EX-4.12 12 o38565exv4w12.htm EX-4.12

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DEBT PURCHASE AGREEMENT
B E T W E E N:

|  | BRASCAN (US) CORPORATION, a corporation incorporated under the laws of the State of Delaware
|  | (hereinafter called “Brascan”)
|  | - and -
|  | BROOKFIELD INFRASTRUCTURE CORPORATION, a corporation incorporated under the laws of the State of Delaware
|  | (hereinafter called “US Holdco”)

RECITALS:

A. |  | Brascan is a lender under the $200,000,000 Amended and Restated Credit Agreement among Longview Timber Holdings, Corp. (“Longview”), Brookfield Longview Holdings LLC, the lenders from time to time party thereto and Brascan, as administrative agent dated September 14, 2007 (the “Credit Agreement”), and wishes to assign and to transfer to US Holdco $60 million of the loan provided under the Credit Agreement, including any rights , interests, or obligations associated with such portion of the loan including accrued interest; and

B. |  | in connection with the establishment of Brookfield Infrastructure Partners L.P. (“BIP”), a publicly-traded global infrastructure partnership, and the special dividend of units of BIP to holders of Class A limited voting shares and Class B limited voting shares of Brookfield Asset Management Inc. (the “Spin-off”), Brascan wishes to sell and US Holdco wishes to purchase the Debt.

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. |  | Purchase and Sale

Brascan agrees to sell and US Holdco agrees to purchase all of Brascan’s right, title and interest in and to the Debt on the terms and conditions contained herein on the date of

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this agreement or such other date and time as the Brascan and US Holdco may agree (the “Closing Date”).

2. |  | Purchase Price

The purchase price of the Debt shall be equal to the value of the Debt, including Brascan’s entitlement to any accrued interest under the Credit Agreement, which is equal to US$63,900,000. The purchase price shall be satisfied by the payment of US$63,900,000 million in cash to Brascan (the “Consideration”).

3. |  | Representations and Warranties of Brascan

Brascan represents and warrants to US Holdco that:
3.1 Brascan is duly incorporated and validly existing under the laws of the State of Delaware;
3.2 Brascan has the corporate power and capacity to enter into, and to perform its obligations under, this Agreement;
3.3 the execution, delivery and performance of this Agreement and all agreements executed in connection therewith have been duly authorized by all necessary corporate action on the part of Brascan ;
3.4 this Agreement and all agreements executed in connection therewith are valid and binding obligations of Brascan, enforceable in accordance with their terms, subject to the usual exceptions as to bankruptcy and the availability of equitable remedies; and
3.5 on the Closing Date, Brascan will have good and marketable title to the Debt, and the full legal right, power and authority to sell and transfer the Debt to US Holdco free and clear of all liens, charges, encumbrances and adverse claims.

4. |  | Representations and Warranties of US Holdco

US Holdco represents and warrants to Brascan that:

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4.1 US Holdco is duly incorporated and validly existing under the laws of the State of Delaware;
4.2 US Holdco has the corporate power and capacity to enter into, and to perform its obligations under, this Agreement;
4.3 the execution, delivery and performance of this Agreement and all agreements executed in connection therewith have been duly authorized by all necessary corporate action on the part of US Holdco; and
4.4 this Agreement and all agreements executed in connection therewith are valid and binding obligations of US Holdco , enforceable in accordance with their terms, subject to the usual exceptions as to bankruptcy and the availability of equitable remedies.

5. |  | Survival

The representations and warranties of Brascan and US Holdco will survive for a period of 18 months from the Spin-off.

6. |  | Indemnity

Brascan shall indemnify and save US Holdco harmless for and from any loss, damages or deficiencies suffered by US Holdco as a result of any breach of any representation or warranty on the part of Brascan contained in this Agreement or in any certificate or document delivered pursuant to or contemplated by this Agreement, including all claims, demands, costs and expenses, including legal fees, in respect of the foregoing.
US Holdco shall indemnify and save Brascan harmless for and from any loss, damages or deficiencies suffered by Brascan as a result of any breach of any representation or warranty on the part of US Holdco contained in this Agreement or in any certificate or document delivered pursuant to or contemplated by this Agreement, including all claims, demands, costs and expenses, including legal fees, in respect of the foregoing.

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7. |  | Limitation of Liability

The aggregate maximum liability of Brascan under its representations, warranties and indemnities under this Agreement will be limited, without duplication, to the amount of the Consideration.

8. |  | Conditions to Closing

The completion of the closing of the transactions contemplated herein will be subject to the satisfaction or waiver by the parties of the following conditions:
8.1 all consents and approvals having been obtained with respect to the transactions contemplated hereby; and
8.2 all documentation, including the Assignment and Assumption Agreement attached as Exhibit A to the Credit Agreement, having been entered into in respect of the transactions contemplated hereby.

9. |  | Closing Procedure

On the Closing Date, Brascan shall execute and deliver to US Holdco all such documents, certificates and instruments and do all such other acts and things as US Holdco may consider necessary or desirable, acting reasonably, to effectively transfer and assign the Debt to US Holdco and to deliver possession thereof to US Holdco and US Holdco shall issue the Consideration to Brascan.

10. |  | 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.

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11. |  | Successors and Assigns

No party may assign its right or benefits under this Agreement without the prior written consent of the other party 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 permitted assigns.

12. |  | Governing Law

This agreement shall be governed by and construed in accordance with the laws of the State of New York and the laws of the United States 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.
[NEXT PAGE IS SIGNATURE PAGE]

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IN WITNESS WHEREOF the parties hereto have executed this agreement.
DATED: November 20, 2007.

|  | BRASCAN (US) CORPORATION |  |
|  | by: |  |  |  |
|  |  |  | Name: Christopher P. Parker |  |
|  |  |  | Title: Treasurer |  |

|  | BROOKFIELD INFRASTRUCTURE CORPORATION |  |
|  | by: |  |  |  |
|  |  |  | Name: Christopher P. Parker |  |
|  |  |  | Title: Treasurer |  |