EX-99.3 4 exh_993.htm EXHIBIT 99.3

Exhibit 99.3

 

 

BROOKFIELD CORPORATION

 

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BROOKFIELD ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISER (CANADA), L.P.

 

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BROOKFIELD CANADA RENEWABLE MANAGER LP

 

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BROOKFIELD GLOBAL RENEWABLE ENERGY ADVISOR LIMITED

 

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BROOKFIELD PRIVATE CAPITAL (DIFC) LIMITED

 

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BROOKFIELD RENEWABLE ENERGY GROUP LLC

 

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BROOKFIELD RENEWABLE PARTNERS L.P.

 

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BROOKFIELD RENEWABLE ENERGY L.P.

 

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BROOKFIELD BRP HOLDINGS (CANADA) INC.

 

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BRP BERMUDA HOLDINGS I LIMITED

 

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BROOKFIELD BRP EUROPE HOLDINGS (BERMUDA) LIMITED

 

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BROOKFIELD RENEWABLE INVESTMENTS LIMITED

 

 

AMENDED AND RESTATED RELATIONSHIP AGREEMENT

 

May 5, 2023

 

 

 

 

TABLE OF CONTENTS

 

  Page
ARTICLE 1 INTERPRETATION 3
1.1Definitions 3
1.2Headings and Table of Contents 5
1.3Interpretation 6
1.4Invalidity of Provisions 6
1.5Entire Agreement 7
1.6Waiver, Amendment 7
1.7Governing Law 7
     
ARTICLE 2 RELATIONSHIP 7
2.1Primary Vehicle 7
2.2No Exclusivity and Limitations on Acquisition Opportunities 7
2.3BEP Group Acknowledgements 9
2.4Reporting 9
     
ARTICLE 3 REPRESENTATIONS AND WARRANTIES 9
3.1Representations and Warranties of Brookfield and the Service Providers 9
3.2Representations and Warranties of the Holding Entities 10
3.3Representations and Warranties of BEP 11
3.4Representations and Warranties of BRELP 11
     
ARTICLE 4 TERMINATION 12
4.1Term 12
4.2Termination 12
     
ARTICLE 5 RESOLUTION OF DISPUTES AND ARBITRATION 12
5.1Dispute 12
5.2Arbitration 13
5.3Confidentiality 13
5.4Continued Performance 13
     
ARTICLE 6 GENERAL PROVISIONS 14
6.1Assignment 14
6.2Confidentiality and Disclosure of Material Changes 14
6.3Enurement 14
6.4Notices 14
6.5Further Assurances 17
6.6Counterparts 17
6.7Other Holding Entities 17

 

 

i

  

AMENDED AND RESTATED RELATIONSHIP AGREEMENT

 

THIS AGREEMENT made as of the 5th day of May, 2023.

 

B E T W E E N:

 

BROOKFIELD CORPORATION (formerly, Brookfield Asset Management Inc.) (“Brookfield”), a corporation existing under the laws of the Province of Ontario

 

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BROOKFIELD ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISER (CANADA), L.P. (the “Canadian Service Provider”), a limited partnership existing under the laws of the Province of Manitoba

 

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BROOKFIELD CANADA RENEWABLE MANAGER LP (the “Canadian Service Provider II”), a limited partnership existing under the laws of the Province of Ontario

 

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BROOKFIELD GLOBAL RENEWABLE ENERGY ADVISOR LIMITED (the “UK Service Provider”), a company existing under the laws of England

 

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BROOKFIELD PRIVATE CAPITAL (DIFC) LIMITED (the “Dubai Service Provider”), a private company existing under the laws of Dubai International Financial Centre

 

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BROOKFIELD RENEWABLE ENERGY GROUP LLC (the “US Service Provider” and the “International Service Provider”), a limited liability company existing under the laws of the State of Delaware

 

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BROOKFIELD RENEWABLE PARTNERS L.P. (formerly, Brookfield Renewable Energy Partners L.P.) (“BEP”), an exempted partnership existing under the laws of Bermuda

 

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BROOKFIELD RENEWABLE ENERGY L.P. (“BRELP”), an exempted partnership existing under the laws of Bermuda

 

[BEP AMENDED AND RESTATED RELATIONSHIP AGREEMENT]

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BROOKFIELD BRP HOLDINGS (CANADA) INC. (“CanHoldco”), a corporation existing under the laws of the Province of Ontario

 

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BRP BERMUDA HOLDINGS I LIMITED (“Bermuda Holdco”), an exempted company existing under the laws of Bermuda

 

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BROOKFIELD BRP EUROPE HOLDINGS (BERMUDA) LIMITED (“Europe Holdco”), an exempted company existing under the laws of Bermuda

 

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BROOKFIELD RENEWABLE INVESTMENTS LIMITED (“Investco”), an exempted company existing under the laws of Bermuda

 

RECITALS:

 

WHEREAS, members of the BEP Group (as defined below) directly or indirectly hold interests in renewable power generating operations or developments, primarily consisting of hydro-electric and wind, and will acquire from time to time interests in renewable power generating operations or developments;

 

AND WHEREAS Brookfield, certain of the Service Providers (as defined below), BEP, BRELP and certain of the Holding Entities (as defined below) entered into a relationship agreement dated November 28, 2011 (the “Original Agreement”) which governed certain aspects of the relationship among them and other members of the BEP Group and the Brookfield Group (as defined below);

 

AND WHEREAS the Original Agreement was amended on February 26, 2015, July 30, 2020, February 3, 2021, November 4, 2021 and June 30, 2022 to reflect changes to the Service Providers and make certain other amendments to the terms and conditions of the Original Agreement (the “Amendments”);

 

AND WHEREAS the parties wish to amend and restate the Original Agreement to reflect the Amendments made to date, reflect the removal of BRP Energy Group L.P. as a Service Provider effective as of the date hereof and to make certain other amendments to the terms and conditions of the Original Agreement;

 

AND WHEREAS BRP Energy Group L.P. has executed an acknowledgement dated the date hereof that it is no longer a party to the Original Agreement.

 

NOW THEREFORE in consideration of the premises, mutual covenants and agreements contained in this Agreement and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties covenant and agree, each with the others, as follows:

 

[BEP AMENDED AND RESTATED RELATIONSHIP AGREEMENT]

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Article 1


INTERPRETATION

 

1.1Definitions

 

In this Agreement, except where the context otherwise requires, the following terms will have the following meanings:

 

1.1.1         “Act” has the meaning ascribed thereto in Section 5.2.1;

 

1.1.2         “Affiliate” means, with respect to a Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls or is Controlled by such Person, or is under common Control of a third Person;

 

1.1.3         “Agreement” means this Amended and Restated Relationship Agreement;

 

1.1.4         “Amendments” has the meaning ascribed thereto in the recitals;

 

1.1.5         “Arbitration” has the meaning ascribed thereto in Section 5.2.1;

 

1.1.6         “Arbitrator” has the meaning ascribed thereto in Section 5.2.3;

 

1.1.7         “BEP” has the meaning ascribed thereto in the preamble;

 

1.1.8         “BEP Group” means BEP, BRELP, the Holding Entities, the Operating Entities and any other direct or indirect Subsidiary of a Holding Entity;

 

1.1.9         “BEP Power Operations” means the Power Operations directly or indirectly held or acquired by members of the BEP Group from time to time;

 

1.1.10       “Bermuda Holdco” has the meaning ascribed thereto in the preamble;

 

1.1.11       “BRELP” has the meaning ascribed thereto in the preamble;

 

1.1.12       “Brookfield” has the meaning ascribed thereto in the preamble;

 

1.1.13       “Brookfield Fund” has the meaning ascribed thereto in Section 2.2.2;

 

1.1.14       “Brookfield Group” means Brookfield and any Affiliates of the foregoing, other than any member of the BEP Group;

 

1.1.15       “Business Day” means every day except a Saturday or Sunday, or a day which is a statutory or civic holiday in Bermuda, the Province of Ontario, or the State of New York;

 

1.1.16       “Canadian Service Provider” has the meaning ascribed thereto in the preamble;

 

[BEP AMENDED AND RESTATED RELATIONSHIP AGREEMENT]

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1.1.17       “Canadian Service Provider II” has the meaning ascribed thereto in the preamble;

 

1.1.18       “CanHoldco” has the meaning ascribed thereto in the preamble;

 

1.1.19       “Confidential Information” has the meaning ascribed thereto in Section 6.2;

 

1.1.20       “Control” means the control by one Person of another Person in accordance with the following: a Person (“A”) controls another Person (“B”) where A has the power to determine the management and policies of B by contract or status (for example the status of A being the general partner of B) or by virtue of the beneficial ownership of or control over a majority of the voting interests in B; and, for certainty and without limitation, if A owns or has control over shares or other securities to which are attached more than 50% of the votes permitted to be cast in the election of directors to the Governing Body of B or A is the general partner of B, a limited partnership, then in each case A Controls B for this purpose, and the term “Controlled” has the corresponding meaning;

 

1.1.21       “Dispute” has the meaning ascribed thereto in Section 5.1;

 

1.1.22       “Dubai Service Provider” has the meaning ascribed thereto in the preamble;

 

1.1.23       “Energy General Partner” means BRP Bermuda GP Limited (successor to 2288508 Ontario Inc.), which is the general partner of the Energy GP LP;

 

1.1.24       “Energy GP LP” means BREP Holding L.P., which is the general partner of BRELP;

 

1.1.25       “Europe Holdco” has the meaning ascribed thereto in the preamble;

 

1.1.26       “Governing Body” means (i) with respect to a corporation or limited company, the board of directors of such corporation or limited company, (ii) with respect to a limited liability company, the manager(s) or managing partner(s) of such limited liability company, (iii) with respect to a partnership, the board, committee or other body of each general partner or managing partner of such partnership, respectively, that serves a similar function (or if any such general partner is itself a partnership, the board, committee or other body of such general or managing partner’s general or managing partner that serves a similar function) and (iv) with respect to any other Person, the body of such Person that serves a similar function, and in the case of each of (i) through (iv) includes any committee or other subdivision of such body and any Person to whom such body has delegated any power or authority, including any officer and managing director;

 

1.1.27       “Holding Entities” means Bermuda Holdco, CanHoldco, Europe Holdco, Investco and any direct wholly-owned Subsidiary of BRELP created or acquired on or after the date of this Agreement, excluding, for greater certainty, any Operating Entities;

 

1.1.28       “International Service Provider” has the meaning ascribed thereto in the preamble;

 

1.1.29       “Investco” has the meaning ascribed thereto in the preamble;

 

[BEP AMENDED AND RESTATED RELATIONSHIP AGREEMENT]

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1.1.30       “Managing General Partner” means Brookfield Renewable Partners Limited (successor to 2288509 Ontario Inc.), which is the general partner of BEP;

 

1.1.31       “Master Services Agreement” means the master services agreement among the Service Providers, BRELP, BEP, the Holding Entities and others;

 

1.1.32       “Operating Entities” means, from time to time, the Persons that (i) directly hold the BEP Power Operations, or (ii) indirectly hold the BEP Power Operations but all of the interests of which are not held by the Service Recipients including, in the case of each of (i) and (ii), any joint ventures, partnerships and consortium arrangements;

 

1.1.33       “Original Agreement” has the meaning ascribed thereto in the recitals;

 

1.1.34       “Person” means any natural person, partnership, limited partnership, limited liability partnership, joint venture, syndicate, sole proprietorship, company or corporation (with or without share capital), limited liability corporation, unlimited liability company, joint stock company, unincorporated association, trust, trustee, executor, administrator or other legal personal representative, regulatory body or agency, government or governmental agency, authority or entity however designated or constituted and pronouns have a similarly extended meaning;

 

1.1.35       “Power Operations” means renewable power generating operations or developments, primarily consisting of hydro-electric and wind;

 

1.1.36       “Service Providers” means the Canadian Service Provider, the Canadian Service Provider II, the US Service Provider, the International Service Provider, the UK Service Provider and the Dubai Service Provider;

 

1.1.37       “Service Recipient” means BEP, BRELP, the Holding Entities and any Person in which any of the foregoing or any combination of the foregoing holds all of the common equity or equivalent interests excluding any Operating Entities;

 

1.1.38       “Subsidiary” means, with respect to any Person, (i) any other Person that is directly or indirectly Controlled by such Person, (ii) any trust in which such Person holds all of the beneficial interests or (iii) any partnership, limited liability company or similar entity in which such Person holds all of the interests other than the interests of any general partner, managing member or similar Person;

 

1.1.39       “Term” has the meaning ascribed thereto in Section 4.1;

 

1.1.40       “UK Service Provider” has the meaning ascribed thereto in the preamble; and

 

1.1.41       “US Service Provider” has the meaning ascribed thereto in the preamble.

 

1.2Headings and Table of Contents

 

The inclusion of headings and a table of contents in this Agreement are for convenience of reference only and will not affect the construction or interpretation hereof.

 

[BEP AMENDED AND RESTATED RELATIONSHIP AGREEMENT]

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1.3Interpretation

 

In this Agreement, unless the context otherwise requires:

 

1.3.1          words importing the singular shall include the plural and vice versa, words importing gender shall include all genders or the neuter, and words importing the neuter shall include all genders;

 

1.3.2          the words “include”, “includes”, “including”, or any variations thereof, when following any general term or statement, are not to be construed as limiting the general term or statement to the specific items or matters set forth or to similar items or matters, but rather as referring to all other items or matters that could reasonably fall within the broadest possible scope of the general term or statement;

 

1.3.3          references to any Person include such Person’s successors and permitted assigns;

 

1.3.4          except as otherwise provided in this Agreement, any reference in this Agreement to a statute, regulation, policy, rule or instrument shall include, and shall be deemed to be a reference also to, all rules and regulations made under such statute, in the case of a statute, all amendments made to such statute, regulation, policy, rule or instrument and to any statute, regulation, policy, rule or instrument that may be passed which has the effect of supplementing or superseding the statute, regulation, policy, rule or instrument so referred to;

 

1.3.5          any reference to this Agreement or any other agreement, document or instrument shall be construed as a reference to this Agreement or, as the case may be, such other agreement, document or instrument as the same may have been, or may from time to time be, amended, varied, replaced, amended and restated, supplemented or otherwise modified;

 

1.3.6          in the event that any day on which any amount is to be determined or any action is required to be taken hereunder is not a Business Day, then such amount shall be determined or such action shall be required to be taken at or before the requisite time on the next succeeding day that is a Business Day; and

 

1.3.7          except where otherwise expressly provided, all amounts in this Agreement are stated and shall be paid in U.S. currency.

 

1.4Invalidity of Provisions

 

Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent jurisdiction will not affect the validity or enforceability of any other provision hereof. To the extent permitted by applicable law, the parties waive any provision of law which renders any provision of this Agreement invalid or unenforceable in any respect. The parties will engage in good faith negotiations to replace any provision which is declared invalid or unenforceable with a valid and enforceable provision, the economic effect of which comes as close as possible to that of the invalid or unenforceable provision which it replaces.

 

[BEP AMENDED AND RESTATED RELATIONSHIP AGREEMENT]

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1.5Entire Agreement

 

This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement. There are no warranties, conditions, or representations (including any that may be implied by statute) and there are no agreements in connection with such subject matter except as specifically set forth or referred to in this Agreement. No reliance is placed on any warranty, representation, opinion, advice or assertion of fact made either prior to, contemporaneous with, or after entering into this Agreement by any party to this Agreement or its directors, officers, employees or agents, to any other party to this Agreement or its directors, officers, employees or agents, except to the extent that the same has been reduced to writing and included as a term of this Agreement, and none of the parties to this Agreement has been induced to enter into this Agreement by reason of any such warranty, representation, opinion, advice or assertion of fact. Accordingly, there will be no liability, either in tort or in contract, assessed in relation to any such warranty, representation, opinion, advice or assertion of fact, except to the extent contemplated above.

 

1.6Waiver, Amendment

 

Except as expressly provided in this Agreement, no amendment or waiver of this Agreement will be binding unless executed in writing by the party to be bound thereby. No waiver of any provision of this Agreement will constitute a waiver of any other provision nor will any waiver of any provision of this Agreement constitute a continuing waiver unless otherwise expressly provided. A party’s failure or delay in exercising any right under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a party from any other or further exercise of that right or the exercise of any other right.

 

1.7Governing Law

 

This Agreement will be governed by and interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. Each party irrevocably attorns and submits to the non-exclusive jurisdiction of the Ontario courts situated in the City of Toronto and waives objection to the venue of any proceeding in such court or any argument that such court provides an inconvenient forum.

 

Article 2


RELATIONSHIP

 

2.1Primary Vehicle

 

Subject to the other terms in this Article 2, each of Brookfield and the Service Providers agrees that, during the Term, the BEP Group will serve as the primary vehicle through which the Brookfield Group will acquire Power Operations on a global basis.

 

2.2No Exclusivity and Limitations on Acquisition Opportunities

 

Each of BEP, BRELP and the Holding Entities acknowledges and agrees that:

 

[BEP AMENDED AND RESTATED RELATIONSHIP AGREEMENT]

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2.2.1          nothing in this Agreement shall require the Brookfield Group or any member of the Brookfield Group to allocate any minimum level of dedicated resources for the pursuit of Power Operation acquisition opportunities other than as may be contemplated in the Master Services Agreement or as otherwise agreed by a member of the Brookfield Group and a member of the BEP Group. Members of the Brookfield Group have established or advise, and may continue to establish or advise, other entities that rely on the diligence, skill and business contacts of the Brookfield Group’s professionals and the information and acquisition opportunities they generate during the normal course of their activities;

 

2.2.2          while the Brookfield Group may offer the acquisition opportunities contained in this Section 2.2.2 to the BEP Group, nothing in this Agreement shall require the Brookfield Group or any member of the Brookfield Group to offer the BEP Group or any member of the BEP Group the opportunity to acquire:

 

2.2.2.1         an integrated utility even if a significant component of such utility’s operations consist of renewable power generation;

 

2.2.2.2         a non-renewable power generating operation or development, such as a power generating operation that uses coal or natural gas;

 

2.2.2.3         a portfolio of Power Operations, if a significant component of such portfolio’s operations consist of non-renewable power generation; or

 

2.2.2.4          Power Operations that comprise part of a broader enterprise, unless the primary purpose of such acquisition, as determined by Brookfield acting in good faith, is to acquire the underlying Power Operations;

 

2.2.3          the members of the Brookfield Group carry on a diverse range of businesses worldwide, including the development, ownership and/or management of power, transmission and other infrastructure assets, and investing and advising on investing in any of the foregoing or loans, debt instruments and other securities with underlying infrastructure collateral or exposure including Power Operations, both as principal and through other public companies that are Affiliates of Brookfield or through private investment vehicles and accounts established or managed by Affiliates of Brookfield (each a, “Brookfield Fund”). Except as explicitly provided herein, nothing in this Agreement shall in any way limit or restrict members of the Brookfield Group from carrying on their respective business and in particular:

 

2.2.3.1         nothing shall limit or restrict the ability of the Brookfield Group from making any investment recommendation or taking any other action in connection with its public securities businesses;

 

2.2.3.2         nothing herein shall limit or restrict any member of the Brookfield Group from investing in any loans or debt securities outside of its public securities businesses or from taking any action in connection with any loan or debt security notwithstanding that the underlying collateral is comprised of or includes a Power Operation provided that the original purpose of the investment was not to acquire a controlling interest in a Power Operation; and

 

[BEP AMENDED AND RESTATED RELATIONSHIP AGREEMENT]

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2.2.3.3         Brookfield has established and manages a number of Brookfield Funds whose investment objectives include the acquisition of Power Operations and may in the future establish similar funds. Nothing herein shall limit or restrict Brookfield from establishing or advising a Brookfield Fund or carrying out any investment, provided that for any investment carried out by a Brookfield Fund that involves the acquisition of a Power Operation the BEP Group will be offered the opportunity to take up Brookfield’s share of such acquisition;

 

2.2.4          in the event that the BEP Group declines any Power Operation acquisition opportunity that Brookfield has made available, the Brookfield Group may pursue such acquisition for its own account, without restriction; and

 

2.2.5          nothing in this Agreement will restrict the Brookfield Group in connection with its lending, securities management, investment banking services, restructuring businesses or its construction businesses (where such construction is not undertaken with a view to owning the facilities upon completion of the project), including the acquisition or sale of any assets relating to such activities.

 

2.3BEP Group Acknowledgements

 

Each of the BEP, BRELP and the Holding Entities acknowledges and agrees that Power Operation acquisition opportunities that are offered to the BEP Group pursuant to this Agreement may be carried out through joint ventures, partnerships, investment funds or consortium arrangements in which the BEP Group will not be the sole participant. In addition to third party participants, one or more Brookfield Group members may also participate in such opportunities if (i) the BEP Group does not have the financial capacity, as determined in good faith by Brookfield, in consultation with the BEP Group, to acquire all of the opportunity, or (ii) Brookfield, taking into consideration the purpose of the investment, return characteristics, risk profile, source of the investment opportunity and other such considerations, allocates participation in the investment opportunity available for Brookfield between the BEP Group and one or more other members of the Brookfield Group. Any such allocation or joint participation with one or more member of the Brookfield Group will be made in good faith and after consulting with the BEP Group.

 

2.4Reporting

 

Subject to confidentiality obligations, Brookfield shall cause the Service Providers to provide a report to the BEP Group on a quarterly basis of all Power Operations acquired by the Brookfield Group that occurred during the quarter that were not offered to the BEP Group, including details of why such acquisition opportunities were not offered to the BEP Group.

 

Article 3


REPRESENTATIONS AND WARRANTIES

 

3.1Representations and Warranties of Brookfield and the Service Providers

 

Each of Brookfield and each of the Service Providers hereby represents and warrants to each of BEP, BRELP and the Holding Entities that:

 

[BEP AMENDED AND RESTATED RELATIONSHIP AGREEMENT]

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3.1.1          it (and, as applicable, its general partner) is validly organized and existing under the relevant laws governing its formation and existence;

 

3.1.2          it (or, as applicable, its general partner on its behalf) has the power, capacity and authority to enter into this Agreement and to perform its duties and obligations hereunder;

 

3.1.3          it (or, as applicable, its general partner) has taken all necessary action to authorize the execution, delivery and performance of this Agreement;

 

3.1.4          the execution and delivery of this Agreement by it (or, as applicable, its general partner on its behalf) and the performance by it of its obligations hereunder do not and will not contravene, breach or result in any default under its (or, as applicable, its general partner’s) articles, by-laws, constituent documents or other organizational documents;

 

3.1.5          no authorization, consent or approval, or filing with or notice to any Person is required in connection with the execution, delivery or performance by it (or, as applicable, its general partner on its behalf) of this Agreement; and

 

3.1.6          this Agreement constitutes a valid and legally binding obligation of it enforceable against it in accordance with its terms, subject to: (i) applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization and other laws of general application limiting the enforcement of creditors’ rights and remedies generally; and (ii) general principles of equity, including standards of materiality, good faith, fair dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies, whether such principles are considered in a proceeding at law or in equity.

 

3.2Representations and Warranties of the Holding Entities

 

Each of the Holding Entities hereby represents and warrants to each of Brookfield and each of the Service Providers that:

 

3.2.1           it is validly organized and existing under the relevant laws governing its formation and existence;

 

3.2.2          it has the power, capacity and authority to enter into this Agreement and to perform its duties and obligations hereunder;

 

3.2.3           it has taken all necessary action to authorize the execution, delivery and performance of this Agreement;

 

3.2.4           the execution and delivery of this Agreement by it and the performance by it of its obligations hereunder do not and will not contravene, breach or result in any default under its articles, by-laws, constituent documents or other organizational documents;

 

3.2.5           no authorization, consent or approval, or filing with or notice to any Person is required in connection with the execution, delivery or performance by it of this Agreement; and

 

[BEP AMENDED AND RESTATED RELATIONSHIP AGREEMENT]

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3.2.6           this Agreement constitutes a valid and legally binding obligation of it enforceable against it in accordance with its terms, subject to: (i) applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization and other laws of general application limiting the enforcement of creditors’ rights and remedies generally; and (ii) general principles of equity, including standards of materiality, good faith, fair dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies, whether such principles are considered in a proceeding at law or in equity.

 

3.3Representations and Warranties of BEP

 

The Managing General Partner, in its capacity as the general partner of BEP hereby represents and warrants to Brookfield that:

 

3.3.1          each of BEP and the Managing General Partner is validly organized and existing under the relevant laws governing its formation and existence;

 

3.3.2           the Managing General Partner has the power, capacity and authority to enter into this Agreement and to perform its duties and obligations hereunder on behalf of BEP;

 

3.3.3          the Managing General Partner has taken all necessary action to authorize the execution, delivery and performance of this Agreement on behalf of BEP;

 

3.3.4          the execution and delivery of this Agreement by the Managing General Partner on behalf of BEP and the performance by BEP of its obligations hereunder do not and will not contravene, breach or result in any default under the organizational documents of the Managing General Partner or BEP, as applicable;

 

3.3.5           no authorization, consent or approval, or filing with or notice to any Person is required in connection with the execution, delivery or performance by the Managing General Partner on behalf of BEP of this Agreement; and

 

3.3.6           this Agreement constitutes a valid and legally binding obligation of BEP enforceable against it in accordance with its terms, subject to: (i) applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization and other laws of general application limiting the enforcement of creditors’ rights and remedies generally; and (ii) general principles of equity, including standards of materiality, good faith, fair dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies, whether such principles are considered in a proceeding at law or in equity.

 

3.4Representations and Warranties of BRELP

 

The Energy General Partner, in its capacity as the general partner of Energy GP LP, the general partner of BRELP hereby represents and warrants to Brookfield that:

 

3.4.1          each of the Energy General Partner and BRELP is validly organized and existing under the relevant laws governing its formation and existence;

 

[BEP AMENDED AND RESTATED RELATIONSHIP AGREEMENT]

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3.4.2          the Energy General Partner has the power, capacity and authority to enter into this Agreement and to perform its duties and obligations hereunder on behalf of BRELP;

 

3.4.3          the Energy General Partner has taken all necessary action to authorize the execution, delivery and performance of this Agreement on behalf of BRELP;

 

3.4.4          the execution and delivery of this Agreement by the Energy General Partner on behalf of BRELP and the performance by BRELP of its obligations hereunder do not and will not contravene, breach or result in any default under the organizational documents of the Energy General Partner, Energy GP LP or BRELP, as applicable;

 

3.4.5          no authorization, consent or approval, or filing with or notice to any Person is required in connection with the execution, delivery or performance by the Energy General Partner on behalf of BRELP of this Agreement; and

 

3.4.6          this Agreement constitutes a valid and legally binding obligation of BRELP enforceable against it in accordance with its terms, subject to: (i) applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization and other laws of general application limiting the enforcement of creditors’ rights and remedies generally; and (ii) general principles of equity, including standards of materiality, good faith, fair dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies, whether such principles are considered in a proceeding at law or in equity.

 

Article 4


TERMINATION

 

4.1Term

 

The term of this Agreement (the “Term”) will begin on the date hereof and will continue in full force and effect until terminated in accordance with Section 4.2.

 

4.2Termination

 

The rights and obligations of the parties to this Agreement will terminate and no longer be of any effect concurrently with the termination of the Master Services Agreement in accordance with the terms of the Master Services Agreement.

 

Article 5


RESOLUTION OF DISPUTES AND ARBITRATION

 

5.1Dispute

 

Any dispute or disagreement of any kind or nature between the parties arising out of or in connection with this Agreement (a “Dispute”) shall be resolved in accordance with this Article 5, to the extent permitted by applicable law.

 

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5.2Arbitration

 

5.2.1          Any Dispute shall be submitted to arbitration (the “Arbitration”) by one Arbitrator pursuant to the procedure set forth in this Section 5.2 and pursuant to the arbitration rules set forth in the Arbitration Act, 1991 (Ontario) (the “Act”). If the provisions of this Section 5.2 are inconsistent with the provisions of the Act and to the extent of such inconsistency, the provisions of this Section 5.2 shall prevail in any Arbitration.

 

5.2.2          Any party may make a demand for Arbitration by sending a notice in writing to any other party, setting forth the nature of the Dispute, the amount involved and the name of the Arbitrator it proposes to be appointed. The demand for Arbitration shall be made no later than thirty (30) days after the event giving rise to the Dispute.

 

5.2.3          Within thirty (30) days after any demand for Arbitration under Section 5.2.2, the parties shall have agreed on the designation of the Arbitrator or should the parties fail to do so, the Arbitrator may be appointed by a judge of the Ontario Superior Court of Justice upon motion of any party (in either case, the “Arbitrator”).

 

5.2.4          The Arbitration hearings shall be held in a location in Ontario specified in the demand for Arbitration and shall commence no later than thirty (30) days after the determination of the Arbitrator under Section 5.2.3. The decision of the Arbitrator shall be made not later than sixty (60) days after its appointment. The decision of the Arbitrator, shall be final without appeal and binding on the parties.

 

5.2.5          Each party involved in the Dispute shall bear the costs and expenses of all lawyers, consultants, advisors, witnesses and employees retained by it in any Arbitration. The expenses of the Arbitrator shall be paid equally by the parties unless the Arbitrator otherwise provides in its award.

 

5.3Confidentiality

 

All information disclosed by any party in relation to the resolution of Disputes pursuant to the terms hereof shall be subject to the provisions of Section 6.2 hereof and shall not be used for any purpose other than the resolution of a Dispute pursuant to the terms hereof.

 

5.4Continued Performance

 

During the conduct of Dispute resolution procedures pursuant to this Article 5, the parties shall continue to perform their respective obligations under this Agreement and no party shall exercise any other remedies to resolve a Dispute.

 

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Article 6


GENERAL PROVISIONS

 

6.1Assignment

 

6.1.1          None of the rights or obligations hereunder shall be assignable or transferable by any party without the prior written consent of the other parties.

 

6.1.2          Any purported assignment of this Agreement in violation of this Section 6.1 shall be null and void.

 

6.2Confidentiality and Disclosure of Material Changes

 

Each of the parties hereby agrees that it will not at any time use, disclose or make available to any party, and will take reasonable steps to prevent such disclosure and restrain further disclosure by any other party, and will take reasonable steps to prevent such disclosure and restrain further disclosure by any other party, any information disclosed pursuant to this Agreement (the “Confidential Information”), except:

 

6.2.1          such use as may be expressly permitted in or necessary or advisable for the performance of this Agreement;

 

6.2.2          such disclosure as may be required in order to comply with any applicable law, including disclosure obligations of the BEP Group or the Brookfield Group;

 

6.2.3          such information as comes into the public domain independently where the person disclosing the same is not under an obligation of confidentiality to Brookfield; and

 

6.2.4          such information as can be demonstrated by the party desiring to disclose such information, to have come into its possession independently of anything done under this Agreement.

 

6.3Enurement

 

This Agreement will enure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.

 

6.4Notices

 

Any notice or other communication required or permitted to be given hereunder will be in writing and will be given by prepaid first-class mail, by facsimile or other means of electronic communication or by hand-delivery as hereinafter provided. Any such notice or other communication, if mailed by prepaid first-class mail at any time other than during a general discontinuance of postal service due to strike, lockout or otherwise, will be deemed to have been received on the fourth Business Day after the post-marked date thereof, or if sent by facsimile or other means of electronic communication, will be deemed to have been received on the Business Day following the sending, or if delivered by hand will be deemed to have been received at the time it is delivered to the applicable address noted below either to the individual designated below or to an individual at such address having apparent authority to accept deliveries on behalf of the addressee. Notice of change of address will also be governed by this section. In the event of a general discontinuance of postal service due to strike, lock-out or otherwise, notices or other communications will be delivered by hand or sent by facsimile or other means of electronic communication and will be deemed to have been received in accordance with this section. Notices and other communications will be addressed as follows:

 

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6.4.1          if to BEP:

 

Brookfield Renewable Partners Limited
73 Front Street, 5th Floor
Hamilton HM 12
Bermuda

 

Attention: Secretary

 

6.4.2          if to BRELP:

 

BRP Bermuda GP Limited
73 Front Street, 5th Floor
Hamilton HM 12
Bermuda

 

Attention: Secretary

 

6.4.3          if to CanHoldco:

 

Brookfield BRP Holdings (Canada) Inc.
Suite 100, Brookfield Place
181 Bay Street, Box 762
Toronto, Ontario M5J 2T3

 

Attention: General Counsel and Corporate Secretary

 

6.4.4          if to Bermuda Holdco:

 

BRP Bermuda Holdings I Limited
73 Front Street, 5th Floor
Hamilton HM 12
Bermuda

 

Attention: Secretary

 

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6.4.5          if to Europe Holdco:

 

Brookfield BRP Europe Holdings (Bermuda) Limited
73 Front Street, 5th Floor
Hamilton HM 12
Bermuda

 

Attention: Secretary

 

6.4.6          if to Investco:

 

Brookfield Renewable Investments Limited
73 Front Street, 5th Floor
Hamilton HM 12
Bermuda

 

Attention: Secretary

 

6.4.7          if to Brookfield:

 

Brookfield Corporation
Suite 100, Brookfield Place
181 Bay Street, Box 762,
Toronto, Ontario M5J 2T3

 

Attention: Chief Legal Officer

 

6.4.8          if to the Canadian Service Provider:

 

Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P.
Suite 100, Brookfield Place
181 Bay Street, Box 762
Toronto, Ontario M5J 2T3

 

6.4.9          if to the Canadian Service Provider II:

 

Brookfield Canada Renewable Manager LP
Suite 100, Brookfield Place
181 Bay Street, Box 762
Toronto, Ontario M5J 2T3

 

6.4.10        if to the US Service Provider:

 

Brookfield Renewable Energy Group LLC
250 Vesey Street, 15th Floor
New York, NY 10281-1023

 

6.4.11        if to the International Service Provider:

 

Brookfield Renewable Energy Group LLC
250 Vesey Street, 15th Floor
New York, NY 10281-1023

 

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6.4.12        if to the UK Service Provider:

 

Brookfield Global Renewable Energy Advisor Limited
One Canada Square

Level 25, Canary Wharf

London E14 5AA

United Kingdom

 

6.4.13        if to the Dubai Service Provider:

 

Brookfield Private Capital (DIFC) Limited
Unit 24-00, Level 24
ICD Brookfield Place
Dubai International Financial Centre
Dubai

United Arab Emirates

 

or to such other addresses as a party may from time to time notify the others in accordance with this Section 6.4.

 

6.5Further Assurances

 

Each of the parties hereto will 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 parties hereto may reasonably require from time to time for the purpose of giving effect to this Agreement and will 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.

 

6.6Counterparts

 

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

 

6.7Other Holding Entities

 

The parties acknowledge that any Holding Entity that is not a party to this Agreement will execute a counterpart of this Agreement agreeing to be bound by the terms of this Agreement.

 

 

[NEXT PAGE IS SIGNATURE PAGE]

 

 

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IN WITNESS WHEREOF the parties have executed this Agreement as of the date first above written.

 

  BROOKFIELD CORPORATION
   
   
  By: /s/ Swati Mandava
   

Name: Swati Mandava

    Title: Managing Director, Legal and Regulatory
     
     
  BROOKFIELD ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISER (CANADA), L.P., by its general partner, BROOKFIELD INFRASTRUCTURE GP ULC
   
   
  By: /s/ Carl Ching
   

Name: Carl Ching

    Title: Senior Vice President

 

 

  BROOKFIELD CANADA RENEWABLE MANAGER LP, by its general partner, 1388435 B.C. UNLIMITED LIABILITY COMPANY
   
   
  By: /s/ Jennifer Mazin
   

Name: Jennifer Mazin

    Title: General Counsel and Corporate Secretary

 

 

  BROOKFIELD GLOBAL RENEWABLE ENERGY ADVISOR LIMITED
   
   
  By: /s/ Philippa Elder
   

Name: Philippa Elder

    Title: Director

 

 

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  BROOKFIELD PRIVATE CAPITAL (DIFC) LIMITED
   
   
  By: /s/ Anuj Ranjan
   

Name: Anuj Ranjan

    Title: Director

 

 

  BROOKFIELD RENEWABLE ENERGY GROUP LLC
   
   
  By: /s/ Jennifer Ritchie
   

Name: Jennifer Ritchie

    Title: Senior Vice President

 

 

  BROOKFIELD RENEWABLE PARTNERS L.P., by its general partner, BROOKFIELD RENEWABLE PARTNERS LIMITED
   
   
  By: /s/ James Bodi
   

Name: James Bodi

    Title: Vice President

 

 

  BROOKFIELD RENEWABLE ENERGY L.P., by its general partner, BREP HOLDING L.P., by its general partner, BRP BERMUDA GP LIMITED
   
   
  By: /s/ James Bodi
   

Name: James Bodi

    Title: Vice President

 

 

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  BROOKFIELD BRP HOLDINGS (CANADA) INC.
   
   
  By: /s/ Jennifer Mazin
   

Name: Jennifer Mazin

    Title: General Counsel and Corporate Secretary

 

 

  BRP BERMUDA HOLDINGS I LIMITED
   
   
  By: /s/ James Bodi
   

Name: James Bodi

    Title: Vice President

 

 

  BROOKFIELD BRP EUROPE HOLDINGS (BERMUDA) LIMITED
   
   
  By: /s/ James Bodi
   

Name: James Bodi

    Title: Vice President

 

 

  BROOKFIELD RENEWABLE INVESTMENTS LIMITED
   
   
  By: /s/ James Bodi
   

Name: James Bodi

    Title: Vice President

 

 

[BEP AMENDED AND RESTATED RELATIONSHIP AGREEMENT]