UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

Form 6-K

 


 

REPORT OF FOREIGN PRIVATE ISSUER

PURSUANT TO RULE 13a-16 OR 15d-16

UNDER THE SECURITIES EXCHANGE ACT OF 1934

 

For the month of August 2019

 

Commission File Number:  001-35505

 


 

BROOKFIELD PROPERTY PARTNERS L.P.

(Exact name of registrant as specified in its charter)

 

73 Front Street, Hamilton, HM 12 Bermuda

(Address of principal executive office)

 

Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.

 

Form 20-F x                   Form 40-F o

 

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): o

 

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): o

 

The information contained in Exhibits 1.1, 3.1, 3.2, 4.1, 5.1, and 8.1 of this Form 6-K are incorporated by reference into the registrant’s registration statement on Form F-3 (File No. 333-218503) .

 

 

 


 

DOCUMENTS FILED AS PART OF THIS FORM 6-K

 

See the Exhibit List to this Form 6-K.

 

******

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

Date: August 20, 2019

BROOKFIELD PROPERTY PARTNERS L.P.

 

By its general partner, Brookfield Property Partners Limited

 

 

 

By:

/s/ Jane Sheere

 

Name:

Jane Sheere

 

Title:

Secretary

 

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EXHIBIT INDEX

 

EXHIBIT

 

DESCRIPTION

 

 

 

1.1

 

Underwriting Agreement, dated August 13, 2019, among the underwriters named therein and Brookfield Property Partners L.P.

 

 

 

3.1

 

Third Amendment, dated August 20, 2019, to the Second Amended and Restated Limited Partnership Agreement of Brookfield Property Partners L.P., dated August 8, 2013.

 

 

 

3.2

 

Third Amendment, dated August 20, 2019, to the Fourth Amended and Restated Limited Partnership Agreement of Brookfield Property L.P., dated February 20, 2019.

 

 

 

4.1

 

Form of 6.375% Class A Cumulative Redeemable Perpetual Preferred Units, Series 2 Certificate.

 

 

 

5.1

 

Opinion of Appleby (Bermuda) Limited, dated August 20, 2019, relating to certain matters under the laws of Bermuda.

 

 

 

8.1

 

Opinion of Torys LLP, dated August 20, 2019, relating to tax matters.

 

 

 

23.1

 

Consent of Appleby (Bermuda) Limited (included as part of Exhibit 5.1).

 

 

 

23.2

 

Consent of Torys LLP (included as part of Exhibit 8.1).

 

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Exhibit 1.1

 

EXECUTION VERSION

 

Brookfield Property Partners L.P.

 

6.375% Class A Cumulative Redeemable Perpetual Preferred Units, Series 2

 

Underwriting Agreement

 

August 13, 2019

 

Wells Fargo Securities, LLC

BofA Securities, Inc.

J.P. Morgan Securities LLC

RBC Capital Markets, LLC

 

As Representatives of the several Underwriters listed in Schedule 1 hereto

 

c/o BofA Securities, Inc.

One Bryant Park

New York, New York 10036

 

c/o Wells Fargo Securities, LLC

550 South Tryon Street, 5th Floor

Charlotte, NC 28202

 

c/o J.P. Morgan Securities LLC

383 Madison Avenue

New York, New York 10179

 

c/o RBC Capital Markets, LLC

200 Vesey Street, 8 th  Floor

New York, New York 10281

 

Ladies and Gentlemen:

 

Brookfield Property Partners L.P., a Bermuda exempted limited partnership (the “ Company ”), proposes to issue and sell to the several underwriters listed in Schedule 1 hereto (the “ Underwriters ”), for whom you are acting as representatives (the “ Representatives ”), an aggregate of 10,000,000 of 6.375% Class A Cumulative Redeemable Perpetual Preferred Units, Series 2 of the Company (the “ Units ”), representing preferred limited partner interests in the Company with a liquidation preference of $25.00 (the “ Series 2 Preferred Units ”).

 

The Units are to be issued pursuant to a third amendment (the “ BPY LPA Amendment ”) to be dated August 20, 2019, to the Second Amended and Restated Limited Partnership Agreement of the Company by and among Brookfield Property Partners Limited, a Bermuda exempted company (the “ General Partner ”), and the limited partners party thereto, dated August 8, 2013, as amended on November 5, 2015 and March 21, 2019 (as further amended by the BPY LPA Amendment, the “ Amended BPY LPA ”). In connection with the issuance of the Units, the Company

 


 

intends to contribute the net proceeds from the sale of the Units to Brookfield Property L.P., a Bermuda exempted limited partnership (the “ Property Partnership ” and together with the Company, “ Brookfield Parties ”). In consideration of the Company’s contribution, the Property Partnership will issue to the Company a new series of Class A preferred limited partnership units of the Property Partnership with economic terms designed to mirror those of the Units (the “ Mirror Units ”) pursuant to an amendment, to be dated August 20, 2019 (the “ Property Partnership LPA Amendment ”) to the Property Partnership’s Fourth Amended and Restated Limited Partnership Agreement, dated February 20, 2019, as amended on March 21, 2019 and April 28, 2019  (as further amended by the Property Partnership LPA Amendment, the “ Amended Property Partnership LPA ”). The Amended BPY LPA and Amended Property Partnership LPA are together referred to hereinafter as the “ Transaction Documents .”

 

To the extent there are no additional Underwriters listed on Schedule 1 other than you, the term Representatives as used herein shall mean you, as Underwriters, and the terms Representatives and Underwriters shall mean either the singular or plural as the context requires.  The use of the neuter in this Agreement shall include the feminine and masculine wherever appropriate.

 

The Company hereby confirms its agreement with the several Underwriters concerning the purchase and sale of the Units, as follows:

 

1.                                       Registration Statement .  The Company has prepared and filed with the Securities and Exchange Commission (the “ Commission ”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “ Securities Act ”), a post-effective amendment (the “ Post-Effective Amendment ”) to the Company’s automatic shelf registration statement, as defined under Rule 405 of the Securities Act (File No. 333-218503), on Form F-3ASR and any other necessary post-effective amendments thereto, including a related Base Prospectus (the “ Base Prospectus ”), relating to certain securities of the Company, including the Units. Such registration statement and Post-Effective Amendment, and any other post-effective amendments thereto, became effective upon filing. Such registration statement and Post-Effective Amendment, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement and Post-Effective Amendment at the time of its effectiveness (“ Rule 430 Information ”), is referred to herein as the “ Registration Statement ”; and as used herein, the term “ Preliminary Prospectus ” means each prospectus included in such registration statement (and any amendments thereto, including the Post-Effective Amendment) before effectiveness, any prospectus filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term “ Prospectus ” means the prospectus in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Units.  Any reference in this underwriting agreement (this “ Agreement ”) to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be , and any reference to “amend”, “amendment” or “supplement” with respect to the Registration Statement, any Preliminary

 

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Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “ Exchange Act ”) that are deemed to be incorporated by reference therein.  Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.

 

At or prior to the Applicable Time (as defined below), the Company had prepared the following information (collectively with the pricing information set forth on Annex A, the “ Pricing Disclosure Package ”):  a Preliminary Prospectus dated August 13, 2019 and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.

 

Applicable Time ” means 3:15 P.M., New York City time, on August 13, 2019.

 

2.                                       Purchase of the Units by the Underwriters .

 

(a)                                  The Company agrees to issue and sell the Units to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective number of Units set forth opposite such Underwriter’s name in Schedule 1 hereto at a purchase price per Unit of $24.2125 (the “ Purchase Price ”) from the Company the respective number of Units set forth opposite such Underwriter’s name in Schedule 1 hereto.

 

(b)                                  The Company understands that the Underwriters intend to make a public offering of the Units, and initially to offer the Units on the terms set forth in the Pricing Disclosure Package and the Prospectus.  The Company acknowledges and agrees that the Underwriters may offer and sell Units to or through any affiliate of an Underwriter.

 

(c)                                   Payment for the Units shall be made by wire transfer in immediately available funds to the account specified by the Company to the Representatives at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY, at 10:00 A.M., New York City time, on August 20, 2019, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing.  The time and date of such payment for the Units is referred to herein as the “ Closing Date.

 

Payment for the Units to be purchased on the Closing Date shall be made against delivery to the Representatives for the respective accounts of the several Underwriters of the Units purchased on such date with any transfer taxes payable in connection with the sale of such Units duly paid by the Company.  Delivery of the Units shall be made through the facilities of The Depository Trust Company (“ DTC ”) unless the Representatives shall otherwise instruct and the Units shall be registered in such names and in such denominations as the Representatives shall request. Any certificates for the Units will be made available for inspection and packaging by the Representatives at the office of DTC or its designated custodian not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.

 

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(d)                                  The Company acknowledges and agrees that the Representatives and the other Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Units contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters).  Additionally, neither the Representatives nor any other Underwriters are advising the Company or any other person as to any legal, tax, investment,  accounting or regulatory matters in any jurisdiction with respect to the offering of the Units contemplated hereby (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters).  The Company agrees that it will not claim that, in connection with the purchase and sale of the Units pursuant to the Agreement or the process leading thereto, the Underwriters, or any of them, has advised the Company or any other person as to any legal, tax, investment, accounting, regulatory or any other matters in any jurisdiction or owes a fiduciary or similar duty to the Company.  The Underwriters and their respective affiliates may be engaged in a broad range of transactions directly or indirectly involving the Company and may in some cases have interests that differ from or conflict with those of the Company.  The Company hereby consents to each Underwriter acting in the capacities described in the preceding sentence, and the parties to this Agreement acknowledge that any such transaction is a separate transaction from the sale of the Units contemplated hereby and that no Underwriter acting in any such capacity owes any obligation or duty to any other party hereto with respect to or arising from its acting in such capacity, except to the extent set forth in any prior separate agreement relating to such other transaction.  The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor the other Underwriters shall have any responsibility or liability to the Company with respect thereto.  Any review by the Representatives and the other Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company.

 

3.                                       Representations and Warranties of the Company .  The Company represents and warrants to each Underwriter that:

 

(a)                                  Preliminary Prospectus.   No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.

 

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(b)                                  Pricing Disclosure Package .  The Pricing Disclosure Package as of the Applicable Time did not, and as of the Closing Date, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.  No statement of material fact included in the Prospectus has been omitted from the Pricing Disclosure Package and no statement of material fact included in the Pricing Disclosure Package that is required to be included in the Prospectus has been omitted therefrom.

 

(c)                                   Issuer Free Writing Prospectus.  Other than the Registration Statement, the Preliminary Prospectus and the Prospectus, no Brookfield Party (including its agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and no Brookfield Party will prepare, make, use, authorize, approve or refer to any “written communication” (as defined under Rule 405 of the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Units (each such communication by any such Brookfield Party or its agents and representatives (other than a communication referred to in clause (i) below) an “ Issuer Free Writing Prospectus ”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Annex A hereto, each electronic road show and any other written communications approved in writing in advance by the Representatives.  Each such Issuer Free Writing Prospectus complies in all material respects with the Securities Act, has been or will be (within the time period specified under Rule 433 of the Securities Act) filed in accordance with the Securities Act (to the extent required thereby) and does not conflict with the information contained in the Registration Statement or the Pricing Disclosure Package, and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and as of the Closing Date, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus, Preliminary Prospectus or Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Issuer Free Writing Prospectus, Preliminary Prospectus or Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.  The term sheet substantially in the form of Annex B hereto has been reviewed and approved by the Company.

 

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(d)                                  Registration Statement and Prospectus.   The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company.  No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Units has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any post-effective amendment thereto, the Registration Statement and any such post-effective amendment complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will comply in all material respects with the Securities Act and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.

 

(e)                                   Incorporated Documents.   The documents incorporated by reference and any further documents so filed and incorporated by reference prior to the completion of the distribution of the Units, in the Registration Statement, the Prospectus and the Pricing Disclosure Package, when they were filed with the Commission conformed in all material respects to the requirements of the Exchange Act, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Pricing Disclosure Package, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

(f)                                    WKSI; Foreign Private Issuer .  (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto, if any, for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person

 

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acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Units in reliance on the exemption of Rule 163 under the Securities Act, and (iv) as of the Applicable Time, the Company was and is a “well-known seasoned issuer” (as defined under Rule 405 of the Securities Act) and the Company was, and is not, an “ineligible issuer,” as defined under Rule 405 of the Securities Act.  The Company has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act or will pay such fee within the time period required by such rule (without giving effect to the proviso therein) and in any event prior to the Closing Date. The Company is a “foreign private issuer” as defined under Rule 405 of the Securities Act.

 

(g)                                   Financial Statements of the Company and its subsidiaries.   The financial statements (including the related notes thereto) included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of the entities purported to be shown as of the dates indicated and the combined results of their operations and the combined changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with International Financial Reporting Standards (“ IFRS ”) as issued by the International Accounting Standards Board applied on a consistent basis throughout the periods covered thereby, and any supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; and the other financial information included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus has been derived from the accounting records of the Company and its consolidated subsidiaries and presents fairly the information shown thereby; all disclosures included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus regarding “non-IFRS financial measures” (as such term is defined by the rules and regulations of Commission, including with respect to foreign private issuers) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable; and the pro forma financial information and the related notes thereto included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus have been prepared in accordance with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and the assumptions underlying such pro forma financial information are reasonable and are set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.

 

(h)                                  Financial Statements of Brookfield Property REIT and its subsidiaries.   The financial statements (including the related notes thereto) of Brookfield Property REIT Inc. (“ Brookfield Property REIT ”) and its consolidated subsidiaries included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of the entities purported to be shown as of the dates indicated and the combined results of their operations and the combined changes in their cash flows for the periods

 

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specified; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods covered thereby, and any supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; and the other financial information related to Brookfield Property REIT included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus has been derived from the accounting records of Brookfield Property REIT and its consolidated subsidiaries and presents fairly the information shown thereby.

 

(i)                                      No Material Adverse Change.   Since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) there has not been any material change in the capital stock (other than (x) the exchange of shares of Class A Common Stock of Brookfield Property REIT for limited partnership units of the Company, as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and (y) the issuance of limited partnership units upon exercise of stock options described as outstanding in, and the grant of options and awards under existing equity incentive plans described in, the Registration Statement, the Pricing Disclosure Package and the Prospectus), short-term debt or long-term debt of the Company or any of its subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole; (iii) there has been no dividend or distribution of any kind declared (other than as publicly disclosed), paid or made by the Company on any class of series of its securities; and (iv) neither the Company nor any of its subsidiaries has sustained any loss or interference with its business that is material to the Company and its subsidiaries taken as a whole and that is either from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in the case of each of clauses (i) to (iv) above, as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus.

 

(j)                                     Organization and Good Standing.   Each of the Brookfield Parties and each of their respective subsidiaries (collectively, the “ Brookfield Entities ”) have been duly organized and are validly existing and in good standing (to the extent such concept exists in the jurisdiction in question) under the laws of their respective jurisdictions of organization, are duly qualified to own, lease and operate their properties and do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and

 

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have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the business, properties, management, financial position, partners’ or members’ capital, stockholders’ equity or results of operations of the Brookfield Entities taken as a whole or on the performance of the Company of its obligations under this Agreement (a “ Material Adverse Effect ”).  The subsidiaries listed in Schedule 2 to this Agreement are the only “significant subsidiaries” (as defined in Section 14 hereof) of the Company.

 

(k)                                  Capitalization of the Company and the General Partner .  The General Partner is the sole general partner of the Company and has a non-economic general partner interest in the Company; such non-economic general partner interest has been duly authorized and validly issued, and the General Partner owns such non-economic general partner interest free and clear of all liens, encumbrances, equities or claims. The Company has an authorized capitalization as set forth in the Pricing Disclosure Package and the Prospectus under the heading “Consolidated Capitalization.” As of July 30, 2019, approximately 435,031,486 limited partnership units (867,680,591 limited partnership units assuming the exchange of all of the Company’s redemption-exchange units) and 138,875 general partner units were issued and outstanding as fully-paid and non-assessable units of the Company. All of the issued and outstanding limited partnership units and general partner units in the capital of the Company have been duly authorized and validly issued and are fully-paid (to the extent required under the Amended BPY LPA) and non-assessable and have been issued in compliance with all applicable Bermuda laws (except where the failure to do so would not have a Material Adverse Effect), and none of the outstanding general partnership units or limited partnership units in the capital of the Company were issued in violation of the preemptive or other similar rights of any securityholder of the Company. All of the issued and outstanding shares in the capital of the General Partner have been duly authorized and validly issued and are fully paid and non-assessable and have been issued in compliance with all applicable Bermuda laws (except where the failure to do so would not have a Material Adverse Effect), and none of the outstanding shares in the capital of the General Partner were issued in violation of the preemptive or other similar rights of any securityholder of the General Partner. All distributions, including the distributions on all other securities of the Company ranking prior to or on parity with the Units with respect to the payment of distributions in respect of periods ending on or prior to the date hereof have been declared and paid or set apart for payment.

 

(l)                                      Capitalization of Brookfield Entities .  Except in each case as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus or as would not reasonably be expected to have a Material Adverse Effect, (i) there are no outstanding rights (including, without limitation, preemptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock, partnership interests, partnership units, member interests or other equity interest in the Brookfield Entities, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any capital stock, partnership

 

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interests, partnership units, member interests or other equity interests of the Brookfield Entities, any such convertible or exchangeable securities or any such rights, warrants or options; and (ii) all the outstanding shares of capital stock, partnership interests, partnership units, member interests or other equity interests of each subsidiary that are owned, directly or indirectly, by the Company have been duly and validly authorized and issued, are fully paid and non-assessable (except, in the case of any foreign subsidiary, for directors’ qualifying shares) and are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party.

 

(m)                              No Preemptive Rights .  Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, any capital stock, partnership interests, partnership units, member interests or other equity interests (including the Units and the Mirror Units) or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any capital stock, partnership interests, partnership units, member interests or other equity interests (including the Units and the Mirror Units) of the Brookfield Entities, any such convertible or exchangeable securities or any such rights, warrants or option of any of the Brookfield Entities, as applicable, and there are no outstanding options, warrants or other securities exercisable for, or any other securities convertible into or exchangeable for, any securities of any Brookfield Entities.

 

(n)                                  The Units .  The Units and the limited partner interests represented thereby have been duly authorized and, when issued and delivered and paid for as provided herein, will be duly and validly issued, will be fully paid and nonassessable, and will conform to the descriptions thereof in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and the issuance of the Units is not subject to any preemptive or similar rights.

 

(o)                                  The Mirror Units . The Mirror Units and the limited partner interests represented thereby have been duly authorized and, when issued and delivered, will be validly issued, and will conform in all material respects to the description thereof contained in the Registration Statement, Pricing Disclosure Package and the Prospectus, and the issuance of such Mirror Units is not subject to any preemptive or similar rights.

 

(p)                                  Due Authorization.   The Company has full right, power and authority to execute and deliver this Agreement and each Transaction Document to which it is a party and to perform its obligations hereunder and thereunder, as applicable; and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and each of the Transaction Documents, as applicable, and the consummation by it of the transactions contemplated hereby and thereby, as applicable, has been duly and validly taken.

 

(q)                                  Underwriting Agreement.  This Agreement has been duly authorized, executed and delivered by the Company and conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.

 

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(r)                                     BPY LPA Amendment.   The BPY LPA Amendment, in effect as of the Closing Date, has been duly authorized, executed and delivered by the General Partner and constitutes the valid and legally binding agreement of the General Partner, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability, and the Amended BPY LPA conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.

 

(s)                                    Property Partnership LPA Amendment .  The Property Partnership LPA Amendment, in effect as of the Closing Date, has been duly authorized, executed and delivered by the parties thereto and such agreement constitutes a valid and legally binding agreement of the parties thereto enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability, and the Amended Property Partnership LPA conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.

 

(t)                                     No Violation or Default.   None of the Brookfield Parties is (i) in violation of its limited partnership agreement or bye-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its property or assets or any of its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.

 

(u)                                  No Conflicts.  The execution, delivery and performance by the Company of this Agreement and each of the Transaction Documents, as applicable, the issuance and sale of the Units and the consummation of the transactions contemplated by this Agreement, each of the Transaction Documents or the Pricing Disclosure Package and the Prospectus did not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in the termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any property, right or asset of any Brookfield Entity pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any Brookfield Entity is a party or by which any of them is bound or to which any property, right or asset of any Brookfield Entity is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or any of its subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such

 

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conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the aggregate, a Material Adverse Effect.

 

(v)                                  No Consents Required.   No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement or each of the Transaction Documents, the issuance and sale of the Units being delivered on the Closing Date and the consummation of the transactions contemplated by this Agreement or the Transaction Documents, except for the registration of the Units under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of the Units by the Underwriters.

 

(w)                                Legal Proceedings.   Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no legal, governmental or regulatory investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings (“ Actions ”) pending to which any Brookfield Entity is or may be a party or to which any property of any of the Brookfield Entities is or may be the subject that, individually or in the aggregate, if determined adversely to the applicable Brookfield Entity, would reasonably be expected to have a Material Adverse Effect; no such Actions are threatened or, to the knowledge of the Brookfield Entities, contemplated by any governmental or regulatory authority or threatened by others; and (i) there are no current or pending Actions that are required under the Securities Act to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus that are not so described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and (ii) there are no contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement, the Pricing Disclosure Package or the Prospectus that are not so filed as exhibits to the Registration Statement or described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.

 

(x)                                  Independent Accountants of the Company and its subsidiaries .  Deloitte LLP, who has certified certain financial statements of the Company and its subsidiaries, in the Registration Statement, the Pricing Disclosure Package and the Prospectus and whose reports are filed with the Commission as part of the Registration Statement is each, and was during the periods covered by such reports, an independent registered public accounting firm with respect to the entities purported to be covered thereby within the applicable rules and regulations adopted by the Commission and the Rules of Professional Conduct of the Chartered Professional Accountants of Ontario and as required by the Securities Act. Within the three years preceding the date hereof, there has not been any reportable event within the meaning of National Instrument 51-102 — Continuous Disclosure Obligations with Deloitte LLP.

 

(y)                                  Independent Accountants of Brookfield Property REIT and its subsidiaries .  Deloitte & Touche LLP, who has certified certain financial statements of

 

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Brookfield Property REIT (formerly GGP Inc.), in the Registration Statement, the Pricing Disclosure Package and the Prospectus and whose reports are filed with the Commission as part of the Registration Statement is each, and was during the periods covered by such reports, an independent registered public accounting firm with respect to the entities purported to be covered thereby within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.

 

(z)                                   Title to Real and Personal Property .  The Company and its subsidiaries have good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of real and personal property that are material to the respective businesses of the Company and its subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries or (ii) could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

 

(aa)                           No Undisclosed Relationships .  No relationship, direct or indirect, exists between or among any of the Brookfield Parties or any of their respective subsidiaries, on the one hand, and the directors, officers, partners, stockholders, customers, tenants, suppliers, members, investors or other affiliates of the Brookfield Parties or any of their respective subsidiaries, on the other, that is required by the Securities Act to be described in each of the Registration Statement and the Prospectus and that is not so described in such documents and in the Pricing Disclosure Package.

 

(bb)                           Investment Company Act .  Each of the Brookfield Parties is not and, after giving effect to the offering and sale of the Units and the application of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (the “ Investment Company Act ”).

 

(cc)                             Taxes.   The Company and its subsidiaries have paid all U.S. federal, state, local and non-U.S. taxes and filed all tax returns required to be paid or filed through the date hereof, except assessments against which appeals have been or will be promptly taken in good faith and as to which adequate reserves have been provided in accordance with IFRS, and except where the failure to pay, individually or in the aggregate, would not reasonably be expected have a Material Adverse Effect. The Company is and has at all times been properly classified as a partnership (or disregarded entity) for U.S. federal income tax purposes and not as an association or a publicly traded partnership taxable as a corporation under Section 7704 of the Code, and the Company’s proposed method of operation will allow the Company to continue to qualify as a partnership for United States federal income tax purposes and not as an association or publicly traded partnership taxable as a corporation under Section 7704 of the Code. Brookfield Property REIT has been organized and operated in conformity with the requirements for qualification and taxation as a REIT commencing with its U.S. federal income taxable

 

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year ended December 31, 2016, and Brookfield Property REIT’s current organization and current and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT for the taxable year ending December 31, 2019 and thereafter.

 

(dd)                           Licenses and Permits.   The Company and its subsidiaries possess all licenses, sub-licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect; and except as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such license, sub-license, certificate, permit or authorization or has any reason to believe that any such license, sub-license, certificate, permit or authorization will not be renewed in the ordinary course.

 

(ee)                             No Labor Disputes.   No labor disturbance by or dispute with employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is contemplated or threatened, and the Company is not aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except as would not reasonably be likely to have a Material Adverse Effect.

 

(ff)                               Certain Environmental Matters .  (i) The Company and its subsidiaries (x) are in compliance with all, and have not violated any, applicable federal, state, local and foreign laws (including common law), rules, regulations, requirements, decisions, judgments, decrees, orders and other legally enforceable requirements relating to pollution or the protection of human health or safety, the environment, natural resources, hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “ Environmental Laws ”); (y) have received and are in compliance with all, and have not violated any, permits, licenses, certificates or other authorizations or approvals required of them under any Environmental Laws to conduct their respective businesses; and (z) have not received notice of any actual or potential liability or obligation under or relating to, or any actual or potential violation of, any Environmental Laws, including for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice, and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Company or its subsidiaries, except in the case of each of (i) and (ii) above, for any such matter as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as described in each of the Pricing Disclosure Package and the Prospectus, (x) there is no proceeding that is pending, or that is known to be contemplated, against the Company or any of its subsidiaries under any Environmental

 

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Laws in which a governmental entity is also a party, other than such proceeding regarding which it is reasonably believed would not reasonably be likely to have a Material Adverse Effect, (y) the Company and its subsidiaries are not aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that would reasonably be expected to have a Material Adverse Effect, and (z) none of the Company or its subsidiaries anticipates material capital expenditures relating to any Environmental Laws.

 

(gg)                             Disclosure Controls .  The Company and its consolidated subsidiaries maintain an effective system of “disclosure controls and procedures” (as defined under Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and that has been designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure.  The Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.

 

(hh)                           Accounting Controls of the Company.   The Company and its consolidated subsidiaries maintain systems of “internal control over financial reporting” (as defined under Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with IFRS. The Company and its subsidiaries maintain internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (v) interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Prospectus and the Pricing Disclosure Package fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.  Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no material weaknesses in the Company’s internal controls.  The Company’s auditors and the Audit Committee of the Board of Directors of the General Partner (on behalf of the Company) (“the BPY Audit Committee ”) have been advised of:  (i) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which have adversely affected or are reasonably likely to adversely affect the Company’s ability

 

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to record, process, summarize and report financial information; and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. The Company has not publicly disclosed or reported to the BPY Audit Committee or the General Partner, and, within the next 135 days, the Company does not reasonably expect to publicly disclose or report to the BPY Audit Committee or the General Partner a significant deficiency, material weakness, change in internal controls or fraud involving management or other employees who have a significant role in internal controls, any violation of, or failure to comply with, applicable U.S. securities laws, rules and regulations, or any matter which, if determined adversely, would have a Material Adverse Effect.

 

(ii)                                   eXtensible Business Reporting Language. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.

 

(jj)                                 Transfer Agent .  American Stock Transfer & Trust LLC at its principal offices located at 6201 15th Avenue, Brooklyn, New York 11219 has been duly appointed as paying agent, registrar and transfer agent of the Units.

 

(kk)                           Director or Officer Loans .  Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no outstanding loans, advances (except normal advances for business expense in the ordinary course of business) or guarantees or indebtedness by any of the Brookfield Parties, to or for the benefit of any of the officers or directors of any of the Brookfield Parties or any of their respective family members.

 

(ll)                                   Off-Balance Sheet Arrangements .  There are no transactions, arrangements or other relationships between and/or among the Brookfield Entities, any of their affiliates and any unconsolidated entity, including, but not limited to, any structured finance, special purpose or limited purpose entity that could materially affect the Company’s liquidity or the availability of, or requirements for, its capital resources required to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus which have not been described as required.

 

(mm)                   Exchange Listings . The Company is in compliance with all applicable corporate governance requirements set forth in the rules of the Toronto Stock Exchange and the Nasdaq Stock Market and all applicable corporate governance and other requirements contained in the listing agreement to which the Company and the Nasdaq Stock Market are parties, except (i) as disclosed in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package or (ii) where the failure to be in compliance would not reasonably be expected to result in delisting or any suspension of trading or other privileges.

 

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(nn)                           Insurance.  The Brookfield Entities have insurance covering their respective material properties, operations, personnel and businesses, including business interruption insurance, which insurance is in amounts and insures against such losses and risks as are adequate to protect the Company and its subsidiaries and their respective businesses; and neither the Company nor any of its subsidiaries has (i) received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance or (ii) any reason to believe that it will not be able to renew its existing material insurance coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business.

 

(oo)                           Cybersecurity; Data Protection. The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “ IT Systems ”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants.  The Company and its subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“ Personal Data ”)) used in connection with their businesses, and there have been (i) no breaches, violations, outages or unauthorized uses of or accesses to the same, except for those that have been remedied without material cost or liability or the duty to notify any other person, and (ii) no incidents under internal review or investigations relating to the same, except where such breach, violation, outage, unauthorized use or access, or incidents under internal review or investigation relating to the same, would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its subsidiaries are presently in material compliance with all applicable laws or statutes and all applicable judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority having jurisdiction over the Company and its subsidiaries, and all internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.

 

(pp)                           Registration Rights .  Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any limited partnership units of the Company owned or to be owned by such person or to require the Company to include such limited partnership units in the limited partnership units registered pursuant to a registration statement or in any limited partnership units being registered pursuant to any other registration statement filed by the Company under the Securities Act. No person has the right to require any Brookfield Entity to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Units.

 

(qq)                           No Unlawful Payments.   None of the Brookfield Entities nor their directors, officers or employees nor, to the knowledge of any Brookfield Party, any agent,

 

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affiliate or other person associated with or acting on behalf of the Brookfield Entities has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit.  The Company and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.

 

(rr)                                 Compliance with Anti-Money Laundering Laws .  The operations of the Brookfield Entities are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “ Anti-Money Laundering Laws ”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Brookfield Entities with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Brookfield Parties, threatened.

 

(ss)                               No Conflicts with Sanctions Laws.  None of the Brookfield Entities, nor to the knowledge of any Brookfield Party, any director, officer, employee, agent, affiliate or other person associated with or acting on behalf of the Brookfield Entities is currently the subject or the target of any sanctions administered or enforced by the U.S. government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“ OFAC ”) or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council (“ UNSC ”), the European Union, Her Majesty’s Treasury (“ HMT ”) or other relevant sanctions authority (collectively, “ Sanctions ”), nor are any of the Brookfield Entities located, organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, the Crimean peninsula, Cuba, Iran, North Korea and Syria (each, a “ Sanctioned Country ”); and the Brookfield Parties will not directly or indirectly use the proceeds of the offering of the Units hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity for the purpose

 

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of (i) funding or facilitating any activities of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) funding or facilitating any activities of or business in any Sanctioned Country or (iii) engaging in any other activity that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.  For the past five years, the Brookfield Parties have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.

 

(tt)                                 No Restrictions on Subsidiaries .  No subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to any Brookfield Party, from making any other distribution on such subsidiary’s capital stock or similar ownership interest, from repaying to any Brookfield Party any loans or advances to such subsidiary from any Brookfield Party or from transferring any of such subsidiary’s properties or assets to any Brookfield Party or any other subsidiary of any Brookfield Party.

 

(uu)                           No Broker’s Fees.   None of the Brookfield Parties is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against any Brookfield Party or any Underwriter for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Units.

 

(vv)                           No Stabilization.   No Brookfield Party has taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Units.

 

(ww)                       Accuracy of Disclosure .  The statements set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the captions “Description of Preferred Limited Partnership Units” and “Description of the Offered Securities” insofar as they purport to constitute a summary of the terms of the Units, and under the captions “Material U.S. Federal Income Tax Considerations”, “Service of Process and Enforceability of Civil Liabilities” and “Item 8. Indemnification of Directors and Officers” insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate in all material respects, subject to the qualifications and assumptions stated therein.  The statements set forth in the Company’s Form 20-F for the fiscal year ended December 31, 2018 under the caption “Item 7.B Related Party Transactions,” “Item 10.B Memorandum and Articles of Association” and “Item 10.E Taxation”  insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate in all material respects, subject to the qualifications and assumptions stated therein.

 

(xx)                           Sarbanes-Oxley Act .  There is and has been no failure on the part of the Brookfield Parties nor their directors or officers in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002, as amended and the rules and

 

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regulations promulgated in connection therewith (the “ Sarbanes-Oxley Act ”), including Section 402 related to loans and Sections 302 and 906 related to certifications.

 

(yy)                           No Ratings .  There are (and prior to the Closing Date, will be) no debt securities, convertible securities or preferred stock issued or guaranteed by the Company or any of its subsidiaries (other than the Units and the 6.50% Class A Cumulative Redeemable Perpetual Preferred Units, Series 1 of the Company) that are rated by a “nationally recognized statistical rating organization”, as such term is defined under Section 3(a)(62) of the Exchange Act.

 

(zz)                             No Immunity .  Neither of the Company nor any of its subsidiaries or their properties or assets has immunity under Bermuda, Canada, U.S. federal or New York state law from any legal action, suit or proceeding, from the giving of any relief in any such legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any Bermuda, Canada, U.S. federal or New York state court, from service of process, attachment upon or prior to judgment, or attachment in aid of execution of judgment, or from execution of a judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in any such court with respect to their respective obligations, liabilities or any other matter under or arising out of or in connection herewith; and, to the extent that the Company or any of its subsidiaries or any of its properties, assets or revenues may have or may hereafter become entitled to any such right of immunity in any such court in which proceedings arising out of, or relating to the transactions contemplated by this Agreement or the Transaction Documents, may at any time be commenced, the Company has waived, and it will waive, or will cause its subsidiaries to waive, any such right to the extent permitted by law.

 

(aaa)                    Indemnification and Contribution . The indemnification and contribution provisions set forth in Section 7 hereof do not contravene Bermuda law or the laws of Ontario and the federal laws of Canada applicable therein.

 

(bbb)                    Dividends .  Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, no approvals are currently required in Bermuda in order for the Company to pay dividends or other distributions declared by the Company to the holders of Units.  Under current laws and regulations of Bermuda, any amount payable with respect to the Units upon liquidation of the Company or upon redemption thereof and dividends and other distributions declared and payable by the Company may be paid by the Company in United States dollars and freely transferred out of Bermuda, and no such payments made to the holders thereof or therein who are non-residents of Bermuda will be subject to income, withholding or other taxes under laws and regulations of Bermuda or any political subdivision or taxing authority thereof or therein and without the necessity of obtaining any governmental authorization in Bermuda or any political subdivision or taxing authority thereof or therein.

 

(ccc)                       Representation of Officers . Any certificate signed by any officer of the Company or the General Partner on behalf of the Company and delivered to the Underwriters or counsel for the Underwriters as required or contemplated by this

 

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Agreement shall constitute a representation and warranty hereunder by the Company, as to matters covered thereby, to each Underwriter.

 

4.                                       Further Agreements of the General Partner and the Company .  Each of the General Partner and the Company, jointly and severally, covenants and agrees with each Underwriter that:

 

(a)                                  Required Filings.   The Company will file the Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; and the Company will file promptly all reports required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Units; and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 5:30 P.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request.  The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.

 

(b)                                  Delivery of Copies.   The Company will deliver, without charge, (i) to the Representatives, four signed copies of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein and each Issuer Free Writing Prospectus) as the Representatives may reasonably request.  As used herein, the term “ Prospectus Delivery Period ” means such period of time after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters a prospectus relating to the Units is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Units by any Underwriter or dealer.

 

(c)                                   Amendments or Supplements, Issuer Free Writing Prospectuses.   Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement, the Pricing Disclosure Package or the Prospectus, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object.

 

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(d)                                  Notice to the Representatives.   The Company will advise the Representatives promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed or distributed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission or any other governmental or regulatory authority of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event or development within the Prospectus Delivery Period as a result of which the Prospectus, any of the Pricing Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Units for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and each of the General Partner and the Company will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Units and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.

 

(e)                                   Ongoing Compliance.   (1) If during the Prospectus Delivery Period (i) any event or development shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate such amendments or supplements to the Prospectus (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so amended or supplemented (or any document to be filed with the Commission and incorporated by reference therein) will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event or development shall occur or condition shall exist as a result of which

 

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the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Pricing Disclosure Package to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate such amendments or supplements to the Pricing Disclosure Package (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Pricing Disclosure Package will comply with law.

 

(f)                                    Blue Sky Compliance.   The Company will qualify the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution of the Units; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.

 

(g)                                   Earnings Statement.  The Company will make generally available to its security holders and the Representatives as soon as practicable an earnings statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company and its subsidiaries occurring after the “effective date” (as defined under Rule 158 of the Securities Act) of the Registration Statement.

 

(h)                                  Clear Market.   For a period of 30 days after the date of the Prospectus, the Brookfield Parties will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, otherwise dispose of, or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company, or the General Partner or any affiliate of the Company or the General Partner or any person in privity with the Company or the General Partner or any affiliate of the Company or the General Partner, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, or announce the offering, of any units of any class of capital stock of the Company (other than the Units) that is preferred as to the payment of distributions, or as to the distribution of assets upon any liquidation or dissolution of the Company, over the limited partnership units of the Company (including any units of any class of partnership interests of the

 

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Company (other than the Units) that ranks equally with the Series 2 Preferred Units as to the payment of distributions or as to the distribution of assets upon any liquidation or dissolution of the Company).

 

(i)                                      Use of Proceeds.   The Brookfield Parties will apply the net proceeds from the sale of the Units as described in the Pricing Disclosure Package and the Prospectus under the heading “Use of Proceeds”.

 

(j)                                     No Stabilization.   No Brookfield Party will take, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Units.

 

(k)                                  Exchange Listing.   The Company will use its commercially reasonable efforts to list, subject to notice of issuance, the Units on the Nasdaq Stock Market (the “ Nasdaq Stock Market ”).

 

(l)                                      Ratings .  The Company will use its commercially reasonable efforts to enable Standard & Poor’s Financial Services, LLC, a subsidiary of S&P Global Inc., to provide its credit rating of the Units.

 

(m)                              DTC .  The Company will use its commercially reasonable efforts to cause the Units to be eligible for clearance and settlement through the facilities of DTC.

 

(n)                                  Form 8-A .  The Company will file a registration statement with respect to the Units on Form 8-A pursuant to Section 12 of the Exchange Act, which registration statement will comply in all material respects with the applicable requirements of the Exchange Act.

 

(o)                                  Reports.   So long as the Units are outstanding, the Company will furnish to the Representatives, as soon as they are available, copies of all reports or other communications (financial or other) furnished to holders of the Units, and copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange or automatic quotation system; provided the Company will be deemed to have furnished such reports and financial statements to the Representatives to the extent they are filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system.

 

(p)                                  Record Retention .  The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.

 

(q)                                  Tax Indemnity .  The Company will indemnify and hold harmless the Underwriters against any documentary, stamp, registration or similar issuance tax, including any interest and penalties, on the sale of the Units by the Company to the Underwriters and on the execution and delivery of this Agreement. All indemnity payments to be made by the Company hereunder in respect of this Section 4(q) shall be made without withholding or deduction for or on account of any present or future

 

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Bermuda or Canadian taxes, duties or governmental Units whatsoever unless the Company is compelled by law to deduct or withhold such taxes, duties or charges. In that event, except for any net income, capital gains or franchise taxes imposed on the Underwriters by Bermuda, Canada or the United States or any political subdivision of taxing authority thereof or therein as a result of any present or former connection (other than any connection resulting from the transactions contemplated by this Agreement) between the Underwriters and the jurisdiction imposing such withholding or deductions, the Company shall pay such additional amounts as may be necessary in order to ensure that the net amounts received after such withholding or deductions shall equal the amounts that would have been received if no withholding or deduction has been made.

 

5.                                       Certain Agreements of the Underwriters .                         Each Underwriter hereby represents and agrees that:

 

(a)                                  It has not and will not use, authorize use of, refer to or participate in the planning for use of, any “free writing prospectus”, as defined under Rule 405 of the Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than (i) a free writing prospectus that contains no “issuer information” (as defined under Rule 433(h)(2) of the Securities Act) that was not included (including through incorporation by reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Company in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “ Underwriter Free Writing Prospectus ”).

 

(b)                                  It has not and will not, without the prior written consent of the Company, use any free writing prospectus that contains the final terms of the Units unless such terms are included in a free writing prospectus to be filed with the Commission; provided that Underwriters may use a term sheet substantially in the form of Annex B hereto without the consent of the Company; provided further that any Underwriter using such term sheet shall notify the Company, and provide a copy of such term sheet to the Company, prior to, or substantially concurrently with, the first use of such term sheet.

 

6.                                       Conditions of Underwriters’ Obligations.   The obligation of each Underwriter to purchase the Units on the Closing Date as provided herein is subject to the performance by the Company of its respective covenants and other obligations hereunder and to the following additional conditions:

 

(a)                                  Registration Compliance; No Stop Order.   No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) of the Securities Act or pursuant to Section 8A under the Securities Act shall be pending before or, to the Company’s knowledge, threatened by the Commission; the Registration Statement, Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with and deemed effective by the Commission

 

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under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.

 

(b)                                  Representations and Warranties.   The representations and warranties of the Company contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the General Partner and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.

 

(c)                                   No Downgrade.   Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Company or any debt securities, convertible securities or preferred stock issued, or guaranteed by, the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined under Section 3(a)(62) of the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Company or any such debt securities, convertible securities or preferred stock issued or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).

 

(d)                                  No Material Adverse Change.   No event or condition of a type described in Section 3(h) hereof shall have occurred or shall exist, which event or condition is not described in the Pricing Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Units on the Closing Date, on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.

 

(e)                                   Officer’s Certificate.   The Representatives shall have received on and as of the Closing Date, a certificate of the chief financial officer or chief accounting officer of the Brookfield Property Group LLC (the “ Service Provider ”) (on behalf of the Company) and one additional senior executive officer of the Service Provider (on behalf of the Company) who is satisfactory to the Representatives (i) confirming that such officers have carefully reviewed the Registration Statement, the Pricing Disclosure Package and the Prospectus and, to the knowledge of such officers, the representations set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming that the other representations and warranties of the Company in this Agreement are true and correct and that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.

 

(f)                                    Comfort Letters and CFO Certificate.   (i) On the date of this Agreement and on the Closing Date, Deloitte LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company and Brookfield Property REIT,

 

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respectively, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information in respect of the Company and Brookfield Property REIT, respectively, contained or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than two business days prior to such Closing Date.

 

(ii) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representatives a certificate, dated the respective dates of delivery thereof and addressed to the Underwriters, of the chief financial officer of the Service Provider (on behalf of the Company) with respect to certain financial data contained in the Pricing Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representatives.

 

(g)                                   Opinion and 10b-5 Statement of U.S. and Canadian Counsel for the Company.   Torys LLP, United States and Canadian counsel for the Company, shall have furnished to the Representatives, at the request of the Company, their written opinion and 10b-5 statement, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives.

 

(h)                                  Opinion of Investment Company Act Counsel for the Company .  Willkie Farr & Gallagher LLP, special Investment Company Act counsel for the Company, shall have furnished to the Representatives, at the request of the Company, their written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives.

 

(i)                                      Opinion of Bermuda Counsel for the Company.   Appleby (Bermuda) Limited, special Bermuda counsel for the Company, shall have furnished to the Representatives, at the request of the Company, their written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives.

 

(j)                                     Opinion and 10b-5 Statement of Counsel for the Underwriters.   The Representatives shall have received on and as of the Closing Date, an opinion and 10b-5 statement, addressed to the Underwriters, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.

 

(k)                                  No Legal Impediment to Issuance and Sale.   No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Units; and no injunction or order of any

 

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federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Units.

 

(l)                                      Good Standing .  The Representatives shall have received on and as of the Closing Date, satisfactory evidence of the good standing of each of the Brookfield Parties in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.

 

(m)                              Exchange Listing.   The Units to be delivered on the Closing Date shall have been approved for listing on the Nasdaq Stock Market, subject to official notice of issuance.

 

(n)                                  DTC .  The Units to be delivered on the Closing Date shall have been cleared for settlement and trading by DTC.

 

(o)                                  Ratings Letter .  On and as of the Closing Date, the Units shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter on or prior to the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Units have been assigned such ratings.

 

(p)                                  BPY LPA Amendment .  On or prior to the Closing Date, the BPY LPA Amendment shall have been executed by the General Partner and the Amended BPY LPA shall be in full force and effect.

 

(q)                                  Property Partnership LPA Amendment .  On or prior to the Closing Date, the Property Partnership LPA Amendment shall have been executed by the managing general partner and/or the special limited partner of the Property Partnership and the Amended Property Partnership LPA shall be in full force and effect.

 

(r)                                     Mirror Units .  Promptly following the closing of the offering of the Units, the Mirror Units will be issued by the Property Partnership to the Company with terms conforming with those set forth in the Pricing Disclosure Package and the Prospectus.

 

(s)                                    Additional Documents.   On or prior to the Closing Date, the Company shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.

 

All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

 

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7.                                       Indemnification and Contribution .

 

(a)                                  Indemnification of the Underwriters by the Company.   The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors, officers, agents and employees and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Preliminary Prospectus, any Issuer Free Writing Prospectus (including any road show as defined under Rule 433(h) of the Securities Act (a “ road show ”)), any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act or any Pricing Disclosure Package (including any Pricing Disclosure Package that has subsequently been amended), or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (b) below.

 

(b)                                  Indemnification of the Company by the Underwriters.   Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the directors of the General Partner (on behalf of the Company), the officers of the General Partner (on behalf of the Company) who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “ Brookfield Indemnified Party ”) to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Preliminary Prospectus, any Issuer Free Writing Prospectus, any road show or any Pricing Disclosure Package, it being understood and agreed upon that the only such information furnished by any Underwriter consists of the following information in the Prospectus furnished on behalf of each Underwriter: the concession and reallowance figures appearing in the third paragraph under the caption “Underwriting” and the information contained in the ninth, tenth and twelfth paragraphs under the caption “Underwriting.”

 

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(c)                                   Notice and Procedures.   If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to the preceding paragraphs of this Section 7, such person (the “ Indemnified Person ”) shall promptly notify the person against whom such indemnification may be sought (the “ Indemnifying Person ”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under the preceding paragraphs of this Section 7 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided , further , that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under the preceding paragraphs of this Section 7.  If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred.  In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them.  It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid or reimbursed as they are incurred.  Any such separate firm for any Underwriter, its affiliates, directors, officers, agents and employees and any control persons of such Underwriter shall be designated in writing by the Representatives and any such separate firm for any Brookfield Indemnified Party shall be designated in writing by the Company.  The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment.  Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement.  No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person

 

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is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.

 

(d)                                  Contribution.   If the indemnification provided for in paragraphs (a) or (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other, from the offering of the Units or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company, on the one hand, and the Underwriters, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.  The relative benefits received by the Company, on the one hand, and the Underwriters, on the other, shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Units and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Units. The relative fault of the Company, on the one hand, and the Underwriters, on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

 

(e)                                   Limitation on Liability.   The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to paragraph (d) above were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above.  The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim.  Notwithstanding the provisions of paragraphs (d) and (e), in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Units exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  The

 

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Underwriters’ obligations to contribute pursuant to paragraphs (d) and (e) are several in proportion to their respective purchase obligations hereunder and not joint.

 

(f)                                    Non-Exclusive Remedies.   The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity.

 

8.                                       Effectiveness of Agreement .  This Agreement shall become effective as of the date first written above.

 

9.                                       Termination .  This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Company, if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or materially limited on or by either of the Nasdaq Stock Market or the Toronto Stock Exchange; (ii) trading of any securities issued or guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Units on the Closing Date on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.

 

10.                                Defaulting Underwriter .

 

(a)                                  If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Units that it has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Units by other persons satisfactory to the Company on the terms contained in this Agreement.  If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Units, then the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Units on such terms.  If other persons become obligated or agree to purchase the Units of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement and the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement and the Prospectus that effects any such changes.  As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Units that a defaulting Underwriter agreed but failed to purchase.

 

(b)                                  If, after giving effect to any arrangements for the purchase of the Units of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters or other persons as provided in paragraph (a) above, the aggregate number of Units that remain unpurchased on the Closing Date does not exceed one-eleventh of the aggregate number of Units to be purchased on

 

32


 

such date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of Units that such Underwriter agreed to purchase hereunder on such date plus such Underwriter’s pro rata share (based on the number of Units that such Underwriter agreed to purchase on such date) of the Units of such defaulting Underwriter or Underwriters for which such arrangements have not been made.

 

(c)                                   If, after giving effect to any arrangements for the purchase of the Units of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters or other persons as provided in paragraph (a) above, the aggregate number of Units that remain unpurchased on the Closing Date exceeds one-eleventh of the aggregate amount of Units to be purchased on such date, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters.  Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Company, except that the Company will continue to be liable for the payment of expenses as set forth in Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.

 

(d)                                  Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting Underwriter for damages caused by its default.

 

11.                                Payment of Expenses .

 

(a)                                  Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Units and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Company’s counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Units under the laws of such jurisdictions as the Representatives may reasonably designate and, if reasonably requested by the Representatives, the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) the cost of preparing certificates, if any, representing the Units; (vii) the costs and charges of any transfer agent and any registrar; (viii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, FINRA; (ix) all expenses incurred by the Company in connection with any “road show” presentation to potential investors; and (x) all expenses and application fees related to the listing of the Units on the Nasdaq Stock Market.

 

(b)                                  If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason fails to tender the Units for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Units for any reason permitted under Section 6 of this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket costs and expenses (including the fees

 

33


 

and expenses of their counsel) reasonably incurred and documented by the Underwriters in connection with this Agreement and the offering contemplated hereby.

 

12.                                Persons Entitled to Benefit of Agreement .  This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and any controlling persons referred to herein, and the affiliates of each Underwriter referred to in Section 7 hereof.  Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.  No purchaser of Units from any Underwriter shall be deemed to be a successor merely by reason of such purchase.

 

13.                                Survival .  The respective indemnities, rights of contribution, representations, warranties and agreements of the Company and the Underwriters contained in this Agreement or made on behalf of the Brookfield Parties or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Units and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Brookfield Parties or the Underwriters or the directors, officers, controlling persons or affiliates referred to in Section 7 hereof.

 

14.                                Certain Defined Terms .  For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City; (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act; and (d) the term “significant subsidiary” has the meaning set forth in Rule 1-02 of Regulation S-X under the Exchange Act.

 

15.                                Compliance with USA Patriot Act . In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.

 

16.                                Miscellaneous .

 

(a)                                  Notices.   All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication.  Notices to the Underwriters shall be given to the Representatives c/o Wells Fargo Securities, LLC, 550 South Tryon Street, 5th Floor, Charlotte, NC 28202, Attention: Transaction Management (fax: (704) 410-0326); c/o  BofA Securities, Inc., 50 Rockefeller Plaza, NY1-050-12-02, New York, New York 10020, Attention: High Grade Transaction Management/Legal (fax: (646) 855-5958), with a copy to DCM Legal (fax: (212) 230-8730); c/o J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attention: Investment Grade Syndicate Desk (fax: (212) 834-6081); c/o RBC Capital Markets, LLC, 200 Vesey Street, 8th Floor, New York, New York 10281, Attention: Transaction Management (fax: (212) 658-6137); and with a copy to (which shall not constitute notice) Skadden, Arps, Slate, Meagher & Flom LLP, 4 Times Square, New York, New York 10036, Attention: David J.

 

34


 

Goldschmidt (fax: (917) 777-3574).  Notices to the Company shall be given to it at 73 Front Street, 5th Floor, Hamilton, HM 12 Bermuda, Attention: Jane Sheere (fax: (441) 296-4475), with copies to (which shall not constitute notice) Brookfield Property Group, Brookfield Place, 250 Vesey Street, 15th Floor, New York, New York 10281, Attention: Michelle Campbell and Bradley Weismiller (e-mail: michelle.campbell@brookfield.com) and to Torys LLP, 1114 Avenue of the Americas, 23rd Floor, New York, New York 10036, Attention: Mile Kurta (fax: (212) 682-0200).

 

(b)                                  Governing Law.   This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York.

 

(c)                                   Assignment .  The parties hereby agree that BofA Securities, Inc. may, without notice to the Company, assign its rights and obligations under this Agreement to any wholly-owned broker-dealer subsidiary of Bank of America Corporation to which all or substantially all of BofA Securities, Inc.’s investment banking business may be transferred following the date of this Agreement.

 

(d)                                  Submission to Jurisdiction .  The Company hereby submits to the exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.  The Company waives any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts.  The Company agrees that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company and may be enforced in any court to the jurisdiction of which Company is subject by a suit upon such judgment.  The Company irrevocably appoints the Service Provider, located 250 Vesey Street, 15th Floor, New York, New York 10281-1023, as its authorized agent in the Borough of Manhattan in The City of New York upon which process may be served in any such suit or proceeding, and agrees that service of process upon such authorized agent, and written notice of such service to the Company by the person serving the same to the address provided in this Section 16(d), shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding.  The Company hereby represents and warrants that such authorized agent has accepted such appointment and has agreed to act as such authorized agent for service of process.  The Company further agrees to take any and all action as may be necessary to maintain such designation and appointment of such authorized agent in full force and effect for a period of seven years from the date of this Agreement.

 

(e)                                   Judgment Currency .  The Company agrees to indemnify each Underwriter, its directors, officers, affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any loss incurred by such Underwriter as a result of any judgment or order being given or made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “ judgment currency ”) other than U.S. dollars and as a result of any variation as between (i) the rate of exchange at which the U.S. dollar amount is converted into the judgment currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such indemnified

 

35


 

person is able to purchase U.S. dollars with the amount of the judgment currency actually received by the indemnified person. The foregoing indemnity shall constitute a separate and independent obligation of the Company and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.

 

(f)                                    Waiver of Immunity .  To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from jurisdiction of any court of (i) Bermuda, Canada or any political subdivision thereof, (ii) the United States or the State of New York, (iii) any jurisdiction in which it owns or leases property or assets or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution, set-off or otherwise) with respect to themselves or their respective property and assets or this Agreement, the Company hereby irrevocably waives such immunity in respect of its obligations under this Agreement to the fullest extent permitted by applicable law.

 

(g)                                   WAIVER OF JURY TRIAL.   EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.

 

(h)                                  Recognition of the U.S. Special Resolution Regimes .

 

(i) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

(ii) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.

 

As used in this Section 16(h):

 

BHC Act Affiliate ” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).

 

Covered Entity ” means any of the following:

 

(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

 

36


 

(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

Default Right ” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

U.S. Special Resolution Regime ” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

 

(i)                                      Counterparts.   This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.

 

(j)                                     Amendments or Waivers.   No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.

 

(k)                                  Headings.   The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.

 

37


 

If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.

 

 

Very truly yours,

 

 

 

BROOKFIELD PROPERTY PARTNERS L.P., by its general partner, BROOKFIELD PROPERTY PARTNERS LIMITED

 

 

 

 

 

 

By:

/s/ Jane Sheere

 

 

Name: Jane Sheere

 

 

Title: Secretary

 

38


 

Accepted:  As of the date first written above

 

 

WELLS FARGO SECURITIES, LLC

 

By:

/s/ Carolyn Hurley

 

 

Authorized Signatory

 

 

 

BOFA SECURITIES, INC.

 

By:

/s/ Evan Ladouceur

 

 

Authorized Signatory

 

 

 

J.P. MORGAN SECURITIES LLC

 

By:

/s/ Som Bhattacharyya

 

 

Authorized Signatory

 

 

 

RBC CAPITAL MARKETS, LLC

 

By:

/s/ Asad Kazim

 

 

Authorized Signatory

 

 

 

For themselves and on behalf of the

several Underwriters listed

in Schedule 1 hereto.

 


 

Schedule 1

 

Underwriter

 

Number of Units

 

 

 

 

 

Wells Fargo Securities, LLC

 

2,500,000

 

BofA Securities, Inc.

 

2,500,000

 

J.P. Morgan Securities LLC

 

2,500,000

 

RBC Capital Markets, LLC

 

2,500,000

 

 

 

 

 

Total

 

10,000,000

 

 

2


 

Schedule 2

 

Significant Subsidiaries

 

Brookfield Office Properties Inc.

Brookfield Property REIT Inc.

Canary Wharf Group plc

 

3


 

Annex A

 

a.                                       Pricing Disclosure Package

 

Pricing Term Sheet, dated August 13, 2019

 

4


 

Annex B

 

Brookfield Property Partners L.P.

 

Pricing Term Sheet

 

5


 

Filed pursuant to Rule 433

August 13, 2019

Supplementing the

Preliminary Prospectus Supplement Dated August 13, 2019

(To Prospectus dated February 20, 2019)

Registration No. 333-218503

 

Brookfield Property Partners L.P.

Pricing Term Sheet

 

10,000,000 of 6.375% Class A Cumulative Redeemable Perpetual Preferred Units, Series 2 August 13, 2019

 

The information in this pricing term sheet relates to Brookfield Property Partners L.P.’s offering of its 6.375% Class A Cumulative Redeemable Perpetual Preferred Units, Series 2 (the “Offering”) and should be read together with the preliminary prospectus supplement dated August 13, 2019 relating to the Offering (the “Preliminary Prospectus Supplement”), including the documents incorporated by reference therein, and the base prospectus dated February 20, 2019, filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended. The information in this communication supersedes the information in the Preliminary Prospectus Supplement and the accompanying base prospectus to the extent inconsistent with the information in the Preliminary Prospectus Supplement and the accompanying base prospectus. Terms used herein but not defined herein shall have the meanings as set forth in the Preliminary Prospectus Supplement. All references to dollar amounts are references to U.S. dollars.

 

Issuer:

 

Brookfield Property Partners L.P. (the “Partnership”)

 

 

 

Security:

 

6.375% Class A Cumulative Redeemable Perpetual Preferred Units, Series 2 (the “Units”)

 

 

 

Size:

 

$250,000,000 (10,000,000 Units)

 

 

 

Liquidation Preference:

 

$25.00 per Unit

 

 

 

Maturity:

 

Perpetual (unless redeemed by the Partnership (i) following a Change of Control Triggering Event, a Delisting Brookfield Transaction Triggering Event and/or a Change in Tax Law, (ii) at our option, on or after September 30, 2024, or (iii) prior to September 30, 2024 in connection with a Ratings Event)

 

 

 

Distribution Rate:

 

At a rate per annum equal to 6.375% ($1.5938 per Unit) only when, as, and if declared. Distributions on the Units are cumulative

 

 

 

Distribution Payment Dates:

 

The last day of March, June, September and December of each year (or the next succeeding Business Day), with the first distribution payable, if declared, on December 31, 2019

 

 

 

Pro-rated Initial Distribution:

 

$0.57995 per Unit

 

 

 

Optional Redemption on or

 

The Units may be redeemed at the Partnership’s option, in whole or

 


 

after September 30, 2024:

 

in part, at any time on or after September 30, 2024, at a price of $25.00 per Unit, plus an amount equal to all accumulated and unpaid distributions thereon to, but excluding, the date of redemption, whether or not declared. Holders of the Units will have no right to require the redemption of the Units.

 

 

 

Optional Redemption Upon a Ratings Event:

 

If a Ratings Event occurs prior to September 30, 2024, the Units may be redeemed at the Partnership’s option, in whole but not in part, within 120 days of the occurrence of such Ratings Event, at a price of $25.50 per Unit (102% of the liquidation preference), plus an amount equal to all accumulated and unpaid distributions thereon to, but excluding, the date fixed for redemption, whether or not declared.

 

 

 

Optional Redemption Upon a Change of Control Triggering Event:

 

Upon the occurrence of a Change of Control Triggering Event, the Partnership may, at its option, redeem all but not less than all of the Units within 90 days after the first date on which such Change of Control Triggering Event occurred, by paying $25.00 per Unit, plus all accumulated and unpaid distributions to, but excluding, the redemption date, whether or not declared. If the Partnership does not give notice of redemption prior to the 61st day following the Change of Control Triggering Event to redeem all the outstanding Units, the distribution rate per annum on the Units will increase by 5.00% beginning on the 61st day following such Change of Control Triggering Event.

 

 

 

Optional Redemption Upon a Delisting Brookfield Transaction Triggering Event:

 

Upon the occurrence of a Delisting Brookfield Transaction Triggering Event, the Partnership may, at its option, redeem all but not less than all of the Units within 90 days after the first date on which such Delisting Brookfield Transaction Triggering Event occurred, by paying $25.00 per Unit, plus all accumulated and unpaid distributions to, but excluding, the redemption date, whether or not declared. If the Partnership does not give notice of redemption prior to the 61st day following the Delisting Brookfield Transaction Triggering Event to redeem all of the outstanding Units, the distribution rate per annum on the Units will increase by 5.00% beginning on the 61st day following such Delisting Brookfield Transaction Triggering Event, provided that if either the LP Units and/or the Units are subsequently listed on either the Nasdaq Stock Market, the New York Stock Exchange or the Toronto Stock Exchange, the distribution rate per annum on the Units will reset to 6.375%.

 

 

 

Optional Redemption Upon a Change in Tax Law

 

The Partnership will have the option to redeem all but not less than all of the Units at a redemption price of $25.00 per Unit, if as a result of a Change in Tax Law, there is, in the Partnership’s reasonable determination, a substantial probability that the Partnership or any Successor Entity would become obligated to pay any additional amounts on the next succeeding distribution payment date with respect to the Units and the payment of those additional amounts cannot be avoided by the use of any reasonable measures available to the Partnership or any Successor Entity.

 

2


 

Trade Date:

 

August 13, 2019

 

 

 

Expected Settlement Date:

 

August 20, 2019 (T+5)

 

 

 

Price to Public:

 

$250,000,000
$25.00 per Unit

 

 

 

Underwriting Discounts and Commissions:

 

$7,875,000
$0.7875 per Unit

 

 

 

Net Proceeds (before expenses) to the Partnership:

 

$242,125,000

 

 

 

Listing:

 

The Partnership has applied to list the Units on the Nasdaq Stock Market under the symbol “BPYPO”.

 

 

 

CUSIP/ISIN:

 

G16249 156/ BMG162491564

 

 

 

Anticipated Rating*:

 

[omitted]

 

 

 

Joint Book-Running Managers:

 

Wells Fargo Securities, LLC
BofA Securities, Inc.
J.P. Morgan Securities LLC
RBC Capital Markets, LLC

 


*                                          Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to review, revision, suspension, reduction or withdrawal at any time by the assigning rating agency.

 

The Partnership has filed a registration statement (including a prospectus and a prospectus supplement) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus and prospectus supplement in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus and prospectus supplement if you request it by calling Wells Fargo Securities, LLC toll-free at 1-800-645-3751, BofA Securities, Inc. toll- free at 1-800-294-1322, J.P. Morgan Securities LLC at 212-834-4533 or RBC Capital Markets, LLC toll-free at 1-866-375-6829.

 

3


Exhibit 3.1

 

BROOKFIELD PROPERTY PARTNERS L.P.

 

THIRD AMENDMENT TO THE
SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT

 

THIS AMENDMENT (the “ Amendment ”) to the Second Amended and Restated Limited Partnership Agreement of Brookfield Property Partners L.P. (the “ Partnership ”), dated as of August 8, 2013, as amended by a First Amendment, dated as of November 5, 2015, as amended by a Second Amendment, dated as of March 21, 2019, to the Second Amended and Restated Limited Partnership Agreement (as amended, the “ Agreement ”) is made as of the 20th day of August, 2019, by the undersigned. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement.

 

WHEREAS , the General Partner desires to amend the Agreement pursuant to this Amendment to create additional series of Class A Limited Partnership Units having the rights and restrictions set out in Part III of Schedule A to this Amendment;

 

AND WHEREAS , pursuant to Section 3.5 of the Agreement, the Partnership may issue additional Partnership Interests (including new series of classes of Partnership Interests) for any Partnership purpose at any time and on such terms and conditions as the General Partner shall determine in its sole discretion, without the approval of any Limited Partners;

 

AND WHEREAS , pursuant to Sections 14.1 of the Agreement, subject to compliance with the requirements of the Limited Partnership Act and the Exempted Partnerships Act, the General Partner, without the approval of any Limited Partner, may amend any provision of the Agreement to reflect certain changes, including, as provided for in Section 14.1.6 of the Agreement, an amendment that the General Partner determines in its sole discretion to be necessary or appropriate for the creation, authorization or issuance of any class or series of Partnership Interests pursuant to Section 3.5 of the Agreement;

 

AND WHEREAS , the General Partner desires to amend the Agreement as set out herein;

 

NOW THEREFORE ,

 

1.                                       Amendments to Article 1

 

(a)                                  Section 1.1.2 is hereby deleted in its entirety and replaced with the following:

 

Agreement ” means this Second Amended and Restated Limited Partnership Agreement of Brookfield Property Partners L.P., as amended by the First Amendment to the Second Amended and Restated Limited Partnership Agreement of the Partnership dated as of November 5, 2015, as amended by the Second Amendment to the Second Amended and Restated Limited Partnership Agreement of the Partnership dated as of March 21, 2019 and as amended by the Third Amendment to the Second

 


 

Amended and Restated Limited Partnership Agreement of the Partnership dated as of August 20, 2019;

 

2.                                       Schedule A of the Agreement is hereby amended by adding Part III of Schedule A to this Amendment as Part III of Schedule A of the Agreement.

 

3.                                       This amendment shall be effective upon the date first written above.

 

4.                                       This amendment shall be governed by and construed in accordance with the laws of Bermuda.

 

5.                                       Except as modified herein, all terms and conditions of the Agreement shall remain in full force and effect.

 

6.                                       This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall be construed together as one agreement.

 

[Remainder of this page left blank intentionally.]

 

2


 

IN WITNESS WHEREOF , the General Partner has executed this Amendment as of the date first above written.

 

 

 

GENERAL PARTNER:
BROOKFIELD PROPERTY PARTNERS LIMITED

 

 

 

 

By:

/s/ Jane Sheere

 

 

Name:

Jane Sheere

 

 

Title:

Secretary

 

 

 

 

[Third Amendment to Second LPA]

 


 

PART III

 

BROOKFIELD PROPERTY PARTNERS L.P. (the “Partnership”)

 

Number and Designation of and Rights, Privileges, Restrictions and Conditions
Attaching to the
Class A Cumulative Redeemable Perpetual Units, Series 2

 

The second series of Class A Preferred Units of the Partnership shall consist of preferred limited partnership interests designated as Class A Cumulative Redeemable Perpetual Units, Series 2 (the “ Series 2 Preferred Units ”) and, in addition to the rights, privileges, restrictions and conditions attaching to the Class A Preferred Units as a class, shall have attached thereto the following rights, privileges, restrictions and conditions:

 

1.                                       Definitions

 

For the purposes hereof, the following capitalized terms shall have the following meanings, unless the context otherwise requires:

 

Additional Amounts ” has the meaning specified in Section 2(B)(e)(i) to this Part III of Schedule A.

 

ADRs ” mean American Depositary Receipts or their functional equivalent.

 

Arrears ” means, with respect to the Series 2 Distributions, the full cumulative Series 2 Distributions through the most recent Series 2 Distribution Payment Date that have not been paid on all Outstanding Series 2 Preferred Units.

 

Assignee ” means a Person to whom one or more Partnership Interests have been transferred in a manner permitted under this Agreement.

 

BPR Group ” means Brookfield Property REIT Inc., BPR OP, L.P. and any of their direct or indirect subsidiaries.

 

Change of Control ” means the occurrence of either of the following after the Series 2 Original Issue Date: (a) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger, consolidation or business combination), in one or a series of related transactions, of all or substantially all of the properties or assets of the Partnership and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act) other than any Continuing Brookfield Person; or (b) the consummation of any transaction (including any merger, consolidation or business combination) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act) other than any Continuing Brookfield Person becomes the beneficial owner (within the meaning of Rule 13d-3 of the Securities Exchange Act), directly or indirectly, of a majority of the voting power of the Partnership’s Voting Stock.

 

Change of Control Triggering Event ” means the occurrence of a Change of Control following the consummation of which neither the Partnership nor the acquiring or surviving

 


 

entity has a class of common securities (or ADRs representing such securities) listed on Nasdaq, the NYSE, or the TSX, or listed or quoted on an exchange or quotation system that is a successor to Nasdaq, the NYSE, or the TSX.

 

Change in Tax Law ” means (i) a change in or amendment to laws, regulations or rulings of any Relevant Taxing Jurisdiction, (ii) a change in the official application or interpretation of those laws, regulations or rulings, (iii) any execution of or amendment to any treaty affecting taxation to which any Relevant Taxing Jurisdiction is party or (iv) a decision rendered by a court of competent jurisdiction in any Relevant Taxing Jurisdiction, whether or not such decision was rendered with respect to the Partnership, in each case described in (i)-(iv) above occurring after August 13, 2019; provided that in the case of a Relevant Taxing Jurisdiction other than Bermuda in which a Successor Entity is organized, such Change in Tax Law must occur after the date on which the Partnership consolidates, merges or amalgamates (or engages in a similar transaction) with the Successor Entity, or conveys, transfers or leases substantially all of the Partnership’s properties and assets to the Successor Entity, as applicable.

 

Continuing Brookfield Person ” means the Brookfield Group, the General Partner, any member of the BPY Group or the BPR Group, and/or any of the foregoing.

 

Delisting Brookfield Transaction ” means the occurrence of either of the following after the Series 2 Original Issue Date: (a) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger, consolidation or business combination), in one or a series of related transactions, of all or substantially all of the properties or assets of the Partnership and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act) that is a Continuing Brookfield Person; or (b) the consummation of any transaction (including any merger, consolidation or business combination) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) that is a Continuing Brookfield Person becomes the beneficial owner (within the meaning of Rule 13d-3 of the Securities Exchange Act), directly or indirectly, of (i) a majority of the voting power of the Partnership’s Voting Stock or (ii) 100% of the Equity Units.

 

Delisting Brookfield Transaction Triggering Event ” means both (i) the occurrence of the Delisting Brookfield Transaction and (ii) within nine months of the consummation of a Delisting Brookfield Transaction neither the Equity Units (or ADRs representing such securities) nor the Series 2 Preferred Units are listed on Nasdaq, the NYSE, or the TSX, or listed or quoted on an exchange or quotation system that is a successor to Nasdaq, the NYSE, or the TSX.

 

Depositary ” means, with respect to any Series 2 Preferred Units issued in global form, The Depository Trust Company and its successors and permitted assigns.

 

Equity Credit ” means the dollar amount or percentage in relation to the stated liquidation preference amount of $25.00 per Series 2 Preferred Unit assigned to the Series 2 Preferred Units, as equity, rather than debt, by a Rating Agency in evaluating the capital structure of an entity.

 

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Nasdaq ” means the Nasdaq Stock Market LLC.

 

NYSE ” means the New York Stock Exchange.

 

Paying Agent ” means the Series 2 Transfer Agent, acting in its capacity as paying agent for the Series 2 Preferred Units, and its respective successors and assigns or any other paying agent appointed by the General Partner; provided, however, that if no Paying Agent is specifically designated for the Series 2 Preferred Units, the General Partner shall act in such capacity.

 

Rating Agency ” means (a) S&P and (b) if S&P ceases to rate the Series 2 Preferred Units or fails to make a rating of the Series 2 Preferred Units, as the case may be, for reasons outside of the Partnership’s control, for Series 2 Preferred Units, a “nationally recognized statistical rating organization” as defined in Section 3(a)(62) under the Securities Exchange Act selected by the General Partner as a replacement agency for S&P.

 

Relevant Date ” has the meaning specified in Section 2(B)(e)(ii) to this Part III of Schedule A.

 

Relevant Taxing Jurisdiction ” means (i) Bermuda or any political subdivision or governmental authority of or in Bermuda with the power to tax, (ii) any jurisdiction from or through which the Partnership or the Paying Agent is making payments on the Series 2 Preferred Units or any political subdivision or governmental authority of or in that jurisdiction with the power to tax or (iii) any other jurisdiction in which the Partnership or a Successor Entity is organized or generally subject to taxation or any political subdivision or governmental authority of or in that jurisdiction with the power to tax.

 

S&P ” means S&P Global Ratings, a division of S&P Global Inc.

 

Series 2 Current Criteria ” means the Equity Credit criteria of a Rating Agency for securities such as the Series 2 Preferred Units, as such criteria are in effect as of the Series 2 Original Issue Date.

 

Series 2 Distribution Payment Date ” means the last day of each of March, June, September and December of each year; provided however, that if any Series 2 Distribution Payment Date would otherwise occur on a day that is not a Business Day, such Series 2 Distribution Payment Date shall instead be on the immediately succeeding Business Day without the accumulation of additional distributions; provided further , that the Series 2 Distribution Payment Date for the initial Series 2 Distribution Period shall be December 31, 2019.

 

Series 2 Distribution Period ” means a period of time from and including the preceding Series 2 Distribution Payment Date to, but excluding, the next Series 2 Distribution Payment Date for such Series 2 Distribution Period (other than the initial Series 2 Distribution Period, which means a period of time from and including the Series 2 Original Issue Date to, but excluding, December 31, 2019).

 

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Series 2 Distribution Rate ” means an annual rate equal to 6.375% of the Series 2 Liquidation Preference, subject to adjustment from time to time as set forth in Section 2(B)(b)(ii) to this Part III of Schedule A.

 

Series 2 Distribution Record Date ” has the meaning given to such term in Section 2(B)(b)(iii) to this Part III of Schedule A.

 

Series 2 Distributions ” means distributions with respect to Series 2 Preferred Units pursuant to Section 2(B)(b) to this Part III of Schedule A.

 

Series 2 Holder ” means a Record Holder of Series 2 Preferred Units.

 

Series 2 Junior Securities ” means any class or series of Partnership Interests that, with respect to distributions on such Partnership Interests and distributions upon dissolution, liquidation or winding-up of the Partnership pursuant to Article 13 of the Agreement, ranks junior to the Series 2 Preferred Units, including Equity Units and the General Partner Units, but excluding any Series 2 Parity Securities and Series 2 Senior Securities.

 

Series 2 Liquidation Preference ” means a liquidation preference for each Series 2 Preferred Unit equal to $25.00 per unit (subject to adjustment for any splits, combinations or similar adjustments to the Series 2 Preferred Units).

 

Series 2 Original Issue Date ” means August 20, 2019.

 

Series 2 Parity Securities ” means (i) every class or series of the Class A Preferred Units (including the Series 1 Preferred Units) and Series 2 Preferred Units and (ii) any class or series of Partnership Interests established after the Series 2 Original Issue Date by the General Partner, the terms of which class or series expressly provide that it ranks on parity with the Series 2 Preferred Units as to distributions and amounts payable upon dissolution, liquidation or winding-up of the Partnership pursuant to Article 13 of the Agreement.

 

Series 2 Preferred Units ” has the meaning given to such term in the preamble to this Part III of Schedule A.

 

Series 2 Ratings Event ” means a change by any Rating Agency to the Series 2 Current Criteria, which change results in (i) any shortening of the length of time for which the Series 2 Current Criteria are scheduled to be in effect with respect to the Series 2 Preferred Units or (ii) a lower Equity Credit being given to the Series 2 Preferred Units than the Equity Credit that would have been assigned to the Series 2 Preferred Units by such Rating Agency pursuant to its Series 2 Current Criteria.

 

Series 2 Redemption Date ” has the meaning given such term in Section 2(B)(d)(i) to this Part III of Schedule A.

 

Series 2 Redemption Notice ” has the meaning given such term in Section 2(B)(d)(ii) to this Part III of Schedule A.

 

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Series 2 Redemption Payments ” means payments to be made to the Series 2 Holders to redeem Series 2 Preferred Units in accordance with Section 2(B)(d) to this Part III of Schedule A.

 

Series 2 Redemption Price ” has the meaning given such term in Section 2(B)(d)(i) to this Part III of Schedule A.

 

Series 2 Senior Securities ” means any class or series of Partnership Interests established after the Series 2 Original Issue Date by the General Partner, the terms of which class or series expressly provide that it ranks senior to the Series 2 Preferred Units as to distributions and amounts payable upon dissolution, liquidation or winding-up of the Partnership pursuant to Article 13 of the Agreement.

 

Series 2 Transfer Agent ” means American Stock Transfer & Trust Company, LLC, and its successors and assigns, or any other transfer agent and registrar appointed by the General Partner for the Series 2 Preferred Units.

 

Successor Entity ” means an entity formed by a consolidation, merger, amalgamation or other similar transaction involving the Partnership or an entity to which the Partnership conveys, transfers or leases substantially all its properties and assets.

 

Tax Event ” has the meaning specified in Section 2(B)(d)(i) to this Part III of Schedule A.

 

TSX ” means the Toronto Stock Exchange.

 

Voting Stock ” of any person means capital stock of such person which ordinarily has voting power for the election of directors (or persons performing similar functions) of such person, whether at all times or only for so long as no senior class of securities has such power by reason of any contingency; without limiting the foregoing, (i) if the person is a limited partnership, the “Voting Stock” will be determined with reference to each general partner of such person, (ii) if such person is a general partnership, the “Voting Stock” will be determined with reference to the general partner(s) that owns more than 50% of the interests of such general partnership, and (iii) if such person is a trust, the “Voting Stock” will be determined with reference to the majority of the trustees of such trust.

 

2.               Terms of Series 2 Preferred Units .

 

A.                  General . Each Series 2 Preferred Unit shall be identical in all respects to every other Series 2 Preferred Unit, except as to the respective dates from which the Series 2 Liquidation Preference shall increase or from which Series 2 Distributions may begin accruing, to the extent such dates may differ. The Series 2 Preferred Units represent perpetual interests in the Partnership and shall not give rise to a claim by the Partnership or a Series 2 Holder for conversion or, except as set forth in Section 2(B)(d) to this Part III of Schedule A, redemption thereof at a particular date.

 

B.             Rights of Series 2 Preferred Units . The Series 2 Preferred Units shall have the following rights, preferences and privileges and shall be subject to the following duties and obligations:

 

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a.               Series 2 Preferred Units .

 

i.                   The authorized number of Series 2 Preferred Units shall be unlimited. Series 2 Preferred Units that are purchased or otherwise acquired by the Partnership shall be cancelled.

 

ii.                The Series 2 Preferred Units shall be represented by one or more global Certificates registered in the name of the Depositary or its nominee, and no Series 2 Holder shall be entitled to receive a definitive Certificate evidencing its Series 2 Preferred Units, unless otherwise required by law or the Depositary gives notice of its intention to resign or is no longer eligible to act as such with respect to the Series 2 Preferred Units and the General Partner shall have not selected a substitute Depositary within sixty (60) calendar days thereafter. So long as the Depositary shall have been appointed and is serving with respect to the Series 2 Preferred Units, payments and communications made by the Partnership to Series 2 Holders shall be made by making payments to, and communicating with, the Depositary.

 

b.               Distributions .

 

i.                   Distributions on each Outstanding Series 2 Preferred Unit shall be cumulative and shall accumulate at the applicable Series 2 Distribution Rate from and including the Series 2 Original Issue Date (or, for any subsequently issued and newly Outstanding Series 2 Preferred Units, from and including the Series 2 Distribution Payment Date immediately preceding the issue date of such Series 2 Preferred Units) until such time as the Partnership pays the Series 2 Distribution or redeems such Series 2 Preferred Unit in accordance with Section 2(B)(d) to this Part III of Schedule A, whether or not such Series 2 Distributions shall have been declared. Series 2 Holders shall be entitled to receive Series 2 Distributions from time to time out of any assets of the Partnership legally available for the payment of distributions at the Series 2 Distribution Rate per Series 2 Preferred Unit when, as, and, if declared by the General Partner. Series 2 Distributions, to the extent declared by the General Partner to be paid by the Partnership in accordance with this Section 2(B)(b) to this Part III of Schedule A, shall be paid, in Arrears, on each Series 2 Distribution Payment Date. Series 2 Distributions shall accumulate in each Series 2 Distribution Period, provided that distributions shall accrue on accumulated but unpaid Series 2 Distributions at the Series 2 Distribution Rate. If any Series 2 Distribution Payment Date otherwise would occur on a date that is not a Business Day, declared Series 2 Distributions shall be paid on the immediately succeeding Business Day without the accumulation of additional distributions. Series 2 Distributions shall be payable based on a 360-day year consisting of twelve 30 day months. All Series 2 Distributions that are (1) accumulated and unpaid or (2) payable by the Partnership pursuant to this Section 2(B)(b) or 2(B)(e)(i) to this Part III of Schedule A shall be payable without regard to the income of the Partnership and shall be treated for U.S. federal income tax purposes as guaranteed payments for the use of capital under Section 707(c) of the Code, including for the purpose of determining income, gain, loss, and

 

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expense of the Partnership and maintaining capital accounts, unless there is a change in Tax law or administrative practice that requires treatment other than as guaranteed payments for U.S. federal income tax purposes, as determined in the sole discretion of the General Partner. For U.S. federal income tax purposes, the deduction attributable to any amount treated as a guaranteed payment shall be specially allocated to the Partners in a manner determined by the General Partner in its sole discretion that is not inconsistent with the applicable provisions of the Code and Treasury Regulations. Such guaranteed payments with respect to any Series 2 Distribution Period shall be for the account of Series 2 Holders as of the applicable Series 2 Distribution Record Date, or as otherwise reasonably determined by the General Partner.

 

ii.                If the Partnership does not give notice of redemption prior to the 61st day following the Change of Control Triggering Event to redeem all the outstanding Series 2 Preferred Units as set forth in Section 2(B)(d)(i) to this Part III of Schedule A, the Series 2 Distribution Rate shall increase by 5.00% beginning on the 61st day following such Change of Control Triggering Event. If the Partnership does not give notice of redemption prior to the 61st day following the Delisting Brookfield Transaction Triggering Event to redeem all of the outstanding Series 2 Preferred Units as set forth in Section 2(B)(d)(i) to this Part III of Schedule A, the Series 2 Distribution Rate shall increase by 5.00% beginning on the 61st day following such Delisting Brookfield Transaction Triggering Event, provided that if either the Equity Units and/or the Series 2 Preferred Units are subsequently listed on either Nasdaq, the NYSE or the TSX, the Series 2 Distribution Rate shall reset to 6.375%.

 

iii.             Not later than 5:00 p.m., New York City time, on each Series 2 Distribution Payment Date, the Partnership shall pay those Series 2 Distributions, if any, that shall have been declared by the General Partner to Series 2 Holders on the Record Date for the applicable Series 2 Distribution. The Record Date (the “ Series 2 Distribution Record Date ”) for the payment of any Series 2 Distributions shall be the first Business Day of the month of the applicable Series 2 Distribution Payment Date, except that in the case of payments of Series 2 Distributions in Arrears, the Series 2 Distribution Record Date with respect to a Series 2 Distribution Payment Date shall be such date as may be designated by the General Partner in accordance with this Section 2 to this Part III of Schedule A. So long as any Series 2 Preferred Units are Outstanding, no distribution shall be declared or paid or set aside for payment on any Series 2 Junior Securities (other than a distribution payable solely in Series 2 Junior Securities) unless full cumulative Series 2 Distributions have been or contemporaneously are being paid or set apart for payment on all Outstanding Series 2 Preferred Units and any Series 2 Parity Securities through the most recent respective distribution payment dates; provided, however, notwithstanding anything to the contrary in this Section 2(B)(b)(iii) to this Part III of Schedule A, if a distribution period with respect to a class of Series 2 Junior Securities or Series 2 Parity Securities is shorter than the Series 2 Distribution Period, the General Partner may declare and pay regular distributions with respect to such Series 2 Junior Securities or Series 2 Parity

 

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Securities, so long as, at the time of declaration of such distribution, (i) there are no Series 2 Distributions in Arrears, and (ii) the General Partner expects to have sufficient funds to pay the full distribution in respect of the Series 2 Preferred Units on the next successive Series 2 Distribution Payment Date. Accumulated Series 2 Distributions in Arrears for any past Series 2 Distribution Period may be declared by the General Partner and paid on any date fixed by the General Partner, whether or not a Series 2 Distribution Payment Date, to Series 2 Holders on the Record Date for such payment, which may not be less than 10 days before such payment date. Subject to the next succeeding sentence, if all accumulated Series 2 Distributions in Arrears on all Outstanding Series 2 Preferred Units and all accumulated distributions in arrears on any Series 2 Parity Securities shall not have been declared and paid, or if sufficient funds for the payment thereof shall not have been set apart, payment of accumulated distributions in Arrears on the Series 2 Preferred Units and accumulated distributions in arrears on any such Series 2 Parity Securities shall be made in order of their respective distribution payment dates, commencing with the earliest distribution payment date. If less than all distributions payable with respect to all Series 2 Preferred Units and any other Series 2 Parity Securities are paid, any partial payment shall be made pro rata with respect to the Series 2 Preferred Units and any such other Series 2 Parity Securities entitled to a distribution payment at such time in proportion to the aggregate distribution amounts remaining due in respect of such Series 2 Preferred Units and such other Series 2 Parity Securities, if any, at such time and apportioned equally among them in accordance with the relative amount to be paid or allocated to each group. Subject to Sections 13.3 of the Agreement and Section 2(B)(g) to this Part III of Schedule A, Series 2 Holders shall not be entitled to any distribution, whether payable in cash, property or Partnership Interests, in excess of full cumulative Series 2 Distributions. Except insofar as distributions accrue on the amount of any accumulated and unpaid Series 2 Distributions as described in Section 2(B)(b)(i) to this Part III of Schedule A, no interest or sum of money in lieu of interest shall be payable in respect of any distribution payment which may be in Arrears on the Series 2 Preferred Units. So long as the Series 2 Preferred Units are held of record by the Depositary or its nominee, declared Series 2 Distributions shall be paid to the Depositary in same-day funds on each Series 2 Distribution Payment Date or other distribution payment date in the case of payments for Series 2 Distributions in Arrears.

 

c.                Voting Rights .

 

i.                   Notwithstanding anything to the contrary in this Agreement, the Series 2 Preferred Units shall not have any voting rights or rights to consent or approve any action or matter, except as set forth in Section 5.3 of Part I of Schedule A to this Agreement, this Section 2(B)(c) to this Part III of Schedule A or as otherwise required by Bermuda Law.

 

ii.                Notwithstanding anything to the contrary in this Agreement, the General Partner shall not adopt any amendment to the Partnership Agreement that has a material adverse effect on the powers, preferences, duties or special rights of the Series 2

 

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Preferred Units unless such amendment (i) is approved by a resolution signed by Series 2 Holders owning not less than the percentage of the Series 2 Preferred Units that would be necessary to authorize such action at a meeting of Series 2 Holders at which all Series 2 Holders were present and voted or were represented by proxy or (ii) is passed by an affirmative vote of at least 66 2/3% of the votes cast at a meeting of Series 2 Holders duly called for that purpose and at which the holders of at least 33 1/3% of the outstanding Series 2 Preferred Units are present or represented by proxy; provided, however, that (x) subject to Section 5.3 of Part I of Schedule A to this Agreement, the issuance of additional Partnership Interests (and any amendment to this Agreement in connection therewith) shall not be deemed to constitute such a material adverse effect for purposes of this Section 2(B)(c)(ii) to this Part III of Schedule A and (y) for purposes of this Section 2(B)(c)(ii) to this Part III of Schedule A, no amendment of this Agreement in connection with a merger or other transaction in which the Partnership is the surviving entity and the Series 2 Preferred Units remain Outstanding with the terms thereof materially unchanged in any respect adverse to the Series 2 Holders shall be deemed to materially and adversely affect the powers, preferences, duties, or special rights of the Series 2 Preferred Units. If at any such meeting the holders of Series 2 Preferred Units of at least 33 1/3% of the then Outstanding Series 2 Preferred Units are not present or represented by proxy within one-half hour after the time appointed for such meeting, then the meeting shall be adjourned to such date not less than five (5) days thereafter and to such time and place as may be designated by the chairman of such meeting. At such adjourned meeting, the Series 2 Holders present or represented by proxy may transact the business for which the meeting was originally called and the Series 2 Holders then present or represented by proxy shall form the necessary quorum.

 

iii.             For any matter described in this Section 2(B)(c) to this Part III of Schedule A in which the Series 2 Holders are entitled to vote as a series (whether separately or together with the holders of any Series 2 Parity Securities), such Series 2 Holders shall be entitled to one vote per Series 2 Preferred Unit. Any Series 2 Preferred Units held by the Partnership or any of its Subsidiaries or their Affiliates shall not be entitled to vote.

 

iv.            Notwithstanding Section 2(B)(c)(ii) to this Part III of Schedule A and Section 5.3 of Part I of Schedule A to this Agreement, no vote of the Series 2 Holders shall be required if, at or prior to the time when such action is to take effect, provision is made for the redemption of all Series 2 Preferred Units at the time Outstanding.

 

d.               Optional Redemption; Series 2 Ratings Event; Change of Control Triggering Event; Delisting Brookfield Transaction Triggering Event; Change in Tax Law .

 

i.                   The Partnership shall have the right (i) at any time, and from time to time, on or after September 30, 2024, in whole or in part, (ii) prior to September 30, 2024, at any time within 120 days after the conclusion of any review or appeal process instituted by the Partnership following the occurrence of a Series 2 Ratings Event, in whole but not in part, (iii) at any time within 90 days after the first date on

 

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which a Change of Control Triggering Event occurred, in whole but not in part, (iv) at any time within 90 days after the first date on which a Delisting Brookfield Transaction Triggering Event occurred, in whole but not in part, or (v) if as a result of a Change in Tax Law there is, in the Partnership’s reasonable determination, a substantial probability that the Partnership or any Successor Entity would become obligated to pay any Additional Amounts on the next succeeding Series 2 Distribution Payment Date and the payment of those Additional Amounts cannot be avoided by the use of any reasonable measures available to the Partnership or any Successor Entity (a “ Tax Event ”), in whole but not in part, to redeem the Series 2 Preferred Units, using any source of funds legally available for such purpose. Any such redemption shall occur on a date set by the General Partner (the “ Series 2 Redemption Date ”). The Partnership shall effect any such redemption by paying cash for each Series 2 Preferred Unit to be redeemed equal to 100% (in the case of a redemption described in clauses (i), (iii), (iv) and (v) of this Section 2(B)(d)(i) to this Part III of Schedule A), or 102% (in the case of a redemption described in clause (ii) of this Section 2(B)(d)(i) to this Part III of Schedule A), of the Series 2 Liquidation Preference for such Series 2 Preferred Unit on such Series 2 Redemption Date plus an amount equal to all unpaid Series 2 Distributions thereon from the Series 2 Original Issue Date to, but excluding, the Series 2 Redemption Date (whether or not such distributions shall have been declared) (the “ Series 2 Redemption Price ”). So long as the Series 2 Preferred Units to be redeemed are held of record by the Depositary or the nominee of the Depositary, the Series 2 Redemption Price shall be paid by the Paying Agent to the Depositary on the Series 2 Redemption Date.

 

ii.                The Partnership shall give notice of any redemption by mail, postage prepaid, not less than 30 days and not more than 60 days before the scheduled Series 2 Redemption Date to the Series 2 Holders (as of 5:00 p.m. New York City time on the Business Day next preceding the day on which notice is given) of any Series 2 Preferred Units to be redeemed as such Series 2 Holders’ names appear on the books of the Series 2 Transfer Agent and at the address of such Series 2 Holders shown therein. Such notice (the “ Series 2 Redemption Notice ”) shall state, as applicable: (1) the Series 2 Redemption Date, (2) the number of Series 2 Preferred Units to be redeemed and, if less than all Outstanding Series 2 Preferred Units are to be redeemed, the number (and in the case of Series 2 Preferred Units in certificated form, the identification) of Series 2 Preferred Units to be redeemed from such Series 2 Holder, (3) the Series 2 Redemption Price, (4) the place where any Series 2 Preferred Units in certificated form are to be redeemed and shall be presented and surrendered for payment of the Series 2 Redemption Price therefor (which shall occur automatically if the Certificate representing such Series 2 Preferred Units is issued in the name of the Depositary or its nominee), and (5) that distributions on the Series 2 Preferred Units to be redeemed shall cease to accumulate from and after such Series 2 Redemption Date. So long as the Series 2 Preferred Units are held of record by the Depositary or its nominee, the Partnership shall give notice, or cause notice to be given, to the Depositary.

 

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iii.             If the Partnership elects to redeem less than all of the Outstanding Series 2 Preferred Units in the event of an optional redemption on or after September 30, 2024, the number of Series 2 Preferred Units to be redeemed shall be determined by the General Partner, and such Series 2 Preferred Units shall be redeemed by such method of selection as the Depositary shall determine, either apportioned equally among all Series 2 Holders in accordance with the relative number or percentage of Series 2 Preferred Units held by each such Series 2 Holder or by lot, with adjustments to avoid redemption of fractional Series 2 Preferred Units. The aggregate Series 2 Redemption Price for any such partial redemption of the Outstanding Series 2 Preferred Units shall be allocated correspondingly among the redeemed Series 2 Preferred Units. The Series 2 Preferred Units not redeemed shall remain Outstanding and entitled to all the rights, preferences and duties provided in this Section 2 to this Part III of Schedule A.

 

iv.            If the Partnership gives or causes to be given a Series 2 Redemption Notice, the Partnership shall deposit with the Paying Agent funds sufficient to redeem the Series 2 Preferred Units as to which such Series 2 Redemption Notice shall have been given, no later than 10:00 a.m. New York City time on the Series 2 Redemption Date, and shall give the Paying Agent irrevocable instructions and authority to pay the Series 2 Redemption Price to each Series 2 Holder whose Series 2 Preferred Units are to be redeemed upon surrender or deemed surrender (which shall occur automatically if the Certificate representing such Series 2 Preferred Units is issued in the name of the Depositary or its nominee) of the Certificates therefor as set forth in the Series 2 Redemption Notice. If a Series 2 Redemption Notice shall have been given, from and after the Series 2 Redemption Date, unless the Partnership defaults in providing funds sufficient for such redemption at the time and place specified for payment pursuant to the Series 2 Redemption Notice, all Series 2 Distributions on such Series 2 Preferred Units to be redeemed shall cease to accumulate and all rights of holders of such Series 2 Preferred Units as Limited Partners with respect to such Series 2 Preferred Units to be redeemed shall cease, except the right to receive the Series 2 Redemption Price, and such Series 2 Preferred Units shall not thereafter be transferred on the books of the Series 2 Transfer Agent or be deemed to be Outstanding for any purpose whatsoever. The Series 2 Holders shall have no claim to the interest income, if any, earned on funds deposited with the Paying Agent. Any funds deposited with the Paying Agent hereunder by the Partnership for any reason, including redemption of Series 2 Preferred Units, that remain unclaimed or unpaid after one year after the applicable Series 2 Redemption Date or other payment date, as applicable, shall be, to the extent permitted by law, repaid to the Partnership upon its written request, after which repayment the Series 2 Holders entitled to such redemption or other payment shall have recourse only to the Partnership. Notwithstanding any Series 2 Redemption Notice, there shall be no redemption of any Series 2 Preferred Units called for redemption until funds sufficient to pay the full Series 2 Redemption Price of such Series 2 Preferred Units shall have been deposited by the Partnership with the Paying Agent.

 

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v.               Any Series 2 Preferred Units that are redeemed or otherwise acquired by the Partnership shall be cancelled. If only a portion of the Series 2 Preferred Units represented by a Certificate shall have been called for redemption, upon surrender of the Certificate to the Paying Agent (which shall occur automatically if the Certificate representing such Series 2 Preferred Units is registered in the name of the Depositary or its nominee), the Partnership shall issue and the Paying Agent shall deliver to the Series 2 Holders a new Certificate (or adjust the applicable book-entry account) representing the number of Series 2 Preferred Units represented by the surrendered Certificate that have not been called for redemption.

 

vi.            Notwithstanding anything to the contrary in this Section 2 to this Part III of Schedule A, in the event that full cumulative distributions on the Series 2 Preferred Units and any Series 2 Parity Securities shall not have been paid or declared and set aside for payment, the Partnership shall not be permitted to repurchase, redeem or otherwise acquire, in whole or in part, any Series 2 Preferred Units or Series 2 Parity Securities except pursuant to a purchase or exchange offer made on the same relative terms to all Series 2 Holders and holders of any Series 2 Parity Securities. So long as any Series 2 Preferred Units are Outstanding, except out of the net cash proceeds of a substantially concurrent issue of Series 2 Junior Securities, the Partnership shall not be permitted to redeem, repurchase or otherwise acquire any Equity Units or any other Series 2 Junior Securities unless full cumulative distributions on the Series 2 Preferred Units and any Series 2 Parity Securities for all prior and the then-ending Series 2 Distribution Periods, with respect to the Series 2 Preferred Units, and all prior and then-ending distribution periods, with respect to any such Series 2 Parity Securities, shall have been paid or declared and set aside for payment.

 

e.                                        Payment of Additional Amounts .

 

i.                   The Partnership shall make all payments on the Series 2 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(B)(e) and Section 2(B)(f) to this Part III of Schedule A, pay to the Series 2 Holders such additional amounts (the “ Additional Amounts ”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional

 

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Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.

 

ii.                The Partnership shall not be required to pay any Additional Amounts for or on account of:

 

(a)          any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason of the mere ownership of, or receipt of payment under, the Series 2 Preferred Units or any Series 2 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “ Relevant Date ” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 2 Holders;

 

(b)          any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge or any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payment of the liquidation preference or of any distributions on the Series 2 Preferred Units;

 

(c)           any tax, fee, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by the holder of such Series 2 Preferred Units to comply with any reasonable request by the Partnership addressed to the holder within 90 days of such request (i) to provide information concerning the nationality, residence or identity of the holder or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirement that is required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, fee, duty, assessment or other governmental charge;

 

(d)          any tax, fee, duty, assessment or governmental charge imposed under the Income Tax Act or the Code; or

 

(e)           any combination of the foregoing.

 

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iii.             In addition, the Partnership shall not pay Additional Amounts with respect to any payment on any such Series 2 Preferred Units to any holder that is a fiduciary, partnership, limited liability company or other pass-through entity other than the sole beneficial owner of such Series 2 Preferred Units if such payment would be required by the laws of the Relevant Taxing Jurisdiction to be included in the income for tax purposes of a beneficiary or partner or settlor with respect to such fiduciary or a member of such partnership, limited liability company or other pass-through entity or a beneficial owner to the extent such beneficiary, partner or settlor would not have been entitled to such Additional Amounts had it been the holder of the Series 2 Preferred Units.

 

f.                                         Substitution or Variation .

 

i.                   At any time following a Tax Event, the Partnership may, without the consent of any Series 2 Holder, vary the terms of the Series 2 Preferred Units such that they remain securities, or exchange the Series 2 Preferred Units with new securities, which would eliminate the substantial probability that the Partnership or any Successor Entity would be required to pay any Additional Amounts with respect to the Series 2 Preferred Units as a result of a Change in Tax Law. The terms of the varied securities or new securities considered in the aggregate cannot be less favorable to holders than the terms of the Series 2 Preferred Units prior to being varied or exchanged; provided that no such variation of terms or securities received in exchange shall change the specified denominations of, distribution payable on, the redemption dates (other than any extension of the period during which an optional redemption may not be exercised by the Partnership) or currency of, the Series 2 Preferred Units, reduce the liquidation preference thereof, lower the ranking in right of payment with respect to the payment of distributions or the distribution of assets upon liquidation, dissolution or winding-up of the Series 2 Preferred Units, or change the foregoing list of items that may not be so amended as part of such variation or exchange. Further, no such variation of terms or securities received in exchange shall impair the right of a holder of the securities to institute suit for the payment of any amounts due, but unpaid with respect to such holder’s securities.

 

ii.                Prior to any variation or exchange, the Partnership shall be required to receive an opinion of independent legal advisers to the effect that holders and beneficial owners of the Series 2 Preferred Units (including as holders and beneficial owners of the varied or exchanged securities) will not recognize income, gain or loss for United States federal income tax purposes as a result of such variation or exchange and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case had such variation or exchange not occurred.

 

iii.             Any variation or exchange of the Series 2 Preferred Units described above shall be made after notice is given to the Series 2 Holders not less than 30 days nor more than 60 days prior to the date fixed for variation or exchange, as applicable.

 

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g.                                        Liquidation Rights . In the event of the liquidation, dissolution or winding-up of the Partnership, whether voluntary or involuntary, unless the Partnership is continued under the election to reconstitute and continue the Partnership pursuant to Section 13.3 of the Agreement, the Series 2 Holders shall be entitled to receive the Series 2 Liquidation Preference per Series 2 Preferred Unit held by them, together with all accrued (whether or not declared) and unpaid Series 2 Distributions up to but excluding the date of payment or distribution (less any tax required to be deducted and withheld by the Partnership), before any amounts shall be paid or any assets of the Partnership distributed to the holders of any Series 2 Junior Securities. Upon payment of the amounts set forth in the immediately preceding sentence, the Series 2 Holders shall not be entitled to share in any further distribution of the assets of the Partnership.

 

h.                                       Rank . The Series 2 Preferred Units shall each be deemed to rank as to payment of distributions on such Partnership Interests and distributions upon liquidation, dissolution or winding-up of the Partnership:

 

i.                   senior to any Series 2 Junior Securities;

 

ii.                on parity with any Series 2 Parity Securities;

 

iii.             junior to any other Series 2 Senior Securities; and

 

iv.            junior to all existing and future indebtedness of the Partnership with respect to assets available to satisfy claims against the Partnership.

 

The Series 2 Preferred Units will also rank on parity with the guarantee by the Partnership set forth in the Guarantee Agreement, dated December 4, 2015 (as such agreement may be amended from time time), relating to the series 1, series 2 and series 3 class A preferred units of the Property Partnership, in the event of a liquidation, dissolution or winding-up of the Property Partnership.

 

i.                                           No Sinking Fund . The Series 2 Preferred Units shall not have the benefit of any sinking fund.

 

j.                                          Record Holders . To the fullest extent permitted by applicable law, the General Partner, the Partnership, the Series 2 Transfer Agent, and the Paying Agent may deem and treat any Series 2 Holder as the true, lawful, and absolute owner of the applicable Series 2 Preferred Units for all purposes, and neither the General Partner, the Partnership, the Series 2 Transfer Agent nor the Paying Agent shall be affected by any notice to the contrary, except as otherwise provided by law or any applicable rule, regulation, guideline or requirement of any Securities Exchange on which the Series 2 Preferred Units may be listed or admitted to trading, if any.

 

k.                                       Other Rights; Fiduciary Duties . The Series 2 Preferred Units and the Series 2 Holders shall not have any designations, preferences, rights, powers or duties, other than as set forth in this Agreement or as provided by applicable law. Notwithstanding anything to the contrary in this Agreement or any duty existing at law, in equity or otherwise, to the fullest extent permitted by applicable law, neither the General Partner nor any other Indemnified Party shall owe any duties, including fiduciary duties, or have any liabilities to Series 2 Holders, other than the General Partner’s duty to act at all times in good faith.

 

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Exhibit 3.2

 

BROOKFIELD PROPERTY L.P.

 

THIRD AMENDMENT TO THE
FOURTH AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT

 

THIS AMENDMENT (the “ Amendment ”) to the Fourth Amended and Restated Limited Partnership Agreement of Brookfield Property L.P. (the “ Partnership ”), dated as of February 20, 2019, as amended by a First Amendment dated as of March 21, 2019, and as amended by a Second Amendment dated as of April 28, 2019 (as amended, the “ Agreement ”), is made as of the 20th day of August, 2019, by the undersigned.  Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement.

 

WHEREAS , the General Partner desires to amend the Agreement to create additional series of Class A Limited Partnership Units having the rights and restrictions set out in Part VII of Schedule A to this Amendment;

 

AND WHEREAS , pursuant to Section 17.1 of the Agreement, subject to compliance with the requirements of the Limited Partnership Act and the Exempted Partnerships Act, the General Partner (pursuant to its power of attorney from the Limited Partners), without the approval of any Limited Partner, may amend any provision of the Agreement to reflect certain changes, including, as provided for in Section 17.1.6 of the Agreement, an amendment that the Managing General Partner determines in its sole discretion to be necessary or appropriate for the creation, authorization or issuance of any class or series of Partnership Interests;

 

AND WHEREAS , the Managing General Partner desires to amend the Agreement as set out herein;

 

NOW THEREFORE ,

 

1.                                       Amendment to Article 1

 

Section 1.1.4 is hereby deleted in its entirety and replaced with the following:

 

Agreement ” means this Fourth Amended and Restated Limited Partnership Agreement of the Partnership, as amended by the First Amendment to the Fourth Amended and Restated Limited Partnership Agreement of the Partnership dated as of March 21, 2019, as amended by the Second Amendment to the Fourth Amended and Restated Limited Partnership Agreement of the Partnership dated as of April 28, 2019 and as amended by the Third Amendment to the Fourth Amended and Restated Limited Partnership Agreement of the Partnership dated as of August 20, 2019.

 

2.                                       Schedule A of the Agreement is hereby amended by adding Part VII of Schedule A to this Amendment as Part VII of Schedule A of the Agreement.

 

3.                                       This amendment shall be effective upon the date first written above.

 


 

4.                                       This amendment shall be governed by and construed in accordance with the laws of Bermuda.

 

5.                                       Except as modified herein, all terms and conditions of the Agreement shall remain in full force and effect.

 

6.                                       This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall be construed together as one agreement.

 

[Remainder of this page left blank intentionally.]

 

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IN WITNESS WHEREOF , the Managing General Partner has executed this Amendment as of the date first above written.

 

 

 

MANAGING GENERAL PARTNER:
BROOKFIELD PROPERTY PARTNERS L.P., by its general partner, BROOKFIELD PROPERTY PARTNERS LIMITED

 

 

 

 

By:

/s/ Jane Sheere

 

 

Name:

Jane Sheere

 

 

Title:

Secretary

 

[Third Amendment to Fourth LPA]

 


 

PART VII

 

BROOKFIELD PROPERTY L.P. (the “Partnership”)

 

Number and Designation of and Rights, Privileges, Restrictions and Conditions
Attaching to the Class A Cumulative Redeemable Perpetual Units, Series 6

 

The sixth series of Class A Preferred Units of the Partnership shall consist of preferred limited partnership interests designated as Class A Cumulative Redeemable Perpetual Units, Series 6 (the “ Series 6 Units ”) and, in addition to the rights, privileges, restrictions and conditions attaching to the Class A Preferred Units as a class, shall have attached thereto the following rights, privileges, restrictions and conditions:

 

1.                                       Definitions

 

For the purposes hereof, the following capitalized terms shall have the following meanings, unless the context otherwise requires:

 

Arrears ” means, with respect to the Series 6 Distributions, the full cumulative Series 6 Distributions through the most recent Series 6 Distribution Payment Date that have not been paid on all Outstanding Series 6 Units.

 

Assignee ” means a Person to whom one or more Partnership Interests have been transferred in a manner permitted under this Agreement.

 

BPY Series 2 Additional Amounts ” means “Additional Amounts” as defined in the BPY Partnership Agreement.

 

BPY Series 2 Change of Control Triggering Event ” means a “Change of Control Triggering Event” as defined in the BPY Partnership Agreement.

 

BPY Series 2 Delisting Brookfield Transaction Triggering Event ” means a “Delisting Brookfield Transaction Triggering Event” as defined in the BPY Partnership Agreement.

 

BPY General Partner ” means Brookfield Property Partners Limited.

 

BPY Series 2 Rating Event ” means a “Series 2 Rating Event” as defined in the BPY Partnership Agreement.

 

BPY Series 2 Units ” means the Managing General Partner’s Class A Cumulative Redeemable Perpetual Units, Series 2.

 

BPY Series 2 Successor Entity ” means a “Successor Entity” as defined in the BPY Partnership Agreement.

 

Series 6 Distribution Payment Date ” means the last day of each of March, June, September and December of each year; provided however, that if any Series 6 Distribution Payment Date would otherwise occur on a day that is not a Business Day, such Series 6

 

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Distribution Payment Date shall instead be on the immediately succeeding Business Day without the accumulation of additional distributions; provided further, that the Series 6 Distribution Payment Date for the initial Series 6 Distribution Period shall be December 31, 2019.

 

Series 6 Distribution Period ” means a period of time from and including the preceding Series 6 Distribution Payment Date to, but excluding, the next Series 6 Distribution Payment Date for such Series 6 Distribution Period (other than the initial Series 6 Distribution Period, which means a period of time from and including the Series 6 Original Issue Date to, but excluding, December 31, 2019).

 

Series 6 Distribution Rate ” means an annual rate equal to 6.375% of the Series 6 Liquidation Preference, subject to adjustment from time to time as set forth in Section 2(B)(b)(ii) to this Part VII of Schedule A.

 

Series 6 Distribution Record Date ” has the meaning given to such term in Section 2(B)(b)(iii) to this Part VII of Schedule A.

 

Series 6 Distributions ” means distributions with respect to Series 6 Units pursuant to Section 2(B)(b) to this Part VII of Schedule A.

 

Series 6 Holder ” means a Record Holder of Series 6 Units.

 

Series 6 Liquidation Preference ” means a liquidation preference for each Series 6 Unit equal to $25.00 per unit (subject to adjustment for any splits, combinations or similar adjustments to the Series 6 Units).

 

Series 6 Original Issue Date ” means August 20, 2019.

 

Series 6 Units ” has the meaning given to such term in the preamble to this Part VII of Schedule A.

 

Series 6 Redemption Date ” has the meaning given such term in Section 2(B)(d)(i) to this Part VII of Schedule A.

 

Series 6 Redemption Price ” has the meaning given such term in Section 2(B)(d)(i) to this Part VII of Schedule A.

 

2.               Terms of Series 6 Units .

 

A.             General . Each Series 6 Unit shall be identical in all respects to every other Series 6 Unit, except as to the respective dates from which the Series 6 Liquidation Preference shall increase or from which Series 6 Distributions may begin accruing, to the extent such dates may differ. The Series 6 Units represent perpetual interests in the Partnership and shall not give rise to a claim by the Partnership or a Series 6 Holder for conversion or, except as set forth in Section 2(B)(d) to this Part VII of Schedule A, redemption thereof at a particular date.

 

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B.             Rights of Series 6 Units . The Series 6 Units shall have the following rights, preferences and privileges and shall be subject to the following duties and obligations:

 

a.               Series 6 Units .

 

i.                   The authorized number of Series 6 Units shall be unlimited. Series 6 Units that are purchased or otherwise acquired by the Partnership shall be cancelled.

 

ii.                The Series 6 Units shall be represented by one or more Certificates (or in book entry) on the books and records of the Partnership in the name of the Series 6 Holder.

 

b.               Distributions .

 

i.                   Distributions on each Outstanding Series 6 Unit shall be cumulative and shall accumulate at the applicable Series 6 Distribution Rate from and including the Series 6 Original Issue Date (or, for any subsequently issued and newly Outstanding Series 6 Units, from and including the Series 6 Distribution Payment Date immediately preceding the issue date of such Series 6 Units) until such time as the Partnership pays the Series 6 Distribution or redeems such Series 6 Unit in accordance with Section 2(B)(d) to this Part VII of Schedule A, whether or not such Series 6 Distributions shall have been declared. Series 6 Holders shall be entitled to receive Series 6 Distributions from time to time out of any assets of the Partnership legally available for the payment of distributions at the Series 6 Distribution Rate per Series 6 Unit when, as, and, if declared by the Managing General Partner. Series 6 Distributions, to the extent declared by the Managing General Partner to be paid by the Partnership in accordance with this Section 2(B)(b) to this Part VII of Schedule A, shall be paid, in Arrears, on each Series 6 Distribution Payment Date. Series 6 Distributions shall accumulate in each Series 6 Distribution Period, provided that distributions shall accrue on accumulated but unpaid Series 6 Distributions at the Series 6 Distribution Rate. If any Series 6 Distribution Payment Date otherwise would occur on a date that is not a Business Day, declared Series 6 Distributions shall be paid on the immediately succeeding Business Day without the accumulation of additional distributions. Series 6 Distributions shall be payable based on a 360-day year consisting of twelve 30 day months. All Series 6 Distributions that are (1) accumulated and unpaid or (2) payable by the Partnership pursuant to this Section 2(B)(b) or 2(B)(e) to this Part VII of Schedule A shall be payable without regard to the income of the Partnership and shall be treated for U.S. federal income tax purposes as guaranteed payments for the use of capital under Section 707(c) of the Code, including for the purpose of determining Net Income and Net Loss and otherwise maintaining Capital Accounts, unless there is a change in Tax law or administrative practice that requires treatment other than as guaranteed payments for U.S. federal income tax purposes, as determined in the sole discretion of the Managing General Partner. For U.S. federal income tax purposes, the deduction attributable to any amount treated as a guaranteed payment shall be specially allocated to the Partners in a manner determined by the Managing General Partner

 

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in its sole discretion that is not inconsistent with the applicable provisions of the Code and Treasury Regulations. Such guaranteed payments with respect to any Series 6 Distribution Period shall be for the account of the Series 6 Holders as of the applicable Series 6 Distribution Record Date, or as otherwise reasonably determined by the Managing General Partner.

 

ii.                If the distribution rate per annum on the BPY Series 2 Units issued by BPY shall increase or decrease pursuant to Section 2(B)(b)(ii) of Part III of Schedule A of the BPY Partnership Agreement, then the Series 6 Distribution Rate shall increase or decrease, as applicable, by the same amount beginning on the same date as the BPY Series 2 Units.

 

iii.             Not later than 5:00 p.m., New York City time, on each Series 6 Distribution Payment Date, the Partnership shall pay those Series 6 Distributions, if any, that shall have been declared by the Managing General Partner to Series 6 Holders on the Record Date for the applicable Series 6 Distribution. The Record Date (the “ Series 6 Distribution Record Date ”) for the payment of any Series 6 Distributions shall be the first Business Day of the month of the applicable Series 6 Distribution Payment Date, except that in the case of payments of Series 6 Distributions in Arrears, the Series 6 Distribution Record Date with respect to a Series 6 Distribution Payment Date shall be such date as may be designated by the Managing General Partner in accordance with this Section 2 to this Part VII of Schedule A. So long as any Series 6 Units are Outstanding, no distribution shall be declared or paid or set aside for payment on any Junior Securities (other than a distribution payable solely in Junior Securities) unless full cumulative Series 6 Distributions have been or contemporaneously are being paid or set apart for payment on all Outstanding Series 6 Units and any Parity Securities through the most recent respective distribution payment dates; provided, however, notwithstanding anything to the contrary in this Section 2(B)(b)(iii) to this Part VII of Schedule A, if a distribution period with respect to a class of Junior Securities or Parity Securities is shorter than the Series 6 Distribution Period, the Managing General Partner may declare and pay regular distributions with respect to such Junior Securities or Parity Securities, so long as, at the time of declaration of such distribution, (i) there are no Series 6 Distributions in Arrears, and (ii) the Managing General Partner expects to have sufficient funds to pay the full distribution in respect of the Series 6 Units on the next successive Series 6 Distribution Payment Date. Accumulated Series 6 Distributions in Arrears for any past Series 6 Distribution Period may be declared by the Managing General Partner and paid on any date fixed by the Managing General Partner, whether or not a Series 6 Distribution Payment Date, to Series 6 Holders on the Record Date for such payment, which may not be less than 10 days before such payment date. Subject to the next succeeding sentence, if all accumulated Series 6 Distributions in Arrears on all Outstanding Series 6 Units and all accumulated distributions in arrears on any Parity Securities shall not have been declared and paid, or if sufficient funds for the payment thereof shall not have been set apart, payment of accumulated distributions in Arrears on the Series 6 Units and accumulated distributions in arrears on any such Parity Securities shall be made in order of

 

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their respective distribution payment dates, commencing with the earliest distribution payment date. If less than all distributions payable with respect to all Series 6 Units and any other Parity Securities are paid, any partial payment shall be made pro rata with respect to the Series 6 Units and any such other Parity Securities entitled to a distribution payment at such time in proportion to the aggregate distribution amounts remaining due in respect of such Series 6 Units and such other Parity Securities, if any, at such time and apportioned equally among them in accordance with the relative amount to be paid or allocated to each group. Subject to Sections 16.3 of this Agreement and Section 2(B)(f) to this Part VII of Schedule A, Series 6 Holders shall not be entitled to any distribution, whether payable in cash, property or Partnership Interests, in excess of full cumulative Series 6 Distributions. Except insofar as distributions accrue on the amount of any accumulated and unpaid Series 6 Distributions as described in Section 2(B)(b)(i) to this Part VII of Schedule A, no interest or sum of money in lieu of interest shall be payable in respect of any distribution payment which may be in Arrears on the Series 6 Units. Declared Series 6 Distributions shall be paid to the Series 6 Holders in same-day funds on each Series 6 Distribution Payment Date or other distribution payment date in the case of payments for Series 6 Distributions in Arrears.

 

c.                Voting Rights .

 

i.                   Notwithstanding anything to the contrary in this Agreement, the Series 6 Units shall not have any voting rights or rights to consent or approve any action or matter, except as set forth in Section 4.4 to this Agreement and Section 6 of Part I of Schedule A to this Agreement, this Section 2(B)(c) to this Part VII of Schedule A or as otherwise required by Bermuda Law.

 

ii.                The rights, privileges, restrictions and conditions attached to the Series 6 Units may be added to, changed or removed but only with the approval of the holders of a majority of the Outstanding Series 6 Units, given as hereinafter specified.

 

iii.             The approval of the holders of the Series 6 Units as a series in respect of any matter requiring the consent of the holders of the Series 6 Units as a series may be given in such manner as may then be required by Law, subject to a minimum requirement that such approval be passed by the requisite affirmative vote of the votes cast at a meeting of the holders of Series 6 Units as a series duly called and held for that purpose in accordance with Article 17 of this Agreement or given by resolution signed by holders of Series 6 Units as a series in accordance with Article 17 of this Agreement.

 

iv.            Each Series 6 Unit shall entitle the holder thereof to one vote for the purposes of any approval at a meeting of the holders of the Series 6 Units or by written consent.

 

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d.               Optional Redemption .

 

i.                   The Partnership shall have the right to redeem the Series 6 Units (i) at any time, and from time to time, on or after September 30, 2024, in whole or in part, (ii) prior to September 30, 2024, if BPY redeems the BPY Series 2 Units pursuant to a BPY Series 2 Rating Event, in whole but not in part, (iii) at any time if BPY redeems the BPY Series 2 Units following a BPY Series 2 Change of Control Triggering Event, in whole but not in part, (iv) at any time if BPY redeems the BPY Series 2 Units following a BPY Series 2 Delisting Brookfield Transaction Triggering Event, in whole but not in part, or (v) if BPY redeems the BPY Series 2 Units following a BPY Series 2 Change in Tax Law where, in BPY’s reasonable determination, a substantial probability that BPY or any BPY Series 2 Successor Entity would become obligated to pay any BPY Series 2 Additional Amounts on the next succeeding distribution payment date with respect to the BPY Series 2 Units and the payment of those BPY Series 2 Additional Amounts cannot be avoided by the use of any reasonable measures available to BPY or any BPY Series 2 Successor Entity, in whole but not in part, using any source of funds legally available for such purpose. Any such redemption shall occur on a date set by the Managing General Partner (the “ Series 6 Redemption Date ”). The Partnership shall effect any such redemption by paying cash for each Series 6 Unit to be redeemed equal to 100% (in the case of a redemption described in clauses (i), (iii), (iv) and (v) of this Section 2(B)(d)(i) to this Part VII of Schedule A), or 102% (in the case of a redemption described in clause (ii) of this Section 2(B)(d)(i) to this Part VII of Schedule A), of the Series 6 Liquidation Preference for such Series 6 Unit on such Series 6 Redemption Date plus an amount equal to all unpaid Series 6 Distributions thereon from the Series 6 Original Issue Date to, but excluding, the Series 6 Redemption Date (whether or not such distributions shall have been declared) (the “ Series 6 Redemption Price ”). The Series 6 Redemption Price shall be paid by the Partnership to the Series 6 Holders on the Series 6 Redemption Date.

 

ii.                The Partnership shall give notice of any redemption not less than 30 days and not more than 60 days before the scheduled Series 6 Redemption Date to the Series 6 Holders (as of 5:00 p.m. New York City time on the Business Day next preceding the day on which notice is given) of any Series 6 Units to be redeemed as such Series 6 Holders’ names appear on the books of the Partnership and at the address of such Series 6 Holders shown therein.

 

iii.             If the Partnership elects to redeem less than all of the Outstanding Series 6 Units in the event of an optional redemption on or after September 30, 2024, the number of Series 6 Units to be redeemed shall be determined by the Managing General Partner, and such Series 6 Units shall be redeemed by such method of selection as the Managing General Partner shall determine, either apportioned equally among all Series 6 Holders in accordance with the relative number or percentage of Series 6 Units held by each such Series 6 Holder or by lot, with adjustments to avoid redemption of fractional Series 6 Units. The aggregate Series 6 Redemption Price for any such partial redemption of the Outstanding Series 6 Units shall be

 

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allocated correspondingly among the redeemed Series 6 Units. The Series 6 Units not redeemed shall remain Outstanding and entitled to all the rights, preferences and duties provided in this Section 2 to this Part VII of Schedule A.

 

iv.            No later than 10:00 a.m. New York City time on the Series 6 Redemption Date, the Partnership shall pay or cause to be paid to the Series 6 Holders immediately available funds sufficient to pay the Series 6 Redemption Price to each Series 6 Holder whose Series 6 Units are to be redeemed upon surrender or deemed surrender of the Certificates (or book entry position) therefor.

 

v.               Any Series 6 Units that are redeemed or otherwise acquired by the Partnership shall be cancelled. If only a portion of the Series 6 Units represented by a Certificate shall have been called for redemption, upon surrender of the Certificate to the Partnership, the Partnership shall issue and deliver to the Series 6 Holders a new Certificate (or adjust the applicable book-entry account) representing the number of Series 6 Units represented by the surrendered Certificate that have not been called for redemption.

 

vi.            Notwithstanding anything to the contrary in this Section 2 to this Part VII of Schedule A, in the event that full cumulative distributions on the Series 6 Units and any Parity Securities shall not have been paid or declared and set aside for payment, the Partnership shall not be permitted to repurchase, redeem or otherwise acquire, in whole or in part, any Series 6 Units or Parity Securities except pursuant to a purchase or exchange offer made on the same relative terms to all Series 6 Holders and holders of any Parity Securities. So long as any Series 6 Units are Outstanding, except out of the net cash proceeds of a substantially concurrent issue of Junior Securities, the Partnership shall not be permitted to redeem, repurchase or otherwise acquire any Junior Securities unless full cumulative distributions on the Series 6 Units and any Parity Securities for all prior and the then-ending Series 6 Distribution Periods, with respect to the Series 6 Units, and all prior and then ending distribution periods, with respect to any such Parity Securities, shall have been paid or declared and set aside for payment.

 

e.                                        Payment of Additional Amounts . If BPY shall be required, pursuant to Section 2(B)(e) of Part III of Schedule A of the BPY Partnership Agreement to pay additional amounts to holders of the BPY Series 2 Units, the Partnership shall pay to the Series 6 Holders such additional amounts as distributions on the Series 6 Units as may be necessary such that the additional amounts paid as distributions by the Partnership shall equal the additional amounts paid by BPY pursuant to 2(B)(e) of Part III of Schedule A of the BPY Partnership Agreement.

 

f.                                         Liquidation Rights . In the event of the liquidation, dissolution or winding-up of the Partnership, whether voluntary or involuntary, unless the Partnership is continued under the election to reconstitute and continue the Partnership pursuant to Section 16.2 of this Agreement, the Series 6 Holders shall be entitled to receive the Series 6 Liquidation Preference per Series 6 Unit held by them, together with all accrued (whether or not declared) and unpaid Series 6 Distributions up to but excluding the date of payment or distribution (less any tax required to be deducted and withheld by the Partnership), before any amounts shall be paid or any assets of the

 

7


 

Partnership distributed to the holders of any Junior Securities. Upon payment of such amounts, the Series 6 Holders shall not be entitled to share in any further distribution of the assets of the Partnership.

 

g.                                        No Sinking Fund . The Series 6 Units shall not have the benefit of any sinking fund.

 

h.                                       Record Holders . To the fullest extent permitted by applicable law, the Managing General Partner and the Partnership may deem and treat any Series 6 Holder as the true, lawful, and absolute owner of the applicable Series 6 Units for all purposes, and neither the Managing General Partner nor the Partnership shall be affected by any notice to the contrary, except as otherwise provided by law.

 

i.                                           Other Rights; Fiduciary Duties . The Series 6 Units and the Series 6 Holders shall not have any designations, preferences, rights, powers or duties, other than as set forth in this Agreement or as provided by applicable law. Notwithstanding anything to the contrary in this Agreement or any duty existing at law, in equity or otherwise, to the fullest extent permitted by applicable law, neither the Managing General Partner nor any other Indemnified Party shall owe any duties, including fiduciary duties, or have any liabilities to Series 6 Holders, other than the Managing General Partner’s duty to act at all times in good faith.

 

8


Exhibit 4.1

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE PARTNERSHIP OR THE TRANSFER AGENT NAMED ON THE FACE OF THIS CERTIFICATE, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE STATEMENT WITH RESPECT TO SERIES 2 PREFERRED UNITS.  IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE TRANSFER AGENT NAMED ON THE FACE OF THIS CERTIFICATE SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

CERTIFICATE EVIDENCING

6.375% CLASS A CUMULATIVE REDEEMABLE PERPETUAL PREFERRED UNITS, SERIES 2

OF

BROOKFIELD PROPERTY PARTNERS L.P.

A PARTNERSHIP FORMED UNDER THE LAWS OF BERMUDA

 

CERTIFICATE NUMBER:                           

INITIAL NUMBER OF SERIES 2 PREFERRED UNITS:                           

 

CUSIP Number: G16249 156
ISIN: BMG162491564

 

Brookfield Property Partners L.P., a Bermuda exempted partnership (the “ Partnership ”), hereby certifies that CEDE & CO. (the “ Holder ”), is the registered owner of the number shown on Schedule I hereto of fully paid and non-assessable units of the Partnership’s designated 6.375% Class A Cumulative Redeemable Perpetual Preferred Units, Series 2, with a liquidation preference of $25.00 per unit (the “ Series 2 Preferred Units ”). The Series 2 Preferred Units are transferable on the books of the Partnership or its duly authorized Transfer Agent, in person or by a duly authorized attorney, upon surrender of this certificate properly endorsed. The rights, preferences and limitations of the Series 2 Preferred Units are set forth in, and this certificate and the Series 2 Preferred Units represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Second Amended and Restated Limited Partnership Agreement of the Partnership, dated August 8, 2013, as amended on November 5, 2015, March 21, 2019, and August 20, 2019, and as the same may be further amended from time to time (the “ Partnership Agreement ”). Capitalized terms used herein but not defined shall have the meaning given them in the Partnership Agreement. Copies of the Partnership Agreement are on file at, and will be furnished without charge on delivery of written request to the Partnership at the principal office of the Partnership. In the case of any conflict between this certificate and the Partnership Agreement, the provisions of the Partnership Agreement shall control and govern.

 

Upon receipt of this executed certificate, the Holder is bound by the Partnership Agreement and is entitled to the benefits thereunder.

 

The Holder, by accepting this certificate, is deemed to have (i) requested admission as, and agreed to become, a limited partner and to have agreed to comply with and be bound by and to have executed the Partnership Agreement, (ii) represented and warranted that the Holder has all right, power and, if an individual, the capacity necessary to enter into the Partnership Agreement, (iii) granted the powers of attorney provided for in the Partnership Agreement, (iv) made the waivers and given the consents and approvals contained in the Partnership Agreement; and (v) ratified and confirmed all contracts, agreements, assignments and instruments entered into on behalf of the Partnership in accordance with the Partnership Agreement.

 

This certificate shall not be valid for any purpose unless it has been countersigned and registered by the registrar and transfer agent (the “ Transfer Agent ”).

 


 

IN WITNESS WHEREOF, this certificate has been executed on behalf of the Partnership by its General Partner this       day of                         .

 

BROOKFIELD PROPERTY PARTNERS LIMITED, the general partner of BROOKFIELD PROPERTY PARTNERS L.P.

 

 

 

 

 

 

 

Name:

 

Title:

 

 


 

COUNTERSIGNATURE

 

These are the Series 2 Preferred Units referred to in the within-mentioned Partnership Agreement.

 

Dated:                                

 

 

REGISTRAR AND TRANSFER AGENT

 

AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC

 

 

 

 

 

 

 

Name:

 

Title:

 

 


 

FOR VALUE RECEIVED ,                                                                                   , hereby assigns, conveys, sells and transfers unto

 

 

(Please print or typewrite name and address of Assignee)

 

 

 

(Please insert Social Security or other identifying number of Assignee)

 

                                       Series 2 Preferred Units representing preferred limited partnership interests evidenced by this certificate, subject to the Partnership Agreement, and does hereby irrevocably constitute and appoint                                                                                     as its attorney-in-fact with full power of substitution to transfer the same on the books of Brookfield Property Partners L.P.

 

                     Dated:

 

 

 

 

 

 

 

 

 

 

 

 

(Signature)

 

(Signature)

 

 

 

NOTICE:                     THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO SEC RULE 17Ad-15

 

Signature Guaranteed By:

 

 

 

No transfer of the Series 2 Preferred Units evidenced hereby will be registered on the books of the Partnership or its duly authorized Transfer Agent unless the certificate evidencing the Series 2 Preferred Units to be transferred is surrendered for registration of transfer.

 


 

SCHEDULE I

 

BROOKFIELD PROPERTY PARTNERS L.P.

 

Global Series 2 Preferred Unit

 

Certificate Number:

 

The number of Series 2 Preferred Units initially represented by this global Series 2 Preferred Unit shall be                    . Thereafter the Transfer Agent shall note changes in the number of Series 2 Preferred Units evidenced by this global Series 2 Preferred Unit in the table set forth below:

 

Date of Exchange

 

Amount of Decrease in
Number of Series 2
Preferred Units
Represented by this Global
Series 2 Preferred Unit

 

Amount of Increase in
Number of Series 2
Preferred Units
Represented by this Global
Series 2 Preferred Unit

 

Number of Series 2
Preferred Units
Represented by this Global
Series 2 Preferred Unit
following Decrease or
Increase

 

Signature of Authorized
Officer of
Transfer Agent

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Exhibit 5.1

 

 

Brookfield Property Partners L.P.

73 Front Street, 5 th  Floor
Hamilton HM 12
Bermuda

Email   clangley@applebyglobal.com

 

Direct Dial   +1 441 295 3202

Tel   +1 441 295 2244

Fax   +1 441 292 8666

 

Appleby Ref   410628.0031

 

20 August 2019

 

Dear Sirs

 

Brookfield Property Partners L.P.

 

We have acted as legal advisers as to matters of Bermuda law to Brookfield Property Partners L.P., a limited partnership organized under the laws of the Islands of Bermuda ( Partnership ). We have been requested to render this opinion to you in connection with the filing by the Partnership of a prospectus supplement dated 13 August 2019 ( Prospectus Supplement ) to an automatic shelf registration statement on Form F-3 (Reg. No. 333-218503) ( Registration Statement ) with the Securities and Exchange Commission ( SEC ) pursuant to the Securities Act of 1933, as amended ( Securities Act ), and the rules and regulations promulgated thereunder, relating to the registration under the Securities Act of 10,000,000 of 6.375% Class A Cumulative Redeemable Perpetual Preferred Units, Series 2 ( Units ) of the Partnership.

 

For the purposes of this opinion we have examined and relied upon the documents listed (which in some cases, are also defined) in the Schedule to this opinion ( Documents ).

 

Assumptions

 

In stating our opinion we have assumed:

 

1.                                       the authenticity, accuracy and completeness of all Documents submitted to us as originals and the conformity to authentic original Documents of all Documents submitted to us as certified, conformed, notarized or photostatic copies;

 

2.                                       the genuineness of all signatures on the Documents;

 

3.                                       the authority, capacity and power of persons signing the Documents;

 

4.                                       that any representation, warranty or statement of fact or law, other than the laws of Bermuda made in any of the Documents, is true, accurate and complete;

 


 

 

5.                                       that there are no provisions of the laws or regulations of any jurisdiction other than Bermuda which would have any implication in relation to the opinions expressed herein;

 

6.                                       that there are no provisions of the laws or regulations of any jurisdiction other than Bermuda which would be contravened by any actions taken by the Partnership in connection with the Registration Statement or which would have any implication in relation to the opinion expressed herein and that, in so far as any obligation under, or action to be taken under, the Registration Statement is required to be performed or taken in any jurisdiction outside Bermuda, the performance of such obligation or the taking of such action will constitute a valid and binding obligation of each of the parties thereto under the laws of that jurisdiction and will not be illegal by virtue of the laws of that jurisdiction;

 

7.                                       that the Resolutions are in full force and effect, have not been rescinded, either in whole or in part, and accurately record the resolutions passed by the Board of Directors of Brookfield Property Partners Limited ( General Partner ), the general partner of the Partnership, on behalf of the Partnership in meetings which were duly convened and at which a duly constituted quorum was present and voting throughout and that there is no matter affecting the authority of the Directors to effect the listing of the Units on behalf of the Partnership, not disclosed by the Limited Partnership Documents or the Resolutions, which would have any adverse implication in relation to the opinions expressed herein; and

 

8.                                       that the records which were the subject of the Searches were complete and accurate at the time of such searches and disclosed all information which is material for the purposes of this opinion and such information has not since the date of the Searches been materially altered.

 

Opinion

 

Based upon and subject to the foregoing and subject to the reservations set out below and to any matters not disclosed to us, we are of the opinion that:

 

1.                                       The Partnership is an exempted limited partnership established and existing under the laws of Bermuda. The Partnership possesses the capacity to sue and be sued and is in good standing under the laws of Bermuda. All suits in respect of the Partnership shall be prosecuted against the General Partner, in its capacity as general partner of the Partnership.

 

2.                                       The issue of the Units has been duly authorized by all necessary action on the part of the Partnership and when issued as contemplated by the Prospectus Supplement and

 


 

 

Resolutions will be validly issued, fully paid and non-assessable units of the Partnership.

 

Reservations

 

We have the following reservations:

 

1.                                       We express no opinion as to any law other than Bermuda law and none of the opinions expressed herein relates to compliance with or matters governed by the laws of any jurisdiction except Bermuda. This opinion is limited to Bermuda law as applied by the courts of Bermuda at the date hereof.

 

2.                                       Where an obligation is to be performed in a jurisdiction other than Bermuda, the courts of Bermuda may refuse to enforce it to the extent that such performance would be illegal under the laws of, or contrary to public policy of such other jurisdiction.

 

3.                                       Any reference in this opinion to Units being “non-assessable” shall mean, in relation to fully-paid Units of the Partnership and subject to any contrary provision in any agreement in writing between the Partnership and the holder of Units, that: no holder shall be obliged to contribute further amounts to the capital of the Partnership, either in order to complete payment for their Units, to satisfy claims of creditors of the Partnership, or otherwise.

 

4.                                       Searches of the Register of Companies at the office of the Registrar of Companies are not conclusive and it should be noted that the Register of Companies and the Supreme Court Causes Book do not reveal:

 

(i)                                    details of matters which have been lodged for filing or registration which as a matter of best practice of the Registrar of Companies or the Registry of the Supreme Court would have or should have been disclosed on the public file, the Causes Book or the Judgment Book, as the case may be, but for whatever reason have not actually been filed or registered or are not disclosed or which, notwithstanding filing or registration, at the date and time the search is concluded are for whatever reason not disclosed or do not appear on the public file, the Causes Book or Judgment Book;

 

(ii)                                 details of matters which should have been lodged for filing or registration at the Registrar of Companies or the Registry of the Supreme Court but have not been lodged for filing or registration at the date the search is concluded;

 

(iii)                              whether an application to the Supreme Court for a winding-up petition or for the appointment of a receiver or manager has been prepared but not yet been

 


 

 

presented or has been presented but does not appear in the Causes Book at the date and time the search is concluded;

 

(iv)                             whether any arbitration or administrative proceedings are pending or whether any proceedings are threatened, or whether any arbitrator has been appointed; or

 

(v)                                whether a receiver or manager has been appointed privately pursuant to the provisions of a debenture or other security, unless notice of the fact has been entered in the Register of Charges in accordance with the provisions of the Companies Act 1981.

 

5.                                       The Limited Partnership Act 1883 ( Act ) provides that a limited partner shall be liable as a general partner if he takes part in the management of the partnership.

 

6.                                       A limited partner is liable to the Partnership, or to its creditors, for any amount in respect of such limited partner’s contribution to the Partnership to the extent such contribution has not been contributed in full, or to the extent such contribution is either released or returned to the limited partner contrary to the restrictions on reductions of capital contained in the Act.

 

7.                                       A limited partner is liable for damages on account of misrepresentation in respect of false statements contained in the certificate of limited partnership, any supplementary certificates or certificate of cancellation in respect of the Partnership, to the extent a limited partner signed such certificate, or caused another to sign it on his/her behalf, and knew such statement to be false at the time of signature.

 

8.                                       Every partner of the Partnership who is guilty of any fraud in the affairs of the Partnership shall be liable civilly to the party injured to the extent of his damage and shall be liable for penalties applicable to offences committed in contravention of the Act.

 

9.                                       In opinion paragraph 1, the term ‘good standing’ means only that the Partnership has received a Certificate of Compliance from the Registrar of Companies in Hamilton, Bermuda which confirms that it has neither failed to make any filing with any Bermuda governmental authority nor to pay any Bermuda government fee or tax.

 

Disclosure

 

This opinion is addressed to you in connection with the registration of the Units with the SEC and is not to be made available to, or relied on by any other person or entity (other than the Unitholders as referenced in the Registration Statement), or for any other purpose, nor quoted

 


 

 

or referred to in any public document nor filed with any governmental agency or person (other than the SEC in connection with the Registration Statement), without our prior written consent except as may be required by law or regulatory authority. We consent to the filing of this opinion as an exhibit to the Partnership’s Report of Foreign Issuer on Form 6-K being filed on or about the date hereof and incorporated by reference into the Registration Statement and further consent to the reference to our firm under the caption “Legal Matters” in the Registration Statement and Prospectus Supplement.

 

This opinion is governed by and is to be construed in accordance with Bermuda law. Further, this opinion speaks as of its date and is strictly limited to the matters stated in it and we assume no obligation to review or update this opinion if applicable law or the existing acts or circumstances should change.

 

Yours faithfully

 

 

/s/ Appleby (Bermuda) Limited
Appleby (Bermuda) Limited

 


 

 

SCHEDULE

 

1.                                       The entries and filings shown in respect of the Partnership and the General Partner, on the files of the Partnership and the General Partner maintained in the Registrar of Companies at the office of the Registrar of Companies in Hamilton, Bermuda, as revealed by searches on 19 August 2019, and the entries and filings shown in respect of the Partnership and the General Partner in the Supreme Court Causes book maintained at the Registry of the Supreme Court, Hamilton, Bermuda, as revealed by searches on 19 August 2019 ( Searches ).

 

2.                                       Certified copies of the Certificate of Registration, Limited Particulars and Exempted Particulars in relation to the Partnership, and the second amended and restated limited partnership agreement of the Partnership dated 8 August 2013, as amended by a first amendment to second amended and restated partnership agreement dated 5 November 2015, as amended by a second amendment to the second amended and restated partnership agreement dated 21 March 2019, and as amended by a third amendment to the second amended and restated partnership agreement dated 20 August 2019 (collectively, Limited Partnership Documents ).

 

3.                                       Copies of the minutes of the meetings of the Board of Directors of the General Partner held on 1 August 2019 ( Resolutions ).

 

4.                                       The Registration Statement and the Prospectus Supplement.

 


Exhibit 8.1

 

 

1114 Avenue of the Americas
23rd Floor
New York, New York
10036.7703  USA

Tel        212.880.6000

Fax    212.682.0200

 

www.torys.com

 

August 20, 2019

 

Brookfield Property Partners L.P.

73 Front Street

5th Floor

Hamilton HM 12, Bermuda

 

Re:                              United States Federal Income Tax Opinion

 

Ladies and Gentlemen:

 

We have acted as United States federal income tax counsel to Brookfield Property Partners L.P., a Bermuda exempted limited partnership (“ BPY ”), in connection with the offering of 6.375% Class A Cumulative Redeemable Perpetual Preferred Units, Series 2, of BPY. We have been asked to render our opinion as to certain U.S. tax matters disclosed in the prospectus supplement, dated August 13, 2019 (the “ Prospectus Supplement ”), filed by BPY with the U.S. Securities and Exchange Commission under the U.S. Securities Act of 1933, as amended (the “ Act ”). Capitalized terms used and not defined herein have the meanings ascribed to them in the Prospectus Supplement.

 

In so acting, we have examined originals or copies, certified or otherwise identified to our satisfaction, of:

 

(i)                                      the Prospectus Supplement;

 

(ii)                                   the Limited Partnership Agreement in Respect of Brookfield Income Property Partners L.P., a Bermuda limited partnership, dated January 3, 2012, between 1648285 Alberta ULC, an Alberta unlimited liability company (“ 1648285 Alberta ULC ”), and Brookfield Asset Management Inc., an Ontario corporation (“ BAM ”);

 

(iii)                                the Amended and Restated Limited Partnership Agreement of BPY, dated April 10, 2013, among 1648285 Alberta ULC, BAM, and each person admitted to BPY as a limited partner in accordance with the provisions of such agreement;

 

(iv)                               the Second Amended and Restated Limited Partnership Agreement of BPY, dated August 8, 2013, among Brookfield Property Partners Limited, a Bermuda exempted limited company (the “ BPY General Partner ”), and each person admitted to BPY as a limited partner in accordance with the provisions of such agreement, as amended (the “ BPY Limited Partnership Agreement ”);

 

(v)                                  the Amended and Restated Limited Partnership Agreement of Brookfield Property L.P., a Bermuda limited partnership (the “ Property Partnership ”), dated April 10, 2013, among Brookfield Property GP L.P., a Bermuda limited partnership, BPY, and each person admitted to the Property Partnership as a limited partner in accordance with the provisions of such agreement;

 


 

(vi)                               the Second Amended and Restated Limited Partnership Agreement of the Property Partnership, dated August 8, 2013, among Brookfield Property Special L.P., a Bermuda limited partnership previously named “Brookfield Property GP L.P.” (the “ Property Special LP ”), BPY, BAM, BPY I L.P., a Manitoba limited partnership, BPY II L.P., a Manitoba limited partnership, Brookfield US Corporation, a Delaware corporation, and each person admitted to the Property Partnership as a limited partner in accordance with the provisions of such agreement, as amended;

 

(vii)                            the Third Amended and Restated Limited Partnership Agreement of the Property Partnership, dated August 27, 2018, among BPY, the Property Special LP, Qatar Investment Authority, an independent arm of the Qatari government, BPG Holdings I L.P., an Ontario limited partnership, BPG Holdings II L.P., an Ontario limited partnership, BPG Holdings III L.P., an Ontario limited partnership, BPG Holdings IV L.P., an Ontario limited partnership, BPG Holdings Alberta L.P., an Ontario limited partnership, BPG Investment Holdings L.P., an Ontario limited partnership, BPG Finance Investor L.P., an Ontario limited partnership, BPGUSH L.P. (Ontario), an Ontario limited partnership, BPY I L.P., Brookfield International Limited, an Ontario corporation, Brookfield US Corporation, Brookfield Property Group Holdings S.à.r.l., a Luxembourg société à responsabilité limitée, BPG Holdings Group (US) Holdings Inc., an Ontario corporation, and each person admitted to the Property Partnership as a limited partner in accordance with the provisions of such agreement, as amended;

 

(viii)                         the Fourth Amended and Restated Limited Partnership Agreement of the Property Partnership, dated February 20, 2019, among BPY, the Property Special LP, Qatar Investment Authority, BPG Holdings I L.P., BPG Holdings II L.P., BPG Holdings III L.P., BPG Holdings IV L.P., BPG Holdings Alberta L.P., BPG Investment Holdings L.P., BPG Finance Investor L.P., BPGUSH L.P. (Ontario), BPY I L.P., Brookfield International Limited, Brookfield US Corporation, Brookfield US Holdings Inc., an Ontario corporation, BPG Holdings Group (US) Holdings Inc., and each person admitted to the Property Partnership as a limited partner in accordance with the provisions of such agreement, as amended (the “ Property Partnership Limited Partnership Agreement ”);

 

(ix)                               the certificate of the BPY General Partner and the Property Special LP, of even date herewith, delivered to us for purposes of this opinion, including all schedules and exhibits thereto (the “ Certificate ”); and

 

(x)                                  such agreements, documents, and other instruments as we have deemed necessary or appropriate.

 

In addition, we have examined, and have relied as to matters of fact upon, originals, duplicates, certified or conformed copies of such records, agreements, documents, and other instruments and such certificates or comparable documents of public officials and of officers and representatives of BPY and the Property Partnership, and have made such other and further investigations, as we have deemed necessary or appropriate as a basis for the opinion hereinafter set forth.

 

In rendering this opinion, we have assumed that (i) the transactions described in the Prospectus Supplement will be consummated in the manner set forth therein; (ii) the representations made in the Certificate are true, correct, and complete and will remain true, correct, and complete at all times; (iii) any representation set forth in the Certificate qualified by knowledge, intention, belief, or any similar qualification is and will remain true, correct, and

 

2


 

complete without regard to such qualification; and (iv) each of BPY, the Property Partnership, and each Fiscally Transparent Subsidiary (as such term is defined in the Certificate) operates and will continue to operate in accordance with certain operating guidelines set forth in such Certificate. In addition, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies, and the authenticity of the originals of such latter documents.

 

Based upon the foregoing, and subject to the qualifications, assumptions, and limitations stated herein and in the Prospectus Supplement, we are of the opinion that (i) the statements set forth in the Prospectus Supplement under the caption “MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS,” insofar as they express conclusions as to the application of United States federal income tax law, represent our opinion as to the matters discussed therein; and (ii) as of the date hereof, each of BPY and the Property Partnership will be classified as a partnership and not as an association or publicly traded partnership taxable as a corporation for United States federal income tax pu rposes.

 

Our opinion is based on current provisions of the Code, the Treasury Regulations promulgated thereunder, published pronouncements of the Internal Revenue Service, and case law, in each case as currently in effect and subject to change at any time with retroactive effect. Any change in applicable laws or facts and circumstances, or any inaccuracy in the statements, facts, assumptions, or representations on which we have relied, may affect the continuing validity of the opinion set forth herein. We assume no responsibility to inform you of any such change or inaccuracy. No opinion is expressed concerning any law other than the federal income tax law of the United States.

 

We hereby consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement of BPY on Form F-3 and to the references to our firm under the captions “MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS” and “LEGAL MATTERS” in the Prospectus Supplement. In giving this consent, we do not hereby agree that we come within the category of persons whose consent is required by the U.S. Securities Act of 1933, as amended, or the rules thereunder.

 

Very truly yours,

 

/s/ Torys LLP

 

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