SIDE LETTER (3)January , 2016
City of Clearwater Employees' Pension Fund
100 S. Myrtle Avenue
Clearwater, FL 33756 -5520
Attention: Jay Ravins
Re: IFM Global Infrastructure (US), L.P., a Delaware limited partnership
Ladies and Gentlemen:
This letter (this "Side Letter ") confirms certain agreements with regard to the investment
made by City of Clearwater Employees' Pension Fund (the "Investor ") in IFM Global
Infrastructure (US), L.P., a Delaware limited partnership (the "Partnership "), pursuant to the
Fourth Amended and Restated Limited Partnership Agreement dated as of December 15, 2014
( "Partnership Agreement ") of the Partnership and the Subscription Agreement among IFM
Global Infrastructure (US) GP, LLC (the "General Partner "), IFM Investors (US) Advisor, LLC
(the "Investment Advisor "), and the Investor. This Side Letter also relates to the Partnership's
investment in the IFM Global Infrastructure Fund (the "Master Fund ") to which IFM Investors
Pty Ltd (the "Manager ") and the Codan Trust Company (Cayman) Limited (the "Trustee ") serve
under the Advisory and Administration Deed dated April 28, 2008 ( "Advisory Deed ") and the
Amended and Restated Unit Trust Deed dated April 28, 2008 ( "Trust Deed "), respectively.
Capitalized terms used herein and not otherwise defined shall have the meanings given to them
in the Partnership Agreement.
In order to induce the Investor to execute and deliver the Subscription Agreement, each
of the Partnership, the General Partner, the Manager and the Investment Advisor hereby
represent and agree to the following provisions enumerated below, and the Trustee hereby agrees
to Paragraphs 18 and 30 below.
1. Insurance. For so long as the Investor is a Limited Partner of the
Partnership, the General Partner and the Investment Advisor shall each maintain fiduciary
liability insurance coverage of at least the aggregate equivalent of US $50 million with respect to
their respective activities involving the Partnership. The General Partner and Investment
Advisor shall provide the Investor with such evidence of insurance coverage as the Investor may
reasonably request from time to time and shall promptly notify the Investor if and when they
receive any notice of cancellation of their respective policies and of any claims which may have
been made against their policies in connection with the Partnership. With respect to any
indemnifiable event, the General Partner and Investment Fund Manager will use its
commercially reasonable efforts to obtain any such available insurance proceeds to pay any
indemnification obligations of the Partnership or the Limited Partners.
2. Use of Name. Except (i) as required by law, regulation, legal process,
FINRA rules or rules of any applicable stock exchange, (ii) if the General Partner determines in
good faith that such disclosure is in the best interests of the Partnership in connection with a
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portfolio investment, (iii) to the other Limited Partners of the Partnership, agents, advisors or
representatives of the other Limited Partners of the Partnership (including attorneys or
accountants thereof) or advisors, agents or representatives of the Partnership (including attorneys
or accountants thereof) in the ordinary course of the Partnership's business, or (iv) in connection
with the General Partner's operation and administration of the Partnership when the General
Partner is disclosing, on a "need to know" basis, to third parties (who, with respect to any third
party engaged by the Partnership following the date hereof, have agreed to maintain the
confidentiality of such information) the Limited Partners of the Partnership generally, neither the
General Partner nor any of its affiliates nor the Partnership shall (a) include the Investor's name,
or other identifying information (including, for clarity, any information about the parent
company, affiliates and ownership of Investor, and all information about the Investor, including
the Capital Commitment and Capital Account of Investor), or the Investor's addresses, in written
materials disseminated to third parties, including prospective Limited Partners of the Partnership
(other than furnishing a list of all Limited Partners to them and their agents, advisers or
representatives in the ordinary course), or (b) otherwise disclose, either orally or in writing, any
relationship with the Investor using the Investor's name to persons or entities which are not
agents or representatives of the Partnership (including attorneys or accountants thereof), for any
reason (other than as set forth above), without the Investor's prior written permission.
3. Risk Reporting. Investor has contracted with CapTrust Advisors, LLC to
report on the performance and diversification characteristics of each investment in their
portfolio. On a quarterly basis, the General Partner, the Investment Advisor and the Manager
shall submit financial and characteristic information, in the manner reasonably requested by
CapTrust Advisors, LLC, which will allow CapTrust Advisors, LLC to calculate returns and
portfolio diversification analysis as agreed to with the Investor.
4. Tax Matters.
(a) The General Partner acknowledges that Investor has advised General
Partner of Investor's tax- exempt status under U.S. federal, state and local tax laws, and of the
fact that Investor has never been subject to, and is unlikely to be subject to, any tax withholding
requirements of the U.S. federal, state or local laws. The Investor agrees that it will provide an
executed IRS Form W -9 indicating that the Investor is not subject to backup withholding and the
Investor further agrees to promptly provide a new IRS Form W -9 if its status with respect to the
information provided on its original IRS Form W -9 changes or if an updated IRS Form W -9 or
its equivalent is required to be held on file in order for the Partnership to continue to recognize
the withholding exemption. The Investor further agrees to provide any duly executed form
requested by the General Partner that the Investor is entitled to provide indicating that the
Investor is exempt from any U.S. federal, state and local withholding taxes. Based on the
foregoing, the General Partner agrees that, before withholding and paying over to any U.S.
federal, state or local taxing authority any amount purportedly representing a tax liability of the
Investor pursuant to the provisions of the Partnership Agreement, General Partner shall provide
the Investor with written notice of the claim of any U.S. federal, state or local taxing authority
that such withholding and payment is required by law and shall use its reasonable best efforts to
provide Investor with the opportunity to contest such claim; provided that such contest or failure
to withhold such amount does not (a) subject the Partnership, the General Partner, the Investment
Advisor, or any member, employee, manager or officer of the General Partner or the Investment
Advisor to any potential liability to such taxing authority for any such claimed withholding and
payment or any penalties, fines or similar amounts in respect thereof or (b) delay any distribution
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by the Partnership to the Partners or adversely affect the interest of the Partnership or any
Limited Partner.
(b) Consistent with the General Partner's and the Investment Advisor's
fiduciary duties to all Limited Partners, prior to making an investment in any portfolio company,
the General Partner and the Investment Advisor shall use commercially reasonable efforts to
cause the Manager to consider structuring such investment in a manner which would minimize
any withholding tax imposed by any jurisdiction on any amounts distributable to the Partnership
by the Master Fund and by the Partnership to the Investor and to minimize any tax filing
obligations of the Limited Partners in any jurisdiction other than the United States; provided
however that in making such determination, the Manager may at all times and at its full
discretion consider the needs of all holders of the Master Fund units taken as a whole.
5. Duty of Care. The General Partner, the Investment Advisor, and
Partnership hereby acknowledge that Section 4.8(a) of the Partnership Agreement regarding
Duty of Care and Indemnification shall not apply to the Investor.
6. Partnership's Indemnification Obligations. Nothing in Section 4.8 of the
Partnership Agreement limits any statutory or fiduciary obligations of the General Partner, the
Investment Advisor or the Manager to take appropriate action to recover all damages caused to
the Partnership by willful misconduct, criminal activity or fraud of its employee, broker or agent.
In addition, nothing in Section 4.8 of the Partnership Agreement limits the fiduciary obligations
of the Investment Advisor and the Manager under the Investment Advisers Act of 1940, as
amended.
7. Valuation. The Manager confirms that its current valuation procedures are
as described in Exhibit A hereto.
8. Fees. Notwithstanding any provisions in the private placement
memorandum of the Partnership (the "PPM "), the Partnership Agreement, the Subscription
Agreement, the Investment Management Agreement, the Advisory Deed, or the Trust Deed to
the contrary, the Investment Advisor, the General Partner and the Manager represent that the
Investor's admission as a Partner in the Partnership is subject only to the following management
and performance fees, which are subject to modification in writing by mutual consent of the
Investment Advisor, the General Partner and/or the Manager (on one hand) and the Investor (on
the other hand):
(a) Management Fee paid to the Manager, accrued monthly on the Investor's
drawn capital, and payable quarterly in arrears equal to a rate (plus value added tax, if
applicable) of (i) 0.97% per annum of the Limited Partner's share of the Partnership's net assets
if such Limited Partner's Capital Commitment is up to, but not including $300 million and (ii)
0.85% per annum of the total amount of the Limited Partner's share of the Partnership's net
assets if such Limited Partner's Capital Commitment is equal to or exceeds $300 million. The
General Partner agrees to review the Management Fee periodically, but no less than every time
the net asset value of the units of the Master Fund increases by at least $2 billion. There are no
fees on undrawn capital.
(b) Performance Fee paid to the Manager and equal to 20% of the net realized
and unrealized appreciation in the net asset value of the Investor's interests in the Partnership in
excess of a threshold return of 8% per annum compounded initially on an annual basis over the
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period ending December 31, 2015, and thereafter using a compounded annual growth rate over
rolling three year periods ending each December 31 (the "Threshold Return"); provided that (1)
if the aggregate interests fail to achieve the Threshold Return over such measuring period (such
shortfall a "Threshold Return Deficit ") and in the immediately following measuring period
exceed the Threshold Return (such excess a "Threshold Return Excess "), there will be no
Performance Fee payable with respect to such interests until the Threshold Return Deficit has
been recovered through the Threshold Return Excess; and (ii) 50% of any Performance Fee that
would otherwise be payable to the Manager will be retained by the Master Fund to offset any
Threshold Return Deficit in the immediately following measuring period and if there is no
Threshold Return Deficit for such period such amounts shall be immediately payable to the
Manager. The provisions described in the prior sentence shall be subject to the applicable
distribution and withdrawal provisions, and the date of investment (i.e., the three -year rolling
period shortened as appropriate to reflect investments in the Partnership for periods shorter than
three years). The provisions described above shall also be calculated on an investor -by- investor
basis. The General Partner agrees to review the Performance Fee periodically, but no less than
every time the net asset value of the units of the Master Fund increases by at least $2 billion.
For the avoidance of doubt, there shall be no drawdown premium paid to the Partnership in
relation to any Drawdown. The General Partner, Investment Advisor, and the Manager represent
and agree that they and the Investor are not violating any applicable state, federal, or
international law or regulation regarding payment of any of the Management Fee or the
Performance Fee described in this Side Letter.
9. Jurisdiction and Venue. Each of the General Partner, the Investment
Advisor, and the Partnership hereby acknowledges that the Investor has advised it that pursuant
to the established policy of the Investors (i) any action brought against Investor in connection
with the Partnership shall be brought exclusively in the state courts of Florida (collectively, the
"Courts ") and (ii) the General Partner, the Investment Advisor or the Partnership shall not
contest a choice of venue in any action brought by the Investor against such parties in any of the
Courts. The General Partner and the Investment Advisor represent that Section 18 of the
Subscription Agreement and the underlying terms of that Section shall not be applied to Investor.
10. Advisory Committee Documents. The General Partner will provide to the
Investor copies of all minutes of the Advisory Committee, except that the General Partner may
redact any discussion it deems not to be in the best interests of the Partnership.
11. Additional Notices. The Manager and the General Partner shall notify the
Investor of any suspension of withdrawal or termination of suspension by the Master Fund.
12. Transfers to Non - Affiliates. In the event the Investor proposes to Transfer
all (but not less than all) of its Interest in the Partnership to any non - affiliate, the General Partner
agrees that it shall not unreasonably withhold its consent to such Transfer and the admission of
such transferee to the Partnership as a substituted Limited Partner; provided that (i) the foregoing
does not constitute an agreement by the General Partner to release the Investor from its
obligations in respect of its Remaining Commitment, and (ii) it shall not be considered
unreasonable for the General Partner to withhold its consent to such Transfer if the admission of
the proposed transferee to the Partnership would result in any of the events described in Sections
5.3(b)(i) to (v) of the Partnership Agreement.
13. Placement Agent Fees. The General Partner, the Investment Advisor and
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the Manager each represents and warrants that none of them or their affiliates has agreed to pay
any placement agent fees, solicitation fees, referral fees, introduction or "matchmaker" fees or
any similar fees to a person or entity in connection with the Investor's investment in the
Partnership.
14. Records. Notwithstanding anything else to the contrary in Section 7.1(n)
of the Partnership Agreement, the General Partner hereby agrees to preserve all financial and
accounting records pertaining to the Partnership Agreement during the term of the Partnership
and for seven years thereafter, and during such period, Investor or its designated consultant, upon
reasonable notice, shall have the right to audit such records in regard thereto to the fullest extent
permitted by law. The General Partner shall have the right to preserve all records and accounts
in original form or on microfilm, magnetic tape, or any similar process.
15. Investments in Pooled Investment Vehicles. The Partnership will not
make any investment in any "blind" pooled investment vehicle or investment fund involving a
management fee or a performance fee payable to its sponsor or investment manager, unless
appropriate arrangements can be made to avoid having the Limited Partners be subject directly or
indirectly to total management fees and performance fees that exceed those allowed under this
Side Letter. The foregoing will not (1) prohibit joint investments or participations with other
Persons in particular Investments (as such term is defined in the Trust Deed) where a fee is
payable to another adviser or (2) apply to compensation payable to the management of a Master
Fund's portfolio company that is an operating company, regardless of whether (i) the investment
in such portfolio company is made with co- investors, (ii) such investment is made through a
holding company, acquisition company or similar structure, or (iii) management of the portfolio
company holds and receives any fees, profits interests, stock, options or other securities, whose
holding or receipt could be designated or interpreted as the receipt of a management fee or a
performance fee.
16. Advisory Deed. Pursuant to Section 3.3. of the Advisory Deed, the
Manager may appoint a person to perform any obligations of the Manager pursuant to Section
3.3 of the Advisory Deed. The Manager confirms that any expenses incurred in connection with
such person performing any of the Manager's duties specified in Sections 3.1(a) or 3.1(b) of the
Advisory Deed shall be borne by the Manager. For the avoidance of doubt, the expenses
incurred in connection with an appointment of any person to perform legal, tax, accounting and
valuation services or, in connection with any transaction of the Master Fund, other third party
experts and consultants advising on a particular transaction as described in the PPM shall be
borne on a pro rata basis by the Partnership.
17. Governmental Plan and ERISA Partner. The Manager and General
Partner acknowledge and agree that the Investor is a governmental plan, and shall be deemed to
be an ERISA Partner for purposes of obtaining all rights, notices, and benefits of an ERISA
Partner under the Partnership Agreement, other than any rights, notices and benefits of ERISA
Partners related to the determination of whether the Partnership is considered to hold "plan
assets" of ERISA Partners under ERISA.
18. Exculpation of the Trustee. The Trustee confirms that Clause 103 of the
Trust Deed includes anything done or omitted to be done relating to the Trust as a result of gross
negligence of the Trustee, its directors, officers and employees.
19. Amendments to Partnership Agreement.
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(a) The General Partner and the Manager agree to make commercially
reasonable efforts to cause the Advisory Committee to vote regarding raising the threshold
required for amendments to the Partnership Agreement pursuant to Section 8.1(a)(ii) thereof, to
66 2/3% in interest of the Limited Partners.
(b) The General Partner agrees to provide the Investor with copies of all
amendments to the Partnership Agreement within 10 days of execution thereof.
20. Additional Fees. It is agreed that none of the General Partner or any of its
affiliates will charge (and to the extent otherwise received) any portfolio company monitoring,
transaction or other similar fees arising in connection with the business of the Partnership and/or
the Master Fund, unless the Management Fee that would otherwise be payable by the Investor is
reduced on a dollar- for - dollar pro rata pro rata basis (net of expenses) among the Partnership and
investors in the Parallel Investment Vehicles.
21. Disclosure of Conflicts to the Advisory Committee. The Manager and
General Partner confirm that they will act in accordance with the requirements specified in the
Advisory Committee Charter and the Deal Allocation Policy.
22. Credit Facility. Except as described below, the General Partner agrees
that it will not require the Investor to execute any document, instrument or certificate for the
benefit of a lender or other credit party of the Partnership in connection with any borrowing
pursuant to the Partnership Agreement or the Trust Deed. To the extent the General Partner
requires the Investor to provide financial information to the General Partner, the Partnership or
any lender or any other credit party of the Partnership or the Trust in connection with any
borrowing pursuant to the Partnership Agreement or Trust Deed, the General Partner agrees that
the information requested shall be limited to such financial information regarding the Investor
that is publicly available. In consideration of the foregoing the Investor agrees to promptly
provide to a lender, upon the General Partner's request, a letter substantially in the format
attached hereto as Exhibit B.
23. Travel Expenses. The General Partner confirms that in the event any
investment - related travel is undertaken via a private charter, the cost born by the Partnership
shall be the lesser of the cost of first class travel on a commercial flight (if available) or private
charter for the same route.
24. Master Fund/Prudent Person. The Master Fund does not expect to hold
"plan assets" under the Employee Retirement Income Security Act of 1974, as amended
( "ERISA "), and, as a result, it is expected that under ERISA the Manager will not be a
"fiduciary" (as that term is defined in Section 3(21)(A) of ERISA) to investors in the Master
Fund with respect to the assets of the Master Fund. Nevertheless, the Manager hereby agrees
that, as an inducement to the Investor to invest in the Partnership, during such time that the assets
of the Master Fund are not deemed to be "plan assets" under ERISA, it will discharge its duties
and responsibilities with respect the assets held by the Master Fund in the same manner and
subject to the same duties, obligations and responsibilities as if it were a "fiduciary" (as that term
is defined in Section 3(21)(A) of ERISA), provided, that the foregoing (i) shall not apply to
duties, obligations and responsibilities arising under (A) the following Sections of ERISA:
404(a)(1)(C), 404(a)(1)(A), 404(b), 412, 406(a), 406(b), and 101 -111 or (B) Section 4975 of the
Code and (ii) shall not be construed to prohibit or restrict transactions or payments expressly
contemplated by the Partnership Agreement, the Trust Deed or the Advisory Deed (the " ERISA
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Standard of Care "). Accordingly, during such time that the assets of the Master Fund are not
deemed to be "plan assets" under ERISA, the Manager shall act with the care, skill, prudence
and diligence under the circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims, in each case in the same manner and to the same extent that would
be required by ERISA if the Master Fund held "plan assets" under ERISA, subject to the
exceptions contained in the proviso to the preceding sentence. Further, to the extent the Manager
delegates its responsibility to provide investment advisory services to the Master Fund to a third
party, the Manager will remain responsible for the actions of that third party subject to the
fiduciary standard of care noted above. Finally, notwithstanding the Advisory Deed, the
investment advisory and management actions of the Manager shall not in under any
circumstances be deemed to be the actions of the Trustee that is subject to a different standard of
care and/or indemnification protections.
25. Investment Advisor's Standard of Care. The Investment Advisor shall act
with the care, skill, prudence and diligence under the circumstances then prevailing, in
connection with Partnership and the Master Fund, that a prudent person acting in a like capacity
and familiar with such matters would use in the conduct of an enterprise of a like character and
with like aims.
26. Purchase Price Premium. The Manager confirms that no Purchase Price
Premium (as defined in the Trust Deed) shall be paid by the Investor with respect to any Capital
Commitment drawn down by the Partnership.
27. Proceedings. The General Partner, the Investment Advisor and the
Manager hereby represent and warrant that, to the best of their knowledge, having inquired of
their senior officers, and except as otherwise disclosed to the Investor in writing, (i) there are no
actions, proceedings or investigations pending before any court or governmental authority,
including, without limitation, the Securities and Exchange Commission or any state securities
regulatory authority, against or relating to the General Partner or the senior officers (other than in
their capacity as directors of public companies) that claim or allege (A) violation of any federal
or state securities law, rule or regulation, or (B) breach of fiduciary duties, and (ii) during the
five years prior to the date hereof, none of the senior officers (other than in their capacity as
directors of public companies) has been found liable for, nor settled, any such violation in any
such action, proceeding or investigation.
28. Warranties. Each of the General Partner, the Investment Advisor and the
Manager warrants that it has taken all actions necessary to enter into the Subscription Agreement
and this Side Letter, and to the General Partner's, the Investment Advisor's and the Manager's
knowledge neither the execution and delivery nor the performance of either the Subscription
Agreement or this Side Letter by the General Partner, the Investment Advisor and the Manager
will, at the time of the Investor's first draw down, violate any U.S. law, order, rule or regulation
or judgment, order or decree by any U.S. federal or state court or governmental authority to
which any of the General Partner, the Investment Advisor or the Manager is subject, nor will the
same constitute a breach of, or default under, provisions of any agreement or contract to which it
is a party or by which it is bound.
29. Binding Effect. This Side Letter is binding and enforceable against the
Partnership, the Investment Advisor, the General Partner and the Manager, notwithstanding any
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contrary provisions in the Partnership Agreement, the Investment Management Agreement, the
Investor's Subscription Agreement, the Advisory Deed, and/or the Trust Deed, and in the event
of a conflict between the provisions of this Side Letter and the PPM, the Partnership Agreement,
the Investment Management Agreement, the Investor's Subscription Agreement, the Advisory
Deed, or the Trust Deed, the provisions of this Side Letter shall control. This Side Letter shall
survive delivery of fully executed originals of the Partnership Agreement and Subscription
Agreement and the Investor's admission to the Partnership as a Limited Partner. This Side Letter
may be amended, modified or supplemented only by written agreement of the parties hereto.
30. Trustee. With respect to this Side Letter: (A) The Trustee enters into this
Side Letter in its capacity as the trustee of the Master Fund and in no other capacity. Any
liability of the Trustee other than that resulting from the willful default, breach of trust, or fraud
on the part of an Indemnified Person (as that term is defined in the Trust Deed) or which are
Overhead Expenses (as that term is defined in the Trust Deed), arising under or in connection
with this Side Letter (or any documents delivered by the Trustee in connection with this
document) is limited to and may be enforced against the Trustee only in the circumstances and to
the extent to which it can be satisfied out of the assets or property of the Master Fund out of
which the Trustee is indemnified for such liability. This limitation of liability applies and
extends to all liabilities and obligations of the Trustee in any way connected with any
representation, warranty, conduct, agreement or transaction related to this Side Letter.
(B) No person may sue the Trustee in any capacity other than in that capacity including seeking
the appointment of a receiver (except, if entitled, in relation to property of the Master Fund), a
liquidator, an administrator or any similar person in respect of or proving in any liquidation,
administration or arrangement affecting the Trustee (except, if entitled, in relation to the property
of the Master Fund).
(C) Paragraphs (A) and (B) do not apply to any obligation or liability of the Trustee to the extent
that it is not satisfied because under the terms of its appointment as the trustee of the Master
Fund as set forth in the Trust Deed or by operation of law, there is a reduction in the extent of its
entitlement to indemnification out of the assets of the Master Fund. In the event that Paragraphs
(A) and (B) do not apply as a result of the operation of the preceding sentence, then the
obligations and liabilities of the Trustee may be satisfied out of the assets of the Trustee in its
personal capacity.
31. Counterparts. This Side Letter may be executed in counterparts and by
different parties hereto in separate counterparts, each of which, when so executed and delivered,
shall be deemed to be an original and all of which, when taken together, shall constitute one and
the same agreement.
32. Headings. The paragraph headings contained in this Side Letter are
inserted for convenience only and shall not affect in any way the meaning or interpretation of
this Side Letter.
33. Severability. If any provision of this Side Letter is found to be illegal or
unenforceable, then the provision will be deemed deleted and this Side Letter will be construed
as though the provision was not contained herein and the remainder of this Side Letter will
remain in full force and effect.
34. Construction/Governing Law. The parties agree that no provision of this
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Side Letter shall be construed against or interpreted to the disadvantage of any party hereto by
any court or other governmental or judicial authority by reason of such party having or being
deemed to have structured, dictated or drafted such provision. Neither the failure to exercise nor
the delay in the exercise of any right or obligation specified in this Side Letter by the General
Partner, the Investment Advisor and the Manager or the Investor, as applicable, shall operate as a
waiver of such right or remedy. This Side Letter shall be governed, construed, administered and
regulated in all respects under the laws of the State of Delaware (without regard to the
provisions, policies or principles thereof relating to choice or conflict of laws) except to the
extent preempted by federal law. The parties to this Side Letter shall be subject to the
jurisdiction of the state and/or appropriate federal court in the State of Delaware.
If the foregoing is agreeable to you, please signify your acceptance by executing this Side
Letter in the space provided below and returning an executed copy to the undersigned. The
terms of this Side Letter shall become effective upon execution and delivery of the Subscription
Agreement relating to the Partnership and the Partnership Agreement by the Investor and the
General Partner.
[SIGNATURE PAGE FOLLOWS]
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Sincerely yours,
IFM Global Infrastnacture((.,JS), I.-P.
By: IFM Global Infrastructure (US)GP, 11,C
its General Partner
By: .. . .......
....
_... ._.. ...... _...._ao MILLER
P ROBIN ILLER PHILIP PHILIP
i'tle: ATTORNEYS
IFM Investors(US) Advisor, LLC
ley:
Name: PHILIP DOWMAN ROBIN MILLER
Title: ,ATTORNEYS
IFM Global InfraStruC't1Hae(lI'S)GP, I,C
Naaaae" PHILIP DOWMAN ROBIN MILLER
Title: ATTORNEYS
IFM Investors Pty Lttl
M 77
Name;: PHILIP DOWMAN ROBIN MILLER
Title: ATTORNEYS
C:,odan trust Company(Cayman)Urnited
(as to Paragraphs 18 anti 30 of this Side Letter)
By .....W..m..
Name:
Title:
Acknowledged and agreed to by:
City of"C'learwater lT.rnployees' Pension Fund
_
Name: George N. Cretek.os
Title: C hairpersola,Board of'frustee,s
Icy: ..................._
Name:
Title:
[SIGNATURE PAGE-1.0[INVESTOR]SILL LETTER]
NIM US:72663522 2
IFM Global Infrastructure Side Letter Investment Agreement
BOARD OF TRUSTEES OF THE EMPLOYEES'
PENSION PLAN OF THE CITY OF
CLEARWATER, FLORIDA
By: — i to ,C'' kt 435
George N. Cretekos
Chairperson
Approved a to form: Attest:
amela . Akin Rosemarie Call
City Attorney City Clerk
Exhibit A
VALUATION POLICY
[ATTACHED AS A SEPARATE DOCUMENT]
Exhibit A -1
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Exhibit B
Investor's Form of Lender's Letter
January 19, 2016
[Name of Bank ],
as Administrative Agent
[ ]
[ ]
[ ]
Attention: [.1
Re: Credit facilities (each, a "Credit Facility ") now or hereafter established in favor of [
] (the "Partnership ") by [Bank], whether for itself or as agent (the
"Administrative Agent") for one or more lenders (such lenders (including any bank
issuing letters of credit), and any agents or other representatives thereof, collectively,
together with their respective successors and assigns, the "Lenders "), and secured in
whole or in part by the subscription obligations of one or more limited partners of the
Partnership to contribute subscribed capital to the Partnership, including, without
limitation, the Revolving Credit Facility established pursuant to that certain credit
agreement among the Partnership, certain related limited partnerships, the Lenders party
thereto from time to time, and the Administrative Agent (together with any amendments,
supplements thereto, restatements thereof, or any future agreements pursuant to which
any Credit Facility is established, the "Credit Agreement ").
Ladies and Gentlemen:
The purpose of this letter is to confirm to you the status of our involvement in the Partnership and to
consent to, and acknowledge, certain aspects of the Credit Facility. All capitalized terms used and not
otherwise defined herein having the meanings ascribed thereto in the Partnership Agreement (as defined
below).
We have entered into a Subscription Agreement (the "Subscription Agreement"), dated as of [o], with
the Partnership, a Side Letter agreement (the "Side Letter ") dated as of [•], and the Amended and
Restated Limited Partnership Agreement dated as of [4)] (as the same may be further modified, amended,
or restated from time to time, and collectively referred to herein with the Side Letter as "Partnership
Agreement "), pursuant to which (upon acceptance of the Subscription Agreement by the Partnership) we
have: (a) purchased limited partnership interests in the Partnership (the "Partnership Interest"); and
(b) committed to fund capital calls of the Partnership for subscribed capital in respect of such Partnership
Interest pursuant to the terms of the Subscription Agreement and Partnership Agreement; provided,
however, that at no time will we be required to make capital contributions to the Partnership under the
Partnership Agreement in an aggregate amount that exceeds the amounts we have agreed to contribute
under the Subscription Agreement (the "Capital Commitment").
To date, US$[.] of our Capital Commitment has been called, US$[.] of our Capital Commitment has
been funded, and US$[.] of our Capital Commitment remains to be drawn upon the delivery of one or
more written notices pursuant to and in accordance with the Partnership Agreement.
Exhibit B -1
OMM US:72663522.2
We hereby confirm that the Administrative Agent may from time to time obtain upon request, a certificate
setting forth the remaining amount of our Capital Commitment that we are obligated to fund (the "Unpaid
Capital Obligations ").
We hereby acknowledge and confirm to you that under the terms and subject to the limitations of the
Subscription Agreement and the Partnership Agreement, to the extent the Partnership has outstanding
obligations under the Credit Facility and, for so long as the Credit Agreement is in effect, we agree to
fund our Unpaid Capital Obligations required on account of capital calls duly made in accordance with
the terms of the Subscription Agreement and the Partnership Agreement without any setoff, counterclaim,
or defense, including without limitation any defense that might arise under Section 365 of the U.S.
Bankruptcy Code; provided that such agreement to fund shall not act as a waiver of or agreement not to
assert any claim or defense we may have against the Partnership, the General Partner, any other partner,
the Lenders or any other entity.
We hereby: (a) acknowledge that each of the Partnership and the General Partner is pledging to you and
granting to you a security interest in, among other things, our Capital Commitment and the right to call,
enforce and receive all future payments of our Capital Commitment under the Subscription Agreement
and the Partnership Agreement, to secure the repayment of all loans made and all other obligations of the
Partnership under the Credit Facility (the "Credit Obligations "), [(b) represent that to the best of our
actual knowledge, without investigation, as of the date hereof, there is no default by the General Partner
under the Subscription Agreement or the Partnership Agreement, or claim or defense by the General
Partner against any Lender or affiliate thereof or other circumstances that with the passage of time and/or
notice would constitute a default by the General Partner under the Subscription Agreement or the
Partnership Agreement, constitute a defense to, or right of offset against, our obligation to fund our
Capital Commitment, or otherwise reduce our Capital Commitment;]] (c) confirm the accuracy of our
representations to the Partnership made in the Subscription Agreement; (d) acknowledge that for so long
as the Credit Facility is in place, the Partnership and the General Partner have agreed with you not to
amend, modify, cancel, terminate, reduce, suspend or waive any of our obligations under the Subscription
Agreement or the Partnership Agreement without your prior written consent; and (e) acknowledge and
confirm that we agree that until otherwise instructed by you in writing, all future payments made by us
under the Subscription Agreement or the Partnership Agreement will be made by wire transfer of
immediately available funds to the following account, which the Partnership has also pledged as security
for the Credit Obligations:
Bank: [•]
Account #: [•]
ABA #: [•
Account Name: [•]
Attention: [•]
We hereby agree that for so long as the Credit Agreement is in effect, we shall, under the terms and
subject to the limitations and conditions set forth in the Subscription Agreement and the Partnership
Agreement, honor any Capital Contribution notice with respect to the Partnership delivered to us in the
name of the Administrative Agent to the extent of any Unpaid Capital Obligations, without setoff,
counterclaim or defense by funding the applicable portion of our unpaid Capital Obligations into the
Such representation shall only be required to be made if it is possible for the investor to make the representation at
the time this letter is delivered.
Exhibit B -2
OMM US:73977751.1
above account, provided such Capital Call Notice is delivered for purposes of paying due and payable
obligations to the Lenders under the Credit Facility and pursuant to the terms of the Partnership
Agreement; provided that such agreement to fund shall not act as a waiver of or agreement not to assert
any claim or defense we may have against the Partnership, the General Partner, any other partner, the
Lenders or any other entity.
We confirm our understanding that each Lender will be relying upon the statements made herein in
connection with making the Credit Facility available to the Partnership until the Credit Facility is
terminated and agree that payments we make under the Partnership Agreement and the Subscription
Agreement will not satisfy our obligation to fund our Capital Commitment unless paid into the above
account or as otherwise directed by you.
We acknowledge and confirm that the terms of the Credit Facility, the Credit Obligations, the Credit
Agreement and each agreement, instrument or document executed in connection therewith (collectively,
the "Loan Documents ") can be modified (including, without limitation, increases, decreases or renewals
of credit extended, or the release of any guarantee or security) without further notice to us or our consent,
and without diminishing our Unpaid Capital Obligations, provided however, that in no event shall any
modification of the Credit Agreement or any Loan Document alter our rights and obligations under the
Subscription Agreement or the Partnership Agreement without our written consent. We acknowledge and
confirm that this letter shall apply to the Credit Facility, the Credit Obligations, the Credit Agreement and
each other Loan Document as the same may be modified (including any supplement, amendment or
restatement thereof), and that this letter (the "Letter Agreement") shall be for the benefit of each of the
Lenders and their respective successors and assigns.
This Letter Agreement may be executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument.
We acknowledge that as long as we are a limited partner in the Partnership, this letter shall remain
in force and effect until we are notified by the Partnership and you in writing that the Credit
Facility has been terminated and the Credit Obligations thereunder have been fully satisfied.
[INVESTOR]
By:
Name:
Exhibit B -3
OMM US:73977751.1