PenderFund Capital Management Ltd.
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- An alternative mutual fund wants relief from the short selling restriction in NI 81-102 that prohibits an alternative mutual fund or a non-redeemable investment fund from selling a security short if the aggregate market value of all securities sold short by the fund exceeds 50% of the fund's net asset value (NAV) -- the fund will be restricted to short sell securities up to an aggregate market value of 100% of the fund's NAV; the fund will continue to comply with the requirements in NI 81-102 that permit the fund to borrow cash, short sell and enter into specified derivatives transactions (which can be set up to mimic leverage and short transactions) up to a limit of 300% of the fund's NAV; if the relief results in a material change or change to the fund's risk rating, the fund will comply with applicable requirements under securities legislation; the fund will disclose the material terms of the relief in its investor facing materials.
An alternative mutual fund wants relief from the borrowing restriction in NI 81-102 that prohibits an alternative mutual fund or a non-redeemable investment fund from borrowing cash if the aggregate value of all outstanding borrowing by the fund exceeds 50% of the fund's net asset value (NAV) -- the fund will be restricted to borrow cash to an aggregate value of 100% of the fund's NAV; the fund will continue to comply with the requirements in NI 81-102 that permit the fund to borrow cash, short sell and enter into specified derivatives transactions (which can be set up to mimic leverage and short transactions) up to a limit of 300% of the fund's NAV; if the relief results in a material change or change to the fund's risk rating, the fund will comply with applicable requirements under securities legislation; the fund will disclose the material terms of the relief in its investor facing materials.
An alternative mutual fund wants relief from the restriction in NI 81-102 that prohibits an investment fund from borrowing cash or selling securities short if the aggregate value of cash borrowed combined with the aggregate market value of all securities sold short by the fund exceeds 50% of the fund's net asset value (NAV) -- the fund will be restricted to borrow cash and/or short sell to an aggregate value of 100% of the fund's NAV; the fund will continue to comply with the requirements in NI 81-102 that permit the fund to borrow cash, short sell and enter into specified derivatives transactions (which can be set up to mimic leverage and short transactions) up to a limit of 300% of the fund's NAV; if the relief results in a material change or change to the fund's risk rating, the fund will comply with applicable requirements under securities legislation; the fund will disclose the material terms of the relief in its investor facing materials.
Applicable Legislative Provisions
National Instrument 81-102 Investment Funds, ss. 2.6, 2.6.1, 2.6.2 and 19.1.
June 30, 2022
IN THE MATTER OF THE SECURITIES LEGISLATION OF BRITISH COLUMBIA AND ONTARIO (the Jurisdictions)
AND
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF
PENDERFUND CAPITAL MANAGEMENT LTD. (the Filer) AND PENDER ALTERNATIVE ABSOLUTE RETURN FUND (PAARF) AND PENDER ALTERNATIVE ARBITRAGE PLUS FUND (PAAF+)
DECISION
1. Background
The Filer, on behalf of PAARF, was granted relief by the British Columbia Securities Commission and the Ontario Securities Commission (the Decision Makers) on May 9, 2022 (the Prior Order) from the following provisions in National Instrument 81-102 Investment Funds (NI 81-102):
(a) subparagraph 2.6.1(1)(c)(v) of NI 81-102, which restricts an alternative mutual fund or non-redeemable investment fund from selling a security short, if at the time, the aggregate market value of all securities sold short by the fund exceeds 50% of the fund's NAV (together with (c) below, the Short Selling Limit);
(b) subparagraph 2.6(2)(c) of NI 81-102, which restricts an alternative mutual fund or non-redeemable investment fund from borrowing cash if the value of cash borrowed, when aggregated with the value of all outstanding borrowing by the fund, exceeds 50% of the fund's NAV (together with (c) below, the Cash Borrowing Limit); and
(c) section 2.6.2 of NI 81-102, which restricts an alternative mutual fund or non-redeemable investment fund from borrowing cash or selling securities short if, immediately after entering into a cash borrowing or short selling transaction, the aggregate value of cash borrowed combined with the aggregate market value of all securities sold short by the fund (the Combined Aggregate Value) would exceed 50% of the fund's NAV and which requires an alternative mutual fund or non-redeemable investment fund, if the Combined Aggregate Value exceeds 50% of the fund's NAV, as quickly as commercially reasonably, to take all steps necessary to reduce the Combined Aggregate Value to 50% or less of the fund's NAV ((a) and (c) together, the Short Selling Relief, and (b) and (c) together, the Cash Borrowing Relief, and collectively the Requested Relief).
The Filer wishes to update the Requested Relief to include the PAAF+ (together with the PAARF, the Existing Funds) and alternative mutual funds that the Filer may manage in the future (together with the Existing Funds, the Funds and each a Fund) and has requested that the Prior Order be revoked by the Decision Makers and replaced with this decision (the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
(a) the British Columbia Securities Commission is the principal regulator for this application;
(b) the Filer has provided notice that subsection 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in Alberta, Saskatchewan, Manitoba, Ontario, Québec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon, Northwest Territories and Nunavut; and
(c) the decision is a decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
2. 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.
3. Representations
This decision is based on the following facts represented by the Filer:
The Filer
1. the Filer is a corporation incorporated under the laws of British Columbia on May 28, 2003;
2. the head office of the Filer is located in Vancouver, British Columbia;
3. the Filer is registered as an investment fund manager in British Columbia, Ontario, Québec and Newfoundland and Labrador; a portfolio manager in British Columbia and Ontario; and an exempt market dealer in British Columbia, Alberta, Manitoba, Ontario and Québec;
4. the Filer is or will be the investment fund manager, portfolio manager and trustee of each Fund;
5. the Filer is not a reporting issuer in any of the Jurisdictions and is not in default of the Legislation in any of the Jurisdictions;
The Funds
6. each Fund is, or will be, an alternative mutual fund to which NI 81-102 applies, and is, or will be, organized under and governed by the laws of British Columbia;
7. each Fund has distributed, distributes or will distribute its securities pursuant to a simplified prospectus (a Prospectus) prepared in accordance with NI 81-101 Mutual Fund Prospectus Disclosure (NI 81-101) and Form 81-101F1 Contents of Simplified Prospectus;
8. securities of each Fund are, or will be, qualified for distribution in a Jurisdiction;
9. each of the Funds is, or will be, a reporting issuer in each Jurisdiction where the Requested Relief is relied upon;
10. the Existing Funds are not in default of the Legislation in any of the Jurisdictions;
11. the investment objective of each Fund will differ but, in each case, key investment strategies which may be utilized by a Fund will include: (a) the use of absolute return, offsetting, inverse or shorting strategies requiring the use of short selling in excess of the Short Selling Limit; and/or (b) the use of cash borrowing to provide additional investment exposure in connection with the investment strategies of the Fund in excess of the Cash Borrowing Limit;
12. the investment objective of PAARF is to maximize absolute returns over a complete market cycle by providing long-term capital growth and income, with low volatility of returns by investing primarily in a portfolio of North American fixed income securities; the investment objective of PAAF+ is to generate consistent, positive returns, with low volatility and low correlation to equity markets by investing primarily in North American securities; the Existing Funds may also invest in foreign and other securities;
13. as an alternative mutual fund subject to NI 81-102, each Fund is permitted to invest in asset classes such as physical commodities and specified derivatives, and, among other things:
(a) invests up to 20% of its NAV in securities of a single issuer (rather than 10% for conventional mutual funds);
(b) borrows cash of up to 50% of its NAV to use for investment purposes;
(c) sells securities short (provided that the aggregate market value of the securities of the issuer of the securities sold short, other than government securities, does not exceed 10% of its NAV and the aggregate market value of the securities sold short does not exceed 50% of its NAV); and
(d) uses leverage through the use of cash borrowing, short selling and specified derivatives.
14. as an alternative mutual fund subject to NI 81-102, the combined level of cash borrowing and short selling of each Fund is currently limited to 50% of its NAV in aggregate and the maximum aggregate exposure to the foregoing sources of leverage, as calculated in accordance with section 2.9.1 of NI 81-102, cannot exceed 300% of the Existing Fund's NAV (the Leverage Limit);
15. the Filer has determined that it is in the best interests of the Funds to borrow cash and sell securities short up to 100% of NAV;
Reasons for the Requested Relief
16. the Prospectus, annual information form, and fund facts, as applicable, comply, or will comply, with the applicable requirements of NI 81-101 and Form 81-103F3 Content of Fund Facts Document (the Fund Facts) for alternative mutual funds, and will include disclosure in a text box on the cover page of the Fund Facts to highlight how each Fund differs from other mutual funds and alternative mutual funds and to emphasize that the short selling and cash borrowing strategies and increased ability to engage in short selling and cash borrowing permitted for each Fund are outside the scope of the restrictions in NI 81-102 applicable to alternative mutual funds;
17. the Filer does not consider that any activities it would engage in for an Existing Fund in reliance on the Short Selling Relief and Cash Borrowing Relief would constitute either a fundamental or material change for the Existing Fund under NI 81-102 or Part 11 of National Instrument 81-106 -- Investment Fund Continuous Disclosure;
18. the Filer determines the risk rating for the Funds using the Investment Risk Classification Methodology as set out in Appendix F of NI 81-102; the Filer does not anticipate that the current risk rating of an Existing Fund would change if the Short Selling and Cash Borrowing Relief were granted;
19. the Filer has comprehensive risk management policies or procedures that address the risks associated with short selling and cash borrowing in connection with the implementation of the investment strategies of each of the Funds;
20. each Fund will implement the following controls when conducting a short sale:
(a) each Fund will assume the obligation to return to the borrowing agent the securities borrowed to effect the short sale;
(b) each Fund will receive cash for the securities sold short within normal trading settlement periods for the market in which the short sale is effected;
(c) the Filer will monitor the short positions within the constraints of the Short Selling Relief and the Cash Borrowing Relief at least daily;
(d) on an annual basis, the Filer is responsible for setting and reviewing written policies and procedures for the conduct of short sales, risk management controls and proper books and records, including what is described in paragraph 19;
(e) the security interest provided by a Fund over any of its assets that is required to enable a Fund to effect a short sale transaction is made in accordance with industry practice for that type of transaction and relates only to obligations arising under such short sale transactions;
(f) any short sale by a Fund will comply with the investment objectives of the Fund; and
(g) the Filer will keep proper books and records of short sales and all assets of the Fund deposited with borrowing agents as security.
4. Decision
Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
The decision of the Decision Makers under the Legislation is that the Prior Order is revoked, and the Exemption Sought is granted provided that:
1. Fund may sell a security short or borrow cash only if, immediately after the cash borrowing or short selling transaction:
(a) the aggregate market value of all securities sold short by the Fund does not exceed 100% of the Fund's NAV;
(b) the aggregate value of all cash borrowing by the Fund does not exceed 100% of the Fund's NAV;
(c) the aggregate market value of securities sold short by the Fund combined with the aggregate value of cash borrowing by the Funds does not exceed 100% of the Fund's NAV; and
(d) the Fund's aggregate exposure to short selling, cash borrowing and specified derivatives does not exceed the Leverage Limit;
2. in the case of a short sale by a Fund, the short sale:
(a) otherwise complies with all of the short sale requirements applicable to alternative mutual funds under sections 2.6.1 and 2.6.2 of NI 81-102; and
(b) is consistent with the Fund's investment objectives and strategies;
3. in the case of a cash borrowing transaction by a Fund, the transaction:
(a) otherwise complies with all of the cash borrowing requirements applicable to alternative mutual funds under sections 2.6 and 2.6.2 of NI 81-102; and
(b) is consistent with the Fund's investment objectives and strategies; and
4. the Prospectus under which securities of a Fund are offered:
(a) discloses that the Fund can sell securities short or borrow cash up to, and subject to, the limits described in condition (1) above; and
(b) describes the material terms of this decision.