AMENDED AND RESTATED MASTER PURCHASE AGREEMENT THIS AGREEMENT is made the 1st day of February, 2013

Exhibit 4.1

AMENDED AND RESTATED MASTER PURCHASE AGREEMENT

THIS AGREEMENT is made the 1st day of February, ▇▇▇▇

▇ ▇ ▇ ▇ ▇ ▇ ▇:

Brookfield Holding Partnership I L.P., a limited partnership formed under the laws of Bermuda

(hereinafter called “Initial BPY”)

- and -

Brookfield Property Partners L.P., a limited partnership formed under the laws of Bermuda

(hereinafter called “BPY”)

- and -

Brookfield Asset Management Inc., a corporation incorporated under the laws of the Province of Ontario

(hereinafter called “Brookfield”)

RECITALS:

 

A.

Brookfield has decided to launch Brookfield Property Partners, which will be a public partnership focused on high quality commercial property, and to distribute to holders of its Class A limited voting shares and Class B limited voting shares a special dividend of limited partnership units of Brookfield Property Partners (the “Spin-off”);

 

B.

initially, Initial BPY was formed on January 3, 2012 with the name “Brookfield Property Partners L.P.” to be Brookfield Property Partners, but, subsequently, Initial BPY changed its name to “Brookfield Holding Partnership I L.P.” and BPY was formed on January 3, 2013 to replace Initial BPY as Brookfield Property Partners;

 

C.

Initial BPY previously filed a registration statement on Form 20-F as amended (the “Initial Registration Statement”) and a preliminary prospectus (the “Initial Prospectus”), which incorporates the contents of the Initial Registration Statement, to qualify the distribution of the limited partnership units of Brookfield Property Partners, but the formation of BPY as Brookfield Property Partners will necessitate the filing of an amended or new registration statement on Form 20-F (the “New Registration Statement”) and a new preliminary prospectus (the “New Prospectus”) by BPY;

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D.	the board of directors of Brookfield is intending to approve the contents and the filing of the New Registration Statement and the New Prospectus;

 

E.	1648285 Alberta ULC (the “BPY General Partner”) is the general partner of BPY;

 

F.	the BPY General Partner is intending to approve the contents and the filing of the New Registration Statement and the New Prospectus;

 

G.	BPY is intending to file the New Registration Statement in the United States and the New Prospectus in Canada;

 

H.	Initial BPY is a limited partner in Brookfield Holding Partnership II L.P. (the “Initial Property Partnership”);

 

I.	BPY is a limited partner of Brookfield Property L.P., a newly formed limited partnership under the laws of Bermuda (the “Property Partnership”);

 

J.

the assets and operations that will be indirectly held by the Property Partnership following the Spin-off are currently owned indirectly by Brookfield, and will either be transferred to the Property Partnership or the Property Partnership will acquire an economic interest therein prior to closing of the Spin-off (the “reorganization”) as contemplated in the New Registration Statement;

 

K.	Initial BPY and Brookfield entered into a master purchase agreement dated as of April 11, 2012 evidencing their agreement to indirectly transfer such assets and operations to the Initial Property Partnership and their agreements regarding the reorganization (the “Original Agreement”);

 

L.	Initial BPY wishes to assign to BPY the full benefit of the Original Agreement and BPY wishes to assume liability for the performance of the obligations of Initial BPY under the Original Agreement; and

 

M.	Initial BPY, BPY and Brookfield wish to amend the Original Agreement by making the modifications reflected herein and to restate the Original Agreement as amended.

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NOW THEREFORE in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto agree as follows:

 

1.	Interpretation

 

In this Agreement, the following terms shall have the following meanings:

 

1.1

“Agreement” means this amended and restated master purchase agreement as it may be further amended or restated;

 

1.2

“Australian operations” means the interests in the Australian operations identified in Schedule 1, as amended from time to time;

 

1.3

“BPY General Partner” has the meaning given to it in the recitals;

 

1.4

“current operations” means the interests identified in Schedule 1, as amended from time to time, other than the Australian operations;

 

1.5

“Initial Property Partnership” has the meaning given to it in the recitals;

 

1.6

“Initial Prospectus” has the meaning given to it in the recitals;

 

1.7

“Initial Registration Statement” has the meaning given to it in the recitals;

 

1.8

“New Prospectus” has the meaning given to it in the recitals;

 

1.9

“New Registration Statement” has the meaning given to it in the recitals;

 

1.10

“Original Agreement” has the meaning given to it in the recitals;

 

1.11

“Property Partnership” has the meaning given to it in the recitals;

 

1.12

“reorganization” has the meaning given to it in the recitals; and

 

1.13

“Spin-off” has the meaning given to it in the recitals.

Other capitalized terms that are not defined herein have the meaning given to them in the New Registration Statement.

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2.	Assignment and Assumption of the Original Agreement

Initial BPY hereby sells, transfers and assigns to BPY all Initial BPY’s right, title and interest in and to the Original Agreement as and from the date hereof.

BPY agrees to assume, and shall observe and perform, all of Initial BPY’s obligations and liabilities under the Original Agreement which are to be observed or performed thereunder as and from the date hereof. BPY also agrees to assume and be responsible for all of the expenses incurred by Initial BPY in connection with the preparation and filing of the Initial Registration Statement and the Initial Prospectus, which form the basis for the New Registration Statement and the New Prospectus, in accordance with section 7 of this Agreement.

Brookfield hereby consents to the assignment of the Original Agreement.

 

3.	Covenants to Complete the Reorganization

Upon the terms and subject to the conditions herein, Brookfield covenants that it will cause the Property Partnership to acquire from Brookfield, directly or indirectly, the current operations and Brookfield’s economic interest in the Australian operations.

 

4.	BPY’s Agreement to Acquire Interests in the Property Partnership

In connection with the reorganization, BPY will acquire a limited partnership interest in the Property Partnership currently anticipated to be approximately 10%.

 

5.	Definitive Agreements to Complete the Reorganization

 

5.1

The obligations under section 3 and section 4 of this Agreement are subject to all applicable board approvals being obtained (including the approval by the board of directors of each of Brookfield and the BPY General Partner of this Agreement and the transactions contemplated in the New Registration Statement and the approval by the board of directors of the general partner of the general partner of the Property Partnership) and the appropriate entities entering into definitive agreements to give effect to the transactions.

 

5.2

The definitive agreements in respect of the Property Partnership’s acquisition of the current operations will contain the representations and warranties described below and other provisions such as covenants, indemnification and other provisions which are acceptable to the parties and which are customarily found in purchase agreements of the kind contemplated by this Agreement, including the following:

 

5.2.1

Purchase Price. The purchase price for the current operations will be the fair market value thereof, and will be satisfied by the Property Partnership directly or indirectly through the issuance of equity or debt or the payment of cash (or any combination thereof) to Brookfield or its affiliates, as applicable.

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5.2.2

Representations and Warranties. The transfer agreements will contain representations and warranties concerning (i) organization and good standing, (ii) the authorization, execution, delivery and enforceability of the agreement and all agreements executed in connection therewith, and (iii) title to the securities being transferred to the Property Partnership. The agreements will not contain representations relating to the underlying assets and operations. The representations and warranties of Brookfield will survive for a period of 18 months from the closing of the Spin-off.

 

5.2.3

Indemnity. The aggregate maximum liability of Brookfield under its representations, warranties and indemnities will be limited, without duplication, to $1 billion.

 

5.3

The completion of the closing of the reorganization will be subject to, inter alia, the satisfaction or waiver by the parties of the following conditions:

 

5.3.1

A receipt having been received for the final prospectus of BPY.

 

5.3.2

The declaration of effectiveness by the United States Securities and Exchange Commission of the New Registration Statement having been received.

 

5.3.3

Approvals having been obtained for the listing of the units of BPY on the New York Stock Exchange and the Toronto Stock Exchange.

 

5.3.4

All consents having been obtained and documentation entered into with respect to the transactions contemplated hereby.

 

5.3.5

All regulatory approvals having been obtained.

 

5.3.6

There not having been threatened, instituted or pending any action or proceeding by any governmental entity, or by any other person in any jurisdiction before

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any governmental entity, (i) challenging or seeking to cease trade, or make illegal, or delay or otherwise directly or indirectly restrain or prohibit the Spin-off, or (ii) that otherwise, in the sole judgment of Brookfield, acting reasonably, has or may have a material adverse effect on the trading in, or the value of, the units of BPY.

 

5.3.7

There not having occurred any change (including any proposal to amend applicable legislation or any announcement, governmental or regulatory initiative, issue of an interpretation bulletin, condition, event or development involving a prospective change) that, in the sole judgment of Brookfield, is detrimental to Brookfield or BPY or adversely affects the consequences of the Spin-off for Brookfield’s shareholders, generally.

 

5.4

The closing of the reorganization will be completed on or before the day on which the trading of the units of BPY begins on either the New York Stock Exchange or the Toronto Stock Exchange, whichever is earlier.

 

5.5

Brookfield and BPY will also, directly or indirectly, enter into ancillary agreements in connection with the Spin-off, including voting agreements, a master services agreement, a registration rights agreement, a licensing agreement and a relationship agreement, all on the terms described in the New Registration Statement.

 

6.	Alternative Transaction Structure

Each of Brookfield and BPY shall endeavor to ensure that the reorganization is efficiently structured for financial, accounting, tax and regulatory purposes. In this regard, Brookfield and BPY shall work cooperatively and in good faith to complete the reorganization as contemplated or to agree to modifications to the reorganization, including with respect to the structure or implementation thereof or the assets and liabilities to be included therein, on mutually agreeable terms.

 

7.

Expenses

Except as otherwise contemplated by a definitive agreement and other than the expenses in connection with the preparation and filing of the Initial Registration Statement, the Initial Prospectus, the New Registration Statement and the New Prospectus, which will be paid by BPY, Brookfield will be responsible for the expenses of the Spin-off and the reorganization, including any sales and goods and services taxes payable in respect of the transactions contemplated hereby.

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8.

Currency

Except where otherwise expressly provided, all amounts in this Agreement are stated and shall be paid in United States dollars.

 

9.	Further Assurances

Each of the parties hereto shall promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other party hereto may reasonably require from time to time for the purpose of giving effect to this Agreement and shall use reasonable efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions of this Agreement.

 

10.	Successors and Assigns

No party may assign its right or benefits under this Agreement without the prior written consent of the other parties hereto. This provisions of this Agreement shall enure to the benefit of and be binding on the parties to this Agreement and their respective successors and assigns.

 

11.	Limited Liability

Each of Initial BPY and BPY is a limited partnership formed under the laws of Bermuda, a limited partner of which is only liable for any of its liabilities or any of its losses to the extent of the amount that the limited partner has contributed or agreed to contribute to its capital and the limited partner’s pro rata share of any undistributed income.

 

12.	Governing Law

This agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.

 

13.	Counterparts

This Agreement may be signed in counterparts and each of such counterparts shall constitute an original document and such counterparts, taken together, shall constitute one and the same instrument.

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IN WITNESS WHEREOF the parties hereto have executed this agreement.

 

 

 

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SCHEDULE 1

Current Operations

 

Operation		Investment to be Transferred		Economic Interest1
Brookfield Office Properties Inc.		Common shares and preferred shares		51.2%
DS Four Limited		Shares		100.0%
Canary Wharf Group plc		Ordinary shares		22.1%
Interhotels loans held through Brookfield Real Estate Finance (Luxembourg) S.a.r.l.		Loan		100.0%
BREF loan from Brookfield Europe (Gibraltar) Limited		Loan		100.0%
Brookfield Brazil Retail Fund		Limited partnership interests		35.2%
Brookfield Brazil Higienopolis Inc.		Shares		66.7%
Sigma Tower Holding LLC		Membership interests		100.0%
Brookfield Real Estate Opportunity Fund I		Limited partnership interests		56.8%
Brookfield Real Estate Opportunity Fund II		Limited partnership interests		27.9%
Brookfield Real Estate Finance Fund I		Series A membership interests		33.3%
Brookfield Real Estate Finance Fund II		Membership interests		27.5%
Brookfield Real Estate Finance Fund II		Membership interests		27.5%
Brookfield Real Estate Finance Fund III		Limited partnership interests		12.6%
General Growth Properties, Inc.		Common shares and warrants		20.9% (on a non-diluted basis)
▇▇▇▇▇ Properties, Inc.		Common shares		36.3%
▇▇▇▇▇ credit facility with Brookfield Finance Luxembourg Sarl		Loan		100.0%
Texas Multifamily		Limited partnership interests		30.5%
Brookfield Fairfield U.S. Multifamily Value Add Fund, L.P.		Limited partnership interests		12.8%
Legacy (Brookfield RETIP L LP LLC)		Membership interests		24.3%
Brookfield Colonial Holdings LP		Limited partnership interests		9.6%
Brookfield Industrial Partners LP		Limited partnership interests		41.0%
Brookfield BSREP Funding LLC		Membership interests		40.4%
Australian Operations		See below		See below

 

 

1	All percentages listed represent the economic interest in the applicable entity or groups of assets to be transferred to BPY on a gross fully diluted basis.

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The Australian Operations are comprised of:

 

Operation		Ownership Interest/Percentage
Multiplex European Property Fund		20.2%
Multiplex New Zealand Property Fund		44.6%
Brookfield Australian Opportunities Fund		61.9%
▇▇▇▇▇▇ St. Centre		100.0%
Fujitsu Centre		100.0%
Sydney Water Headquarters		100.0%
CBA		100.0%
ANZ Centre		50.0%
Alinga Street		100.0%
Bouquet Street Development		100.0%
Bathurst Street Development		100.0%
Rosehill		100.0%
Dee Why Town Centre		100.0%