Exhibit 4.2


 


SUBSCRIPTION AGENT
AGREEMENT


 


Date:                           ,
2009


 


Bank of New York
Mellon


480 Washington
Blvd., 29th Floor


Jersey City, N.J.
07310


 


Attn:                    Reorganization
Department


 


Gentlemen:


 


Brookfield Homes
Corporation, a Delaware corporation (the “Company”), is
making an offer (the “Subscription Offer”)
to issue to the holders of record of its outstanding shares of common stock,
par value $0.01 per share (the “Common Stock”),
at 5:00 p.m., New York City time on April 3, 2009 (the “Record Date”), the right to subscribe for and purchase (each
a “Right”) up to 10,000,000 shares of 8%
Convertible Preferred Stock, Series A, of the Company, par value $0.01 per
share (the “Series A  Preferred
Stock”), at a purchase price of $25.00 per share of Series A
Preferred Stock (the “Subscription Price”),
payable by cashier’s or certified check drawn upon a United States or Canadian
bank, upon the terms and conditions set forth herein. The shares of Series A
Preferred Stock will be convertible into shares of Common Stock at a conversion
rate of 3.571428571 shares of Common Stock per share of Series A Preferred
Stock, which is equivalent to a conversion price of $7.00 per share, subject to
adjustment upon the occurrence of certain events.  Each share of Common Stock owned at 5:00 p.m.,
New York City time, on the Record Date will entitle the holder thereof to
0.3735701 Rights.  The term “Subscribed” shall mean submitted for purchase from the
Company by a stockholder in accordance with the terms of the Subscription
Offer, and the term “Subscription”
shall mean any such submission.  The
Subscription Offer will expire at 5:00 p.m., New York City Time, on April
27, 2009 (the “Expiration Time”), unless the
Company shall have extended the period of time for which the Subscription Offer
is open, in which event the term “Expiration Time” shall mean the latest time
and date at which the Subscription Offer, as so extended by the Company from
time to time, shall expire.


 


The Company filed (a) a
Registration Statement relating to the Rights and shares of Series A
Preferred Stock with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, on December 23, 2008, and such
Registration Statement was amended on March 6, 2009 and                        .  Said Registration Statement became effective
under the Securities Act of 1933, as amended, on                         ,
2009; and (b) a preliminary MJDS Prospectus relating to the Rights and
shares of Series A Preferred Stock in each of the provinces of Canada
(other than the Province of Québec) on December 23, 2008 and with the
Province of Québec on March 6, 2009, as the same were amended and restated, as
applicable, on March 6, 2009 and on                          ,
2009. Receipts for the final MJDS Prospectus (the “Canadian
Prospectus”) were issued by the Ontario Securities Commission and
the Autorité des marchés financiers on behalf of applicable Canadian securities
authorities on                         ,
2009.  The terms of the Series A
Preferred Stock are more fully described in the prospectus (the “US Prospectus”) forming part of the Registration Statement
as it became effective, the Canadian Prospectus (together with the US
Prospectus, the “Prospectus”) and the “Instructions
for Use of Brookfield Homes Corporation Subscription Rights Certificates”.  Copies of the following documents are annexed
hereto as the following Exhibits:


 


US Prospectus — Exhibit 1A


 


1

















 


Canadian Prospectus — Exhibit 1B


Instructions for Use of Brookfield Homes Corporation
Subscription Rights Certificates — Exhibit 2


Subscription
Rights Certificate — Exhibit 3


Letter to
Stockholders Who Are Record Holders — Exhibit 4


Letter to Nominee
Holders Whose Clients Are Beneficial Holders — Exhibit 5


Letter to Clients
of Nominee Holders — Exhibit 6


Nominee Holder
Certification — Exhibit 7


Beneficial Owner
Election — Exhibit 8


 


All terms used and
not defined herein shall have the same meaning as in the Prospectus.  Promptly after the Record Date, the Company
will provide you with a list of holders of Common Stock as of the Record Date
(the “Record Stockholders List”).


 


The Rights are
non-transferable (other than in limited circumstances by operation of law) and
are evidenced by subscription rights certificates (the “Rights
Certificates”), a copy of the form of which is annexed hereto as Exhibit 3.  The Rights entitle the holders to subscribe,
upon payment of the Subscription Price, for shares of Series A Preferred
Stock at the rate of one share of Series A Preferred Stock for each whole
Right evidenced by a Rights Certificate (the “Basic
Subscription Privilege”). 
Holders of Rights that have fully exercised their Basic Subscription
Privilege may subscribe for additional shares of Series A Preferred Stock
(up to the number of shares of Series A Preferred Stock for which the
holder subscribed under its Basic Subscription Privilege) at the same
Subscription Price per share of Series A Preferred Stock on a pro rata
basis if any shares of Series A Preferred Stock are not purchased by other
holders of Rights under their Basic Subscription Privileges as of the
Expiration Time (the “Over-Subscription
Privilege”).  “Pro rata” means in proportion to the number of shares of Series A
Preferred Stock that all Rights holders who have fully exercised their Basic
Subscription Privileges on their Common Stock holdings have requested to
purchase pursuant to the Over-Subscription Privilege. BNY Mellon shall, after
the initial allocation of shares of Series A Preferred Stock to those
shareholders exercising their Basic Subscription Privilege, allocate any shares
of Series A Preferred Stock remaining in accordance with the
Over-Subscription Privilege, as more fully described in the Prospectus.
Reference is made to the Prospectus for a complete description of the Basic
Subscription Privilege and the Over-Subscription Privilege.  Fractional shares of Series A Preferred
Stock or cash in lieu thereof will not be issued in the Rights Offering.  Fractional Rights will be rounded to the
nearest whole number, with such adjustments as may be necessary to ensure that
we offer no more than 10,000,000 shares of Series A Preferred Stock in the
Subscription Offer.


 


The Company hereby appoints you as subscription agent (the “Subscription Agent”) for the Subscription Offer and agrees
with you as follows:


 


1)                                     As Subscription Agent, you are authorized
and directed to:


 


(A)                  Issue the Rights in accordance with this Agreement in
the names of the holders on the Record Stockholders List, keep such records as
are necessary for the purpose of recording such issuance, and furnish a copy of
such records to the Company.  The Rights
Certificates may be signed on behalf of the Subscription Agent by the manual or
facsimile signature of a Vice President or Assistant Vice President of the
Subscription Agent, or by the manual signature of any of its other authorized
officers.


 


(B)                    Promptly after you receive the Record
Stockholders List:


 


(a) mail or cause to be mailed, by first class mail, to each
holder of Common Stock of record on the Record Stockholders List whose address
of record is within the United States,


 


2

















 


(i)             a Rights Certificate evidencing the Rights to
which such stockholder is entitled under the Subscription Offer (which shall
include the Internal Revenue Service Form W-9),


 


(ii)          a copy of the US Prospectus,


 


(iii)       the “Instructions for Use of Brookfield Homes Corporation Subscription
Rights Certificates”,


 


(iv)      a return envelope addressed to the Subscription Agent, and


 


(v)         (I) the Letter to Stockholders Who Are Record Holders, and/or (II) the
Letter to Nominee Holders Whose Clients Are Beneficial Holders, the Letter to
Clients of Nominee Holders, the Nominee Holder Certification, and the Beneficial
Owner Election,


 


(b)  mail or cause to be mailed, by first class mail, to each
holder of Common Stock of record on the Record Date whose address of record is
within Canada,


 


(i)             a Rights Certificate evidencing the Rights to
which such stockholder is entitled under the Subscription Offer (which shall
include the Internal Revenue Service Form W-9 and Form W-8BEN),


 


(ii)          a copy of the Canadian Prospectus,


 


(iii)       the “Instructions for Use of Brookfield Homes Corporation Subscription
Rights Certificates”,


 


(iv)      a return envelope addressed to the Subscription Agent, 


 


(v)         (I) the Letter to Stockholders Who Are Record Holders, and/or (II) the
Letter to Nominee Holders Whose Clients Are Beneficial Holders, the Letter to
Clients of Nominee Holders, the Nominee Holder Certification, and the
Beneficial Owner Election, and


 


(vi)      to the extent that  any holder of
Common Stock of record on the Record Date whose address of record is within the
Province of Québec, in addition to the foregoing,  the French language versions of items (i),  (ii), (iii), (v) and any other materials as may be
reasonably requested, if desirable or necessary to comply with applicable laws,


 


(c)                      mail or cause to be mailed, by air mail, to
each holder of Common Stock of record on the Record Stockholders List whose
address of record is outside the United States and Canada, or is an A.P.O. or
F.P.O. address (i) a copy of the US Prospectus and (ii) the “Instructions
for Use of Brookfield Homes Corporation Subscription Rights Certificates”
(different from the “Instructions for Use of Brookfield Homes Corporation
Subscription Rights Certificates” sent to stockholders whose address of record
is within the United States and Canada). 
You shall refrain from mailing Rights Certificates issuable to any
holder of Common Stock of record on the Record Date whose address of record is
outside the United States and Canada, or is an A.P.O. or F.P.O. address,
and hold such Rights Certificates for the account of such stockholder subject
to such stockholder making satisfactory arrangements with the Subscription
Agent for the exercise or other disposition of the Rights evidenced thereby,
and follow the instructions of such 


 


3

















 


stockholder for the exercise of such Rights if such instructions are
received at or before 11:00 a.m., New York City Time,
on       .


 


(C)                      Mail or
deliver a copy of the US Prospectus, or MJDS Prospectus, as applicable (i) to
each assignee or transferee of Rights upon your receiving appropriate documents
to register the assignment or transfer thereof and (ii) with certificates
for shares of Series A Preferred Stock when such are issued to persons
other than the registered holder of the Rights.


 


(D)                     Accept
Subscriptions upon the due exercise (including payment of the Subscription
Price) on or prior to the Expiration Time of Rights in accordance with the
terms of the Rights and the Prospectus.


 


(E)                       Accept
Subscriptions, without further authorization or direction from the Company,
without procuring supporting legal papers or other proof of authority to sign
(including without limitation proof of appointment of a fiduciary or other
person acting in a representative capacity), and without signatures of
co-fiduciaries, co-representatives or any other person:


 


(a)                                            if the Right is registered in the name of
a fiduciary and is executed by, and the shares of Series A Preferred Stock
are to be issued in the name of, such fiduciary;


 


(b)                                           if the Right is registered in the name of
joint tenants and is executed by one of the joint tenants, provided the
certificates representing the shares of Series A Preferred Stock are
issued in the names of, and are to be delivered to, such joint tenants;


 


(c)                                            if the Right is registered in the name of
a corporation and is executed by a person in a manner which appears or purports
to be done in the capacity of an officer, or agent thereof, provided the shares
of Series A Preferred Stock are to be issued in the name of such
corporation; or


 


(d)                                               if the Right is registered in the name of
an individual and is executed by a person purporting to act as such individual’s
executor, administrator or personal representative, provided, the shares of Series A
Preferred Stock are to be registered in the name of the subscriber as executor
or administrator of the estate of the deceased registered holder and there is
no evidence indicating the subscriber is not the duly authorized representative
that he purports to be.


 


(F)                       Refer to
the Company for specific instructions as to acceptance or rejection of
Subscriptions received after the Expiration Time, Subscriptions not authorized
to be accepted pursuant to this Paragraph 1, and Subscriptions otherwise
failing to comply with the requirements of the Prospectus and the terms and
conditions of the Rights Certificates.


 


(G)                      Upon
acceptance of a Subscription:


 


(a)                                            hold all monies received in a special
account for the benefit of the Company. 
Promptly following the Expiration Time you shall distribute to the
Company the funds in such account and cause the transfer agent for the Series A
Preferred Stock to issue DRS book entry statements or certificates for shares
of Series A Preferred Stock, as applicable, issuable with respect to
Subscriptions which have been accepted;


 


(b)                                           advise the Company daily by email to
Shane D. Pearson, Secretary (the “Company Representative”)
as to the total number of shares of Series A Preferred Stock 


 


4

















 


Subscribed for
under each of the Basic Subscription Privilege and the Over Subscription Privilege,
and the amount of funds received, with cumulative totals for each; and in
addition advise the Company Representative, by email, of the amount of funds
received identified in accordance with (a) above, deposited, available or
transferred in accordance with (a) above, with cumulative totals; and


 


(c)                                            as promptly as possible but in any event
on or before 9:00 a.m., New York City time, on the first full business day
following the Expiration Time, advise the Company Representative in accordance
with (b) above of the number of shares of Series A Preferred Stock
Subscribed for.


 


(H)                     Upon completion of the Subscription Offer, you shall
requisition DRS book entry statements from the transfer agent for the Series A
Preferred Stock for shares of Series A preferred Stock Subscribed for.


 


(I)                          Promptly following completion of the
Subscription Offer, you shall mail or cause to be mailed, by first class mail,
to any holder of Rights that exercised its Over-Subscription Privilege but
was allocated less than all of the shares of Series A Preferred Stock for
which such holder wished to Subscribe, without interest or deduction by check, such holder’s
excess payment for shares of Series A Preferred Stock that were not
allocated to such holder.


 


2)                                      (A)  The Rights Certificates
shall be issued in registered form only. 
The Company shall appoint and have in office at all times a transfer
agent and registrar for the Rights, satisfactory to you, which shall keep books
and records of the registration and transfer or exchanges of Rights (such books
and records are hereinafter called the “Rights Register”).  The Company shall promptly notify the
transfer agent and registrar for the Rights of the exercise of any Rights.  The Company shall promptly notify you of any
change in the transfer agent and registrar for the Rights.


 


(B)  All
Rights Certificates issued upon any registration of transfer or exchange of
Rights shall be the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Agreement, as the
Rights Certificates surrendered for such registration of transfer or exchange.


 


3)                                      You will follow your regular procedures
to attempt to reconcile any discrepancies between the number of shares of Series A
Preferred Stock that any Rights Certificate may indicate are to be issued to a
stockholder and the number that the Record Stockholders List indicates may be
issued to such stockholder.  In any
instance where you cannot reconcile such discrepancies by following such
procedures, you will consult with the Company for instructions as to the number
of shares of Series A Preferred Stock, if any, you are authorized to
issue.  In the absence of such
instructions, you are authorized not to issue any shares of Series A
Preferred Stock to such stockholder.


 


4)                                      You will examine the Rights Certificates
received by you as Subscription Agent to ascertain whether they appear to you
to have been completed and executed in accordance with the “Instructions for
Use of Brookfield Homes Corporation Subscription Rights Certificates and
applicable letters and other documents. 
In the event you determine that any Rights Certificate does not appear
to you to have been properly completed or executed, or where the Rights Certificates
do not appear to you to be in proper form for Subscription, or any other
irregularity in connection with the Subscription appears to you to exist, you
will follow, where possible, your regular procedures to attempt to cause such
irregularity to be corrected.  You are
not authorized to waive any irregularity in connection with the Subscription,
unless you shall have received from the Company the 


 


5

















 


Rights Certificate which was delivered, duly dated and
signed by an authorized officer of the Company, indicating that any
irregularity in such Rights Certificate has been cured or waived and that such
Rights Certificate has been accepted by the Company.  If any such irregularity is neither corrected
nor waived, you will return to the subscribing stockholder (at your option by
either first class mail under a blanket surety bond or insurance protecting you
and the Company from losses or liabilities arising out of the non-receipt or
nondelivery of Rights Certificates or by registered mail insured separately for
the value of such Rights Certificates) to such stockholder’s address as set
forth in the Subscription any Rights Certificates surrendered in connection
therewith and any other documents received with such Rights Certificates, and a
letter of notice to be furnished by the Company explaining the reasons for the
return of the Rights Certificates and other documents.


 


5)                                      Each document received by you relating to
your duties hereunder shall be tracked into BNY Mellon’s Corporate Action
proprietary system.


 


6)                                      (A)                  For so long as this Agreement shall be in effect, the Company will
reserve for issuance and keep available free from preemptive rights a
sufficient number of shares of Series A Preferred Stock to permit the
exercise in full of all Rights issued pursuant to the Subscription Offer.  Subject to the terms and conditions of this
Agreement, you will request the transfer agent for the Series A Preferred
Stock to issue DRS book entry statements evidencing the appropriate number of
shares of Series A Preferred Stock as required from time to time in order
to effectuate the Subscriptions.


 


(B)                      The Company shall take any and all
action, including, without limitation, obtaining the authorization, consent,
lack of objection, registration or approval of any governmental authority, or
the taking of any other action under the laws of the United States of America
or any political subdivision thereof, to insure that all shares of Series A
Preferred Stock issuable upon the exercise of the Rights at the time of delivery
of the certificates therefor (subject to payment of the Subscription Price)
will be duly and validly issued and fully paid and nonassessable, free from all
preemptive rights and taxes, liens, charges and security interests created by
or imposed upon the Company with respect thereto.


 


(C)                      The Company shall from time to time take
all action necessary or appropriate to obtain and keep effective all
registrations, permits, consents and approvals of the Securities and Exchange
Commission and any other applicable governmental agency or authority and make
such filings under federal, state or provincial laws which may be necessary or
appropriate in connection with the issuance, sale, transfer and delivery of
Rights or Series A Preferred Stock issued upon exercise of Rights.


 


7)                                      If certificates or DRS book entry
statements representing shares of Series A Preferred Stock are to be
delivered by you to a person other than the person in whose name a surrendered
Rights Certificate is registered, you will issue no certificates or DRS book
entry certificates for Series A Preferred Stock until the Rights
Certificate so surrendered has been properly endorsed (or otherwise put in
proper form for transfer).


 


8)                                      Should any issue arise regarding federal
income tax reporting or withholding, you will take such action as the Company
reasonably instructs you in writing, which action may be subject to additional
fees.


 


9)                                      The Company may terminate this Agreement
at any time by so notifying you in writing. 
You may terminate this Agreement upon 40 days’ prior notice to the
Company.  Upon any such termination, you
shall be relieved and discharged of any further responsibilities with respect
to your duties hereunder.  Upon payment
of all your outstanding fees and 


 


6

















 


expenses, you will
forward to the Company or its designee promptly any Rights Certificates or
other document relating to your duties hereunder that you may receive after
your appointment has so terminated. 
Sections 11, 12, and 14 of this Agreement shall survive any termination
of this Agreement.


 


10)                               As agent for the Company hereunder you:


 


(A)                    shall have no duties or obligations other than those
specifically set forth herein or as may subsequently be agreed to in writing by
you and the Company;


 


(B)                      if the Series A Preferred Stock will
be issued in certificated form, you shall have no obligation to issue any
shares of Series A Preferred Stock unless the Company shall have provided
a sufficient number of certificates for such shares of Series A Preferred
Stock;


 


(C)                      shall be regarded as making no
representations and having no responsibilities as to the validity, sufficiency,
value, or genuineness of any Rights Certificates surrendered to you hereunder
or shares of Series A Preferred Stock issued in exchange therefor, and
will not be required to or be responsible for and will make no representations
as to, the validity, sufficiency, value or genuineness of the Subscription
Offer;


 


(D)                     shall not be obligated to take any legal action hereunder;
if, however, you determine to take any legal action hereunder, and where the
taking of such action might, in your judgment, acting reasonably, subject or
expose you to any expense or liability you shall not be required to act unless
you shall have been furnished with an indemnity satisfactory to you;


 


(E)                       may rely on and shall be fully authorized
and protected in acting or failing to act upon any certificate, instrument,
opinion, notice, letter, telegram, telex, facsimile transmission or other document
or security delivered to you and reasonably believed by you to be genuine and
to have been signed by the proper party or parties;


 


(F)                       shall not be liable or responsible for
any recital or statement contained in the Prospectus or any other documents
relating thereto;


 


(G)                      shall not be liable or responsible for
any failure on the part of the Company to comply with any of its covenants and
obligations relating to the Subscription Offer, including without limitation
obligations under applicable securities laws;


 


(H)                     may rely on and shall be fully authorized and
protected in acting or failing to act upon the written, telephonic or oral
instructions with respect to any matter relating to you acting as Subscription
Agent covered by this Agreement (or supplementing or qualifying any such
actions) of authorized officers of the Company;


 


(I)                          may consult with counsel satisfactory to
you, including Shane D. Pearson, and the advice of such counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered, or omitted by you hereunder in good faith and in accordance with the
advice of such counsel;


 


(J)                         may perform any of your duties hereunder
either directly or by or through agents or attorneys and you shall not be
liable or responsible for any misconduct or negligence on the part of any agent
or attorney appointed with reasonable care by you hereunder; and


 


(K)                     are not authorized, and shall have no obligation, to
pay any brokers, dealers, or soliciting fees to any person.


 


7

















 


11)                               In the event any question or dispute
arises with respect to the proper interpretation of the Subscription Offer or
your duties hereunder or the rights of the Company or of any stockholders
surrendering Rights Certificates pursuant to the Subscription Offer, you shall
not be required to act and shall not be held liable or responsible for your
refusal to act until the question or dispute has been judicially settled (and,
if appropriate, you may file a suit in interpleader or for a declaratory
judgment for such purpose) by final judgment rendered by a court of competent
jurisdiction, binding on all parties interested in the matter which is no
longer subject to review or appeal, or settled by a written document in form
and substance satisfactory to you and executed by the Company and each such
stockholder and party.  In addition, you
may require for such purpose, but shall not be obligated to require, the
execution of such written settlement by all the stockholders and all other
parties that may have an interest in the settlement.  The obligations of the Company under this
section shall survive the termination of this Agreement.


 


12)                               Any
instructions given to you orally, as permitted by any provision of this Agreement,
shall be confirmed in writing by the Company as soon as practicable.  You shall not be liable or responsible and
shall be fully authorized and protected for acting, or failing to act, in
accordance with any oral instructions which do not conform with the written
confirmation received in accordance with this Section.


 


13)                               Whether or not any Rights Certificates are
surrendered to you, for your services as Subscription Agent hereunder, the
Company shall pay to you compensation in accordance with the fee schedule
attached as Schedule A hereto, together with reimbursement for out-of-pocket
expenses, including reasonable fees and disbursements of counsel.


 


14)                               The Company covenants to indemnify and
hold you harmless from and against any loss, liability, claim or expense (“Loss”) arising out of or in connection with your duties
under this Agreement, including the costs and expenses of defending yourself
against any Loss, unless such Loss shall have been determined by a court of
competent jurisdiction to be a result of your gross negligence or intentional
misconduct. Anything in this Agreement to the contrary notwithstanding, in no
event shall you be liable for special, indirect, incidental or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if you have been advised of the likelihood of such damages and
regardless of the form of action. Any liability of yours will be limited to the
amount of fees paid by Client hereunder. 
The obligations of Company under this section shall survive the
termination of this Agreement.


 


15)                               If any provision of this Agreement shall
be held illegal, invalid, or unenforceable by any court, this Agreement shall
be construed and enforced as if such provision had not been contained herein
and shall be deemed an Agreement among us to the full extent permitted by
applicable law.


 


16)                               The
Company represents and warrants that (a) it is duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, (b) the making and consummation of the Subscription Offer
and the execution, delivery and performance of all transactions contemplated
thereby (including without limitation this Agreement) have been duly authorized
by all necessary corporate action and will not result in a breach of or
constitute a default under the certificate of incorporation or bylaws of the
Company or any indenture, agreement or instrument to which it is a party or is
bound, (c) this Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid, binding and enforceable obligation of
it, subject, however, to limitations on 


 


8

















 


enforcement
imposed by bankruptcy, insolvency, reorganization or other laws affecting the
rights of creditors generally, and to general principles of equity, each
regardless of whether enforcement is sought in a proceeding at law or in
equity, (d) the Subscription Offer will comply in all material respects
with all applicable requirements of law and (e) to the best of its
knowledge, there is no litigation pending or threatened as of the date hereof
in connection with the Subscription Offer.


 


17)                               In
the event that any claim of inconsistency between this Agreement and the terms
of the Subscription Offer arise, as they may from time to time be amended, the
terms of the Subscription Offer shall control, except with respect to the
duties, liabilities and rights, including compensation and indemnification of
you as Subscription Agent, which shall be controlled by the terms of this
Agreement.


 


18)                               Set
forth in Schedule B hereto is a list of the names and specimen signatures of
the persons authorized to act for the Company under this Agreement.  The Secretary of the Company shall, from time
to time, certify to you the names and signatures of any other persons
authorized to act for the Company under this Agreement.


 


19)                               Except
as expressly set forth elsewhere in this Agreement, all notices, instructions
and communications under this Agreement shall be in writing, shall be effective
upon receipt and shall be addressed, if to the Company, to its address set
forth beneath its signature to this Agreement, or, if to the Subscription
Agent, to Bank of New York Mellon, 480 Washington Blvd., Jersey City, N.J.
07310, Attention: Reorganization Department, or to such other address as a
party hereto shall notify the other parties.


 


20)                               This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to conflict of laws rules or
principles, and shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto; provided that this Agreement may
not be assigned by any party without the prior written consent of all other parties.


 


21)                               No
provision of this Agreement may be amended, modified or waived, except in a
written document signed by both parties.


 


Please acknowledge receipt of this letter and confirm
your agreement concerning your appointment as Subscription Agent, and the
arrangements herein provided, by signing and returning the enclosed copy
hereof, whereupon this Agreement and your acceptance of the terms and
conditions herein provided shall constitute a binding Agreement between us.


 


	
   

  	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BROOKFIELD HOMES CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  Address for notices:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Brookfield Homes Corporation

  	
   

  	
   

  
	
  8500 Executive Park Avenue

  	
   

  	
   

  



 


9

















 


Fairfax, Virginia 22031


Attention: Shane D.
Pearson, Secretary


 


Facsimile: (416) 369-0973


 


With a copy to:


 


Dorsey &
Whitney LLP


Suite 1605,
777 Dunsmuir Street


Vancouver, British
Columbia V7Y 1K4


Canada


Attention: Daniel
M. Miller


 


Facsimile: (604)
687-8504


 


Accepted as of the
date


above first
written:


 


BANK OF NEW YORK
MELLON


AS SUBSCRIPTION
AGENT


 


 


	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


 


	
  Exhibit 1A

  	
   

  	
  US Prospectus

  
	
  Exhibit 1B

  	
   

  	
  Canadian Prospectus

  
	
  Exhibit 2

  	
   

  	
  Instructions for Use of Brookfield Homes Corporation
  Subscription Rights Certificates

  
	
  Exhibit 3

  	
   

  	
  Form of Rights Certificate

  
	
  Exhibit 4

  	
   

  	
  Form of Letter to Stockholders Who Are
  Record Holders

  
	
  Exhibit 5

  	
   

  	
  Form of Letter to Nominee Holders Whose
  Clients Are Beneficial Holders

  
	
  Exhibit 6

  	
   

  	
  Form of Letter to Clients of Nominee
  Holders

  
	
  Exhibit 7

  	
   

  	
  Form of Nominee Holder Certification

  
	
  Exhibit 8

  	
   

  	
  Form of Beneficial Owner Election

  
	
   

  	
   

  	
   

  
	
  Schedule A

  	
   

  	
  Fee Schedule

  
	
  Schedule B

  	
   

  	
  Persons Authorized to Act for the Company

  



 


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