STABLE LETTER AGREEMENT Effective as of March 31, 2010
EXHIBIT
10
Effective
as of March 31, 2010
Stable
Investment Corporation
New Poly
Xxxxx
Xx. 0
Xxxxxxxxxxx, Xxxxxxxx, Xxxxxxxxx
Beijing
100010
Attention:
Xxxxxx Xxx, Xxxxxxx Xxxx
and
Xxxx Xxx
Ladies
and Gentlemen:
This
amended and restated letter agreement, dated as of October 25, 2010, and
effective as of March 31, 2010, is being entered into and delivered by and
between Stable Investment Corporation (the “SIC Member” or “you”) and REP
Investments LLC, a Delaware limited liability company (“REP”) and, in the
event of a Closing (as defined in the Restructuring Proposal), Brookfield REP
Investments III LLC, a Delaware limited liability company (“REP III,” and REP or
REP III, as applicable, the “Company”) in order to
amend and restate in its entirety that certain letter agreement dated as of
March 31, 2010 entered into by and between the SIC Member and REP (the “Original Side
Letter”). This letter agreement is being entered in connection with your
purchase of a limited liability company interest in, and your entering into
(i) in the event of a Closing (as defined in the Restructuring
Proposal), of that certain Amended and Restated Limited Liability Company of REP
III dated as of October 25, 2010, as subsequently amended and restated from time
to time or (ii) in the event of a Restructuring Proposal Termination, of that
certain Second Amended and Restated Limited Liability Company Agreement of the
Company dated as of October 25, 2010, as subsequently amended and restated from
time to time (the agreement referenced in clause (i) or (ii) as applicable, the
“LLC
Agreement”) and that certain Subscription Agreement related thereto
entered into between you and the Managing Member, itself and on behalf of the
Company, effective as of March 31, 2010 (as amended by that certain
Joinder and Amendment to Subscription Agreement dated as of October 25, 2010,
the “Subscription
Agreement”). Capitalized terms used and not defined herein
shall have the meanings ascribed to them in the LLC Agreement. This
letter agreement amends and restates the Original Side Letter in its
entirety.
1. Other Side
Letters. The Managing Member, itself and on behalf of the
Company, hereby agrees to promptly furnish you with a copy of all side letters
or similar agreements entered into between the Managing Member, the Company or
any of their Affiliates and any Non-Managing Member in the Company (or between
any Parallel Investment Vehicle or the managing member, general partner or
similar controlling party of any Parallel Investment Vehicle or any of their
Affiliates and any investor in such Parallel Investment Vehicle) that establish
rights under, or alter or supplement the terms of, the LLC Agreement or the
constituent documents of any Parallel Investment Vehicle, as applicable (each, a
“Side
Letter”).
2. Most Favored
Nation. The Managing Member, itself and on behalf of the
Company, hereby agrees that you shall be entitled, upon written election to the
Managing Member within twenty (20) days of receipt of a copy of any Side Letter,
to the rights and benefits of such Side Letter that have the effect of
establishing rights or otherwise benefiting any other Non-Managing Member (or
any investor in any Parallel Investment Vehicle) in a manner different and more
favorable, in any material respect, than the rights and benefits established in
your favor hereunder or pursuant to the LLC Agreement; provided that you hereby
agree to assume the obligations, if any, assumed by such other Non-Managing
Member (or such other investor in a Parallel Investment Vehicle) in receiving
such rights or benefits; provided further that you shall not be
entitled to the rights or benefits of any Side Letter provisions (a) that were
established for the benefit of any other Non-Managing Member (or any investor in
any Parallel Investment Vehicle) to reflect any legal or regulatory requirement
to which such Non-Managing Member (or such investor in any Parallel Investment
Vehicle) is bound (including, without limitation, provisions concerning the
disclosure or use of information or relating to the reporting obligations of the
Company or any Parallel Investment Vehicle) or any accounting practice or policy
which such Non-Managing Member (or such investor in any Parallel Investment
Vehicle) has adopted and, in each case, to which you are not similarly bound or
you have not similarly adopted, or (b) that are personal to any other
Non-Managing Member (or any investor in any Parallel Investment Vehicle) based
solely on the place of organization, headquarters or organizational form of such
other Non-Managing Member (or such investor in a Parallel Investment Vehicle)
and provide no material economic benefit not provided to you. The
Managing Member hereby represents and warrants that, other than as already
disclosed to you, (i) there are no other Side Letters that have the effect of
establishing rights with respect to the governance of the Consortium benefitting
any other Non-Managing Member (or any investor in any Parallel Investment
Vehicle) in a manner different and more favorable than the governance rights
established in your favor hereunder or pursuant to the LLC Agreement and (ii)
there are no rights currently provided to another Non-Managing Member (or any
investor in any Parallel Investment Vehicle) that can reasonably be expected to
interfere with the exercise of your governance rights with respect to the
Consortium and no such rights will be provided to another Non-Managing Member
(or any investor in any Parallel Investment Vehicle).
3. Consent to
Transfer.
(a) The
Managing Member shall not withhold its consent to (a) a Transfer by you or your
Permitted Transferee (hereinafter defined) to an entity that is owned and
controlled, directly or indirectly, by you, or to any other Chinese government
agency, government instrumentality and/or any other entity that is part of, or
directly or indirectly owned or controlled by, the People’s Republic of China or
governmental agency or body thereof (each a “Permitted
Transferee”), including a Transfer by you or your Permitted Transferee
required as a result of a reorganization or restructuring or change in any law
or regulation (or the interpretation thereof) and (b) such Permitted
Transferee’s admission to the Company as a substituted Non-Managing Member in
accordance with the terms of the LLC Agreement. In connection with
any such Transfer by you or a Permitted Transferee to a Permitted Transferee,
the Managing Member hereby waives the requirement that you provide it with an
opinion of counsel pursuant to Section 10.3(c)(i) of the LLC
Agreement. For the avoidance of doubt, all other conditions of
Section 10.3 of the LLC Agreement shall apply in respect of any Transfer
contemplated by this paragraph 3.
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(b) The
Managing Member acknowledges and agrees that Best Investment Corporation is a
Permitted Transferee hereunder and agrees (x) to admit Best Investment
Corporation as a member of the Company upon satisfactory evidence of an
assignment by you of an interest in the Company or of your interest in the
Commitment Account and (y) upon such admission to the Company as a member, all
provisions of this letter agreement shall apply to, and be enforceable by, each
of you and Best Investment Corporation.
4. Transaction Distribution
Amount and Carried Interest.
(a) The
Managing Member hereby agrees that the Transaction Distribution Amount
distributable to the Managing Member in respect of your Interest (including any
Interest held by your Permitted Transferee or your Affiliate) shall be capped at
$18 million and one-fifth (1/5) of such Transaction Distribution Amount
shall vest on each anniversary of the Initial Closing Date, such that the full
Transaction Distribution Amount shall be fully vested on the fifth
(5th) anniversary of the Initial Closing Date; provided that, (i) if you
have Transferred a portion of your Interest held as of the Initial Closing Date
other than to a Permitted Transferee or your Affiliate, (a) the Transaction
Distribution Amount distributable to the Managing Member in respect of your
retained Interest (including any Interest held by your Permitted Transferee or
your Affiliate) shall be capped at an amount equal to the product of (1) $18
million and (2) a fraction the numerator of which is the retained portion of
your Interest (including any Interest held by your Permitted Transferee or your
Affiliate) and the denominator of which is your Interest held at the Initial
Closing Date and (b) for greater certainty, the Transaction Distribution Amount
distributable to the Managing Member in respect of the portion of the Interest
transferred by you other than to a Permitted Transferee or your Affiliate shall
not be capped as provided herein, (ii) if your Invested Capital on a
Distribution Date is less than $650 million, the cap on the Transaction
Distribution Amount distributable to the Managing Member in respect of your
Interest (including any Interest held by your Permitted Transferee or your
Affiliate) shall be reduced by a percentage equal to one minus a fraction, the
numerator of which is your Invested Capital at such Distribution Date and the
denominator of which is your Commitment, and (iii) unless and until the Minimum
Condition is achieved, the cap on the Transaction Distribution Amount
distributable to the Managing Member in respect of your Interest (including any
Interest held by your Permitted Transferee or your Affiliate) shall be $3.6
million.
(b) The
Managing Member and the Class B Member hereby agree that, solely for the purpose
of calculating Carried Interest distributable to the Class B Member in respect
of your Interest, you will be deemed to have made Capital Contributions equal to
the cost of funds associated with the Commitment LC or Commitment Account
established in respect of your Interest in an amount, which amount shall be
equal to forty (40) basis points times (i) the average daily principal balance,
if any, on deposit in the Commitment Account held by the Company in respect of
your Interest or (ii) the average daily outstanding face amount of your
Commitment LC, as applicable, during the period commencing on the date the
Commitment Account was funded or your Commitment LC was issued to the Company,
as applicable, and ending on the earlier of (x) July 15, 2010, and (y) the date
on which the amount on deposit in the Commitment Account is reduced to zero or
your Commitment LC is fully drawn by the Company or surrendered to the issuing
bank and cancelled, as applicable, computed on the basis of a three hundred
sixty (360) day year and the actual number of days elapsed, compounded monthly
in arrears. Furthermore, the amount, if any, that remains on deposit in the
Commitment Account or the undrawn face amount, if any, of your Commitment LC, as
applicable, on July 15, 2010 shall be deemed to be Invested Capital contributed
by you to the Company solely for the purpose of calculating Carried Interest
distributable to the Class B Member in respect of your Interest.
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(c) The
Managing Member agrees that, in the event it makes a Sale Recommendation
pursuant to Section 10.8(d)(i) of the LLC Agreement and you have not requested
that your Sharing Percentage of the Investment and other assets of the Company
be sold pursuant thereto within the Sale Recommendation Acceptance Period, the
Transaction Distribution Amount and the Carried Interest distributable to the
Managing Member in respect of your Interest shall be determined on the third
(3rd) or fifth (5th) anniversary of the effective date of the Plan, as elected
by the Managing Member in its sole discretion; provided that if the Managing
Member has not elected that such amounts should be determined on the third (3rd)
anniversary within thirty (30) days following such third (3rd) anniversary, the
date of determination shall automatically be the date that is the fifth (5th)
anniversary of the effective date of the Plan. In either case, unless your
Sharing Percentage of the Investment and other assets of the Company have
previously been sold, the Transaction Distribution Amount and Carried Interest
distributable to the Managing Member in respect of your Interest shall be
determined assuming a distribution was made to you equal to the excess of (i)
your Sharing Percentage of the Fair Market Value of the Investment and other
assets of the Company over (ii) the sum of (x) your Sharing Percentage of the
Fair Market Value of the liabilities of the Company plus (y) the estimated costs
and expenses associated with the disposition of your Sharing Percentage of the
Investment and other assets of the Company; provided that in all events
hereunder Fair Market Value shall be as defined in the LLC Agreement, except
that Fair Market Value of assets and liabilities of the Company whose value was
to be determined in accordance with paragraph (c) of such definition of Fair
Market Value shall be determined based on a valuation made by an appropriately
qualified independent third-party valuation agent, designated by the Managing
Member and approved by a Super-Majority Vote of Tier One Parallel Investment
Vehicles.
(d) In
the event the Managing Member makes a recommendation pursuant to Section
10.8(d)(i) of the LLC Agreement that the Investment be sold and you have
requested that your Sharing Percentage of the Investment and assets of the
Company be sold pursuant thereto, the Transaction Distribution Amount and the
Carried Interest distributable to the Managing Member in respect of your
Interest shall be determined based on the actual consideration received in
connection with the disposition of your Sharing Percentage of the Investment and
assets of the Company.
5. Other Subscription
Agreements. The Managing Member, itself and on behalf of
the Company, hereby represents and warrants that each Subscription
Agreement (and each equivalent subscription agreement entered into by any
Parallel Investment Vehicle, on one hand, and any prospective investor, on the
other hand) shall be substantially similar in all material respects to the
Subscription Agreement you signed, except as to (a) the amount of Commitment
made thereby, (b) particular additions, deletions or modifications that reflect
any legal or regulatory requirement binding on, or accounting practice or policy
adopted by, any other Non-Managing Member (or an investor in any Parallel
Investment Vehicle), and (c) the content of each prospective investor
questionnaire as completed by any other Non-Managing Member (or an investor in
any Parallel Investment Vehicle).
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6. Tax Matters
Partner. The Managing Member agrees not to take any action as
the Tax Matters Partner that could reasonably be expected to adversely impact
you in any material respect without your consent, which consent shall not be
unreasonably withheld; provided that, if you would
be required to file an income tax return (other than any return necessary to
claim a reduced rate of tax or any tax treaty benefit) as a result of such
action taken by the Managing Member as the Tax Matters Partner that you would
not otherwise have been required to file, such requirement will be considered to
adversely impact you in a material respect for purposes of this paragraph
6.
7. Withholding
Taxes.
(a) You
will provide to the Managing Member a valid and properly executed Internal
Revenue Service Form W-8EXP claiming an exemption from U.S. income tax under
Section 892 of the Code. You shall promptly notify the Managing Member in
writing of any changes that cause such document to be untrue, incorrect,
incomplete, ineffective or inapplicable in any material way, and shall provide
the Managing Member with any further assurances regarding the continuing
validity of such document as reasonably requested by the Managing Member
(including, without limitation, providing updated versions of IRS Form W-8EXP or
applicable successor forms as required by law) or any other information
reasonably necessary for the Managing Member to make correct determinations
under applicable law.
(b) The
Managing Member agrees that, under current law, the Company will not withhold
under Sections 1441, 1442, 1445 or 1446 of the Code on your distributive share
of any item of income related to the Company’s investment in GGP or in
connection with the Redemption Procedures, other than distributions on equity
interests attributable to the disposition of a United States real property
interest (other than a United States real property holding corporation) (i.e., distributions subject
to Section 897(h)(1) of the Code), for which you are exempt from U.S. federal
income taxation under Section 892 of the Code, provided that the Company has
received from you a properly completed IRS Form W-8EXP (which has not expired
under applicable regulations and/or instructions) certifying as to your status
as a foreign government (and not a “controlled commercial entity”) prior to the
time the Company would otherwise have to withhold on such
item. Notwithstanding the foregoing, the Managing Member makes
no representation as to the Managing Member’s withholding obligations if and to
the extent that, (i) under applicable Code sections, regulations or
instructions, the Managing Member has knowledge or reason to believe that any
information or certifications provided by you are incorrect and, within a
reasonable amount of time after the receipt of written notice from the Managing
Member or the Company that the Managing Member has knowledge or reason to
believe that any information or certifications provided by you are incorrect,
you do not cure such information within a reasonable time, (ii) the Managing
Member cannot reliably associate the payment with the documentation provided by
you, (iii) there is a Change in Law that imposes an obligation on the Company to
withhold on your distributive share of any item of income of the Company or in
connection with the Redemption Procedures, as reasonably determined by the
Managing Member after consulting in good faith with you, or (iv) you are not an
“integral part” of a foreign sovereign or a “controlled entity” of a foreign
sovereign that is not a “controlled commercial entity” (all within the meaning
of Section 892 of the Code and the Treasury Regulations promulgated
thereunder). In the event there is a Change in Law described in
clause (iii) above, the Managing Member agrees to consider, in good faith, a
reasonable request by you to change the structure of the Company’s investment in
GGP in order to minimize the U.S. federal income tax consequences to you
resulting from such Change in Law. For purposes of this paragraph 7,
(i) “Change in Law” means the occurrence, after the date of this letter agreement,
of any of the following: (a) the adoption or taking effect of any
law, rule, regulation or treaty by any Governmental Authority, (b) any change in
any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, guideline
or directive (whether or not having the force of law) by any Governmental
Authority and (ii) “Governmental Authority” means the government of the United States, or of any
political subdivision thereof and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government
thereof.
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(c) The
Managing Member, itself and on behalf of the Company, hereby agrees to use its
commercially reasonable best efforts to ensure that the affairs of the Company
are conducted in such a manner that the Company is not engaged in a trade or
business within the United States within the meaning of Sections 871 and 881 of
the Code and does not have any income received directly or indirectly from
commercial activities within the meaning of Section 892 of the
Code. In furtherance of the foregoing, the Managing Member shall use
commercially reasonable best efforts not to cause the Company to do any of the
following without your consent: (i) own any assets other than Securities of GGP,
Debt of GGP, cash and/or cash equivalents; (ii) conduct activities restricted by
the LLC Agreement; or (iii) have any employees; provided, however, that your
consent shall not be required so long as either (A) the ownership of any
assets not described in clause (i) are made through a subsidiary of
the Company classified as a corporation for U.S. federal income tax purposes,
(B) the conduct of any activities not described in clause (ii) are conducted
through a subsidiary of the Company classified as a corporation for U.S. federal
income tax purposes, or (C) the Company has received a written opinion of
nationally recognized tax counsel, on which you may rely, to the effect that
such ownership of assets or conduct of activities should not result in the
Company being engaged in a trade or business within the United States within the
meaning of Sections 871 and 881 of the Code and should not result in the Company
being engaged in a commercial activity within the meaning of Section 892 of the
Code. The Managing Member agrees that it will provide prompt written
notice to you as soon as reasonably practicable after the Managing Member
becomes aware that you will be deemed to be engaged in the conduct of a trade or
business within the United States for purposes of Sections 871 and 881 of
the Code solely as a result of the activities and investments of the Company or
that you will be deemed to have any income attributable to commercial activities
within the meaning of Section 892 of the Code. In the event that the
Company derives any income, gain or loss that is effectively connected with the
conduct of a trade or business within the United States and/or any income from
commercial activities that is allocable to you, the Managing Member will, at
your request, obtain and provide in a timely fashion all necessary and
reasonably available tax-related information concerning the source, character
and amount of such income required for you to make required tax
filings.
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(d) The
Managing Member will, to the extent practicable, provide prompt written notice
to you if it determines following a Change in Law that the Company is required
to withhold any amount purportedly representing a tax liability to you and will
(i) consider in good faith any position that you raise as to why
withholding is not required or alternative arrangements proposed by you that may
avoid the need for withholding and (ii) provide you with the opportunity to
contest the requirement to withhold with the appropriate taxing authority (to
the extent permitted by applicable law) during any period such contest does not
subject the Company or the Managing Member to any potential liability to such
taxing authority for any such claimed withholding and payment.
8. Returns.
(a) If
the Managing Member is required to make a filing (including a Schedule 13D or
Form 3, 4 or 5 filing or amendment thereto) under the Exchange Act on behalf of
the Company or itself, and if the Managing Member is aware that a Non-Managing
Member may also be required to make a filing under the Exchange Act based on the
circumstances requiring Managing Member's filing on behalf of the Company or
itself, then the Managing Member shall endeavor to provide to the Non-Managing
Member, as soon as reasonably practicable, a draft of any such filing on behalf
of the Company or itself prior to making such filing, and, in addition, shall
provide the Non-Managing Member a copy of such filing as filed within two (2)
business days following such filing.
(b) In
addition to the obligations set forth in paragraphs (a) and (b) of this
paragraph 8, the Managing Member and Non-Managing Member agree to provide
reasonable cooperation with the other at the other's request in connection with
any such filing.
9. Taxes
Paid.
(a) Notwithstanding
Sections 8.4(a) and 8.4(b) of the LLC Agreement, as modified by this
letter, if (i) the Company receives (or is deemed to receive) a distribution
from GGP (including capital gains dividends and distributions in liquidation of
GGP) that is attributable to gain from sales or exchanges by GGP of United
States real property interests (i.e., a distribution subject
to Section 897(h)(1) of the Code) or (ii) the Company earns income directly
or indirectly from commercial activities of the Company within the meaning of
Section 892 of the Code, then, for purposes of determining the amounts
distributable to the Managing Member pursuant to Section 6.1 of the LLC
Agreement and the provisions of the LLC Agreement that refer to Section 6.1, you
shall not be treated as having received a distribution equal to the lower of (x)
the amount described in clause (i) or (ii) above multiplied by thirty-five
percent (35%) and (y) the actual amount of tax paid to the applicable taxing
authorities with respect to the amounts described in clause (i) or (ii); provided, however, that
(I) this paragraph 9(a) shall continue to apply following a change in
rate or with respect to a withholding tax (or similar tax) imposed under any
successor provision to Section 1445 or 1446 of the Code and Treasury
Regulations promulgated thereunder resulting from a Change in Law, and (II)
clause (ii) of this paragraph 9(a) shall not apply to the extent that you
are not an “integral part” of a foreign sovereign or a “controlled entity” of a
foreign sovereign that is not a “controlled commercial entity” (all within the
meaning of Section 892 of the Code and the Treasury Regulations promulgated
thereunder). For the avoidance of doubt, and not in contravention of
paragraph 7(b) of this letter, this paragraph 9(a) shall not apply with
respect to any amounts withheld in connection with the Redemption Procedures or
a liquidation of the Company (except to the extent attributable to gain from
sales or exchanges by GGP of United States real property interests in connection
with a liquidation of GGP). For purposes of Section 7.4 of the LLC
Agreement, all allocations shall be made without regard to this
paragraph.
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(b) In
the event you reasonably believe that, or the Managing Member notifies you that
it believes that it is more likely than not that, any amount of income described
in clause (i) or (ii) in paragraph 9(a) of this letter agreement is not
subject to U.S. federal income tax, you hereby agree to use commercially
reasonable efforts to apply for and obtain a refund of such amounts and the
Managing Member shall cooperate with you, as reasonably requested, in applying
for or obtaining such refund. You hereby agree to promptly notify the
Managing Member of such claim for refund no less than five days prior to filing
such claim with the applicable taxing authorities. In the event you
receive an actual refund of any amounts described in clause (i) or (ii) in
paragraph 9(a) of this letter agreement, such amounts shall be treated as a
distribution for purposes of Section 6.1 of the LLC Agreement to the extent such
amounts were previously excluded from amounts deemed distributed for purposes of
Section 6.1 of the LLC Agreement.
10. Withholding Tax Payments and
Obligations.
(a) With
respect to you, Section 8.4(a) of the LLC Agreement is restated as
follows:
“If the
Company receives proceeds in respect of which a tax has been withheld, the
Company shall be treated as having received cash in an amount equal to the
amount of such withheld tax, and, for all purposes of this Agreement, except as
provided in paragraph 9(a) of the amended and restated letter agreement (the
“Side Letter”)
between Stable Investment Corporation and the Company dated as of October 25,
2010 and effective as of March 31, 2010, each Member shall be treated as having
received a distribution pursuant to Section 6.1 hereof equal to the portion of
the withholding tax allocable to such Member, as determined by the Managing
Member in its reasonable discretion.
(b) With
respect to you, Section 8.4(b) of the LLC Agreement is restated as
follows:
“Subject
to paragraph 7(b) of the Side Letter, the Company is authorized to withhold from
any payment made to, or any distributive share of, a Member any taxes that are,
in the Managing Member’s reasonable determination, required by law to be
withheld. If, and to the extent, the Company is required to make any
such tax payments with respect to any distribution to a Member such Member’s
proportionate share of such distribution or, without duplication, future
distributions shall be reduced by the amount of such tax payments (which, except
as provided in paragraph 9(a) of the Side Letter, tax payments shall be treated
as a distribution to such Member pursuant to Section 6.1 hereof). In
the event a portion of a distribution in kind is retained by the Company
pursuant to the prior sentence, such retained in kind amounts may, in the
discretion of the Managing Member, either (A) be distributed to the other
Members, or (B) be sold by the Company to generate the cash necessary to satisfy
such tax payments. If such in kind amounts are sold, then for
purposes of income tax allocations only under this Agreement, any gain or loss
on such sale or exchange shall be allocated to the Member to whom the tax
payments relate to the extent of such tax payments.”
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(c) With
respect to you, Section 8.4(d) of the LLC Agreement is deleted from the LLC
Agreement.
(d) With
respect to you, Section 8.4(e) of the LLC Agreement is restated as
follows:
“If the
Company, the Managing Member, or any of their respective Affiliates, or any of
their respective shareholders, partners, members, officers, directors, employees
or managers (each a “Tax Indemnified
Party”, each of which is a third-party beneficiary of this Agreement
solely for purposes of this Section 8.4(e) becomes liable for U.S. federal
withholding taxes solely as a result of a failure to withhold and remit U.S.
federal taxes in respect of Stable Investment Corporation (other than a failure
to remit amounts withheld pursuant to Section 8.4(b) hereof, as modified by the
Side Letter) either (A) as a result of Stable Investment Corporation providing a
false, incomplete or invalid IRS Form W-8EXP or otherwise failing to comply with
the requirements of paragraph 7(a) of the Side Letter (except to the extent such
invalidity or failure to comply arises as a result of the conduct of commercial
activities by the Company or the Managing Member on behalf of the Company), or
(B) with respect to (i) any payment made to Stable Investment Corporation
pursuant to the redemption of Stable Investment Corporation’s Applicable
Interest in connection with the Redemption Procedures or (ii) Stable Investment
Corporation’s distributive share of the Company’s income or gain resulting from
the sale, assignment or transfer of Stable Investment Corporation’s pro rata share of the
Investment in connection with the Redemption Procedures, then, in addition to, and without
limiting, any indemnities for which Stable Investment Corporation may be liable under Article 9
hereof, Stable Investment Corporation shall, to the fullest extent permitted
by law, indemnify and hold harmless each Tax Indemnified Party, in
respect of such U.S. federal income taxes, including interest and penalties,
and, except as provided in the
Side Letter, any reasonable out-of-pocket expenses incurred in any examination,
determination, resolution and payment of such liability incurred by such Tax
Indemnified Party, except any such amount that arises as a result of any
act or omission with respect to which an arbitration panel, in accordance with
Section 12.14 hereof, has issued a final decision, judgment or order that such
Tax Indemnified Party was grossly negligent or engaged in fraud, willful
misconduct, a willful and knowing material breach of this Agreement or willful
violation of law. The provisions contained in this Section 8.4(e) shall
survive the termination of the Company, the termination of this Agreement and
the Transfer of any Interest.
The
Managing Member shall provide prompt written notice to Stable Investment
Corporation after learning of any audit or other proceeding (including a request
for
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information)
involving a Tax Indemnified Party for which Stable Investment Corporation has an
indemnification obligation under this Section 8.4(e) (a “Proceeding”); provided, however, that the
failure to provide such notice shall not release Stable Investment Corporation
from any of its obligations to indemnify under this Section 8.4(e) unless, and
only to the extent such failure has a material adverse effect on the ability to
contest the claim set forth in the Proceeding. If Stable Investment
Corporation notifies the Tax Indemnified Party in writing that it wishes to
assume the conduct and control of the settlement or defense of such Proceeding,
Stable Investment Corporation shall have the right, through tax counsel of its
choosing and at its own expense, to assume such conduct and control of the
settlement or defense, and the applicable Tax Indemnified Party shall reasonably
cooperate with Stable Investment Corporation in connection therewith (including,
for example, by signing a limited power of attorney with respect to such
Proceeding); provided, however, that Stable
Investment Corporation shall thereafter consult with the Managing Member upon
the Managing Member’s reasonable request for consultation from time to time with
respect to such Proceeding and shall not, without the applicable Tax Indemnified
Party’s consent, agree to pay or settle any such Proceeding if such payment or
settlement could adversely affect the applicable Tax Indemnified Party (it being
understood that a monetary payment, including payment in respect of a civil
penalty in existence as of the date of the Side Letter and imposed by the United
States Internal Revenue Service on a standard less than fraud, does not have an
adverse effect on a Tax Indemnified Party). If Stable Investment
Corporation assumes the conduct and control of such defense or settlement, (i)
the Tax Indemnified Party shall have the right (but not the duty) to participate
in the defense or settlement thereof and to employ counsel separate from the
counsel employed by Stable Investment Corporation, at its own expense, and (ii)
Stable Investment Corporation shall not assert that the claim, or any portion
thereof, with respect to which the Tax Indemnified Party seeks indemnification
is not within the ambit of this Section 8.4(e). So long as Stable
Investment Corporation is reasonably contesting any Proceeding, the applicable
Tax Indemnified Party (or its indirect owners) shall not pay or settle any such
Proceeding without Stable Investment Corporation’s consent, which consent may be
withheld in Stable Investment Corporation’s discretion. If Stable
Investment Corporation advises the Tax Indemnified Party that it does not wish
to control such Proceeding or, within a reasonable amount of time after the
receipt of written notice of such Proceeding, fails to provide the required
notice that it wishes to control the Proceeding, then (i) the Tax Indemnified
Party shall control the settlement or defense of the Proceeding and retain a
nationally recognized law firm to represent the Tax Indemnified Party in such
Proceeding, which counsel shall be reasonably acceptable to Stable Investment
Corporation, (ii) the Tax Indemnified Party may not pay, settle, compromise or
contest the tax at issue without Stable Investment Corporation’s consent, which
consent may be withheld in Stable Investment Corporation’s discretion acting
reasonably and without unreasonable delay and (iii) Stable Investment
Corporation shall be given the right to participate in such Proceeding, at its
own expense.
Stable
Investment Corporation shall be required to pay to the Tax Indemnified Parties
any amount due with respect to a claim of indemnification pursuant to this
Section 8.4(e) promptly upon the first to occur of: (i) a Final Determination
having been reached with respect to the matter that gave rise to such claim for
indemnification; or (ii) Stable Investment Corporation and the applicable Tax
Indemnified Parties entering into a mutual agreement with respect to the total
amount that is due from Stable Investment Corporation with respect to such claim
for indemnification. For purposes of this Agreement, “Final
Determination” shall mean: (i) a
determination within the meaning of section 1313(a) of the Code; (ii) a decision, judgment,
decree or other order by the United States Tax Court or any other court of
competent jurisdiction that has become final and unappealable; (iii) a Closing
Agreement under section 7121 of the Code or a comparable provision of federal,
state, local or foreign tax law that is binding against the Internal Revenue
Service; or (iv) any other final settlement with the Internal Revenue
Service. Notwithstanding anything in this Agreement to the contrary,
(i) if a contest of the applicable taxes shall be conducted in a manner
requiring the payment of the claim, in no event shall such Tax Indemnified Party
be required, or Stable Investment Corporation be permitted, to contest the
imposition of any tax for which Stable Investment Corporation is obligated to
indemnify pursuant to this Section 8.4(e) in such manner unless Stable
Investment Corporation shall have paid the amount required directly to the
appropriate authority or made an advance of the amount thereof to the applicable
Tax Indemnified Parties on an interest-free basis and (ii) no Tax Indemnified
Party shall be required, nor shall Stable Investment Corporation be permitted,
to appeal any adverse decision to the U.S. Supreme Court. Any amounts paid or
advanced by Stable Investment Corporation pursuant to clause (i) of the
preceding sentence that are refunded shall (together with any interest thereon
paid by a governmental authority on the amount refunded) be paid to Stable
Investment Corporation.”
10
11. Tax
Election. If you purchase an Interest from a selling Member,
upon your request, the Company will make an election pursuant to Section 754 of
the Code.
12. Tax
Information. The Managing Member agrees to send to you, as
soon as possible after the end of the Company’s Fiscal Year, but no later than
April 1st of each Fiscal Year, Internal Revenue Service Form 1065, Schedule
K-1. The Managing Member, upon your request, shall use
commercially reasonable efforts to provide information and documents as are
necessary for you to make appropriate tax filings with respect to such Fiscal
Year.
13. Advice. Solely
with respect to you, Section 8.6 of the LLC Agreement is restated as
follows:
“A Member
may, by written notice to the Managing Member, request that the Managing Member
provide a copy of any written taxation advice the Managing Member has obtained
from external taxation and other advisers, and the Managing Member shall provide
such copy to the Member (with a copy being provided to all other Members within
a reasonable period of time). Notwithstanding the foregoing, the
Managing Member may impose such reasonable restrictions and conditions in
respect of such written tax advice as the Managing Member determines are
necessary or appropriate to preserve any privilege which exists with respect to
such advice.”
14. Tax Status
Representation. You represent and warrant that you are (i) an
“integral part” of a foreign sovereign or (ii) a “controlled entity” of a
foreign sovereign that is not a “controlled commercial entity” (all within the
meaning of Section 892 of the Code and the Treasury Regulations promulgated
thereunder).
11
15. Confidentiality. The
Managing Member, on behalf of the Company, hereby acknowledges that you are
subject to laws, regulations and policies which (i) provide for disclosures to
the government of the People’s Republic of China on your operations and (ii)
require your directors, officers, employees and agents (you and such parties,
collectively, the “Disclosing Parties”)
to provide to your auditor and/or special examiner, as applicable, all
information and documents that may be required or requested by them
(collectively, “Mandated
Disclosures”). In light of the foregoing, the Managing Member, on behalf
of the Company, agrees that:
(a) the
Disclosing Parties shall be permitted to disclose information relating to the
Managing Member, the Company, any Parallel Investment Vehicle in which you are
an investor (“CIC
Parallel Investment Vehicle”), the Board of Directors, GGP or any of
their respective Affiliates (the “Relevant
Information”) to the government of the People’s Republic of China and
your auditor and/or special examiner (collectively, the “Receiving
Parties”);
(b) in
order to comply with any Mandated Disclosures, the Disclosing Parties shall be
permitted to disclose Relevant Information to the Receiving Parties; provided that: (i) you shall
disclose, and shall ensure that each other Disclosing Party discloses, only such
information as it is required by any Mandated Disclosure to disclose; (ii) each
Receiving Party is advised of the confidentiality obligations imposed on you
pursuant to Section 12.3 of the LLC Agreement, the commercial sensitivity of
such information and the need to keep such information confidential; (iii) you
shall use, and shall ensure that each other Disclosing Party uses, all
reasonable endeavours to ensure that a disclosure of Relevant Information to any
Receiving Party is made in
camera; and (iv) you shall use, and shall ensure that each other
Disclosing Party uses, unless prohibited by the Mandated Disclosures, all
reasonable endeavours to (A) immediately notify the Company of such Mandated
Disclosures, (B) inform the Company of the timing for making such disclosure
and, if the required disclosure is the subject of a request for such
information, provide the Company with a copy of such request or a detailed
summary of the information being requested, and (C) consult with the Company
regarding the response to such request;
(c) Sections
12.3(b) and 12.3(d) of the LLC Agreement shall not apply to you;
and
(d) to
the extent that a Disclosing Party receives a request for information not
expressly permitted to be disclosed above, the provisions of the confidentiality
obligations imposed on you in Section 12.3 of the LLC Agreement, subject to the
above, shall apply in all respects.
(e) The
Managing Member shall not make any disclosures with respect to your investment
in the Company pursuant to its right under Section 12.3(e) of the LLC Agreement
without your prior written consent, except that the Managing Member may disclose
to GGP, any other Member or any prospective Member that you have made an
investment in the Company.
12
16. Indemnification. The
Managing Member will notify you in writing as soon as reasonably practicable of
any claims for indemnification arising against the Company pursuant to Section
9.2 of the LLC Agreement of which it has actual knowledge.
17. The Initial
Members. Notwithstanding any provision in the LLC Agreement,
the Managing Member, itself and on behalf of the Company, confirms that you will
be deemed an Initial Member for the purposes of the LLC Agreement and this
letter agreement.
18. Notice of Additional
Members. The Managing Member agrees that it will furnish to
you the most recent amended Schedule A to the LLC
Agreement promptly after the end of each fiscal quarter in which Schedule A is
amended.
19. Non-Managing Member
Approvals. With respect to all matters submitted to a vote,
consent, or approval of the Non-Managing Members (and the investors in any
Parallel Investment Vehicle, if applicable), the Managing Member will notify you
in writing of the respective aggregate percentage interest (but not the
identity) of all Non-Managing Members (and such other investors) voting in
favor, consenting to or otherwise approving, and all Non-Managing Members (and
such other investors) voting against, refusing to consent or otherwise
disapproving any such matter.
20. Removal or Resignation of
Auditor. The Managing Member agrees to notify you in writing
in the event of the resignation or removal of the Company’s Independent
Accounting Firm and to request that such Independent Accounting Firm discuss
with you the reasons for such resignation or removal.
21. Transfer of Interest by
Brookfield. The Managing Member shall ensure that in
connection with any syndication by Brookfield of a portion of its Interest (or
its interest in any Parallel Investment Vehicle in which Brookfield is an
investor (a “Brookfield PIV”)) as
contemplated by Section 10.7 of the LLC Agreement (or the corresponding
provision of the organizational documents of any such Brookfield PIV), the
amount paid
by any Transferee
in respect of any portion of Brookfield’s Interest
(or Brookfield’s interest in such Brookfield PIV, as applicable) shall be not
less than the excess of (a) the pro rata share of the
aggregate cost to acquire the Investment and any other assets then held by the
Company or such Brookfield PIV, as applicable over (b) the sum of (x) the pro rata share of the Fair
Market Value of all of the liabilities of the Company or such Brookfield PIV, as
applicable, and (y) any distribution made to Brookfield.
22. Relationship between the
Managing Member and Brookfield. The Managing Member represents
and warrants that the general partner of the Managing Member is a wholly-owned
subsidiary of BAM.
23. Assets and Liabilities of
the Company. The Managing Member represents and warrants that
the Company has no assets or liabilities other than those that have been
disclosed to you in writing prior to the Initial Closing Date.
13
24. Exclusivity.
(a) The
Managing Member, itself and on behalf of the Company, hereby agrees that Section
12.4 of the LLC Agreement shall not apply to any of your Affiliates (other than
your Subsidiaries) from which you are separated by a reasonable and customary
information barrier and the voting and investment powers of which are exercised
independently from you with respect to the Investment.
(b) Notwithstanding
Section 12.4 of the LLC Agreement, but subject to any applicable restrictions
under the Restructuring Proposal, you and your Subsidiaries shall be permitted
to invest in voting common shares of GGP following the effective date of the
Plan; provided that
your holdings of such common shares, together with any holdings of your
Subsidiaries (including any indirect purchase or disposition, for example, by
means of swaps or other derivatives), shall not exceed three percent (3%) of the
aggregate outstanding amount of such common shares; provided, further, that you agree (i)
not to purchase or dispose of any such common shares if, at the time of such
purchase or disposition, the Person making the applicable investment decision is
in possession of any material non-public information relating to GGP on which it
is prohibited from trading under the Exchange Act; (ii) not to purchase or
dispose of any such common shares unless you have determined that such purchase
or disposition would not result in a disgorgement of profits under Section 16(b)
of the Exchange Act with respect to any Member other than you or your
Affiliates; (iii)
to notify the Managing Member of such purchase or disposition (including any
indirect purchase or disposition, for example, by means of swaps or other
derivatives), as applicable, and the amount and timing thereof, immediately
after such purchase or disposition, and in any event on the date thereof;
(iv) not to sell “short” any such common shares, unless you shall have
determined that such “short” sale is permitted under Section 16(c) of the
Exchange Act; (v) to reimburse
the Company for any expenses incurred by the Company or the Managing Member on
behalf of the Company, in connection with any amendment to any filings made on
behalf of the Company pursuant to Section 13 of the Exchange Act;
(vi) not to engage in any acquisition that would require compliance with
Regulation 14E of the Exchange Act with respect to GGP or any of its
Affiliates; and (vii) to vote any common shares held by you and your
Affiliates at all times in the same manner and in conformance with how the
Company votes its common shares in GGP. References in this paragraph
23 to any purchase or disposition of common shares of GGP shall be to the
purchase or disposition on a date or within a time period specified by the
relevant party.
(c) If
GGP (i) enters into an agreement with respect to a restructuring or the
financing thereof with any party other than the Consortium and (ii) such
agreement has been approved by the board of GGP and all interest-holders of GGP
whose approval of such agreement is required under the Plan (or, the court
overseeing the Chapter 11 case confirms that no such interest-holder approval is
required), then you will automatically be released from your obligations under
Section 12.4 of the LLC Agreement; provided that, in no event, subject to the next sentence, may you take
any action otherwise restricted under Section 12.4 of the LLC Agreement if such
action would result in the Consortium losing the benefit of its bid protection
pursuant to that certain letter agreement between BAM, Pershing Square, LP and certain affiliates
of Pershing Square, LP, dated as of February 24, 2010 (any such action, a
“Prohibited
Action”). The Managing Member shall,
within five (5) Business Days of deemed receipt of a request in writing by you
specifying in reasonable
detail the action(s) proposed to be taken, notify you in writing whether such
action, in its reasonable determination, either would be a Prohibited Action or
would not be a Prohibited Action. If the Managing Member fails to so
notify you within such time frame, or notifies you that
such proposed action(s) is not a Prohibited Action, then the Managing Member and
the Company shall not have, and agree not to bring, any cause of action or claim
against you for a breach of this paragraph 23(c) in connection with the taking of such
action(s).
14
(d) Subject
to the proviso to paragraph 23(c) above, your exclusivity obligations under
Section 12.4 of the LLC Agreement shall terminate on the date you cease to be a
Member following either (i) the sale pursuant to Section 10.1(b), 10.6,
10.8(d)(i) or 10.8(d)(ii) of the LLC Agreement of one hundred percent (100%) of
your Interest to any other Member or third-party purchaser which, in each case,
is not an Affiliate of yours or (ii) the distribution to you of one hundred
percent (100%) of your pro rata share
(determined in accordance with your Consortium Percentage Interest) of the
Investment and the other Assets of the Consortium pursuant to Section 10.8(a) or
10.8(b) of the LLC Agreement.
25. Commitment
Account. You and the Managing Member hereby agree that a
Commitment Account shall be established in respect of your Interest with
Deutsche Bank National Trust Company, for which Deutsche Bank National Trust
Company will serve as escrow agent. Furthermore, you agree to fund
such Commitment Account with an amount equal to your Available Commitment, as
determined pursuant to paragraph 29, below, on the date notified in writing by
the Managing Member to you so long as such notice is received by you not more
than fifteen (15) Business Days and not fewer than ten (10) Business Days prior
to such funding date.
26. Participation in any
Parallel Investment Vehicle. The Managing Member agrees that
you shall not be required to contribute capital to or hold any interest or
otherwise participate in any Parallel Investment Vehicle without your
consent.
27. Syndication. Upon
your reasonable request from time to time and, in any event, upon the earlier of
(i) such time that Brookfield determines that it no longer intends to consummate
any syndications pursuant to its right under Section 10.7 of the LLC Agreement
or the corresponding provision of the organizational documents of any Brookfield
PIV and (ii) the aggregate Commitments of BAM and its wholly-owned Subsidiaries
no longer represent more than the Brookfield Minimum Hold, Brookfield shall
certify in writing to you that Brookfield has effected all syndications of its
interests in the Company in compliance with the LLC Agreement and this letter
agreement and that there are no Side Letters in existence that have not been
provided to you.
28. Additional Requirements and
Conditions. In exercising its discretion pursuant to Sections
10.3(a)(i) and 10.3(c)(ii) of the LLC Agreement (including in connection with
the assignment contemplated in Section 12(g) of the Subscription Agreement and
paragraph 3(b) herein), the Managing Member agrees that it will act
reasonably.
15
29. Amendments. The
LLC Agreement shall not be amended in a manner that is adverse to you without
your written approval, and the Pershing Square Letter shall not be amended
without your written approval.
30. Adjustments Relating to
Total Return Swap. The Managing Member hereby agrees that, as
of any date of determination, your Available Commitment (including, for greater
certainty, for purposes of funding the Commitment Account held by the Company in
respect of your Interest) shall be your Available Commitment (as defined in the
LLC Agreement), reduced by an amount, which amount shall not be less than zero,
equal to the excess of (i) the Upfront Payment Amount (as defined in the Swap
Confirmation, as defined below) over (ii) any amounts paid to you on or before
such date under that certain GGP Loan Total Return Swap Confirmation, dated as
of the date hereof, between BAM and you (the “Swap
Confirmation”). For the purposes of calculating Transaction
Distribution Amount and Carried Interest under the LLC Agreement, the Upfront
Payment Amount (as defined in the Swap Confirmation) shall be treated as a
Capital Contribution made as of the date it was actually made. The Managing
Member and the Class B Member hereby agree that the amount of any Transaction
Distribution Amount or Carried Interest payable under the LLC Agreement on any
Distribution Date which is attributable to your Interest shall be reduced by the
Swap TDA&CI Amount (as defined below). The “Swap TDA&CI Amount” shall
mean, at any time of determination, an amount equal to (a) the aggregate amount
by which the Total Return Amounts (as defined in the Swap Confirmation) have
been reduced by any Transaction Distribution Amount or Carried Interest in
accordance with the Swap Confirmation, minus (b) the aggregate amount any
Transaction Distribution Amount and Carried Interest payable under the LLC
Agreement as reduced pursuant to the preceding sentence; provided that the Swap
TDA&CI Amount shall never be less than zero.
31. Standstill
Period. With respect to you, the definition of “Standstill
Period” (as defined in the LLC Agreement) is restated as follows solely for the
purposes of Sections 4.6 and 10.1(b) of the LLC Agreement:
“Standstill Period”
means (i) with respect to one-third (1/3) of the Interest of Stable Investment
Corporation, the period ending on the date that is six (6) months after the
effective date of the Plan, (ii) with respect to the next one-third (1/3) of the
Interest of Stable Investment Corporation, the period ending on the date that is
twelve (12) months after the effective date of the Plan and (iii) with respect
to the final one-third (1/3) of the Interest of Stable Investment Corporation,
the period ending on the date that is eighteen (18) months after the effective
date of the Plan.”
32. Prior
Agreements. Upon the execution of this letter agreement, the
Swap Confirmation, and the LLC Agreement, all agreements entered into prior to
the date hereof between you and your affiliates and the Managing Member
and its affiliates relating to GGP or its affiliates are hereby
terminated and no longer in effect.
16
33. Term. This
letter agreement shall remain in effect for as long as you or one of your
Permitted Transferees or your Affiliates is a Non-Managing Member (other than a
Defaulting Member); provided that, if you or one
of your Permitted Transferees or your Affiliates becomes a Defaulting Member,
only paragraphs 3, 4, 6-9, 11 and 14 of this letter agreement shall remain in
effect. If Brookfield Asset Management Private Institutional Capital
Adviser (Canada), LP is substituted as the Managing Member by one of its
Affiliates, it will procure the entry into of a new or amended letter agreement
by such Affiliate with you on substantially the same terms. If the
Class B Member is substituted as the class B member of the Company by one of its
Affiliates, it will procure the entry into of a new or amended letter agreement
by such Affiliate with you on substantially the same terms.
34. Governing
Law. Each of the Managing Member, the Class B Member and you
hereby agree that this letter agreement and the LLC Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of
Delaware without regard to principles of conflicts of law.
35. Counterparts. This
letter agreement may be executed in multiple counterparts which, taken together,
shall constitute one and the same agreement.
36. Binding
Effect. The Managing Member, itself and on behalf of the
Company, and the Class B Member hereby agree that upon the execution hereof, the
terms of this letter agreement shall be binding upon, and in full force and
effect against, the Company, the Managing Member and the Class B Member, and
shall apply, mutatis
mutandis, to any Parallel Investment Vehicle in which you participate,
notwithstanding any contrary provisions of the LLC Agreement, the Subscription
Agreement or the constituent documents of any Parallel Investment
Vehicle.
37. Conflicts. This
letter agreement supplements, and in some cases modifies, the LLC Agreement and,
to the extent of any conflict between the LLC Agreement and this letter
agreement, the terms hereof shall control. In all other respects, the
LLC Agreement shall control with respect to you.
38. Severability. Each
provision of this letter agreement shall be considered severable and if for any
reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those
portions of this letter agreement which are valid, enforceable and
legal.
39. Enforceability. The
execution and delivery of this letter agreement by the Managing Member, itself
and on behalf of the Company, and the Class B Member constitutes a
representation and warranty that (a) the Managing Member is authorized under the
terms of the LLC Agreement and otherwise to execute and deliver this letter
agreement, (b) the Class B Member is authorized under the terms of its governing
documents and otherwise to execute and deliver this letter agreement and (c)
this letter agreement constitutes a valid and binding obligation of the Managing
Member, the Company and the Class B Member, enforceable against the Managing
Member, the Company and the Class B Member in accordance with its
terms.
17
40. Entire
Agreement. This letter agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior letters and understandings, both written and verbal,
among the parties or any of them with respect to the subject matter
hereof.
41. Assignment. To
the fullest extent permitted by law, the rights and benefits inuring hereunder
may not be assigned and no such rights or benefits shall survive a Transfer of
your Interest to a third-party; provided that such rights and
benefits may be assigned in connection with any permitted Transfer of your
Interest to a Permitted Transferee or to your Affiliate; provided that the Transferee
assumes all of your obligations under this letter agreement and executes a
counterpart hereof or, in the discretion of the Managing Member, a joinder
agreement reasonably satisfactory to the Managing Member.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
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Please
confirm that the above correctly reflects our understanding and agreement with
respect to the foregoing matters by signing the enclosed copy of this letter and
returning such copy to the Managing Member.
Very
truly yours,
BROOKFIELD
ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISER (CANADA),
L.P.
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By:
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Brookfield
Private Funds Holdings Inc.,
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its
general partner
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
Xxxxx Xxxxxxx
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Title:
Vice President
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By:
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/s/
Xxxxx Xxxxxxxxxx
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Name:
Xxxxx Xxxxxxxxxx
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Title:
Vice
President
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BROOKFIELD
(US) INVESTMENTS LTD.
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By:
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/s/ Xxxx
Xxxxxxxx
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Name:
Xxxx Xxxxxxxx
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Title:
Director
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In the
event of a Closing (as defined in the Restructuring Proposal) and only in such
event:
BROOKFIELD
REP INVESTMENTS III LLC
By: Brookfield
Asset Management Private Institutional Capital Adviser (Canada),
L.P.,
its
managing member
By: Brookfield
Private Funds Holdings Inc.,
its
general partner
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By:
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/s/ Xxxxx
Xxxxxxx
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Name:
/s/ Xxxxx Xxxxxxx
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Title:
Vice President
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By:
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/s/ Xxxxx
Xxxx
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Name:
Xxxxx Xxxx
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Title:
Vice
President
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In the
event of a Restructuring Proposal Termination and only in such
event:
REP
INVESTMENTS LLC
By: Brookfield
Asset Management Private Institutional Capital Adviser (Canada),
L.P.,
its
managing member
By: Brookfield
Private Funds Holdings Inc.,
its
general partner
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By:
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/s/ Xxxxx
Xxxxxxx
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Name:
Xxxxx Xxxxxxx
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Title:
Vice President
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By:
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/s/ Xxxxx
Xxxxxxxxxx
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Name:
Xxxxx Xxxxxxxxxx
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Title:
Vice
President
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Agreed
and Accepted:
STABLE
INVESTMENT CORPORATION
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By:
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/s/
Xxx Xxxxxx
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Name:
Xxx Xxxxxx
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Title:
Executive Director and
President
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SIGNATURE
PAGE TO CIC LETTER AGREEMENT
