Brookfield Renewable Partners L.P 6-K, filed Feb 24, 2020
Brookfield Renewable Partners L.P. (BEP)
About this 6-K
Brookfield Renewable Partners L.P filed this 6-K on February 24, 2020.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of February 2020
Commission File Number: 001-35530
BROOKFIELD RENEWABLE PARTNERS L.P.
(Exact name of registrant as specified in its charter)
73 Front Street, Hamilton, HM 12 Bermuda
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F X Form 40-F
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ____
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ____
The information contained in Exhibits 1.1, 3.1, 3.2, 4.1, 5.1, and 8.1 of this Form 6-K are incorporated by reference into the registrant’s registration statement on Form F-3 (File No. 333-224206).
DOCUMENTS FILED AS PART OF THIS FORM 6-K
See the Exhibit List to this Form 6-K.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| Date: February 24, 2020 | BROOKFIELD RENEWABLE PARTNERS, L.P. | |||||
| By its general partner, Brookfield Renewable Partners Limited | ||||||
| By: | /s/ Jane Sheere | |||||
| Name: | Jane Sheere | |||||
| Title: | Secretary | |||||
EXHIBIT INDEX
| EXHIBIT |
DESCRIPTION | |
| 1.1 | Underwriting Agreement, dated February 19, 2020, among the underwriters named therein and Brookfield Renewable Partners L.P. | |
| 3.1 | Sixth Amendment, dated February 24, 2020, to the Fourth Amended and Restated Limited Partnership Agreement of Brookfield Renewable Partners L.P., dated May 3, 2016. | |
| 3.2 | Sixth Amendment, dated February 24, 2020, to the Third Amended and Restated Limited Partnership Agreement of Brookfield Renewable Energy L.P., dated February 11, 2016. | |
| 4.1 | Form of 5.25% Class A Preferred Limited Partnership Units, Series 17 Certificate. | |
| 5.1 | Opinion of Appleby (Bermuda) Limited, dated February 24, 2020, relating to certain matters under the laws of Bermuda. | |
| 8.1 | Opinion of Torys LLP, dated February 24, 2020, relating to tax matters. | |
| 23.1 | Consent of Appleby (Bermuda) Limited (included as part of Exhibit 5.1). | |
| 23.2 | Consent of Torys LLP (included as part of Exhibit 8.1). | |
Exhibit 1.1
Brookfield Renewable Partners L.P.
5.25% Class A Preferred Limited Partnership Units, Series 17
Underwriting Agreement
February 19, 2020
Wells Fargo Securities, LLC
BofA Securities, Inc.
J.P. Morgan Securities LLC
RBC Capital Markets, LLC
TD Securities (USA) LLC
As Representatives of the several Underwriters listed in Schedule 1 hereto
c/o Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, NC 28202
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o RBC Capital Markets, LLC
200 Vesey Street, 8th Floor
New York, New York 10281
c/o TD Securities (USA) LLC
31 W. 52nd Street, 2nd Floor
New York, NY 10019
Ladies and Gentlemen:
Brookfield Renewable Partners L.P., a Bermuda exempted limited partnership (the “Partnership”), proposes to issue and sell to the several underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting as representatives (the “Representatives”), an aggregate of 8,000,000 5.25% Class A Preferred Limited Partnership Units, Series 17 of the Partnership, representing preferred limited partner interests in the Partnership with a liquidation preference of $25.00 (the “Series 17 Preferred Units” or the “Units.”)
The Units are to be issued pursuant to a sixth amendment (the “BRP LPA Amendment”) to be dated as of the Closing Date (as defined herein), to the Fourth Amended and Restated Limited Partnership Agreement of the Partnership by and among Brookfield Renewable Partners Limited, a Bermuda exempted company (the “General Partner”), and the limited partners party thereto, dated May 3, 2016, as amended on May 25, 2016, February 14, 2017, January 16, 2018, February 28, 2019 and March 11, 2019 (as further amended by the BRP LPA Amendment, the “Amended BRP LPA”). In connection with the issuance of the Units, the Partnership intends to contribute the net proceeds from the sale of the Units to Brookfield Renewable Energy L.P., a Bermuda exempted limited partnership (“BRELP”). In consideration of the Partnership’s contribution, BRELP will issue to the Partnership a new series of Class A preferred limited partnership units of BRELP with economic terms designed to mirror those of the Units (the “Mirror Units”) pursuant to an amendment, to be dated as of the Closing Date (the “BRELP LPA Amendment”) to BRELP’s Third Amended and Restated Limited Partnership Agreement, dated February 11, 2016, as amended on May 25, 2016, February 14, 2017, January 16, 2018, February 28, 2019 and March 11, 2019 (as further amended by the BRELP LPA Amendment, the “Amended BRELP LPA”). The Amended BRP LPA and Amended BRELP LPA are together referred to hereinafter as the “Transaction Documents.”
To the extent there are no additional Underwriters listed on Schedule 1 other than you, the term Representatives as used herein shall mean you, as Underwriters, and the terms Representatives and Underwriters shall mean either the singular or plural as the context requires. The use of the neuter in this Agreement shall include the feminine and masculine wherever appropriate.
The Partnership hereby confirms its agreement with the several Underwriters concerning the purchase and sale of the Units, as follows:
1. Registration Statement. The Partnership has prepared and filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), a post-effective amendment (the “Post-Effective Amendment”) to the Partnership’s automatic shelf registration statement, as defined under Rule 405 of the Securities Act (File No. 333-224206), on Form F-3ASR and any other necessary post-effective amendments thereto, including a related Base Prospectus (the “Base Prospectus”), relating to certain securities of the Partnership, including the Units. Such registration statement and Post-Effective Amendment, and any other post- effective amendments thereto, became effective upon filing. Such registration statement and Post-Effective Amendment, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement and Post-Effective Amendment at the time of its effectiveness (“Rule 430 Information”), is referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus” means each prospectus included in such registration statement (and any amendments thereto, including the Post-Effective Amendment) before effectiveness, any prospectus filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Units. Any reference in this underwriting agreement (this “Agreement”) to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be , and any reference to “amend”, “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
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At or prior to the Applicable Time (as defined below), the Partnership had prepared the following information (collectively with the pricing information set forth on Annex A, the “Pricing Disclosure Package”): a Preliminary Prospectus dated February 19, 2020 and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.
“Applicable Time” means 3:55 P.M., New York City time, on February 19, 2020.
2. Purchase of the Units by the Underwriters.
(a) The Partnership agrees to issue and sell the Units to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Partnership the respective number of Units set forth opposite such Underwriter’s name in Schedule 1 hereto at a purchase price of $24.2125 per Unit sold to retail investors and at a purchase price of $24.5000 per Unit sold to institutional investors (the “Purchase Price”) from the Partnership the respective number of Units set forth opposite such Underwriter’s name in Schedule 1 hereto.
(b) The Partnership understands that the Underwriters intend to make a public offering of the Units, and initially to offer the Units on the terms set forth in the Pricing Disclosure Package and the Prospectus. The Partnership acknowledges and agrees that the Underwriters may offer and sell Units to or through any affiliate of an Underwriter.
(c) Payment for the Units shall be made by wire transfer in immediately available funds to the account specified by the Partnership to the Representatives, in the case of the Units, at the offices of Milbank LLP, 55 Hudson Yards, New York, NY 10001, at 10:00 A.M., New York City time, on February 24, 2020, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Partnership may agree upon in writing. The time and date of such payment for the Units is referred to herein as the “Closing Date.”
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Payment for the Units to be purchased on the Closing Date shall be made against delivery to the Representatives for the respective accounts of the several Underwriters of the Units to be purchased on such date with any transfer taxes payable in connection with the sale of such Units duly paid by the Partnership. Delivery of the Units shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct and the Units shall be registered in such names and in such denominations as the Representatives shall request. Any certificates for the Units will be made available for inspection and packaging by the Representatives at the office of DTC or its designated custodian not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(d) The Partnership acknowledges and agrees that the Representatives and the other Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Partnership with respect to the offering of Units contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Partnership or any other person (irrespective of whether such Underwriter has advised or is currently advising the Partnership on other matters). Additionally, neither the Representatives nor any other Underwriters are advising the Partnership or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the offering of the Units contemplated hereby (irrespective of whether such Underwriter has advised or is currently advising the Partnership on other matters). The Partnership agrees that it will not claim that, in connection with the purchase and sale of the Units pursuant to the Agreement or the process leading thereto, the Underwriters, or any of them, has advised the Partnership or any other person as to any legal, tax, investment, accounting, regulatory or any other matters in any jurisdiction or owes a fiduciary or similar duty to the Partnership. The Underwriters and their respective affiliates may be engaged in a broad range of transactions directly or indirectly involving the Partnership and may in some cases have interests that differ from or conflict with those of the Partnership. The Partnership hereby consents to each Underwriter acting in the capacities described in the preceding sentence, and the parties to this Agreement acknowledge that any such transaction is a separate transaction from the sale of the Units contemplated hereby and that no Underwriter acting in any such capacity owes any obligation or duty to any other party hereto with respect to or arising from its acting in such capacity, except to the extent set forth in any prior separate agreement relating to such other transaction. The Partnership shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor the other Underwriters shall have any responsibility or liability to the Partnership with respect thereto. Any review by the Representatives and the other Underwriters of the Partnership, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Partnership.
3. Representations and Warranties of the Partnership. The Partnership represents and warrants to each Underwriter that:
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(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Partnership makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Partnership in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof.
(b) Pricing Disclosure Package. The Pricing Disclosure Package as of the Applicable Time did not, and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Partnership makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Partnership in writing by such Underwriter through the Representatives expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof.
(c) Issuer Free Writing Prospectus. Other than the Registration Statement, the Preliminary Prospectus and the Prospectus, the Partnership (including its agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and the Partnership will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined under Rule 405 of the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Units (each such communication by the Partnership or its agents and representatives (other than a communication referred to in clause (i) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Annex A hereto, each electronic road show and any other written communications approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complies in all material respects with the Securities Act, has been or will be (within the time period specified under Rule 433 of the Securities Act) filed in accordance with the Securities Act (to the extent required thereby) and does not conflict with the information contained in the Registration Statement or the Pricing Disclosure Package, and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Partnership makes no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus, Preliminary Prospectus or Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Partnership in writing by such Underwriter through the Representatives expressly for use in such Issuer Free Writing Prospectus, Preliminary Prospectus or Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof. The term sheet substantially in the form of Annex B hereto has been reviewed and approved by the Partnership.
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(d) Registration Statement and Prospectus. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Partnership. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Partnership or related to the offering of the Units has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any post-effective amendment thereto, the Registration Statement and any such post-effective amendment complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date the Prospectus will comply in all material respects with the Securities Act and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Partnership makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Partnership in writing by such Underwriter through the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof.
(e) Incorporated Documents. The documents incorporated by reference and any further documents so filed and incorporated by reference prior to the completion of the distribution of the Units, in the Registration Statement, the Prospectus and the Pricing Disclosure Package, when they were filed with the Commission conformed in all material respects to the requirements of the Exchange Act, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Pricing Disclosure Package, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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(f) Compliance with Canadian Securities Laws. The Partnership is a reporting issuer in the provinces and territories of Canada (the “Qualifying Jurisdictions”), is not in default under the securities acts or similar statutes of the Qualifying Jurisdictions and all regulations, rules, policy statements, notices and blanket orders or rulings thereunder applicable to the Partnership (the “Canadian Securities Laws”), and is in compliance, in all material respects, with its timely disclosure obligations under Canadian Securities Laws and the requirements of the Toronto Stock Exchange. No order, ruling or determination having the effect of suspending the sale or ceasing the trading of any securities of the Partnership has been issued or made by any securities commission (including the Commission) or other securities regulatory authority in each of the Qualifying Jurisdictions (the “Securities Commissions”) and no proceedings for that purpose have been instituted or are pending or, to the Partnership’s knowledge, are contemplated by any such authority. Any request on the part of the Securities Commissions for additional information in connection with the offering has been complied with in all material respects.
(g) WKSI; Foreign Private Issuer. (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto, if any, for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Partnership or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Units in reliance on the exemption of Rule 163 under the Securities Act, and (iv) as of the Applicable Time, the Partnership was and is a “well-known seasoned issuer” (as defined under Rule 405 of the Securities Act) and the Partnership was, and is not, an “ineligible issuer,” as defined under Rule 405 of the Securities Act. The Partnership is a “foreign private issuer” as defined under Rule 405 of the Securities Act. The Partnership has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act or will pay such fee within the time period required by such rule (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(h) Financial Statements of the Partnership and its subsidiaries. The consolidated financial statements (including the related notes thereto) of the Partnership and its subsidiaries included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the assets and liabilities, financial position, results of operations and cash flows of such entities at the dates and for the periods indicated and the related statements of operations, other comprehensive income, accumulated other comprehensive income, partnership capital and cash flows for the periods specified. Said financial statements have been prepared in conformity with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement, if any, present fairly in accordance with IFRS the information required to be stated therein. The selected consolidated financial data, the summary consolidated financial data and all operating data included or incorporated by reference in the Registration Statement, Pricing Disclosure Package and the Prospectus has been derived from the accounting records of the Partnership and its consolidated subsidiaries and presents fairly the information shown therein and the selected consolidated financial data and the summary consolidated financial data have been compiled on a basis consistent with that of the audited consolidated financial statements and disclosures included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus regarding “non-IFRS financial measures” (as such term is defined by the rules and regulations of the Commission, including with respect to foreign private issuers) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable. There have been no changes in the assets or liabilities of the Partnership from the position thereof as set forth in the consolidated financial statements included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or otherwise deemed to be a part thereof or included therein, except changes arising from transactions in the ordinary course of business which, in the aggregate, have not been material to the Partnership and except for changes that are disclosed in the Pricing Disclosure Package and the Prospectus.
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(i) Fourth Quarter Financial Results. Exhibit 99.1 of the Partnership’s report on Form 6-K filed on February 19, 2020, in respect of the Partnership’s preliminary results for the fourth quarter and year ended December 31, 2019, presents fairly and correctly, in all material respects, the financial position and operating results of the Partnership as at the dates and for the periods indicated therein; provided that the Partnership’s external auditors have not yet completed the year-end audit in respect thereof.
(j) No Material Adverse Change. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, since the date of the most recent audited financial statements of the Partnership included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (A) no event has occurred or is known to occur and there has been no change and there is no prospective change that, in each case, would have a material adverse effect on the business or operations (financial or otherwise) of the Partnership and its subsidiaries, taken as a whole (a “Material Adverse Effect”) and (B) there have been no transactions entered into by the Partnership and its subsidiaries other than those in the ordinary course of business, which are material with respect to the Partnership and its subsidiaries, taken as a whole.
(k) Organization and Good Standing. The Partnership and each of its subsidiaries has been duly organized and are validly existing in good standing (or the equivalent, if any, in the applicable jurisdiction) under the laws of the jurisdiction of its organization, has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and is duly qualified and is in good standing (or the equivalent, if any, in the applicable jurisdiction) in each jurisdiction in which such qualification is required, except in each case as would not result in a Material Adverse Effect.
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(l) Capitalization. The General Partner is the sole general partner of the Partnership and has a general partner interest in the Partnership; such general partner interest has been duly authorized and validly issued, and the General Partner owns such general partner interest free and clear of all liens, encumbrances, equities or claims. The Partnership has an authorized capitalization as set forth in the Pricing Disclosure Package and the Prospectus under the heading “Consolidated Capitalization.” As of February 19, 2020, approximately 178,977,800 limited partnership units and no general partner units were issued and outstanding as fully-paid and non-assessable units of the Partnership. All of the issued and outstanding units in the capital of the Partnership have been duly authorized and validly issued and are fully-paid (to the extent required under the Amended BRP LPA) and non-assessable and have been issued in compliance with all applicable Bermuda laws (except where the failure to do so would not have a Material Adverse Effect), and none of the outstanding units in the capital of the Partnership were issued in violation of the pre-emptive or other similar rights of any securityholder of the Partnership. All of the issued and outstanding shares in the capital of the General Partner have been duly authorized and validly issued and are fully paid and non-assessable and have been issued in compliance with all applicable Bermuda laws (except where the failure to do so would not have a Material Adverse Effect), and none of the outstanding shares in the capital of the General Partner were issued in violation of the preemptive or other similar rights of any securityholder of the General Partner.
(m) No Preemptive Rights. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and except for the agreements contemplated by the transactions described in the Form F-1 (as amended from time to time) filed by the Partnership and Brookfield Renewable Corporation with the Commission (the “BEPC Transactions”), no person, firm or corporation has any agreement, option, right or privilege (contractual or otherwise) capable of becoming an agreement (including convertible or exchangeable securities or warrants) for the purchase or acquisition from the Partnership of any interest in any securities of the Partnership.
(n) The Units. The Units and the Additional Units have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Partnership pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued as fully paid and non-assessable Units; the Units and the Additional Units conform to all statements relating thereto contained in the Pricing Disclosure Package and the Prospectus and such description conforms to the rights set forth in the instruments defining the same; no holder of the Units or Additional Units will be subject to personal liability solely by reason of being such a holder; and the issuance of the Units or Additional Units is not subject to the pre-emptive or other similar rights of any securityholder of the Partnership.
(o) The Mirror Units. The Mirror Units and the limited partner interests represented thereby have been duly authorized and, when issued and delivered, will be validly issued, and will conform in all material respects to the description thereof contained in the Registration Statement, Pricing Disclosure Package and the Prospectus, and the issuance of such Mirror Units is not subject to any preemptive or similar rights.
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(p) Due Authorization. The Partnership, acting by the General Partner, has the power and authority to execute and deliver this Agreement and each Transaction Document to which it is a party and to perform its obligations hereunder and thereunder, as applicable and this Agreement and each Transaction Document has been duly authorized, executed and delivered by the Partnership.
(q) BRP LPA Amendment. The BRP LPA Amendment, in effect as of the Closing Date, has been duly authorized, and on the Closing Date will be executed and delivered, by the General Partner in its capacity as general partner on behalf of the Partnership, and will constitute the valid and legally binding agreement of the Partnership, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability, and the Amended BRP LPA conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(r) BRELP LPA Amendment. BRELP LPA Amendment, in effect as of the Closing Date, has been duly authorized, and on the Closing Date will be executed and delivered by the parties thereto and such agreement will constitute a valid and legally binding agreement of the parties thereto enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability, and the Amended BRELP LPA conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(s) No Violation, Default or Conflict. The Partnership is not in violation of its limited partnership agreement or in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease, license or other agreement or instrument to which any of the Partnership or its subsidiaries is a party or by which it or any of them may be bound, or to which any of the Partnership or its subsidiaries or the property or assets of any of the Partnership or its subsidiaries is subject (collectively, “Agreements and Instruments”), except for such defaults that would not, individually or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Agreement and each of the Transaction Documents, as applicable, and the consummation of the transactions contemplated therein and in the Pricing Disclosure Package and the Prospectus (including the authorization, issuance, sale and delivery of the Units and the use of the proceeds from the sale of the Units as described in the Pricing Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Partnership with its obligations hereunder and thereunder has been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach or violation of any of the terms or provisions of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property, right or assets of any of the Partnership or its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, violations, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of or conflict with the provisions of the limited partnership agreement, articles, charter, by-laws or similar organizational documents of any of the Partnership or its subsidiaries, the resolutions of the general partner, unitholders, shareholders, directors or any committee of directors of any of the Partnership or its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality, court, domestic or foreign, or stock exchange having jurisdiction over any of the Partnership or its subsidiaries or any of their assets, properties or operations (in each case, for such violations or conflicts that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by any of the Partnership or its subsidiaries.
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(t) No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Partnership of this Agreement or each of the Transaction Documents, the issuance and sale of the Units being delivered on the Closing Date and the consummation of the transactions contemplated by this Agreement or the Transaction Documents, except for the registration of the Units under the Securities Act, approval of the New York Stock Exchange for the listing of the Units, such consents, approvals, authorizations, orders and registrations or qualifications as may be required under applicable state securities laws and Canadian securities laws in connection with the purchase and distribution of the Units by the Underwriters and such consents as will have been obtained prior to the Closing Date.
(u) Legal Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency, governmental instrumentality or body, now pending, or, to the knowledge of the Partnership, threatened, against or affecting any of the Partnership or its subsidiaries, which is required to be disclosed in the Pricing Disclosure Package and the Prospectus or in any financial statements, management proxy circulars, annual information forms, material change reports, filings with the Commission or other documents issued by the Partnership after the date of this Agreement which are included or incorporated by reference in the Prospectus (collectively the “Subsequent Disclosure Documents”), or which is reasonably likely to result in a Material Adverse Effect, or which is reasonably likely to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated by this Agreement or the performance by the Partnership of its obligations hereunder; the aggregate of all pending legal or governmental proceedings to which any of the Partnership or its subsidiaries is a party or of which any of their respective property or assets is the subject which are not described in the Pricing Disclosure Package and the Prospectus or the Subsequent Disclosure Documents, including ordinary routine litigation incidental to the business of any of the Partnership or its subsidiaries, are not reasonably likely to result in a Material Adverse Effect.
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(v) Compliance with Laws. Each of the Partnership and its subsidiaries has been and is in compliance with, and conduct their businesses in conformity with, all applicable U.S., Canadian and foreign federal, provincial, state and local laws, rules and regulations, standards, and all applicable rules, policies, ordinances, judgments, decrees, orders and injunctions of any court or governmental agency or body or the Toronto Stock Exchange or New York Stock Exchange, except where the failure to be in compliance or conformity would not, individually or in the aggregate, result in a Material Adverse Effect; and none of the Partnership or its subsidiaries has received any written notice citing action or inaction by any of the Partnership or its subsidiaries, or others who perform services on behalf of the Partnership or its subsidiaries, that would constitute non-compliance with any applicable U.S., Canadian or foreign federal, provincial, state or local laws, rules, regulations policies or standards to the extent such non-compliance reasonably could be expected to have a Material Adverse Effect; and, to the knowledge of the Partnership, other than as set forth in the Pricing Disclosure Package and the Prospectus, no prospective change in any applicable U.S., Canadian and foreign federal, provincial, state, or local laws, rules, regulations or standards has been adopted which, when made effective, would have a Material Adverse Effect.
(w) Independent Accountants of the Partnership and its subsidiaries. Ernst & Young LLP who has audited the annual financial statements of the Partnership that are incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, are independent in the context of the CPA Code of Professional Conduct of the Chartered Professional Accountants of Ontario and acts as the Partnership’s independent registered public accounting firm within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States). Within the three years preceding the date hereof, there has not been any reportable event within the meaning of National Instrument 51-102 — Continuous Disclosure Obligations with Ernst & Young LLP.
(x) Independent Accountants of TerraForm Power. Ernst & Young LLP, who has certified certain financial statements of TerraForm Power, Inc. and its consolidated subsidiaries (collectively, “TerraForm Power”) in the Registration Statement, the Pricing Disclosure Package and the Prospectus and whose reports are filed with the Commission and incorporated by reference in the Registration Statement is each, and was during the periods covered by such reports, acts as an independent registered public accounting firm with respect to the entities purported to be covered thereby within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act. Ernst & Young which has audited the annual financial statements of TerraForm Power that are incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, acts as independent auditors with respect to TerraForm Power under the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act. KPMG LLP, who has certified certain financial statements of TerraForm Power, in the Registration Statement, the Pricing Disclosure Package and the Prospectus and whose reports are filed with the Commission as part of the Registration Statement is each, and was during the periods covered by such reports, an independent registered public accounting firm with respect to the entities purported to be covered thereby within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act. KPMG LLP which has audited the annual financial statements of TerraForm Power that are incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, are independent auditors with respect to TerraForm Power under the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
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(y) Independent Auditors of TERP Spanish HoldCo, S.L. Deloitte, S.L., whose report in respect of certain financial statements of TERP Spanish HoldCo, S.L.is filed with the Commission as part of the Registration Statement, was during the periods covered by such report an independent registered public accounting firm with respect to the entities purported to be covered thereby within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act. Deloitte, S.L. are independent auditors with respect to TERP Spanish HoldCo, S.L. under the Independence Rules of the AICPA Code of Professional Conduct and its interpretations and as required by the Securities Act.
(z) Title to Property. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and except as would not, individually or in the aggregate, result in a Material Adverse Effect, each of the Partnership and its subsidiaries has good and marketable title to all of its material assets, including all material licenses, free and clear of all mortgages, hypothecs, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoever (other than mortgages, liens, charges, pledges, security interests and/or other encumbrances granted to its or its subsidiaries’ lenders or that have been provided in the ordinary course of business or that are customary given the nature of the assets and the business of each of the Partnership and its subsidiaries) which are material to each of the Partnership and its subsidiaries.
(aa) Investment Company Act. The Partnership is not and, after giving effect to the offering and sale of the Units and the application of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (the “Investment Company Act”).
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(bb) Taxes. All United States federal and Canadian federal income tax returns and tax returns of foreign jurisdictions of the Partnership and its subsidiaries required by law to be filed have been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided, and except where the failure to pay would not reasonably be expected to result in a Material Adverse Effect. Each of the Partnership and its subsidiaries has filed all other tax returns that are required to have been filed by it pursuant to applicable foreign, provincial, state, local or other law except insofar as the failure to file such returns would not result in a Material Adverse Effect, and has paid all taxes due pursuant to such returns or pursuant to any assessment received by any of the Partnership or its subsidiaries, except where the failure to pay would not reasonably be expected to result in a Material Adverse Effect, and except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided. The charges, accruals and reserves on the books of each of the Partnership and its subsidiaries in respect of any income and corporation tax liability for any years not finally determined are adequate to meet any assessments or re assessments for additional income tax for any years not finally determined, except to the extent of any inadequacy that would not result in a Material Adverse Effect. The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Material U.S. Federal Income Tax Considerations”, insofar as they purport to describe the tax consequences to holders of the ownership and disposition of the Units or legal conclusions with respect thereto, and subject to the limitations, qualifications and assumptions set forth therein, are a fair and accurate summary of the matter set forth therein.
(cc) Licenses and Permits. Each of the Partnership and its subsidiaries possesses such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory agencies or bodies necessary to conduct the business now operated by them as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, except where the failure so to possess or make the same would not, individually or in the aggregate, result in a Material Adverse Effect; each of the Partnership and its subsidiaries is in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, individually or in the aggregate, result in a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, individually or in the aggregate, result in a Material Adverse Effect, and, except as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, none of the Partnership or its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect, and there are no facts or circumstances, including, without limitation, facts or circumstances relating to the revocation, suspension, modification, withdrawal or termination of any Governmental Licenses held by others, known to the Partnership, that could lead to the revocation, suspension, modification, withdrawal or termination of any such Governmental Licenses, which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect. To the knowledge of the Partnership and except as described in the Pricing Disclosure Package and the Prospectus, no party granting any such Governmental Licenses is considering limiting, suspending, modifying, withdrawing, or revoking the same which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
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(dd) No Labor Disputes. No labor dispute with the employees of any of the Partnership or its subsidiaries exists or, to the knowledge of the Partnership, is contemplated or threatened, and the Partnership is not aware of any existing or imminent labor disturbance by the employees of any of the Partnership and its subsidiaries’ principal suppliers, manufacturers, customers or contractors, which, in either case, would result in a Material Adverse Effect.
(ee) Certain Environmental Matters. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and except as would not, individually or in the aggregate, result in a Material Adverse Effect, (A) none of the Partnership or its subsidiaries is in violation of any federal, provincial, state, local, municipal or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or civil law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) each of the Partnership and its subsidiaries has all permits, authorizations and approvals required under any applicable Environmental Laws and is in compliance with its requirements, (C) there are no pending or, to the knowledge of the Partnership, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against any of the Partnership or its subsidiaries and (D) there are no events or circumstances that might reasonably be expected to form the basis of an order for clean up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting any of the Partnership or its subsidiaries relating to Hazardous Materials or any Environmental Laws.
(ff) Disclosure Controls. The Partnership maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information required to be disclosed by the Partnership in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Partnership’s management as appropriate to allow timely decisions regarding required disclosure. The Partnership and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act and such disclosure controls and procedures are effective.
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(gg) Accounting Controls of the Partnership. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Partnership and its subsidiaries maintain a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) of the Exchange Act) that complies with the requirements of the Exchange Act (including, where applicable, by exemptive relief) and that has been designed by, or under the supervision of, the Partnership’s principal executive and principal financial officers, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with IFRS, and which, on a consolidated basis, are sufficient to provide reasonable assurances that: (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The internal controls are, and upon consummation of the offering will be, overseen by the Audit Committee (the “Audit Committee”) of the General Partner in accordance with the rules of the New York Stock Exchange. As of the date of the most recent balance sheet of the Partnership and its consolidated subsidiaries included in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there were no material weaknesses in the Partnership’s internal controls. The Partnership has not publicly disclosed or reported to the Audit Committee or the General Partner, and, within the next 135 days, the Partnership does not reasonably expect to publicly disclose or report to the Audit Committee or the General Partner a significant deficiency, material weakness, change in internal controls or fraud involving management or other employees who have a significant role in internal controls, any violation of, or failure to comply with, applicable U.S. securities laws, or any matter which, if determined adversely, would have a Material Adverse Effect.
(hh) eXtensible Business Reporting Language. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(ii) Transfer Agent. Computershare Trust Company of Canada at its principal office in 100 University Ave, 8th Floor, Toronto, ON M5J 2Y1 has been duly appointed as registrar and transfer agent for the Units in the United States.
(jj) Director or Officer Loans. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no outstanding loans, advances (except normal advances for business expense in the ordinary course of business) or guarantees or indebtedness by the Partnership, to or for the benefit of any of the officers or directors of any of the Partnership or any of their respective family members.
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(kk) Off-Balance Sheet Arrangements. There are no transactions, arrangements or other relationships between and/or among the Partnership and its subsidiaries, any of their controlled affiliates and any unconsolidated entity, including, but not limited to, any structured finance, special purpose or limited purpose entity that could materially affect the Partnership’s liquidity or the availability of, or requirements for, its capital resources required to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus which have not been described as required.
(ll) Exchange Listings. The Partnership is in compliance with all applicable corporate governance requirements set forth in the NYSE Listed Company Manual and all applicable corporate governance and other requirements contained in the listing agreement to which the Partnership and the New York Stock Exchange are parties, except where the failure to be in compliance would not reasonably be expected to result in delisting or any suspension of trading or other privileges. As of the Closing Date the Units will be approved for listing on the New York Stock Exchange as contemplated in the Pricing Disclosure Package and the Prospectus.
(mm) Insurance. Each of the Partnership and its subsidiaries carries or is entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks as management believes is appropriate for an entity engaged in the business of the Partnership and its subsidiaries, and all such insurance is in full force and effect, except, in each case, where the failure to possess would not, individually or in the aggregate, result in a Material Adverse Effect. The Partnership and its subsidiaries have no reason to believe that they will not be able (A) to renew existing insurance coverage as and when such policies expire; or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not have a Material Adverse Effect.
(nn) Cybersecurity; Data Protection. The Partnership and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Partnership and its subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Partnership and its subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with their businesses, and there have been (i) no breaches, violations, outages or unauthorized uses of or accesses to the same, except for those that have been remedied without material cost or liability or the duty to notify any other person, and (ii) no incidents under internal review or investigations relating to the same except as would not, individually or in the aggregate, result in a Material Adverse Effect. The Partnership and its subsidiaries are presently in material compliance with all applicable laws or statutes and all applicable judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority having jurisdiction over the Partnership and its subsidiaries, and all internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
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(oo) Registration Rights. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and except for the registration rights agreement contemplated by the BEPC Transactions, there are no contracts, agreements or understandings between the Partnership and any person granting such person the right to require the Partnership to file a registration statement under the Securities Act with respect to any limited partnership units of the Partnership owned or to be owned by such person or to require the Partnership to include such limited partnership units in the limited partnership units registered pursuant to a registration statement or in any limited partnership units being registered pursuant to any other registration statement filed by the Partnership under the Securities Act (collectively, “registration rights”). No person has the right to require the Partnership or any of its subsidiaries to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Units.
(pp) No Unlawful Payments. None of the Partnership or its controlled affiliates nor their directors, officers or employees nor, to the knowledge of the Partnership, any agent or controlled affiliate has (i) used any corporate funds of the Partnership or its controlled affiliates for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom or any other applicable anti-bribery or anticorruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Partnership and its controlled affiliates have instituted, maintain and enforce, and will continue to maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(qq) Compliance with Anti-Money Laundering Laws. The operations of the Partnership and its controlled affiliates are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Partnership or any of its controlled affiliates conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Partnership or its controlled affiliates with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Partnership, threatened.
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(rr) No Conflicts with Sanctions Laws. None of the Partnership or its controlled affiliates, nor to the knowledge of the Partnership and its controlled affiliates, any director, officer, employee, agent, affiliate or other person associated with or acting on behalf of the Partnership and its controlled affiliates, (i) is currently subject to or the target of any sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”, the United Nations Security Council or the European Union, Her Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject or target of Sanctions, including, without limitation, the Crimean peninsula, Cuba, Iran, North Korea and Syria (each, a “Sanctioned Country”). None of the Partnership or its controlled affiliates, will directly or indirectly, use the proceeds of the Offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, controlled affiliate, joint venture partner or other person or entity for the purpose of (i) funding or facilitating any activities or business of or with any person, or in any country or territory, that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) funding or facilitating any activities of or business in any Sanctioned Country or (iii) engaging in any other activity that will result in a violation of Sanctions by any person (including any person participating in the Offering, whether as underwriter, advisor, investor or otherwise). For the past five years, the Partnership and its controlled affiliates have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(ss) No Broker’s Fees. Other than the Underwriters, there is no person acting or purporting to act at the request of the Partnership, who is entitled to any brokerage or agency fee in connection with the transactions contemplated herein.
(tt) No Stabilization or Manipulation. Neither the Partnership nor, to its knowledge, any of the General Partner’s officers, directors or its controlled affiliates, has taken or will take, directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result in stabilization or manipulation of the price of the Units.
(uu) Accuracy of Disclosure. The statements set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the captions “Description of Preferred Limited Partnership Units” and “Description of the Offered Securities” insofar as they purport to constitute a summary of the terms of the Units, and under the captions “Service of Process and Enforceability of Civil Liabilities” and “Item 8. Indemnification of Directors and Officers” insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate in all material respects, subject to the qualifications and assumptions stated therein.
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(vv) Sarbanes-Oxley Act. There is and has been no failure on the part of the Partnership nor the directors or officers of the General Partner in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002, as amended and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(ww) Representation of Officers. Any certificate signed by any officer of the Partnership or the General Partner on behalf of the Partnership and delivered to the Underwriters or counsel for the Underwriters as required or contemplated by this Agreement shall constitute a representation and warranty hereunder by the Partnership, as to matters covered thereby, to each Underwriter.
(xx) Statistical and Market-Related Data. The statistical and market-related data included in the Pricing Disclosure Package and the Prospectus and the consolidated financial statements of the Partnership and its subsidiaries included in the Pricing Disclosure Package and the Prospectus are based on or derived from sources that the Partnership believes to be reliable in all material respects.
(yy) Stamp Duty. No stamp, issue, registration, documentary, transfer or other similar taxes and duties, including interest and penalties, are payable in Bermuda on or in connection with the issuance, sale and delivery of the Units by the Partnership or the execution and delivery of this Agreement.
(zz) Passive Foreign Investment Company. The Partnership was not a “passive foreign investment company” (“PFIC”) as defined in Section 1297 of the Code for its most recently completed taxable year and the Partnership does not expect to be a PFIC for the foreseeable future.
4. Further Agreements of the Partnership. The Partnership covenants and agrees with each Underwriter that:
(a) Required Filings. The Partnership will file the Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; and the Partnership will file promptly all reports required to be filed by the Partnership with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Units; and the Partnership will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 5:30 P.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request. The Partnership will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
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(b) Delivery of Copies. The Partnership will deliver, without charge, (i) to the Representatives the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein and each Issuer Free Writing Prospectus) as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters a prospectus relating to the Units is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Units by any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement, the Pricing Disclosure Package or the Prospectus, the Partnership will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. The Partnership will advise the Representatives promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed or distributed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission or any other governmental or regulatory authority of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event or development within the Prospectus Delivery Period as a result of which the Prospectus, any of the Pricing Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Partnership of any notice with respect to any suspension of the qualification of the Units for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and each of the General Partner and the Partnership will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Units and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
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(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event or development shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Partnership will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate such amendments or supplements to the Prospectus (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so amended or supplemented (or any document to be filed with the Commission and incorporated by reference therein) will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event or development shall occur or condition shall exist as a result of which the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Pricing Disclosure Package to comply with law, the Partnership will notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate such amendments or supplements to the Pricing Disclosure Package (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Pricing Disclosure Package will comply with law.
(f) Blue Sky Compliance. The Partnership will qualify the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution of the Units; provided that the Partnership shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
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(g) Earnings Statement. The Partnership will make generally available to its security holders and the Representatives as soon as practicable an earnings statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Partnership and its subsidiaries occurring after the “effective date” (as defined under Rule 158 of the Securities Act) of the Registration Statement.
(h) Clear Market. For a period of 30 days after the date of the Prospectus, the Partnership will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, otherwise dispose of, or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Partnership, or the General Partner or any controlled affiliate of the Partnership or the General Partner or any person in privity with the Partnership or the General Partner or any controlled affiliate of the Partnership or the General Partner, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, or announce the offering, of any units of any class of capital stock of the Partnership (other than the Units) that is preferred as to the payment of distributions, or as to the distribution of assets upon any liquidation or dissolution of the Partnership, over the limited partnership units of the Partnership (including any units of any class of partnership interests of the Partnership (other than the Units) that ranks equally with the Series 17 Preferred Units as to the payment of distributions or as to the distribution of assets upon any liquidation or dissolution of the Partnership (other than any of the Partnership’s Class A limited partnership preferred units that are issued upon re-classification in accordance with terms of the corresponding series of the Partnership’s outstanding Class A limited partnership preferred units, as described in the Prospectus)). For the avoidance of doubt, nothing contained in this Section 5(h) shall prohibit any disposition or offering by the Partnership, the General Partner, their respective controlled affiliates or any other person of the Partnership’s non-voting limited partnership units (“LP Units”) and securities convertible into, or otherwise exchangeable for, LP units, including the filing (or participation in the filing) of a registration statement with the Commission or any prospectus in respect of LP Units and securities convertible into, or otherwise exchangeable for, LP units, in each case, as contemplated by the BEPC Transactions.
(i) Use of Proceeds. The Partnership will apply the net proceeds from the sale of the Units as described in the Pricing Disclosure Package and the Prospectus under the heading “Use of Proceeds”.
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(j) No Stabilization. The Partnership will not take, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Units.
(k) Exchange Listing. The Partnership will use its commercially reasonable efforts to list, subject to notice of issuance, the Units on the New York Stock Exchange.
(l) Ratings. The Partnership will use its commercially reasonable efforts to enable S&P Global Ratings to provide its credit rating of the Units.
(m) DTC. The Partnership will use its commercially reasonable efforts to cause the Units to be eligible for clearance and settlement through the facilities of DTC.
(n) Form 8-A. The Partnership will file a registration statement with respect to the Units on Form 8-A pursuant to Section 12 of the Exchange Act, which registration statement will comply in all material respects with the applicable requirements of the Exchange Act.
(o) Reports. So long as the Units are outstanding, the Partnership will furnish to the Representatives, as soon as they are available, copies of all reports or other communications (financial or other) furnished to holders of the Units, and copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange or automatic quotation system; provided the Partnership will be deemed to have furnished such reports and financial statements to the Representatives to the extent they are filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system.
(p) Record Retention. The Partnership will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(q) Tax Indemnity. The Partnership will indemnify and hold harmless the Underwriters against any documentary, stamp, registration or similar issuance tax, including any interest and penalties, on the sale of the Units by the Partnership to the Underwriters and on the execution and delivery of this Agreement. All indemnity payments to be made by the Partnership hereunder in respect of this Section 4(q) shall be made without withholding or deduction for or on account of any present or future Bermuda or Canadian taxes, duties or governmental Units whatsoever unless the Partnership is compelled by law to deduct or withhold such taxes, duties or charges. In that event, except for any net income, capital gains or franchise taxes imposed on the Underwriters by Bermuda, Canada or the United States or any political subdivision of taxing authority thereof or therein as a result of any present or former connection (other than any connection resulting from the transactions contemplated by this Agreement) between the Underwriters and the jurisdiction imposing such withholding or deductions, the Partnership shall pay such additional amounts as may be necessary in order to ensure that the net amounts received after such withholding or deductions shall equal the amounts that would have been received if no withholding or deduction has been made.
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5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It has not and will not use, authorize use of, refer to or participate in the planning for use of, any “free writing prospectus”, as defined under Rule 405 of the Securities Act (which term includes use of any written information furnished to the Commission by the Partnership and not incorporated by reference into the Registration Statement and any press release issued by the Partnership) other than (i) a free writing prospectus that contains no “issuer information” (as defined under Rule 433(h)(2) of the Securities Act) that was not included (including through incorporation by reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Partnership in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not, without the prior written consent of the Partnership, use any free writing prospectus that contains the final terms of the Units unless such terms are included in a free writing prospectus to be filed with the Commission; provided that Underwriters may use a term sheet substantially in the form of Annex B hereto without the consent of the Partnership; provided further that any Underwriter using such term sheet shall notify the Partnership, and provide a copy of such term sheet to the Partnership, prior to, or substantially concurrently with, the first use of such term sheet.
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to purchase the Units on the Closing Date provided herein is subject to the performance by the Partnership of its respective covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) of the Securities Act or pursuant to Section 8A under the Securities Act shall be pending before or, to the Partnership’s knowledge, threatened by the Commission; the Registration Statement and the exhibits thereto, Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with and deemed effective by the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Partnership contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the General Partner and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
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(c) No Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Partnership or any debt securities, convertible securities or preferred stock issued, or guaranteed by, the Partnership or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined under Section 3(a)(62) of the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Partnership or any such debt securities, convertible securities or preferred stock issued or guaranteed by the Partnership or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(j) hereof shall have occurred or shall exist, which event or condition is not described in the Pricing Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Units on the Closing Date on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the Closing Date a certificate signed on behalf of the Partnership by any officer of the General Partner who is satisfactory to the Representatives (i) confirming that the representations and warranties of the Partnership in this Agreement are true and correct and that the Partnership has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (ii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters and CFO Certificate. (i) On the date of this Agreement and on the Closing Date Ernst & Young LLP (with respect to the Partnership and TerraForm Power for the fiscal year ended December 31, 2018), KPMG LLP (with respect to TerraForm Power) and Deloitte, S.L. (with respect to TERP Spanish HoldCo, S.L.) shall have furnished to the Representatives, at the request of the Partnership letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information in respect of the Partnership contained or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than two business days prior to such Closing Date.
(i) On the date of this Agreement and on the Closing Date the Partnership shall have furnished to the Representatives a certificate, dated the respective dates of delivery thereof and addressed to the Underwriters, of the chief financial officer of BRP Energy Group L.P., the service provider of the Partnership, with respect to certain financial data contained in the Pricing Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representatives.
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(g) Opinion and 10b-5 Statement of U.S. and Canadian Counsel for the Partnership. Torys LLP, United States and Canadian counsel for the Partnership, shall have furnished to the Representatives, at the request of the Partnership, their written opinion and 10b-5 statement, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives.
(h) Opinion of Investment Company Act Counsel for the Partnership. Latham & Watkins LLP, special Investment Company Act counsel for the Partnership, shall have furnished to the Representatives, at the request of the Partnership, their written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives.
(i) Opinion of Bermuda Counsel for the Partnership. Appleby (Bermuda) Limited, special Bermuda counsel for the Partnership, shall have furnished to the Representatives, at the request of the Partnership, their written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives.
(j) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date an opinion and 10b-5 statement, addressed to the Underwriters, of Milbank LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(k) No Legal Impediment to Issuance and Sale. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date prevent the issuance or sale of the Units; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date prevent the issuance or sale of the Units.
(l) Good Standing. The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of each of the Partnership and BRELP in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(m) Exchange Listing. The Units to be delivered on the Closing Date shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
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(n) DTC. The Units to be delivered on the Closing Date shall have been cleared for settlement and trading by DTC.
(o) Ratings Letter. On and as of the Closing Date, the Units shall have at least the ratings specified in the Pricing Disclosure Package from S&P Global Ratings, and the Partnership shall have delivered to the Underwriters a letter on or prior to the Closing Date, from S&P Global Ratings, or other evidence reasonably satisfactory to the Underwriters, confirming that the Units have been assigned such ratings.
(p) BRP LPA Amendment. On or prior to the Closing Date, the BRP LPA Amendment shall have been executed by the General Partner and the Amended BRP LPA shall be in full force and effect.
(q) BRELP LPA Amendment. On or prior to the Closing Date, BRELP LPA Amendment shall have been executed by the managing general partner and/or the special limited partner of BRELP and the Amended BRELP LPA shall be in full force and effect.
(r) Mirror Units. Promptly following the closing of the offering of the Units, the Mirror Units will be issued by BRELP to the Partnership with terms conforming with those set forth in the Pricing Disclosure Package and the Prospectus.
(s) Additional Documents. On or prior to the Closing Date the Partnership shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters by the Partnership. The Partnership agrees to indemnify and hold harmless each Underwriter, its affiliates, directors, officers, agents and employees and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Preliminary Prospectus, any Issuer Free Writing Prospectus (including any road show as defined under Rule 433(h) of the Securities Act (a “road show”)), any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act or any Pricing Disclosure Package (including any Pricing Disclosure Package that has subsequently been amended), or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Partnership in writing by such Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (b) below.
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(b) Indemnification of the Partnership by the Underwriters. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Partnership, the directors of the General Partner (on behalf of the Partnership), the officers of the General Partner (on behalf of the Partnership) who signed the Registration Statement and each person, if any, who controls the Partnership within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Brookfield Indemnified Party”) to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Partnership in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Preliminary Prospectus, any Issuer Free Writing Prospectus, any road show or any Pricing Disclosure Package, it being understood and agreed upon that the only such information furnished by any Underwriter consists of the following information in the Prospectus furnished on behalf of each Underwriter: the third sentence under the caption “Summary—The Offering—Listing; Absence of Public Market”; the last paragraph under the caption “Risk Factors—Risks Related to the Series 17 Preferred Units—Your ability to transfer the Series 17 Preferred Units at a time or price you desire may be limited by the absence of an active trading market, which may not develop.”; the concession and reallowance figures appearing in the third paragraph under the caption “Underwriting”; the fourth sentence of the sixth paragraph under the caption “Underwriting”; and the information contained in the ninth, tenth and twelfth paragraphs under the caption “Underwriting.”
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(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to the preceding paragraphs of this Section 7, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under the preceding paragraphs of this Section 7 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under the preceding paragraphs of this Section 7. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid or reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates, directors, officers, agents and employees and any control persons of such Underwriter shall be designated in writing by the Representatives and any such separate firm for any Brookfield Indemnified Party shall be designated in writing by the Partnership. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
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(d) Contribution. If the indemnification provided for in paragraphs (a) or (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Partnership, on the one hand, and the Underwriters, on the other, from the offering of the Units or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Partnership, on the one hand, and the Underwriters, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Partnership, on the one hand, and the Underwriters, on the other, shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Partnership from the sale of the Units and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Units. The relative fault of the Partnership, on the one hand, and the Underwriters, on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Partnership or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Partnership and the Underwriters agree that it would not be just and equitable if contribution pursuant to paragraph (d) above were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of paragraphs (d) and (e), in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Units exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to paragraphs (d) and (e) are several in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity.
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8. Effectiveness of Agreement. This Agreement shall become effective as of the date first written above.
9. Termination. This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Partnership, if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended on or by either of the New York Stock Exchange or the Toronto Stock Exchange; (ii) trading of any securities issued or guaranteed by the Partnership shall have been suspended on any exchange or in any over-the- counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any natural catastrophe, act of war, terrorism or similar event, either within or outside the United States, that, in the reasonable judgment of the Representatives, is material and adverse to the offering of the Units and would make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Units on the Closing Date on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
10. Defaulting Underwriter.
(a) If, on the Closing Date any Underwriter defaults on its obligation to purchase the Units that it has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Units by other persons satisfactory to the Partnership on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non- defaulting Underwriters do not arrange for the purchase of such Units, then the Partnership shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Units on such terms. If other persons become obligated or agree to purchase the Units of a defaulting Underwriter, either the non-defaulting Underwriters or the Partnership may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Partnership or counsel for the Underwriters may be necessary in the Registration Statement and the Prospectus or in any other document or arrangement, and the Partnership agrees to promptly prepare any amendment or supplement to the Registration Statement and the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Units that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Units of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters or other persons as provided in paragraph (a) above, the aggregate number of Units that remain unpurchased on the Closing Date does not exceed one-eleventh of the aggregate number of Units to be purchased on such date, then the Partnership shall have the right to require each non-defaulting Underwriter to purchase the number of Units that such Underwriter agreed to purchase hereunder on such date plus such Underwriter’s pro rata share (based on the number of Units that such Underwriter agreed to purchase on such date) of the Units of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
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(c) If, after giving effect to any arrangements for the purchase of the Units of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters or other persons as provided in paragraph (a) above, the aggregate number of Units that remain unpurchased on the Closing Date exceeds one-eleventh of the aggregate amount of Units to be purchased on such date, or if the Partnership shall not exercise the right described in paragraph (b) above, then this Agreement, the obligation of the Underwriters to purchase Units shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Partnership, except that the Partnership will continue to be liable for the payment of expenses as set forth in Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Partnership or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Partnership will pay or cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Units and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Partnership’s counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Units under the laws of such jurisdictions as the Representatives may reasonably designate (if any) and, if reasonably requested by the Representatives, the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) the cost of preparing certificates, if any, representing the Units; (vii) the costs and charges of any transfer agent and any registrar; (viii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, FINRA; (ix) all expenses incurred by the Partnership in connection with any “road show” presentation to potential investors; and (x) all expenses and application fees related to the listing of the Units on the New York Stock Exchange.
(b) If (i) the sale of the Units is not completed due to any failure of the Partnership to comply with the terms hereof or (ii) the Underwriters decline to purchase the Units for any reason permitted under Section 6 of this Agreement, the Partnership agrees to reimburse the Underwriters for all out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred and documented by the Underwriters in connection with this Agreement and the offering contemplated hereby.
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12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and any controlling persons referred to herein, and the affiliates of each Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Units from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
13. Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Partnership and the Underwriters contained in this Agreement or made on behalf of the Partnership or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Units and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Partnership or the Underwriters or the directors, officers, controlling persons or affiliates referred to in Section 7 hereof.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City; (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act; and (d) the term “significant subsidiary” has the meaning set forth in Rule 1-02 of Regulation S-X under the Exchange Act.
15. Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Partnership, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
16. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives c/o Wells Fargo Securities, LLC, 550 South Tryon Street, 5th Floor, Charlotte, NC 28202, Attention: Transaction Management (fax: (704) 410-0326); c/o BofA Securities, Inc., 50 Rockefeller Plaza, NY1-050-12-02, New York, New York 10020, Attention: High Grade Transaction Management/Legal (fax: (646) 855-5958), with a copy to DCM Legal (fax: (212) 230-8730); c/o J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attention: Investment Grade Syndicate Desk (fax: (212) 834-6081); c/o RBC Capital Markets, LLC, 200 Vesey Street, 8th Floor, New York, New York 10281, Attention: Transaction Management (fax: (212) 428-6308); c/o TD Securities (USA) LLC, 31 West 52nd Street, 2nd Floor, New York, New York 10019 (email: ustmg@tdsecurities.com); and with a copy to (which shall not constitute notice) Milbank LLP, 55 Hudson Yards, New York, New York 10001, Attention: Paul Denaro and Jonathon Jackson (email: PDenaro@milbank.com and JJackson@milbank.com). Notices to the Partnership shall be given to it at 73 Front Street, 5th Floor, Hamilton, HM 12 Bermuda, Attention: Jane Sheere (fax: (441) 296-4475), with copies to (which shall not constitute notice) Brookfield Renewable Partners L.P., Suite 300, 181 Bay Street, Toronto, Ontario, Attention: Jennifer Mazin, General Counsel (e-mail: Jennifer.mazin@brookfield.com) and to Torys LLP, 1114 Avenue of the Americas, 23rd Floor, New York, New York 10036, Attention: Mile Kurta (fax: (212) 682-0200).
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(b) Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York.
(c) Submission to Jurisdiction. The Partnership hereby submits to the exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Partnership waives any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. The Partnership agrees that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Partnership and may be enforced in any court to the jurisdiction of which the Partnership is subject by a suit upon such judgment. The Partnership irrevocably appoints Puglisi & Associates, located at 850 Library Avenue, Suite 204, Newark, Delaware 19711, as its authorized agent upon which process may be served in any such suit or proceeding, and agrees that service of process upon such authorized agent, and written notice of such service to the Partnership by the person serving the same to the address provided in this Section 16(c), shall be deemed in every respect effective service of process upon the Partnership in any such suit or proceeding. The Partnership hereby represents and warrants that such authorized agent has accepted such appointment and has agreed to act as such authorized agent for service of process. The Partnership further agrees to take any and all action as may be necessary to maintain such designation and appointment of such authorized agent in full force and effect for a period of seven years from the date of this Agreement.
(d) Judgment Currency. The Partnership agrees to indemnify each Underwriter, its directors, officers, affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any loss incurred by such Underwriter as a result of any judgment or order being given or made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “judgment currency”) other than U.S. dollars and as a result of any variation as between (i) the rate of exchange at which the U.S. dollar amount is converted into the judgment currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such indemnified person is able to purchase U.S. dollars with the amount of the judgment currency actually received by the indemnified person. The foregoing indemnity shall constitute a separate and independent obligation of the Partnership and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.
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(e) Waiver of Immunity. To the extent that the Partnership has or hereafter may acquire any immunity (sovereign or otherwise) from jurisdiction of any court of (i) Bermuda, Canada or any political subdivision thereof, (ii) the United States or the State of New York, (iii) any jurisdiction in which it owns or leases property or assets or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution, set-off or otherwise) with respect to themselves or their respective property and assets or this Agreement, the Partnership hereby irrevocably waives such immunity in respect of its obligations under this Agreement to the fullest extent permitted by applicable law.
(f) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(g) Recognition of the U.S. Special Resolution Regimes.
(i) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(ii) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section 16(g):
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
| (i) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
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| (ii) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
| (iii) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
(h) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.
(i) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(j) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
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If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
| Very truly yours, | ||
| BROOKFIELD RENEWABLE PARTNERS | ||
| L.P., by its general partner, BROOKFIELD RENEWABLE PARTNERS LIMITED | ||
| By: | /s/ Jane Sheere | |
| Name: Jane Sheere | ||
| Title: Secretary | ||
| Accepted: As of the date first written above | ||
| WELLS FARGO SECURITIES, LLC | ||
| By: | /s/ Carolyn Hurley | |
| Name: Carolyn Hurley | ||
| Title: Director | ||
| BOFA SECURITIES, INC. | ||
| By: | /s/ Shawn Cepeda | |
| Name: Shawn Cepeda | ||
| Title: Managing Director | ||
| J.P. MORGAN SECURITIES LLC | ||
| By: | /s/ Som Bhattacharyya | |
| Name: Som Bhattacharyya | ||
| Title: Executive Director | ||
| RBC CAPITAL MARKETS, LLC | ||
| By: | /s/ Scott G. Primrose | |
| Name: Scott G. Primrose | ||
| Title: Authorized Signatory | ||
| TD SECURITIES (USA) LLC | ||
| By: | /s/ Elsa Wang | |
| Name: Elsa Wang | ||
| Title: Managing Director | ||
| For themselves and on behalf of the several Underwriters listed in Schedule 1 hereto. | ||
[Signature Page to the Underwriting Agreement]
Schedule 1
| Underwriter | Number of Units | |||
| Wells Fargo Securities, LLC |
1,900,000 | |||
| BofA Securities, Inc. |
1,900,000 | |||
| J.P. Morgan Securities LLC |
1,900,000 | |||
| RBC Capital Markets, LLC |
1,900,000 | |||
| TD Securities (USA) LLC |
400,000 | |||
|
|
|
|||
| Total |
8,000,000* | |||
* Consists of an aggregate of 869,000 Units sold to retail investors and an aggregate of 7,131,000 Units sold to institutional investors.
1
Annex A
| a. | Pricing Disclosure Package |
Pricing Term Sheet, dated February 19, 2020
2
Annex B
Brookfield Renewable Partners L.P.
Pricing Term Sheet
3
Brookfield Renewable Partners L.P.
Pricing Term Sheet
8,000,000 5.25% Class A Preferred Limited Partnership Units, Series 17
February 19, 2020
The information in this pricing term sheet relates to Brookfield Renewable Partners L.P.’s offering of its 5.25% Class A Preferred Limited Partnership Units, Series 17 (the “Offering”) and should be read together with the preliminary prospectus supplement dated February 19, 2020 relating to the Offering (the “Preliminary Prospectus Supplement”), including the documents incorporated by reference therein, and the base prospectus dated February 19, 2020, filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended. The information in this communication supersedes the information in the Preliminary Prospectus Supplement and the accompanying base prospectus to the extent inconsistent with the information in the Preliminary Prospectus Supplement and the accompanying base prospectus. Terms used herein but not defined herein shall have the meanings as set forth in the Preliminary Prospectus Supplement. All references to dollar amounts are references to U.S. dollars.
| Issuer: | Brookfield Renewable Partners L.P. (the “Partnership”) | |
| Security: | 5.25% Class A Preferred Limited Partnership Units, Series 17 (the “Units”) | |
| Size: | $200,000,000 (8,000,000 Units) | |
| Liquidation Preference: | $25.00 per Unit | |
| Maturity: | Perpetual (unless redeemed by the Partnership (i) prior to March 31, 2025, at the Partnership’s option, in connection with a Ratings Event; (ii) on or after March 31, 2025, at our option; and (iii) at any time, in connection with a Change in Tax Law) | |
| Distribution Rate: | At a rate per annum equal to 5.25% ($1.3125 per Unit) only when, as, and if declared. Distributions on the Units are cumulative | |
| Distribution Payment Dates: | The last day of April, July, October and January of each year (or the next succeeding Business Day), with the first distribution payable, if declared, on July 31, 2020 | |
| Pro-rated Initial Distribution: | $0.5724 per Unit | |
| Optional Redemption on or after March 31, 2025: | The Units may be redeemed at the Partnership’s option, in whole or in part, at any time on or after March 31, 2025, at a price of $25.00 per Unit, plus an amount equal to all accumulated and unpaid distributions thereon to, but excluding, the date of redemption, whether or not declared. Holders of the Units will have no right to require the redemption of the Units. | |
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| Optional Redemption Upon a Ratings Event: | If a Ratings Event occurs prior to March 31, 2025, the Units may be redeemed at the Partnership’s option, in whole but not in part, within 120 days of the occurrence of such Ratings Event, at a price of $25.50 per Unit (102% of the liquidation preference), plus an amount equal to all accumulated and unpaid distributions thereon to, but excluding, the date fixed for redemption, whether or not declared. | |
| Optional Redemption Upon a Change in Tax Law | The Partnership will have the option to redeem all but not less than all of the Units at a redemption price of $25.00 per Unit, if as a result of a Change in Tax Law, there is, in the Partnership’s reasonable determination, a substantial probability that the Partnership or any Successor Entity would become obligated to pay any additional amounts on the next succeeding distribution payment date with respect to the Units and the payment of those additional amounts cannot be avoided by the use of any reasonable measures available to the Partnership or any Successor Entity. | |
| Trade Date: | February 19, 2020 | |
| Expected Settlement Date: | February 24, 2020 (T+3) | |
| Price to Public: | $25.00 per Unit ($200,000,000) | |
| Underwriting Discounts and Commissions: | $0.7875 per Unit for retail investors $684,337.50
$0.5000 per Unit for institutional investors $3,565,500.00 | |
| Net Proceeds (before expenses) to the Partnership: | $195,750,162.50 | |
| Listing: | The Partnership has applied to list the Units on the New York Stock Exchange under the symbol “BEP PR A.” | |
| CUSIP/ISIN: | G16258231 / BMG162582313 | |
| Anticipated Rating: | [Omitted] | |
| Joint Book-Running Managers: | Wells Fargo Securities, LLC BofA Securities, Inc. J.P. Morgan Securities LLC RBC Capital Markets, LLC | |
| Co-Manager: | ||
| * | Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to review, revision, suspension, reduction or withdrawal at any time by the assigning rating agency. |
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The Partnership has filed a registration statement (including a prospectus and a prospectus supplement) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus and prospectus supplement in that registration statement and other documents the Partnership has filed with the SEC for more complete information about the Partnership and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus and prospectus supplement if you request it by calling Wells Fargo Securities, LLC toll-free at 1-800-645-3751, BofA Securities, Inc. toll- free at 1-800-294-1322, J.P. Morgan Securities LLC collect at 212-834-4533, RBC Capital Markets, LLC toll-free at 1-866-375-6829 or TD Securities (USA) LLC at 1-855-495-9846.
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Exhibit 3.1
BROOKFIELD RENEWABLE PARTNERS L.P.
SIXTH AMENDMENT TO THE
FOURTH AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
THIS AMENDMENT (the “Amendment”) to the Fourth Amended and Restated Limited Partnership Agreement dated as of May 3, 2016 (the “Agreement”) of Brookfield Renewable Partners L.P. (the “Partnership”) is made as of the 24th day of February 2020, by the undersigned. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement.
WHEREAS, on November 25, 2015, the limited partnership agreement of the Partnership was amended to allow for preferred limited partnership interests in the Partnership and to create the Class A Preferred Limited Partnership Units;
AND WHEREAS, the General Partner desires to amend the Agreement to create an additional series of Class A Preferred Limited Partnership Units having the rights and restrictions set out in Part XIII of Schedule A to this Amendment;
AND WHEREAS, pursuant to Section 14.1 of the Agreement, subject to compliance with the requirements of the Limited Partnership Act and the Exempted Partnerships Act, the General Partner (pursuant to its power of attorney from the Limited Partners), without the approval of any Limited Partner, may amend any provision of the Agreement to reflect certain changes, including, as provided for in Section 14.1.6 of the Agreement, an amendment that the General Partner determines in its sole discretion to be necessary or appropriate for the creation, authorization or issuance of any class or series of Partnership Interests;
AND WHEREAS, the General Partner desires to amend the Agreement as set out herein;
NOW THEREFORE,
| 1. | Section 1.1.2 is hereby deleted in its entirety and replaced with the following: |
“Agreement” means this Fourth Amended and Restated Limited Partnership Agreement of Brookfield Renewable Partners L.P., as amended by the First Amendment to the Fourth Amended and Restated Limited Partnership Agreement of the Partnership dated as of May 25, 2016, the Second Amendment to the Fourth Amended and Restated Limited Partnership Agreement of the Partnership dated as of February 14, 2017, the Third Amendment to the Fourth Amended and Restated Limited Partnership Agreement of the Partnership dated as of January 16, 2018, the Fourth Amendment to the Fourth Amended and Restated Limited Partnership Agreement of the Partnership dated as of February 28, 2019, the Fifth Amendment to the Fourth Amended and Restated Limited Partnership Agreement of the Partnership dated as of March 11, 2019 and the Sixth Amendment to the Fourth Amended and Restated Limited Partnership Agreement of the Partnership dated as of February 24, 2020;
| 2. | Schedule A of the Agreement is hereby amended by adding Part XIII of Schedule A to this Amendment as Part XIII of Schedule A of the Agreement. |
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| 3. | This amendment shall be effective as of the 24th day of February, 2020. |
| 4. | This amendment shall be governed by and construed in accordance with the laws of Bermuda. |
| 5. | Except as modified herein, all terms and conditions of the Agreement shall remain in full force and effect. |
| 6. | This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall be construed together as one agreement. |
[Remainder of this page left blank intentionally]
IN WITNESS WHEREOF, the General Partner has executed this Amendment as of the 24th day of February, 2020.
| GENERAL PARTNER:
BROOKFIELD RENEWABLE PARTNERS LIMITED | ||
| By: |
/s/ Jane Sheere | |
| Name: Jane Sheere Title: Secretary | ||
SCHEDULE A
PART XIII
Number and Designation of and Rights, Privileges, Restrictions and Conditions
Attaching to the
Class A Preferred Limited Partnership Units, Series 17
The seventeenth series of Class A Preferred Limited Partnership Units of the Partnership shall consist of preferred limited partnership interests designated as Class A Preferred Limited Partnership Units, Series 17 (the “Series 17 Preferred Units”) and, in addition to the rights, privileges, restrictions and conditions attaching to the Class A Preferred Limited Partnership Units as a class, shall have attached thereto the following rights, privileges, restrictions and conditions:
| 1. | Definitions |
For the purposes hereof, the following capitalized terms shall have the following meanings, unless the context otherwise requires:
“Additional Amounts” has the meaning specified in Section 2(B)(e)(i) to this Part IV of Schedule A.
“Arrears” means, with respect to the Series 17 Distributions, the full cumulative Series 17 Distributions through the most recent Series 17 Distribution Payment Date that have not been paid on all Outstanding Series 17 Preferred Units.
“Assignee” means a Person to whom one or more Partnership Interests have been transferred in a manner permitted under this Agreement.
“Change in Tax Law” means (i) a change in or amendment to laws, regulations or rulings of any Relevant Taxing Jurisdiction, (ii) a change in the official application or interpretation of those laws, regulations or rulings, (iii) any execution of or amendment to any treaty affecting taxation to which any Relevant Taxing Jurisdiction is party or (iv) a decision rendered by a court of competent jurisdiction in any Relevant Taxing Jurisdiction, whether or not such decision was rendered with respect to the Partnership, in each case described in (i)-(iv) above occurring after February 24, 2020; provided that in the case of a Relevant Taxing Jurisdiction other than Bermuda in which a Successor Entity is organized, such Change in Tax Law must occur after the date on which the Partnership consolidates, merges or amalgamates (or engages in a similar transaction) with the Successor Entity, or conveys, transfers or leases substantially all of the Partnership’s properties and assets to the Successor Entity, as applicable.
“DBRS” mean DBRS Limited.
“Depositary” means, with respect to any Series 17 Preferred Units issued in global form, The Depository Trust Company and its successors and permitted assigns.
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“Equity Credit” means the dollar amount or percentage in relation to the stated liquidation preference amount of $25.00 per Series 17 Preferred Unit assigned to the Series 17 Preferred Units, as equity, rather than debt, by a Rating Agency in evaluating the capital structure of an entity.
“NYSE” means the New York Stock Exchange.
“Paying Agent” means the Series 17 Transfer Agent, acting in its capacity as paying agent for the Series 17 Preferred Units, and its respective successors and assigns or any other paying agent appointed by the General Partner; provided, however, that if no Paying Agent is specifically designated for the Series 17 Preferred Units, the General Partner shall act in such capacity.
“Rating Agency” means (a) each of S&P and DBRS and (b) if S&P or DBRS cease to rate the Series 17 Preferred Units or fails to make a rating of the Series 17 Preferred Units, as the case may be, for reasons outside of the Partnership’s control, for Series 17 Preferred Units, a “nationally recognized statistical rating organization” as defined in Section 3(a)(62) under the Securities Exchange Act selected by the General Partner as a replacement agency for S&P or DBRS, or both, as the case may be.
“Relevant Date” has the meaning specified in Section 2(B)(e)(ii) to this Part XIII of Schedule A.
“Relevant Taxing Jurisdiction” means (i) Bermuda or any political subdivision or governmental authority of or in Bermuda with the power to tax, (ii) any jurisdiction from or through which the Partnership or the Paying Agent is making payments on the Series 17 Preferred Units or any political subdivision or governmental authority of or in that jurisdiction with the power to tax or (iii) any other jurisdiction in which the Partnership or a Successor Entity is organized or generally subject to taxation or any political subdivision or governmental authority of or in that jurisdiction with the power to tax.
“S&P” means S&P Global Ratings, a division of S&P Global Inc.
“Series 17 Current Criteria” means the Equity Credit criteria of a Rating Agency for securities such as the Series 17 Preferred Units, as such criteria are in effect as of the Series 17 Original Issue Date.
“Series 17 Distribution Payment Date” means the last day of each of January, April, July and October of each year; provided however, that if any Series 17 Distribution Payment Date would otherwise occur on a day that is not a Business Day, such Series 17 Distribution Payment Date shall instead be on the immediately succeeding Business Day without the accrual of additional distributions; provided further, that the Series 17 Distribution Payment Date for the initial Series 17 Distribution Period shall be July 31, 2020.
“Series 17 Distribution Period” means a period of time from and including the preceding Series 17 Distribution Payment Date to, but excluding, the next Series 17 Distribution Payment Date for such Series 17 Distribution Period (other than the initial Series 17 Distribution Period, which means a period of time from and including the Series 17 Original Issue Date to, but excluding, July 31, 2020).
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“Series 17 Distribution Rate” means an annual rate equal to 5.25% of the Series 17 Liquidation Preference.
“Series 17 Distribution Record Date” has the meaning given to such term in Section 2(B)(b)(iii) to this Part XIII of Schedule A.
“Series 17 Distributions” means distributions with respect to Series 17 Preferred Units pursuant to Section 2(B)(b) to this Part XIII of Schedule A.
“Series 17 Holder” means a Record Holder of Series 17 Preferred Units.
“Series 17 Junior Securities” means any class or series of Partnership Interests that, with respect to distributions on such Partnership Interests and distributions upon dissolution, liquidation or winding-up of the Partnership, whether voluntary or involuntary, pursuant to Article 13 of the Agreement, ranks junior to the Series17 Preferred Units, including Equity Units and the General Partner Units, but excluding any Series 17 Parity Securities and Series 17 Senior Securities.
“Series 17 Liquidation Preference” means a liquidation preference for each Series 17 Preferred Unit equal to $25.00 per unit (subject to adjustment for any splits, combinations or similar adjustments to the Series 17 Preferred Units).
“Series 17 Original Issue Date” means February 24, 2020.
“Series 17 Parity Securities” means (i) every class or series of the Class A Preferred Units and Series17 Preferred Units and (ii) any class or series of Partnership Interests established after the Series 17 Original Issue Date by the General Partner, the terms of which class or series pursuant to written agreement expressly provide that it ranks on parity in right of payment with the Series 17 Preferred Units as to distributions and amounts payable upon dissolution, liquidation or winding-up of the Partnership, whether voluntary or involuntary, pursuant to Article 13 of the Agreement.
“Series 17 Preferred Units” has the meaning given to such term in the preamble to this Part XIII of Schedule A.
“Series 17 Ratings Event” means a change by any Rating Agency to the Series 17 Current Criteria, which change results in (i) any shortening of the length of time for which the Series 17 Current Criteria are scheduled to be in effect with respect to the Series 17 Preferred Units or (ii) a lower Equity Credit being given to the Series 17 Preferred Units than the Equity Credit that would have been assigned to the Series 17 Preferred Units by such Rating Agency pursuant to its Series 17 Current Criteria.
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“Series 17 Redemption Date” has the meaning given such term in Section 2(B)(d)(i) to this Part XIII of Schedule A.
“Series 17 Redemption Notice” has the meaning given such term in Section 2(B)(d)(ii) to this Part XIII of Schedule A.
“Series 17 Redemption Payments” means payments to be made to the Series 17 Holders to redeem Series 17 Preferred Units in accordance with Section 2(B)(d) to this Part XIII of Schedule A.
“Series 17 Redemption Price” has the meaning given such term in Section 2(B)(d)(i) to this Part XIII of Schedule A.
“Series 17 Senior Securities” means any class or series of Partnership Interests established after the Series 17 Original Issue Date by the General Partner, the terms of which class or series pursuant to written agreement expressly provide that it ranks senior to the Series 17 Preferred Units as to distributions and amounts payable upon dissolution, liquidation or winding-up of the Partnership, whether voluntary or involuntary, pursuant to Article 13 of the Agreement.
“Series 17 Transfer Agent” means Computershare Trust Company of Canada, and its successors and assigns, or any other transfer agent and registrar appointed by the General Partner for the Series 17 Preferred Units.
“Successor Entity” means an entity formed by a consolidation, merger, amalgamation or other similar transaction involving the Partnership or an entity to which the Partnership conveys, transfers or leases substantially all its properties and assets.
“Tax Event” has the meaning specified in Section 2(B)(d)(i) to this Part XIII of Schedule A.
| 2. | Terms of Series 17 Preferred Units. |
| A. | General. Each Series 17 Preferred Unit shall be identical in all respects to every other Series17 Preferred Unit, except as to the respective dates from which the Series 17 Liquidation Preference shall increase or from which Series 17 Distributions may begin accruing, to the extent such dates may differ. The Series 17 Preferred Units represent perpetual interests in the Partnership and shall not give rise to a claim by the Partnership or a Series 17 Holder for conversion or, except as set forth in Section 2(B)(d) to this Part XIII of Schedule A, redemption thereof at a particular date. |
| B. | Rights of Series 17 Preferred Units. The Series 17 Preferred Units shall have the following rights, preferences and privileges and shall be subject to the following duties and obligations: |
| a. | Series 17 Preferred Units. |
| i. | The authorized number of Series 17 Preferred Units shall be unlimited. Series 17 Preferred Units that are purchased or otherwise acquired by the Partnership shall be cancelled. |
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| ii. | The Series 17 Preferred Units shall be represented by one or more global Certificates registered in the name of the Depositary or its nominee, and no Series 17 Holder shall be entitled to receive a definitive Certificate evidencing its Series 17 Preferred Units, unless otherwise required by law or the Depositary gives notice of its intention to resign or is no longer eligible to act as such with respect to the Series 17 Preferred Units and the General Partner shall have not selected a substitute Depositary within sixty (60) calendar days thereafter. So long as the Depositary shall have been appointed and is serving with respect to the Series 17 Preferred Units, payments and communications made by the Partnership to Series 17 Holders shall be made by making payments to, and communicating with, the Depositary. |
| b. | Distributions. |
| i. | Distributions on each Outstanding Series 17 Preferred Unit shall be cumulative and shall accrue at the applicable Series 17 Distribution Rate from and including the Series 17 Original Issue Date (or, for any subsequently issued and newly Outstanding Series 17 Preferred Units, from and including the Series 17 Distribution Payment Date immediately preceding the issue date of such Series 17 Preferred Units) until such time as the Partnership pays the Series 17 Distribution or redeems such Series 17 Preferred Unit in accordance with Section 2(B)(d) to this Part XIII of Schedule A, whether or not such Series 17 Distributions shall have been declared. Series 17 Holders shall be entitled to receive Series 17 Distributions from time to time out of any assets of the Partnership legally available for the payment of distributions at the Series 17 Distribution Rate per Series 17 Preferred Unit when, as, and, if declared by the General Partner. Series 17 Distributions, to the extent declared by the General Partner to be paid by the Partnership in accordance with this Section 2(B)(b) to this Part XIII of Schedule A, shall be paid, in Arrears, on each Series 17 Distribution Payment Date. Series 17 Distributions shall accrue in each Series 17 Distribution Period, provided that distributions shall accrue on accrued but unpaid Series 17 Distributions at the Series 17 Distribution Rate. If any Series 17 Distribution Payment Date otherwise would occur on a date that is not a Business Day, declared Series 17 Distributions shall be paid on the immediately succeeding Business Day without the accrual of additional distributions. Series 17 Distributions shall be payable based on a 360-day year consisting of twelve 30 day months. All Series 17 Distributions that are (1) accrued and unpaid or (2) payable by the Partnership pursuant to this Section 2(B)(b) or 2(B)(e)(i) to this Part XIII of Schedule A shall be payable without regard to the income of the Partnership and shall be treated for U.S. federal income tax purposes as guaranteed payments for the use of capital under Section 707(c) of the Code, including for the purpose of determining income, gain, loss, and expense of the Partnership and maintaining capital accounts, unless there is a change in Tax law or administrative practice that requires treatment other than as guaranteed payments for U.S. federal income tax purposes, as determined in the sole discretion of the General Partner. For U.S. federal income tax purposes, the deduction attributable to any amount treated as a guaranteed payment shall be specially allocated to the Partners in a manner determined by the General Partner in its sole discretion that is not inconsistent with the applicable provisions of the Code and Treasury Regulations. Such guaranteed payments with respect to any Series 17 Distribution Period shall be for the account of Series 17 Holders as of the applicable Series 17 Distribution Record Date, or as otherwise reasonably determined by the General Partner. |
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| ii. | [Intentionally Omitted] |
| iii. | Not later than 5:00 p.m., New York City time, on each Series 17 Distribution Payment Date, the Partnership shall pay those Series 17 Distributions, if any, that shall have been declared by the General Partner to Series 17 Holders on the Record Date for the applicable Series 17 Distribution. The Record Date (the “Series 17 Distribution Record Date”) for the payment of any Series 17 Distributions shall be the fifteenth day of the calendar month of the applicable Series 17 Distribution Payment Date, or such other record date as may be fixed by the General Partner in accordance with this Section 2 to this Part XIII of Schedule A. So long as any Series 17 Preferred Units are Outstanding, no distribution shall be declared or paid or set aside for payment on any Series 17 Junior Securities (other than a distribution payable solely in Series 17 Junior Securities) unless all accrued and unpaid Series 17 Distributions up to and including such distributions payable for the last completed Series 17 Distribution Period, and all accrued and unpaid distributions up to and including the distribution payable for the last completed period for which distributions were payable on all Series 17 Preferred Units and Series 17 Parity Securities, have been declared and paid or set apart for payment; provided, however, notwithstanding anything to the contrary in this Section 2(B)(b)(iii) to this Part XIII of Schedule A, if a distribution period with respect to a class of Series 17 Junior Securities or Series 17 Parity Securities is shorter than the Series 17 Distribution Period, the General Partner may declare and pay regular distributions with respect to such Series 17 Junior Securities or Series 17 Parity Securities, so long as, at the time of declaration of such distribution, (i) there are no Series 17 Distributions in Arrears, and (ii) the General Partner expects to have sufficient funds to pay the full distribution in respect of the Series 17 Preferred Units on the next successive Series 17 Distribution Payment Date. Accrued Series 17 Distributions in Arrears for any past Series 17 Distribution Period may be declared by the General Partner and paid on any date fixed by the General Partner, whether or not a Series 17 Distribution Payment Date, to Series 17 Holders on the Record Date for such payment, which may not be less than 10 days before such payment date. Subject to the next succeeding sentence, if all accrued Series 17 Distributions in Arrears on all Outstanding Series 17 Preferred Units and all accrued distributions in arrears on any Series 17 Preferred Units and any Series 17 Parity Securities shall not have been declared and paid, or if sufficient funds for the payment thereof shall not have been set apart, payment of accrued distributions in Arrears on the Series 17 Preferred Units and accrued distributions in arrears on any such Series 17 Parity Securities shall be made in order of their respective distribution payment dates, commencing with the earliest distribution payment date. If less than all distributions payable with respect to all Series 17 Preferred Units and any other Series 17 Parity Securities are paid, any partial payment shall be made pro rata with respect to the Series 17 Preferred Units and any such other Series 17 Parity Securities entitled to a distribution payment at such time in proportion to the aggregate distribution amounts remaining due in respect of such Series 17 Preferred Units and such other Series 17 Parity Securities, if any, at such time and apportioned equally among them in accordance with the relative amount to be paid or allocated to each group. Subject to Sections 13.3 of the Agreement and Section 2(B)(g) to this Part XIII of Schedule A, Series 17 Holders shall not be entitled to any distribution, whether payable in cash, property or Partnership Interests, in excess of full cumulative Series 17 Distributions. Except insofar as distributions accrue on the amount of any accrued and unpaid Series 17 Distributions as described in Section 2(B)(b)(i) to this Part XIII of Schedule A, no interest or sum of money in lieu of interest shall be payable in respect of any distribution payment which may be in Arrears on the Series 17 Preferred Units. So long as the Series 17 Preferred Units are held of record by the Depositary or its nominee, declared Series 17 Distributions shall be paid to the Depositary in same-day funds on each Series 17 Distribution Payment Date or other distribution payment date in the case of payments for Series 17 Distributions in Arrears. If on any Series 17 Distribution Payment Date, the Series 17 Distributions accrued to such date are not paid in full on all of the Series 17 Preferred Units then Outstanding, such Series 17 Distributions, or the unpaid part thereof, shall be paid on a subsequent date or dates determined by the General Partner on which the Partnership shall have sufficient monies legally available for such Series 17 Distributions under Bermuda law. |
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| c. | Voting Rights. |
| i. | Notwithstanding anything to the contrary in this Agreement, the Series 17 Preferred Units shall not have any voting rights or rights to consent or approve any action or matter, except as set forth in clause (ii) below and in Section 5.4 of Part I of Schedule A to this Agreement, this Section 2(B)(c) to this Part XIII of Schedule A or as otherwise required by Bermuda Law. |
| ii. | The Series 17 Holders shall not have any right or authority to act for or bind the Partnership or to take part or in any way to interfere in the conduct or management of the Partnership or (except as otherwise provided by law and except for meetings of the holders of Class A Preferred Limited Partnership Units as a class and meetings of the Series 17 Holders as a series, in each case in respect of matters which limited partners may properly vote under Bermuda law) be entitled to receive notice of, attend, or vote at any meeting of unitholders of the Partnership unless and until the Partnership shall have failed to pay eight quarterly Series 17 Distributions, whether or not consecutive and whether or not such distributions have been declared and whether or not there are any monies of the Partnership legally available for distributions under Bermuda law. In the event of such non-payment, and for only so long as any such distributions remain in Arrears, the Holders will be entitled to receive notice of and to attend each meeting of unitholders of the Partnership (other than any meetings at which only holders of another specified class or series are entitled to vote) and such Holders shall have the right, at any such meeting, to one vote for each Series 17 Preferred Unit held. No other voting rights shall attach to the Series 17 Preferred Units in any circumstances. Upon payment of the entire amount of all cumulative preferential cash distributions in Arrears, the voting rights of the Series 17 Holders shall forthwith cease (unless and until the same default shall again arise under the provisions of this Section 2(B)(c)(ii) to this Part XIII of Schedule A). |
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| iii. | Notwithstanding anything to the contrary in this Agreement, the General Partner shall not adopt any amendment to the Partnership Agreement that has a material adverse effect on the powers, preferences, duties or special rights of the Series 17 Preferred Units unless such amendment (i) is approved by a resolution signed by Series 17 Holders owning not less than the percentage of the Series 17 Preferred Units that would be necessary to authorize such action at a meeting of Series 17 Holders at which all Series 17 Holders were present and voted or were represented by proxy or (ii) is passed by an affirmative vote of at least 66 2/3% of the votes cast at a meeting of Series 17 Holders duly called for that purpose and at which the holders of at least 25% of the outstanding Series 17 Preferred Units are present or represented by proxy; provided, however, that (x) subject to Section 5.4 of Part I of Schedule A to this Agreement, the issuance of additional Partnership Interests (and any amendment to this Agreement in connection therewith) shall not be deemed to constitute such a material adverse effect for purposes of this Section 2(B)(c)(ii) to this Part XIII of Schedule A and (y) for purposes of this Section 2(B)(c)(ii) to this Part XIII of Schedule A, no amendment of this Agreement in connection with a merger or other transaction in which the Partnership is the surviving entity and the Series 17 Preferred Units remain Outstanding with the terms thereof materially unchanged in any respect adverse to the Series 17 Holders shall be deemed to materially and adversely affect the powers, preferences, duties, or special rights of the Series 17 Preferred Units. If at any such meeting the holders of Series 17 Preferred Units of at least 25% of the then Outstanding Series 17 Preferred Units are not present or represented by proxy within one-half hour after the time appointed for such meeting, then the meeting shall be adjourned to such date not less than five (5) days thereafter and to such time and place as may be designated by the chairman of such meeting. At such adjourned meeting, the Series 17 Holders present or represented by proxy may transact the business for which the meeting was originally called and the Series 17 Holders then present or represented by proxy shall form the necessary quorum. |
| iv. | For any matter described in this Section 2(B)(c) to this Part XIII of Schedule A in which the Series 17 Holders are entitled to vote as a series (whether separately or together with the holders of any Series 17 Parity Securities), such Series 17 Holders shall be entitled to one vote per Series 17 Preferred Unit. The proxy rules applicable to, the formalities to be observed in respect of the giving notice of, and the formalities to be observed in respect of the conduct of, any meeting or any adjourned meeting of Series 17 Holders shall be those from time to time prescribed by the Agreement with respect to meetings of unitholders or, if not so prescribed, as required by law. Any Series 17 Preferred Units held by the Partnership or any of its Subsidiaries or their Affiliates shall not be entitled to vote. |
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| v. | Notwithstanding Section 2(B)(c)(ii) to this Part XIII of Schedule A and Section 5.4 of Part I of Schedule A to this Agreement, no vote of the Series 17 Holders shall be required if, at or prior to the time when such action is to take effect, provision is made for the redemption of all Series 17 Preferred Units at the time Outstanding. |
| d. | Optional Redemption; Series 17 Ratings Event; Change in Tax Law. |
| i. | The Partnership shall have the right (i) at any time, and from time to time, on or after March 31, 2025, in whole or in part, (ii) prior to March 31, 2025, at any time within 120 days after the conclusion of any review or appeal process instituted by the Partnership following the occurrence of a Series 17 Ratings Event, in whole but not in part, or (iii) if as a result of a Change in Tax Law there is, in the Partnership’s reasonable determination, a substantial probability that the Partnership or any Successor Entity would become obligated to pay any Additional Amounts on the next succeeding Series 17 Distribution Payment Date and the payment of those Additional Amounts cannot be avoided by the use of any reasonable measures available to the Partnership or any Successor Entity (a “Tax Event”), in whole but not in part, to redeem the Series 17 Preferred Units, using any source of funds legally available for such purpose. Any such redemption shall occur on a date set by the General Partner (the “Series 17 Redemption Date”). The Partnership shall effect any such redemption by paying cash for each Series 17 Preferred Unit to be redeemed equal to 100% (in the case of a redemption described in clauses (i) and (iii) of this Section 2(B)(d)(i) to this Part XIII of Schedule A), or 102% (in the case of a redemption described in clause (ii) of this Section 2(B)(d)(i) to this Part XIII of Schedule A), of the Series 17 Liquidation Preference for such Series 17 Preferred Unit on such Series 17 Redemption Date plus an amount equal to all unpaid Series 17 Distributions thereon from the Series 17 Original Issue Date to, but excluding, the Series 17 Redemption Date (whether or not such distributions shall have been declared) (the “Series 17 Redemption Price”). So long as the Series 17 Preferred Units to be redeemed are held of record by the Depositary or the nominee of the Depositary, the Series 17 Redemption Price shall be paid by the Paying Agent to the Depositary on the Series 17 Redemption Date. |
| ii. | The Partnership shall give notice of any redemption by mail, postage prepaid, not less than 25 days and not more than 60 days before the scheduled Series 17 Redemption Date to the Series 17 Holders (as of 5:00 p.m. New York City time on the Business Day next preceding the day on which notice is given) of any Series 17 Preferred Units to be redeemed as such Series 17 Holders’ names appear on the books of the Series 17 Transfer Agent and at the address of such Series 17 Holders shown therein. Such notice (the “Series 17 Redemption Notice”) shall state, as applicable: (1) the Series 17 Redemption Date, (2) the number of Series 17 Preferred Units to be redeemed and, if less than all Outstanding Series 17 Preferred Units are to be redeemed, the number (and in the case of Series 17 Preferred Units in certificated form, the identification) of Series 17 Preferred Units to be redeemed from such Series 17 Holder, (3) the Series 17 Redemption Price, (4) the place where any Series 17 Preferred Units in certificated form are to be redeemed and shall be presented and surrendered for payment of the Series 17 Redemption Price therefor (which shall occur automatically if the Certificate representing such Series 17 Preferred Units is issued in the name of the Depositary or its nominee), and (5) that distributions on the Series 17 Preferred Units to be redeemed shall cease to accrue from and after such Series 17 Redemption Date. So long as the Series 17 Preferred Units are held of record by the Depositary or its nominee, the Partnership shall give notice, or cause notice to be given, to the Depositary. |
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| iii. | If less than all of the then Outstanding Series 17 Preferred Units are at any time to be redeemed, then the particular Series 17 Preferred Units to be redeemed shall be selected on a pro rata basis disregarding fractions or in such manner as the General Partner in its sole discretion may, by resolution determine. The aggregate Series 17 Redemption Price for any such partial redemption of the Outstanding Series 17 Preferred Units shall be allocated correspondingly among the redeemed Series 17 Preferred Units. The Series 17 Preferred Units not redeemed shall remain Outstanding and entitled to all the rights, preferences and duties provided in this Section 2 to this Part XIII of Schedule A. |
| iv. | If the Partnership gives or causes to be given a Series 17 Redemption Notice, the Partnership shall deposit with the Paying Agent funds sufficient to redeem the Series 17 Preferred Units as to which such Series 17 Redemption Notice shall have been given, no later than 10:00 a.m. New York City time on the Series 17 Redemption Date, and shall give the Paying Agent irrevocable instructions and authority to pay the Series 17 Redemption Price to each Series 17 Holder whose Series 17 Preferred Units are to be redeemed upon surrender or deemed surrender (which shall occur automatically if the Certificate representing such Series 17 Preferred Units is issued in the name of the Depositary or its nominee) of the Certificates therefor as set forth in the Series 17 Redemption Notice. If a Series 17 Redemption Notice shall have been given, from and after the Series 17 Redemption Date, unless the Partnership defaults in providing funds sufficient for such redemption at the time and place specified for payment pursuant to the Series 17 Redemption Notice, all Series 17 Distributions on such Series 17 Preferred Units to be redeemed shall cease to accrue and all rights of holders of such Series 17 Preferred Units as Limited Partners with respect to such Series 17 Preferred Units to be redeemed shall cease, except the right to receive the Series 17 Redemption Price, and such Series 17 Preferred Units shall not thereafter be transferred on the books of the Series 17 Transfer Agent or be deemed to be Outstanding for any purpose whatsoever. The Series 17 Holders shall have no claim to the interest income, if any, earned on funds deposited with the Paying Agent. Any funds deposited with the Paying Agent hereunder by the Partnership for any reason, including redemption of Series 17 Preferred Units, that remain unclaimed or unpaid after one year after the applicable Series 17 Redemption Date or other payment date, as applicable, shall be, to the extent permitted by law, repaid to the Partnership upon its written request, after which repayment the Series 17 Holders entitled to such redemption or other payment shall have recourse only to the Partnership. Notwithstanding any Series 17 Redemption Notice, there shall be no redemption of any Series 17 Preferred Units called for redemption until funds sufficient to pay the full Series 17 Redemption Price of such Series 17 Preferred Units shall have been deposited by the Partnership with the Paying Agent. |
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| v. | Any Series 17 Preferred Units that are redeemed or otherwise acquired by the Partnership shall be cancelled. If only a portion of the Series 17 Preferred Units represented by a Certificate shall have been called for redemption, upon surrender of the Certificate to the Paying Agent (which shall occur automatically if the Certificate representing such Series 17 Preferred Units is registered in the name of the Depositary or its nominee), the Partnership shall issue and the Paying Agent shall deliver to the Series 17 Holders a new Certificate (or adjust the applicable book-entry account) representing the number of Series 17 Preferred Units represented by the surrendered Certificate that have not been called for redemption. |
| vi. | Notwithstanding anything to the contrary in this Section 2 to this Part XIII of Schedule A, unless all accrued and unpaid Series 17 Distributions up to and including the distribution payable for the last completed Series 17 Distribution Period, and all accrued and unpaid distributions up to and including the distribution payable for the last completed period for which distributions were payable on all Series 17 Preferred Units and Series 17 Parity Securities, have been declared and paid or set apart for payment, the Partnership shall not be permitted to repurchase, redeem or otherwise acquire, in whole or in part, any Series 17 Preferred Units or Series 17 Parity Securities, except pursuant to a purchase or exchange offer made on the same relative terms to all Series 17 Holders and holders of any Series 17 Parity Securities. So long as any Series 17 Preferred Units are Outstanding, except out of the net cash proceeds of a substantially concurrent issue of Series 17 Junior Securities, unless all accrued and unpaid Series 17 Distributions up to and including the distribution payable for the last completed Series 17 Distribution Period, and all accrued and unpaid distributions up to and including the distribution payable for the last completed period for which distributions were payable on all Series 17 Preferred Units and Series 17 Parity Securities, have been declared and paid or set apart for payment, the Partnership shall not be permitted to redeem, repurchase or otherwise acquire any Equity Units or any other Series 17 Junior Securities. |
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| e. | Payment of Additional Amounts. |
| i. | The Partnership shall make all payments on the Series 17 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(B)(e) and Section 2(B)(f) to this Part XIII of Schedule A, pay to the Series 17 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required. |
| ii. | The Partnership shall not be required to pay any Additional Amounts for or on account of: |
| (a) | any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason of the mere ownership of, or receipt of payment under, the Series 17 Preferred Units or any Series 17 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 17 Holders; |
| (b) | any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge or any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payment of the liquidation preference or of any distributions on the Series 17 Preferred Units; |
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| (c) | any tax, fee, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by the holder of such Series 17 Preferred Units to comply with any reasonable request by the Partnership addressed to the holder within 90 days of such request (i) to provide information concerning the nationality, residence or identity of the holder or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirement that is required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, fee, duty, assessment or other governmental charge; |
| (d) | any tax, fee, duty, assessment or governmental charge imposed under the Income Tax Act or the Code; or |
| (e) | any combination of the foregoing. |
| iii. | In addition, the Partnership shall not pay Additional Amounts with respect to any payment on any such Series 17 Preferred Units to any holder that is a fiduciary, partnership, limited liability company or other pass-through entity other than the sole beneficial owner of such Series 17 Preferred Units if such payment would be required by the laws of the Relevant Taxing Jurisdiction to be included in the income for tax purposes of a beneficiary or partner or settlor with respect to such fiduciary or a member of such partnership, limited liability company or other pass-through entity or a beneficial owner to the extent such beneficiary, partner or settlor would not have been entitled to such Additional Amounts had it been the holder of the Series 17 Preferred Units. |
| f. | Substitution or Variation. |
| i. | At any time following a Tax Event, the Partnership may, without the consent of any Series 17 Holder, vary the terms of the Series 17 Preferred Units such that they remain securities, or exchange the Series 17 Preferred Units with new securities, which would eliminate the substantial probability that the Partnership or any Successor Entity would be required to pay any Additional Amounts with respect to the Series 17 Preferred Units as a result of a Change in Tax Law. The terms of the varied securities or new securities considered in the aggregate cannot be less favorable to holders than the terms of the Series 17 Preferred Units prior to being varied or exchanged; provided that no such variation of terms or securities received in exchange shall change the specified denominations of, distribution payable on, the redemption dates (other than any extension of the period during which an optional redemption may not be exercised by the Partnership) or currency of, the Series 17 Preferred Units, reduce the liquidation preference thereof, lower the ranking in right of payment with respect to the payment of distributions or the distribution of assets upon liquidation, dissolution or winding-up of the Series 17 Preferred Units, whether voluntary or involuntary, or change the foregoing list of items that may not be so amended as part of such variation or exchange. Further, no such variation of terms or securities received in exchange shall impair the right of a holder of the securities to institute suit for the payment of any amounts due, but unpaid with respect to such holder’s securities. |
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| ii. | Prior to any variation or exchange, the Partnership shall be required to receive an opinion of independent legal advisers to the effect that holders and beneficial owners of the Series 17 Preferred Units (including as holders and beneficial owners of the varied or exchanged securities) will not recognize income, gain or loss for United States federal income tax purposes as a result of such variation or exchange and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case had such variation or exchange not occurred. |
| iii. | Any variation or exchange of the Series 17 Preferred Units described above shall be made after notice is given to the Series 17 Holders not less than 25 days nor more than 60 days prior to the date fixed for variation or exchange, as applicable. |
g. Liquidation Rights. In the event of the liquidation, dissolution or winding-up of the Partnership, whether voluntary or involuntary, unless the Partnership is continued under the election to reconstitute and continue the Partnership pursuant to Section 13.2 of the Agreement, the Series 17 Holders shall be entitled to receive the Series 17 Liquidation Preference per Series 17 Preferred Unit held by them, together with all accrued (whether or not declared) and unpaid Series 17 Distributions up to but excluding the date of payment or distribution (less any tax required to be deducted and withheld by the Partnership), before any amounts shall be paid or any assets of the Partnership distributed to the holders of any Series 17 Junior Securities. Upon payment of the amounts set forth in the immediately preceding sentence, the Series 17 Holders shall not be entitled to share in any further distribution of the assets of the Partnership.
h. Rank. The Series 17 Preferred Units shall each be deemed to rank as to payment of distributions on such Partnership Interests and distributions upon liquidation, dissolution or winding-up of the Partnership, whether voluntary or involuntary:
| i. | senior to any Series 17 Junior Securities; |
| ii. | on parity in right of payment with any Series 17 Parity Securities; |
| iii. | junior to any other Series 17 Senior Securities; and |
| iv. | junior to all existing and future indebtedness of the Partnership with respect to assets available to satisfy claims against the Partnership. |
i. No Sinking Fund. The Series 17 Preferred Units shall not have the benefit of any sinking fund.
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j. Record Holders. To the fullest extent permitted by applicable law, the General Partner, the Partnership, the Series 17 Transfer Agent, and the Paying Agent may deem and treat any Series 17 Holder as the true, lawful, and absolute owner of the applicable Series 17 Preferred Units for all purposes, and neither the General Partner, the Partnership, the Series 17 Transfer Agent nor the Paying Agent shall be affected by any notice to the contrary, except as otherwise provided by law or any applicable rule, regulation, guideline or requirement of any Securities Exchange on which the Series 17 Preferred Units may be listed or admitted to trading, if any.
k. Other Rights; Fiduciary Duties. The Series 17 Preferred Units and the Series 17 Holders shall not have any designations, preferences, rights, powers or duties, other than as set forth in this Agreement or as provided by applicable law. Notwithstanding anything to the contrary in this Agreement or any duty existing at law, in equity or otherwise, to the fullest extent permitted by applicable law, neither the General Partner nor any other Indemnified Party shall owe any duties, including fiduciary duties, or have any liabilities to Series 17 Holders, other than the General Partner’s duty to act at all times in good faith.
Exhibit 3.2
BROOKFIELD RENEWABLE ENERGY L.P.
SIXTH AMENDMENT TO THE
THIRD AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
THIS AMENDMENT (the “Amendment”) to the Third Amended and Restated Limited Partnership Agreement dated as of February 11, 2016 (the “Agreement”) of Brookfield Renewable Energy L.P. (the “Partnership”) is made as of the 24th day of February 2020, by the undersigned. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement.
WHEREAS, on November 25, 2015, the limited partnership agreement of the Partnership was amended to allow for preferred limited partnership interests in the Partnership and to create the Class A Preferred Limited Partnership Units;
AND WHEREAS, the General Partner desires to amend the Agreement to create additional series of Class A Preferred Limited Partnership Units having the rights and restrictions set out in Part XIII of Schedule A to this Amendment;
AND WHEREAS, pursuant to Section 17.1 of the Agreement, subject to compliance with the requirements of the Limited Partnership Act and the Exempted Partnerships Act, the General Partner (pursuant to its power of attorney from the Limited Partners), without the approval of any Limited Partner, may amend any provision of the Agreement to reflect certain changes, including, as provided for in Section 17.1.6 of the Agreement, an amendment that the General Partner determines in its sole discretion to be necessary or appropriate for the creation, authorization or issuance of any class or series of Partnership Interests;
AND WHEREAS, the General Partner desires to amend the Agreement as set out herein;
NOW THEREFORE,
| 1. | Section 1.1.3 is hereby deleted in its entirety and replaced with the following: |
“Agreement” means this Third Amended and Restated Limited Partnership Agreement of Brookfield Renewable Energy L.P., as amended by the First Amendment to the Third Amended and Restated Limited Partnership Agreement of the Partnership dated as of May 25, 2016, the Second Amendment to the Third Amended and Restated Limited Partnership Agreement of the Partnership dated as of February 14, 2017, the Third Amendment to the Third Amended and Restated Limited Partnership Agreement of the Partnership dated as of January 16, 2018, the Fourth Amendment to the Third Amended and Restated Limited Partnership Agreement of the Partnership dated as of February 28, 2019, the Fifth Amendment to the Third Amended and Restated Limited Partnership Agreement of the Partnership dated as of March 11, 2019 and the Sixth Amendment to the Third Amended and Restated Limited Partnership Agreement of the Partnership dated as of February 24, 2020;
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| 2. | Schedule A of the Agreement is hereby amended by adding Part XIII of Schedule A to this Amendment as Part XIII of Schedule A of the Agreement. |
| 3. | This amendment shall be effective as of the 24th day of February, 2020. |
| 4. | This amendment shall be governed by and construed in accordance with the laws of Bermuda. |
| 5. | Except as modified herein, all terms and conditions of the Agreement shall remain in full force and effect. |
| 6. | This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall be construed together as one agreement. |
[Remainder of this page left blank intentionally.]
IN WITNESS WHEREOF, the General Partner has executed this Amendment as of the 24th day of February, 2020.
| GENERAL PARTNER: BREP HOLDING L.P., by its general partner BRP BERMUDA GP LIMITED | ||
| By: |
/s/ Jane Sheere | |
| Name: Jane Sheere | ||
| Title: Secretary | ||
[Sixth Amendment to Third LPA]
SCHEDULE A
PART XIII
Number and Designation of and Rights, Privileges, Restrictions and Conditions
Attaching to the Class A Preferred Limited Partnership Units, Series 17
The seventeenth series of Class A Preferred Limited Partnership Units of the Partnership shall consist of preferred limited partnership interests designated as Class A Preferred Limited Partnership Units, Series 17 (the “Series 17 Units”) and, in addition to the rights, privileges, restrictions and conditions attaching to the Class A Preferred Limited Partnership Units as a class, shall have attached thereto the following rights, privileges, restrictions and conditions:
| 1. | Definitions |
For the purposes hereof, the following capitalized terms shall have the following meanings, unless the context otherwise requires:
“Arrears” means, with respect to the Series 17 Distributions, the full cumulative Series 17 Distributions through the most recent Series 17 Distribution Payment Date that have not been paid on all Outstanding Series 17 Units.
“Assignee” means a Person to whom one or more Partnership Interests have been transferred in a manner permitted under this Agreement.
“BEP Series 17 Additional Amounts” means “Additional Amounts” as defined in the BREP Partnership Agreement.
“BEP General Partner” means Brookfield Renewable Partners Limited.
“BEP Series 17 Rating Event” means a “Series 17 Rating Event” as defined in the BREP Partnership Agreement.
“BEP Series 17 Units” means the BREP’s Class A Preferred Limited Partnership Units, Series 17.
“BEP Series 17 Successor Entity” means a “Successor Entity” as defined in the BREP Partnership Agreement.
“Series 17 Distribution Payment Date” means the last day of each of January, April, July and October of each year; provided however, that if any Series 17 Distribution Payment Date would otherwise occur on a day that is not a Business Day, such Series 17 Distribution Payment Date shall instead be on the immediately succeeding Business Day without the accrual of additional distributions; provided further, that the Series 17 Distribution Payment Date for the initial Series 17 Distribution Period shall be July 31, 2020.
“Series 17 Distribution Period” means a period of time from and including the preceding Series 17 Distribution Payment Date to, but excluding, the next Series 17 Distribution Payment Date for such Series 17 Distribution Period (other than the initial Series 17 Distribution Period, which means a period of time from and including the Series 17 Original Issue Date to, but excluding, July 31, 2020).
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“Series 17 Distribution Rate” means an annual rate equal to 5.25% of the Series 17 Liquidation Preference, subject to adjustment from time to time as set forth in Section 2(B)(b)(ii) to this Part XIII of Schedule A.
“Series 17 Distribution Record Date” has the meaning given to such term in Section 2(B)(b)(iii) to this Part XIII of Schedule A.
“Series 17 Distributions” means distributions with respect to Series 17 Units pursuant to Section 2(B)(b) to this Part XIII of Schedule A.
“Series 17 Holder” means a Record Holder of Series 17 Units.
“Series 17 Liquidation Preference” means a liquidation preference for each Series 17 Unit equal to $25.00 per unit (subject to adjustment for any splits, combinations or similar adjustments to the Series 17 Units).
“Series 17 Original Issue Date” means February 24, 2020.
“Series 17 Units” has the meaning given to such term in the preamble to this Part XIII of Schedule A.
“Series 17 Redemption Date” has the meaning given such term in Section 2(B)(d)(i) to this Part XIII of Schedule A.
“Series 17 Redemption Price” has the meaning given such term in Section 2(B)(d)(i) to this Part XIII of Schedule A.
| 2. | Terms of Series 17 Units. |
| A. | General. Each Series 17 Unit shall be identical in all respects to every other Series 17 Unit, except as to the respective dates from which the Series 17 Liquidation Preference shall increase or from which Series 17 Distributions may begin accruing, to the extent such dates may differ. The Series 17 Units represent perpetual interests in the Partnership and shall not give rise to a claim by the Partnership or a Series 17 Holder for conversion or, except as set forth in Section 2(B)(d) to this Part XIII of Schedule A, redemption thereof at a particular date. |
| B. | Rights of Series 17 Units. The Series 17 Units shall have the following rights, preferences and privileges and shall be subject to the following duties and obligations: |
| a. | Series 17 Units. |
| i. | The authorized number of Series 17 Units shall be unlimited. Series 17 Units that are purchased or otherwise acquired by the Partnership shall be cancelled. |
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| ii. | The Series 17 Units shall be represented by one or more Certificates (or in book entry) on the books and records of the Partnership in the name of the Series 17 Holder. |
| b. | Distributions. |
| i. | Distributions on each Outstanding Series 17 Unit shall be cumulative and shall accrue at the applicable Series 17 Distribution Rate from and including the Series 17 Original Issue Date (or, for any subsequently issued and newly Outstanding Series 17 Units, from and including the Series 17 Distribution Payment Date immediately preceding the issue date of such Series 17 Units) until such time as the Partnership pays the Series 17 Distribution or redeems such Series 17 Unit in accordance with Section 2(B)(d) to this Part XIII of Schedule A, whether or not such Series 17 Distributions shall have been declared. Series 17 Holders shall be entitled to receive Series 17 Distributions from time to time out of any assets of the Partnership legally available for the payment of distributions at the Series 17 Distribution Rate per Series 17 Unit when, as, and, if declared by the General Partner. Series 17 Distributions, to the extent declared by the General Partner to be paid by the Partnership in accordance with this Section 2(B)(b) to this Part XIII of Schedule A, shall be paid, in Arrears, on each Series 17 Distribution Payment Date. Series 17 Distributions shall accrue in each Series 17 Distribution Period, provided that distributions shall accrue on accrued but unpaid Series 17 Distributions at the Series 17 Distribution Rate. If any Series 17 Distribution Payment Date otherwise would occur on a date that is not a Business Day, declared Series 17 Distributions shall be paid on the immediately succeeding Business Day without the accrual of additional distributions. Series 17 Distributions shall be payable based on a 360-day year consisting of twelve 30 day months. All Series 17 Distributions that are (1) accrued and unpaid or (2) payable by the Partnership pursuant to this Section 2(B)(b) or 2(B)(e) to this Part XIII of Schedule A shall be payable without regard to the income of the Partnership and shall be treated for U.S. federal income tax purposes as guaranteed payments for the use of capital under Section 707(c) of the Code, including for the purpose of determining Net Income and Net Loss and otherwise maintaining Capital Accounts, unless there is a change in Tax law or administrative practice that requires treatment other than as guaranteed payments for U.S. federal income tax purposes, as determined in the sole discretion of the General Partner. For U.S. federal income tax purposes, the deduction attributable to any amount treated as a guaranteed payment shall be specially allocated to the Partners in a manner determined by the General Partner in its sole discretion that is not inconsistent with the applicable provisions of the Code and Treasury Regulations. Such guaranteed payments with respect to any Series 17 Distribution Period shall be for the account of the Series 17 Holders as of the applicable Series 17 Distribution Record Date, or as otherwise reasonably determined by the General Partner. |
| ii. | [Intentionally Omitted]. |
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| iii. | Not later than 5:00 p.m., New York City time, on each Series 17 Distribution Payment Date, the Partnership shall pay those Series 17 Distributions, if any, that shall have been declared by the General Partner to Series 17 Holders on the Record Date for the applicable Series 17 Distribution. The Record Date (the “Series 17 Distribution Record Date”) for the payment of any Series 17 Distributions shall be the fifteenth day of the calendar month of the applicable Series 17 Distribution Payment Date, or such other record date as may be fixed by the General Partner in accordance with this Section 2 to this Part XIII of Schedule A. So long as any Series 17 Units are Outstanding, no distribution shall be declared or paid or set aside for payment on any Junior Securities (other than a distribution payable solely in Junior Securities) unless all accrued and unpaid Series 17 Distributions up to and including such distributions payable for the last completed Series 17 Distribution Period, and all accrued and unpaid distributions up to and including the distribution payable for the last completed period for which distributions were payable on all Parity Securities, have been declared and paid or set apart for payment; provided, however, notwithstanding anything to the contrary in this Section 2(B)(b)(iii) to this Part XIII of Schedule A, if a distribution period with respect to a class of Junior Securities or Parity Securities is shorter than the Series 17 Distribution Period, the General Partner may declare and pay regular distributions with respect to such Junior Securities or Parity Securities, so long as, at the time of declaration of such distribution, (i) there are no Series 17 Distributions in Arrears, and (ii) the General Partner expects to have sufficient funds to pay the full distribution in respect of the Series 17 Units on the next successive Series 17 Distribution Payment Date. Accrued Series 17 Distributions in Arrears for any past Series 17 Distribution Period may be declared by the General Partner and paid on any date fixed by the General Partner, whether or not a Series 17 Distribution Payment Date, to Series 17 Holders on the Record Date for such payment, which may not be less than 10 days before such payment date. Subject to the next succeeding sentence, if all accrued Series 17 Distributions in Arrears on all Outstanding Series 17 Units and all accrued distributions in arrears on any Parity Securities shall not have been declared and paid, or if sufficient funds for the payment thereof shall not have been set apart, payment of accrued distributions in Arrears on the Series 17 Units and accrued distributions in arrears on any such Parity Securities shall be made in order of their respective distribution payment dates, commencing with the earliest distribution payment date. If less than all distributions payable with respect to all Series 17 Units and any other Parity Securities are paid, any partial payment shall be made pro rata with respect to the Series 17 Units and any such other Parity Securities entitled to a distribution payment at such time in proportion to the aggregate distribution amounts remaining due in respect of such Series 17 Units and such other Parity Securities, if any, at such time and apportioned equally among them in accordance with the relative amount to be paid or allocated to each group. Subject to Sections 16.3 of this Agreement and Section 2(B)(f) to this Part XIII of Schedule A, Series 17 Holders shall not be entitled to any distribution, whether payable in cash, property or Partnership Interests, in excess of full cumulative Series 17 Distributions. Except insofar as distributions accrue on the amount of any accrued and unpaid Series 17 Distributions as described in Section 2(B)(b)(i) to this Part XIII of Schedule A, no interest or sum of money in lieu of interest shall be payable in respect of any distribution payment which may be in Arrears on the Series 17 Units. Declared Series 17 Distributions shall be paid to the Series 17 Holders in same-day funds on each Series 17 Distribution Payment Date or other distribution payment date in the case of payments for Series 17 Distributions in Arrears. |
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| c. | Voting Rights. |
| i. | Notwithstanding anything to the contrary in this Agreement, the Series 17 Units shall not have any voting rights or rights to consent or approve any action or matter, except as set forth in Section 6 of Part I of Schedule A to this Agreement, this Section 2(B)(c) to this Part XIII of Schedule A or as otherwise required by Bermuda Law. |
| ii. | The rights, privileges, restrictions and conditions attached to the Series 17 Units may be added to, changed or removed but only with the approval of the holders of a majority of the Outstanding Series 17 Units, given as hereinafter specified. |
| iii. | The approval of the holders of the Series 17 Units as a series in respect of any matter requiring the consent of the holders of the Series 17 Units as a series may be given in such manner as may then be required by Law, subject to a minimum requirement that such approval be passed by the requisite affirmative vote of the votes cast at a meeting of the holders of Series 17 Units as a series duly called and held for that purpose in accordance with Article 17 of this Agreement or given by resolution signed by holders of Series 17 Units as a series in accordance with Article 17 of this Agreement. |
| iv. | Each Series 17 Unit shall entitle the holder thereof to one vote for the purposes of any approval at a meeting of the holders of the Series 17 Units or by written consent. |
| d. | Optional Redemption. |
| i. | The Partnership shall have the right to redeem the Series 17 Units (i) at any time, and from time to time, on or after March 31, 2025, in whole or in part, (ii) prior to March 31, 2025, if BREP redeems the BEP Series 17 Units pursuant to a BEP Series 17 Rating Event, in whole but not in part or (iii) if BREP redeems the BEP Series 17 Units following a BEP Series 17 Change in Tax Law where, in BREP’s reasonable determination, a substantial probability that BREP or any BEP Series 17 Successor Entity would become obligated to pay any BEP Series 17 Additional Amounts on the next succeeding distribution payment date with respect to the BEP Series 17 Units and the payment of those BEP Series 17 Additional Amounts cannot be avoided by the use of any reasonable measures available to BREP or any BEP Series 17 Successor Entity, in whole but not in part, using any source of funds legally available for such purpose. Any such redemption shall occur on a date set by the General Partner (the “Series 17 Redemption Date”). The Partnership shall effect any such redemption by paying cash for each Series 17 Unit to be redeemed equal to 100% (in the case of a redemption described in clauses (i) and (iii) of this Section 2(B)(d)(i) to this Part XIII of Schedule A), or 102% (in the case of a redemption described in clause (ii) of this Section 2(B)(d)(i) to this Part XIII of Schedule A), of the Series 17 Liquidation Preference for such Series 17 Unit on such Series 17 Redemption Date plus an amount equal to all unpaid Series 17 Distributions thereon from the Series 17 Original Issue Date to, but excluding, the Series 17 Redemption Date (whether or not such distributions shall have been declared) (the “Series 17 Redemption Price”). The Series 17 Redemption Price shall be paid by the Partnership to the Series 17 Holders on the Series 17 Redemption Date. |
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| ii. | The Partnership shall give notice of any redemption not less than 25 days and not more than 60 days before the scheduled Series 17 Redemption Date to the Series 17 Holders (as of 5:00 p.m. New York City time on the Business Day next preceding the day on which notice is given) of any Series 17 Units to be redeemed as such Series 17 Holders’ names appear on the books of the Partnership and at the address of such Series 17 Holders shown therein. |
| iii. | If the Partnership elects to redeem less than all of the Outstanding Series 17 Units in the event of an optional redemption on or after March 31, 2025, the number of Series 17 Units to be redeemed shall be determined by the General Partner, and such Series 17 Units shall be redeemed by such method of selection as the General Partner shall determine, either apportioned equally among all Series 17 Holders in accordance with the relative number or percentage of Series 17 Units held by each such Series 17 Holder or by lot, with adjustments to avoid redemption of fractional Series 17 Units. The aggregate Series 17 Redemption Price for any such partial redemption of the Outstanding Series 17 Units shall be allocated correspondingly among the redeemed Series 17 Units. The Series 17 Units not redeemed shall remain Outstanding and entitled to all the rights, preferences and duties provided in this Section 2 to this Part XIII of Schedule A. |
| iv. | No later than 10:00 a.m. New York City time on the Series 17 Redemption Date, the Partnership shall pay or cause to be paid to the Series 17 Holders immediately available funds sufficient to pay the Series 17 Redemption Price to each Series 17 Holder whose Series 17 Units are to be redeemed upon surrender or deemed surrender of the Certificates (or book entry position) therefor. |
| v. | Any Series 17 Units that are redeemed or otherwise acquired by the Partnership shall be cancelled. If only a portion of the Series 17 Units represented by a Certificate shall have been called for redemption, upon surrender of the Certificate to the Partnership, the Partnership shall issue and deliver to the Series 17 Holders a new Certificate (or adjust the applicable book-entry account) representing the number of Series 17 Units represented by the surrendered Certificate that have not been called for redemption. |
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| vi. | Notwithstanding anything to the contrary in this Section 2 to this Part XIII of Schedule A, unless all accrued and unpaid Series 17 Distributions up to and including the distribution payable for the last completed Series 17 Distribution Period, and all accrued and unpaid distributions up to and including the distribution payable for the last completed period for which distributions were payable on all Parity Securities, have been declared and paid or set apart for payment, the Partnership shall not be permitted to repurchase, redeem or otherwise acquire, in whole or in part, any Series 17 Units or Parity Securities, except pursuant to a purchase or exchange offer made on the same relative terms to all Series 17 Holders and holders of any Parity Securities. So long as any Series 17 Units are Outstanding, except out of the net cash proceeds of a substantially concurrent issue of Junior Securities, unless all accrued and unpaid Series 17 Distributions up to and including the distribution payable for the last completed Series 17 Distribution Period, and all accrued and unpaid distributions up to and including the distribution payable for the last completed period for which distributions were payable on all Parity Securities, have been declared and paid or set apart for payment, the Partnership shall not be permitted to redeem, repurchase or otherwise acquire any Equity Units or any other Junior Securities. |
e. Payment of Additional Amounts. If BREP shall be required, pursuant to Section 2(B)(e) of Part XIII of Schedule A of the BREP Partnership Agreement to pay additional amounts to holders of the BEP Series 17 Units, the Partnership shall pay to the Series 17 Holders such additional amounts as distributions on the Series 17 Units as may be necessary such that the additional amounts paid as distributions by the Partnership shall equal the additional amounts paid by BREP pursuant to 2(B)(e) of Part XIII of Schedule A of the BREP Partnership Agreement.
f. Liquidation Rights. In the event of the liquidation, dissolution or winding-up of the Partnership, whether voluntary or involuntary, unless the Partnership is continued under the election to reconstitute and continue the Partnership pursuant to Section 16.2 of this Agreement, the Series 17 Holders shall be entitled to receive the Series 17 Liquidation Preference per Series 17 Unit held by them, together with all accrued (whether or not declared) and unpaid Series 17 Distributions up to but excluding the date of payment or distribution (less any tax required to be deducted and withheld by the Partnership), before any amounts shall be paid or any assets of the Partnership distributed to the holders of any Junior Securities. Upon payment of such amounts, the Series 17 Holders shall not be entitled to share in any further distribution of the assets of the Partnership.
g. No Sinking Fund. The Series 17 Units shall not have the benefit of any sinking fund.
h. Record Holders. To the fullest extent permitted by applicable law, the General Partner and the Partnership may deem and treat any Series 17 Holder as the true, lawful, and absolute owner of the applicable Series 17 Units for all purposes, and neither the General Partner nor the Partnership shall be affected by any notice to the contrary, except as otherwise provided by law.
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i. Other Rights; Fiduciary Duties. The Series 17 Units and the Series 17 Holders shall not have any designations, preferences, rights, powers or duties, other than as set forth in this Agreement or as provided by applicable law. Notwithstanding anything to the contrary in this Agreement or any duty existing at law, in equity or otherwise, to the fullest extent permitted by applicable law, neither the General Partner nor any other Indemnified Party shall owe any duties, including fiduciary duties, or have any liabilities to Series 17 Holders, other than the General Partner’s duty to act at all times in good faith.
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Exhibit 4.1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE PARTNERSHIP OR THE TRANSFER AGENT NAMED ON THE FACE OF THIS CERTIFICATE, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE STATEMENT WITH RESPECT TO SERIES 17 PREFERRED UNITS. IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE TRANSFER AGENT NAMED ON THE FACE OF THIS CERTIFICATE SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
FORM OF CERTIFICATE EVIDENCING
5.25% CLASS A PREFERRED LIMITED PARTNERSHIP UNITS, SERIES 17
OF
BROOKFIELD RENEWABLE PARTNERS L.P.
A PARTNERSHIP FORMED UNDER THE LAWS OF BERMUDA
| CERTIFICATE NUMBER: | INITIAL NUMBER OF SERIES 17 PREFERRED UNITS: ___________ |
CUSIP Number: G16258231
ISIN: BMG162582313
Brookfield Renewable Partners L.P., a Bermuda exempted partnership (the “Partnership”), hereby certifies that CEDE & CO. (the “Holder”), is the registered owner of the number shown on Schedule I hereto of fully paid and non-assessable units of the Partnership’s designated 5.25% Class A Preferred Limited Partnership Units, Series 17, with a liquidation preference of $25.00 per unit (the “Series 17 Preferred Units”). The Series 17 Preferred Units are transferable on the books of the Partnership or its duly authorized Transfer Agent, in person or by a duly authorized attorney, upon surrender of this certificate properly endorsed. The rights, preferences and limitations of the Series 17 Preferred Units are set forth in, and this certificate and the Series 17 Preferred Units represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Fourth Amended and Restated Limited Partnership Agreement of the Partnership, dated May 3, 2016, as amended on May 25, 2016, February 14, 2017, January 16, 2018, February 28, 2019, March 11, 2019, and February 24, 2020, and as the same may be further amended from time to time (the “Partnership Agreement”). Capitalized terms used herein but not defined shall have the meaning given them in the Partnership Agreement. Copies of the Partnership Agreement are on file at, and will be furnished without charge on delivery of written request to the Partnership at the principal office of the Partnership. In the case of any conflict between this certificate and the Partnership Agreement, the provisions of the Partnership Agreement shall control and govern.
Upon receipt of this executed certificate, the Holder is bound by the Partnership Agreement and is entitled to the benefits thereunder.
The Holder, by accepting this certificate, is deemed to have (i) requested admission as, and agreed to become, a limited partner and to have agreed to comply with and be bound by and to have executed the Partnership Agreement, (ii) represented and warranted that the Holder has all right, power and, if an individual, the capacity necessary to enter into the Partnership Agreement, (iii) granted the powers of attorney provided for in the Partnership Agreement, (iv) made the waivers and given the consents and approvals contained in the Partnership Agreement; and (v) ratified and confirmed all contracts, agreements, assignments and instruments entered into on behalf of the Partnership in accordance with the Partnership Agreement.
This certificate shall not be valid for any purpose unless it has been countersigned and registered by the registrar and transfer agent (the “Transfer Agent”).
IN WITNESS WHEREOF, this certificate has been executed on behalf of the Partnership by its General Partner this ____ day of February, _______.
BROOKFIELD RENEWABLE PARTNERS LIMITED, the general
partner of BROOKFIELD RENEWABLE PARTNERS L.P.
|
|
||||
| Name: Title: |
||||
COUNTERSIGNATURE
These are the Series 17 Preferred Units referred to in the within-mentioned Partnership Agreement.
Dated: _________________, _____
REGISTRAR AND TRANSFER AGENT
COMPUTERSHARE TRUST COMPANY OF CANADA
|
|
||||
| Name: Title: |
||||
FOR VALUE RECEIVED, ________________________________________________________________, hereby assigns, conveys, sells and transfers unto
(Please print or typewrite name and address of Assignee)
|
|
(Please insert Social Security or other identifying number of Assignee) |
_____________________________Series 17 Preferred Units representing preferred limited partnership interests evidenced by this certificate, subject to the Partnership Agreement, and does hereby
irrevocably constitute and appoint _______________________________________________________________________________
as its attorney-in-fact with full power of substitution to transfer the same on the books of Brookfield Renewable Partners L.P.
Dated:
|
(Signature) |
(Signature) |
| NOTICE: | THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO SEC RULE 17Ad-15 |
| Signature Guaranteed By: _____________________________________________ |
No transfer of the Series 17 Preferred Units evidenced hereby will be registered on the books of the Partnership or its duly authorized Transfer Agent unless the certificate evidencing the Series 17 Preferred Units to be transferred is surrendered for registration of transfer.
SCHEDULE I
BROOKFIELD RENEWABLE PARTNERS L.P.
Global Series 17 Preferred Unit
Certificate Number: ____
The number of Series 17 Preferred Units initially represented by this global Series 17 Preferred Unit shall be _______________. Thereafter the Transfer Agent shall note changes in the number of Series 17 Preferred Units evidenced by this global Series 17 Preferred Unit in the table set forth below:
| Date of Exchange |
Amount of Decrease in Number of Preferred Unit |
Amount of Increase in Number of Preferred Unit |
Number of Series 17 Preferred Units Represented by this Global Series 17 Preferred Unit following Decrease |
Signature of Authorized Officer of Transfer Agent | ||||
Exhibit 5.1
Dear Sirs
Brookfield Renewable Partners L.P.
We have acted as legal advisers as to matters of Bermuda law to Brookfield Renewable Partners L.P., a limited partnership organized under the laws of the Islands of Bermuda (Partnership). We have been requested to render this opinion to you in connection with the filing by the Partnership of a prospectus supplement dated 19 February 2020 (Prospectus Supplement) to a post-effective amendment no. 1 to the Partnership’s automatic shelf registration statement on Form F-3 (Reg. No. 333-224206) (Registration Statement) with the Securities and Exchange Commission (SEC) pursuant to the Securities Act of 1933, as amended (Securities Act), and the rules and regulations promulgated thereunder, relating to the registration under the Securities Act of 8,000,000 of 5.25% Class A Preferred Limited Partnership Units, Series 17 (Units) of the Partnership.
For the purposes of this opinion we have examined and relied upon the documents listed (which in some cases, are also defined) in the Schedule to this opinion (Documents).
Assumptions
In stating our opinion we have assumed:
| 1. | the authenticity, accuracy and completeness of all Documents submitted to us as originals and the conformity to authentic original Documents of all Documents submitted to us as certified, conformed, notarized or photostatic copies; |
| 2. | the genuineness of all signatures on the Documents; |
| 3. | the authority, capacity and power of persons signing the Documents; |
| 4. | that any representation, warranty or statement of fact or law, other than the laws of Bermuda made in any of the Documents, is true, accurate and complete; |
| 5. | that there are no provisions of the laws or regulations of any jurisdiction other than Bermuda which would have any implication in relation to the opinions expressed herein; |
| 6. | that there are no provisions of the laws or regulations of any jurisdiction other than Bermuda which would be contravened by any actions taken by the Partnership in connection with the Registration Statement or which would have any implication in relation to the opinion expressed herein and that, in so far as any obligation under, or action to be taken under, the Registration Statement is required to be performed or taken in any jurisdiction outside Bermuda, the performance of such obligation or the taking of such action will constitute a valid and binding obligation of each of the parties thereto under the laws of that jurisdiction and will not be illegal by virtue of the laws of that jurisdiction; |
| 7. | that the Resolutions are in full force and effect, have not been rescinded, either in whole or in part, and accurately record the resolutions passed by the board of directors of the General Partner, by way of unanimous written resolutions and that there is no matter affecting the authority of the directors of the General Partner to effect the listing of the Units on behalf of the Partnership, not disclosed by the Constitutional Documents or the Resolutions, which would have any adverse implication in relation to the opinions expressed herein; and |
| 8. | that the records which were the subject of the Searches were complete and accurate at the time of such searches and disclosed all information which is material for the purposes of this opinion and such information has not since the date of the Searches been materially altered. |
Opinion
Based upon and subject to the foregoing and subject to the reservations set out below and to any matters not disclosed to us, we are of the opinion that:
| 1. | The Partnership is an exempted limited partnership established and existing under the laws of Bermuda. The Partnership possesses the capacity to sue and be sued and is in good standing under the laws of Bermuda. All suits in respect of the Partnership shall be prosecuted against the General Partner, in its capacity as general partner of the Partnership. |
| 2. | The issue of the Units has been duly authorized by all necessary action on the part of the Partnership and when issued as contemplated by the Prospectus Supplement and Resolutions will be validly issued, fully paid and non-assessable units of the Partnership. |
Reservations
We have the following reservations:
| 1. | We express no opinion as to any law other than Bermuda law and none of the opinions expressed herein relates to compliance with or matters governed by the laws of any jurisdiction except Bermuda. This opinion is limited to Bermuda law as applied by the courts of Bermuda at the date hereof. |
| 2. | Where an obligation is to be performed in a jurisdiction other than Bermuda, the courts of Bermuda may refuse to enforce it to the extent that such performance would be illegal under the laws of, or contrary to public policy of such other jurisdiction. |
| 3. | Any reference in this opinion to Units being “non-assessable” shall mean, in relation to fully-paid Units of the Partnership and subject to any contrary provision in any agreement in writing between the Partnership and the holder of Units, that: no holder shall be obliged to contribute further amounts to the capital of the Partnership, either in order to complete payment for their Units, to satisfy claims of creditors of the Partnership, or otherwise. |
| 4. | Searches of the Register of Companies at the office of the Registrar of Companies and of the Supreme Court Causes Book and Judgement Book at the Registry of the Supreme Court and of the Register of Mortgages at the office of the Registry General are not conclusive and it should be noted that the Register of Companies and the Supreme Court Causes Book and the Register of Mortgages do not reveal: |
| (i) | details of matters which have been lodged for filing or registration which as a matter of best practice of the Registrar of Companies or the Registry of the Supreme Court, the Registrar General would have or should have been disclosed on the public file, the Causes Book, the Judgment Book or the Register of Mortgages, as the case may be, but for whatever reason have not actually been filed or registered or are not disclosed or which, notwithstanding filing or registration, at the date and time the search is concluded are for whatever reason not disclosed or do not appear on the public file, the Causes Book, Judgment Book or Register of Mortgages; |
| (ii) | details of matters which should have been lodged for filing or registration at the Registrar of Companies or the Registry of the Supreme Court but have not been lodged for filing or registration at the date the search is concluded; |
| (iii) | whether an application to the Supreme Court for a winding-up petition or for the appointment of a receiver or manager has been prepared but not yet been presented or has been presented but does not appear in the Causes Book at the date and time the search is concluded; |
| (iv) | whether any arbitration or administrative proceedings are pending or whether any proceedings are threatened, or whether any arbitrator has been appointed; or |
| (v) | whether a receiver or manager has been appointed privately pursuant to the provisions of a debenture or other security, unless notice of the fact has been entered in the Register of Charges in accordance with the provisions of the Companies Act 1981, as amended. |
| 5. | The Limited Partnership Act 1883 (Act) provides that a limited partner shall be liable as a general partner if he takes part in the management of the partnership. |
| 6. | A limited partner is liable to the Partnership, or to its creditors, for any amount in respect of such limited partner’s contribution to the Partnership to the extent such contribution has not been contributed in full, or to the extent such contribution is either released or returned to the limited partner contrary to the restrictions on reductions of capital contained in the Act. |
| 7. | A limited partner is liable for damages on account of misrepresentation in respect of false statements contained in the certificate of limited partnership, any supplementary certificates or certificate of cancellation in respect of the Partnership, to the extent a limited partner signed such certificate, or caused another to sign it on his/her behalf, and knew such statement to be false at the time of signature. |
| 8. | Every partner of the Partnership who is guilty of any fraud in the affairs of the Partnership shall be liable civilly to the party injured to the extent of his damage and shall be liable for penalties applicable to offences committed in contravention of the Act. |
| 9. | In opinion paragraph 1, the term ‘good standing’ means only that the Partnership has received a Certificate of Compliance from the Registrar of Companies in Hamilton, Bermuda which confirms that it has neither failed to make any filing with any Bermuda governmental authority nor to pay any Bermuda government fee or tax. |
Disclosure
This opinion is addressed to you in connection with the registration of the Units with the SEC and is not to be made available to, or relied on by any other person or entity (other than the Unitholders as referenced in the Registration Statement), or for any other purpose, nor quoted or referred to in any public document nor filed with any governmental agency or person (other than the SEC in connection with the Registration Statement), without our prior written consent except as may be required by law or regulatory authority. We consent to the filing of this opinion as an exhibit to the Partnership’s Report of Foreign Issuer on Form 6-K being filed on or about the date hereof and incorporated by reference into the Registration Statement and further consent to the reference to our firm under the caption “Legal Matters” in the Registration Statement and Prospectus Supplement.
This opinion is governed by and is to be construed in accordance with Bermuda law. Further, this opinion speaks as of its date and is strictly limited to the matters stated in it and we assume no obligation to review or update this opinion if applicable law or the existing acts or circumstances should change.
Yours faithfully
| /s/ Appleby (Bermuda) Limited |
SCHEDULE
| 1. | The entries and filings shown in respect of the Partnership and of Brookfield Renewable Partners Limited the general partner of the Partnership (General Partner), on the files of the Partnership and the General Partner maintained in the Registrar of Companies at the office of the Registrar of Companies in Hamilton, Bermuda, as revealed by searches on 21 February 2020, and the entries and filings shown in respect of the Partnership and the General Partner in the Supreme Court Causes book maintained at the Registry of the Supreme Court, Hamilton, Bermuda, and of the Register of Mortgages at the office of the Registry General as revealed by searches on 21 February 2020 (Searches). |
| 2. | Copy of Fourth Amended and Restated Limited Partnership Agreement of the Partnership between the General Partner and each person who is admitted to the partnership as a limited partner from time to time dated 3 May 2016 as amended by the First Amendment to the Fourth Amended and Restated Limited Partnership Agreement dated 25 May 2016, the Second Amendment to the Fourth Amended and Restated Limited Partnership Agreement dated 14 February 2017, the Third Amendment to the Fourth Amended and Restated Limited Partnership Agreement dated 16 January 2018, the Fourth Amendment to the Fourth Amended and Restated Limited Partnership Agreement dated 28 February 2019, the Fifth Amendment to the Fourth Amended and Restated Limited Partnership Agreement dated 11 March 2019 and the Sixth Amendment to the Fourth Amended and Restated Limited Partnership Agreement dated 24 February 2020 (Limited Partnership Documents). |
| 3. | In respect of the Partnership, the Certificate of Registration of an Exempted and Limited Partnership and supplements thereto. |
| 4. | Certified copies of the Certificate of Incorporation, Memorandum of Association and Bye-Laws of the General Partner (General Partner Constitutional Documents, together with the Limited Partnership Documents, Constitutional Documents). |
| 5. | Copy of the unanimous written resolutions of the board of directors of the General Partner dated effective 15 February 2020 (Resolutions). |
| 6. | Certificates of Compliance each dated 21 February 2020 issued by the Registrar of Companies in respect of the General Partner and the Partnership. |
| 7. | Copy of the Registration Statement. |
| 8. | Copy of the Prospectus Supplement. |
Exhibit 8.1
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1114 Avenue of the Americas, 23rd Floor New York, New York 10036.7703 USA P. 212.880.6000 | F. 212.682.0200 www.torys.com |
February 24, 2020
Brookfield Renewable Partners L.P.
73 Front Street
5th Floor
Hamilton HM 12, Bermuda
| Re: | United States Federal Income Tax Opinion |
Ladies and Gentlemen:
We have acted as United States federal income tax counsel to Brookfield Renewable Partners L.P. (formerly “Brookfield Renewable Energy Partners L.P.”), a Bermuda exempted limited partnership (“BEP”), in connection with the offering of 5.25% Class A Preferred Limited Partnership Units, Series 17, of BEP. We have been asked to render our opinion as to certain U.S. tax matters disclosed in the prospectus supplement, dated February 19, 2020 (the “Prospectus Supplement”), filed by BEP with the U.S. Securities and Exchange Commission under the U.S. Securities Act of 1933, as amended (the “Act”). Capitalized terms used and not defined herein have the meanings ascribed to them in the Prospectus Supplement.
In so acting, we have examined originals or copies, certified or otherwise identified to our satisfaction, of:
(i) the Prospectus Supplement;
(ii) the Limited Partnership Agreement in respect of BEP, dated June 27, 2011, by and among 2288509 Ontario Inc., an Ontario corporation (“2288509”), and Brookfield Renewable Power Inc., an Ontario corporation (“BRPI”);
(iii) the Amended and Restated Limited Partnership Agreement of BEP, dated as of November 20, 2011, by and among 2288509, BRPI, and each person admitted to BEP as a limited partner in accordance with the provisions of such agreement, as amended May 4, 2012;
(iv) the Second Amended and Restated Limited Partnership Agreement of BEP, dated as of November 25, 2015, by and among Brookfield Renewable Partners Limited, a Bermuda exempted company (the “BEP General Partner”), and each person admitted to BEP as a limited partner in accordance with the provisions of such agreement;
(v) the Third Amended and Restated Limited Partnership Agreement of BEP, dated as of February 11, 2016, by and among the BEP General Partner and each person admitted to BEP as a limited partner in accordance with the provisions of such agreement;
(vi) the Fourth Amended and Restated Limited Partnership Agreement of BEP, dated as of May 3, 2016, by and among the BEP General Partner and each person admitted to BEP as a limited partner in accordance with the provisions of such agreement, as amended (the “BEP Limited Partnership Agreement”);
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(vii) the Limited Partnership Agreement in respect of Brookfield Renewable Energy L.P., a Bermuda limited partnership (“BRELP”), dated June 27, 2011, by and among BREP Holding L.P., a Bermuda limited partnership (the “BRELP General Partner”), and BEP;
(viii) the Amended and Restated Limited Partnership Agreement of BRELP, dated as of November 20, 2011, by and among BEP and the BRELP General Partner;
(ix) the Second Amended and Restated Limited Partnership Agreement of BRELP, dated as of November 25, 2015, by and among the BRELP General Partner, BEP, BRPI, Brookfield Energy Marketing L.P., an Ontario limited partnership (“BEM LP”), BRP Canada GP LP, an Ontario limited partnership (“LB LP”), and each person admitted to BRELP as a limited partner in accordance with the provisions of such agreement;
(x) the Third Amended and Restated Limited Partnership Agreement of BRELP, dated as of February 11, 2016, by and among the BRELP General Partner, BEP, BRPI, BEM LP, LB LP, and each person admitted to BRELP as a limited partner in accordance with the provisions of such agreement, as amended (the “BRELP Limited Partnership Agreement”);
(xi) the Special Resolution of the Sole Shareholder of 2288509, dated December 15, 2011;
(xii) the General Conveyance by 2288509 in favour of the BEP General Partner, dated December 15, 2011;
(xiii) the Counterpart Agreement of the BEP General Partner, dated December 15, 2011;
(xiv) the Articles of Dissolution of 2288509, without date; and
(xv) the certificate of the BEP General Partner and the BRELP General Partner, of even date herewith, delivered to us for purposes of this opinion, including all schedules and exhibits thereto (the “Certificate”); and
(xvi) such agreements, documents, and other instruments as we have deemed necessary or appropriate.
In addition, we have examined, and have relied as to matters of fact upon, originals, duplicates, certified or conformed copies of such records, agreements, documents, and other instruments and such certificates or comparable documents of public officials and of officers and representatives of BEP and BRELP, and have made such other and further investigations, as we have deemed necessary or appropriate as a basis for the opinion hereinafter set forth.
In rendering this opinion, we have assumed that (i) the transactions described in the Prospectus Supplement will be consummated in the manner set forth therein; (ii) the representations made in the Certificate are true, correct, and complete and will remain true, correct, and complete at all times; (iii) any representation set forth in the Certificate qualified by knowledge, intention, belief, or any similar qualification is and will remain true, correct, and complete without regard to such qualification; and (iv) each of BEP and BRELP operates and will continue to operate in accordance with certain operating guidelines set forth in such Certificate. In addition, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies, and the authenticity of the originals of such latter documents.
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Based upon the foregoing, and subject to the qualifications, assumptions, and limitations stated herein and in the Prospectus Supplement, we are of the opinion that (i) the statements set forth in the Prospectus Supplement under the caption “CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS,” insofar as they express conclusions as to the application of United States federal income tax law, represent our opinion as to the matters discussed therein; and (ii) as of the date hereof, each of BEP and BRELP will be classified as a partnership and not as an association or publicly traded partnership taxable as a corporation for United States federal income tax purposes.
Our opinion is based on current provisions of the Internal Revenue Code of 1986, as amended, the Treasury Regulations promulgated thereunder, published pronouncements of the Internal Revenue Service, and case law, in each case as currently in effect and subject to change at any time with retroactive effect. Any change in applicable laws or facts and circumstances, or any inaccuracy in the statements, facts, assumptions, or representations on which we have relied, may affect the continuing validity of the opinion set forth herein. We assume no responsibility to inform you of any such change or inaccuracy. No opinion is expressed concerning any law other than the federal income tax law of the United States.
We hereby consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Prospectus Supplement and to the references to our firm under the captions “CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS” and “LEGAL MATTERS” in the Prospectus Supplement. In giving this consent, we do not hereby agree that we come within the category of persons whose consent is required by the U.S. Securities Act of 1933, as amended, or the rules thereunder.
| Very truly yours, |
| /s/ Torys LLP |