VOTING AGREEMENT
EXHIBIT
7
THIS
VOTING AGREEMENT (this “Agreement”) dated as of
October 25, 2010 is entered into by and among REP Investments LLC, a Delaware
limited liability company (“REP”), Brookfield REP
Investments II LLC, a Delaware limited liability company (“REP II”), Brookfield REP
Investments III LLC, a Delaware limited liability company (“REP III”), Brookfield REP
Investments IV-A LLC, a Delaware limited liability company (“REP IV-A”), Brookfield REP
Investments IV-B LLC, a Delaware limited liability company (“REP IV-B”), Brookfield REP
Investments IV-C LLC, a Delaware limited liability company (“REP IV-C”), Brookfield REP
Investments IV-D LLC, a Delaware limited liability company (“REP IV-D”), Brookfield REP
Investments V LP, a Delaware limited partnership (“REP V”, and collectively with
REP, REP II, REP III, REP IV-A, REP IV-B, REP IV-C and REP IV-D, the “Consortium”, and each, a
“Parallel Investment
Vehicle”) and Brookfield Asset Management Private Institutional Capital
Adviser (Canada), L.P., a Manitoba limited partnership, in its capacity as the
managing member or general partner, as applicable, of each Parallel Investment
Vehicle (the “Managing
Member”).
WHEREAS, in accordance with
Section 4.1(a) of the Governing Agreements of the Parallel Investment
Vehicles, each of the Parallel Investment Vehicles has agreed to enter into a
voting rights agreement with respect to certain matters requiring a vote,
consent or approval under its respective Governing Agreement; and
WHEREAS, the parties hereto
wish to set forth certain procedures and requirements governing such votes, consents,
approvals and determinations, desire to facilitate the voting arrangements set
forth herein, and desire to bind themselves to the outcomes hereunder by
agreeing to the terms and conditions set forth below.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Defined
Terms. Capitalized terms used herein and not defined herein
shall have the meanings set forth in the respective limited liability company or
limited partnership agreement of each of REP, REP II, REP III, REP IV-A, REP
IV-B, REP IV-C, REP IV-D and REP V, as applicable, and as each may be amended,
supplemented or otherwise modified from time to time (each, a “Governing Agreement,” and
collectively, the “Governing
Agreements”).
2. Votes,
Consents, Approvals and Determinations.
(a) Each
of REP, REP II, REP III, REP IV-A, REP IV-B, REP IV-C, REP IV-D and REP V hereby
acknowledges that it is a “Parallel Investment Vehicle”, that such entities
together constitute the “Consortium” as of the date hereof, and that this
Agreement is the “Voting Agreement”, as such terms are defined in the Governing
Agreements.
(b) Each
Parallel Investment Vehicle hereby agrees that all the various votes, consents,
approvals and determinations that are required or permitted to be put forth to
the Tier One Parallel Investment Vehicles pursuant to the Governing Agreements
shall be done in compliance with the terms of the Governing Agreements
(including with respect to required percentages set forth therein) pursuant to
this Agreement. Each Parallel Investment Vehicle further hereby
agrees to be bound by, and hereby irrevocably directs the Managing Member to
cause such Parallel Investment Vehicle to effect the outcomes of all Tier One
Parallel Investment Vehicle votes, consents, approvals and determinations as
determined pursuant to this Agreement.
3. Standard
of Care. Except as expressly provided to the contrary in this
Agreement, and except for the implied contractual covenant of good faith and
fair dealing, to the fullest extent permitted by law, the Parallel Investment
Vehicles hereby agree and acknowledge that the Tier One Parallel Investment
Vehicles do not owe any fiduciary or other duties to the Parallel Investment
Vehicles, in their capacity as Tier One Parallel Investment
Vehicles.
4. Expense
and Liability Sharing. Each Parallel
Investment Vehicle hereby acknowledges and confirms for the benefit of each
other Parallel Investment Vehicle and the Managing Member its obligations
relating to sharing of costs, expenses, liabilities and obligations as expressly
set forth in the Governing Agreements, including Sections 4.7(b) and 4.12(c)
thereof and any potential liabilities, obligations and claims against REP under
the Restructuring Proposal. Subject to and in accordance with any
applicable limitations in the Governing Agreements (including limitations on the
liability of Non-Managing Members in such documents), each Parallel Investment
Vehicle, including REP, further acknowledges that all liabilities and claims
(known or unknown as of the date of this Agreement) against REP relating to the
period prior to the date hereof and the establishment of the Parallel Investment
Vehicles shall be shared among all the Parallel Investment Vehicles in
accordance with their respective Consortium Percentage Interests. If
any Parallel Investment Vehicle is called upon or is otherwise exposed to pay
and actually does pay amounts in excess of its Consortium Percentage Interest
thereof, then each other Parallel Investment Vehicle does hereby absolutely,
irrevocably and unconditionally agree to reimburse such Parallel Investment
Vehicle upon demand, and does hereby authorize and direct the Managing Member to
take reasonable actions in furtherance thereof, an amount such that after giving
effect to such reimbursement, each Parallel Investment Vehicle shall have borne
only its Consortium Percentage Interest thereof.
5. Exculpation. To
the fullest extent permitted by applicable law, each Parallel Investment Vehicle
hereby acknowledges and confirms for the benefit of each other Parallel
Investment Vehicle, the Managing Member, the Members or any of their Affiliates
the limitations on liability and duties (and carve-outs therefrom) of
Indemnified Parties (as defined below) as expressly set forth in the Governing
Agreements, including Section 9.1 thereof.
6. Indemnification. To
the fullest extent permitted by applicable law, but subject to the terms and
limitations of the Governing Agreements, each Parallel Investment Vehicle hereby
acknowledges and confirms for the benefit of each Indemnified Party (as defined
below) its obligations to indemnify and hold harmless, on a joint and several
basis, the Managing Member of each Parallel Investment Vehicle, any Affiliate of
such Managing Member, any member of the Board of Directors of any Parallel
Investment Vehicle, any officer of any Parallel Investment Vehicle and each of
their respective Constituent Members, representatives, employees, managers,
consultants or agents (each, an “Indemnified Party”, each of
which shall be a third-party beneficiary of this Agreement solely for purposes
of this Section
6) as set forth in the Governing Agreements, including Section 9.2
thereof; provided,
however, that in no
event shall any Parallel Investment Vehicle be liable for more than its pro rata
share of any indemnification obligation hereunder, based on the aggregate
Consortium Percentage Interest of the members of such Parallel Investment
Vehicle. The provisions set forth in this Section 6 shall
survive the termination of the Parallel Investment Vehicles and this
Agreement.
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7. Miscellaneous.
(a) Entire
Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof, and any and all
other written or oral agreements relating to the subject matter hereof existing
between the parties are expressly canceled.
(b) Successors and
Assigns. Except as otherwise provided herein, this Agreement
and the rights and obligations of the parties hereunder shall inure to the
benefit of, and be binding upon, the parties’ respective successors, assigns and
legal representatives. Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
(c) Amendments and
Waivers. No term of this Agreement may be amended or waived
without the prior written consent of all of the Tier One Parallel Investment
Vehicles. Any amendment or waiver effected in accordance with this
Section 7(c) shall be binding
upon the Parallel Investment Vehicles, and each of their respective successors
and assigns. For the avoidance of doubt, the foregoing shall
not under any circumstances impact the requisite voting percentages under the
Governing Agreements.
(d) Severability. If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in good
faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and
(iii) the balance of the Agreement shall be enforceable in accordance with
its terms.
(e) Governing Law. This
Agreement and all acts and transactions pursuant hereto and the rights and
obligations of the parties shall be governed, construed and interpreted in
accordance with the laws of the State of Delaware, without giving effect to
principles of conflicts of law. Each of the parties
hereto agrees that this agreement involves at least U.S. $100,000.00 and that
this Agreement has been entered into in express reliance upon 6 Del. C. § 2708. Each
of the parties hereto irrevocably and unconditionally confirms and agrees that
it is and shall continue to be (i) subject to the jurisdiction of the courts of
the State of Delaware and of the federal courts sitting in
the State of Delaware, and (ii) subject to service of process
in the State of Delaware.
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(f) Counterparts. This
Agreement may be executed in two (2) or more counterparts, each of which shall
be deemed an original and all of which together shall constitute one and the
same instrument.
(g) Titles and
Subtitles. The titles and
subtitles used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
[Signature
Pages Follow]
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The
Parties have executed this Voting Agreement as of the date first written
above.
REP
INVESTMENTS LLC
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By:
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Brookfield
Asset Management Private Institutional Capital Adviser (Canada), L.P., its
managing member
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By:
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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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BROOKFIELD
REP INVESTMENTS II LLC
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By:
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Brookfield
Asset Management Private Institutional Capital Adviser (Canada), L.P., its
managing member
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By:
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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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BROOKFIELD
REP INVESTMENTS III LLC
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By:
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Brookfield
Asset Management Private Institutional Capital Adviser (Canada), L.P., its
managing member
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By:
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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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BROOKFIELD
REP INVESTMENTS IV-A LLC
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By:
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Brookfield
Asset Management Private Institutional Capital Adviser (Canada), L.P., its
managing member
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By:
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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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Signature
Page to Voting Agreement
BROOKFIELD
REP INVESTMENTS IV-B LLC
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By:
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Brookfield
Asset Management Private Institutional Capital Adviser (Canada), L.P., its
managing member
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By:
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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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BROOKFIELD
REP INVESTMENTS IV-C LLC
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By:
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Brookfield
Asset Management Private Institutional Capital Adviser (Canada), L.P., its
managing member
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By:
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Brookfield
Private Funds Holdings Inc., its general
partner
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BROOKFIELD
REP INVESTMENTS IV-D LLC
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By:
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Brookfield
Asset Management Private Institutional Capital Adviser (Canada), L.P., its
managing member
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By:
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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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BROOKFIELD
REP INVESTMENTS V LP
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By:
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Brookfield
Asset Management Private Institutional Capital Adviser (Canada), L.P., its
general partner
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By:
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Brookfield
Private Funds Holdings Inc., its general
partner
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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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Signature Page to Voting Agreement
