr the debts secured by real r immvable prperty situated in Canada; shares f a crpratin that des nt reside in Canada; real r immvable prperties lcated abrad, r a leasehld interest n such prperties. Sharehlders and Sharehlding Threshld It must have at least 20 sharehlders, nne f whm, alne r tgether with

5 Page 5 related persns, held mre than 25% f issued shares f a class f its share capital. Nte that, t be listed n the TSXV r TSX exchange, a cmpany must have at least 200 r 300 sharehlders. Preferred Sharehlders' Rights Preferred sharehlders, after preferred dividends have been paid ut t them and after the same amunt has been paid t the cmmn sharehlders, they are entitled t receive the same prprtin f any additinal distributin f dividends as the cmmn sharehlders. There is n prescribed cnditin regarding vting rights. Fr example, it is pssible that the preferred shares may carry the right t vte, but nt the cmmn shares. 3 See abve the restrictin n maximum hldings per class f shares. Residential Mrtgages, Cash and Depsits At least 50% f the "cst amunt" 4 f all f its assets must riginate frm lans secured by "huses" r prperty included within a "husing prject" within the meaning f the Natinal Husing Act 5 frm 3 It shuld be nted that the ITA, fr such purpses, defines a cmmn share and a preferred share. What distinguishes ne frm the ther is the right t participate upn a reductin r redemptin f shares. First, a preferred share is a share that is nt a cmmn share. A cmmn share is a share the hlder f which is nt precluded n the reductin r redemptin f the capital stck frm participating in the assets f the crpratin beynd the amunt paid up n that share plus a fixed premium and a defined rate f dividend. 4 In general terms, "cst amunt" means, fr depreciable prperty r capital prperty, its nn-amrtized cst and, in ther cases, the cst f the prperty used fr incme tax purpses; 5 Sectin 2 f the Natinal Husing Act defines this wrd and expressin as fllws: "huse" means a building r mvable structure, r any part theref, that is intended fr human habitatin and cntains nt mre than tw family husing units, tgether with any interest in land appurtenant t the building, mvable structure r part theref; "husing prject" means a prject cnsisting f ne r mre huses, ne r mre multiple-family dwellings, husing accmmdatin f the hstel r drmitry type, ne

6 Page 6 its cash and depsits with a bank r a cmpany, sme f which are insured by the Canada Depsit Insurance Crpratin r by the Régie de l'assurance-dépôts du Québec, r with a credit unin. On certain prperty, mrtgage lans must be n a "huse" r a husing prject within the meaning f the Natinal Husing Act. It can be a cmpleted building r a building under cnstructin. Maximum Real Prperty The cst amunt f its real r immvable prperty, including any leasehld interest n such prperty (withut taking int accunt thse repssessed as a result f a default), must nt exceed 25% f the cst amunt f all its assets. Leverage Its "liabilities" 6 must nt exceed the difference between the cst amunt f all f its assets and its liabilities, multiplied by three (three fr ne), if, at any time f the year, the cst amunt f its mrtgages n residential prperty and its depsits described in the paragraph abve and its cash represent less than tw thirds f the cst amunt f all f its assets. In ther cases, its liabilities shuld nt exceed the difference between the cst amunt f all f its assets and its liabilities multiplied by five (five fr ne). by Claude Désy r mre cndminium units r any cmbinatin theref, tgether with any public space, recreatinal facilities, cmmercial space and ther buildings apprpriate t the prject, but des nt include a htel. 6 "Liabilities" means all f the cmpany's debts and all ther bligatins t pay sums f mney that have becme due.

7 Page 7 Fr mre infrmatin n this tpic, please cntact: Mntréal Claude Désy claude.desy@mcmillan.ca a cautinary nte The freging prvides nly an verview and des nt cnstitute legal advice. Readers are cautined against making any decisins based n this material alne. Rather, specific legal advice shuld be btained. McMillan LLP 2014