Brookfield Infrastructure Partners L.P 6-K, filed May 31, 2024
Brookfield Infrastructure Partners L.P. (BIP)
About this 6-K
Brookfield Infrastructure Partners L.P filed this 6-K on May 31, 2024.
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 May 2024
Commission file number 001-33632
BROOKFIELD INFRASTRUCTURE PARTNERS L.P.
(Exact name of Registrant as specified in its charter)
73 Front Street, Fifth Floor
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 ¨
The exhibits to this Form 6-K are incorporated by reference into the registrant’s registration statement on Form F-3ASR filed with the Securities and Exchange Commission (the “SEC”) on April 5, 2024 (File No. 333-278529).
Exhibit Index
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.
|
BROOKFIELD INFRASTRUCTURE PARTNERS L.P., by its general partner, BROOKFIELD INFRASTRUCTURE PARTNERS LIMITED | |||
| Date: May 31, 2024 | By: | /s/ Jane Sheere | |
| Name: Jane Sheere | |||
| Title: Secretary | |||
Exhibit 1.1
Execution Version
UNDERWRITING AGREEMENT
May 29, 2024
Brookfield Infrastructure Finance ULC
$150,000,000 7.250% Subordinated Notes due 2084
Underwriting Agreement
181 Bay Street, Suite 100
Brookfield Place
Toronto, Ontario
Canada M5J 2T3
Wells Fargo Securities, LLC
BofA Securities, Inc.
J.P. Morgan Securities LLC
Morgan Stanley & Co. LLC
RBC Capital Markets, LLC
UBS Securities 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, North Carolina 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 Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
c/o RBC Capital Markets, LLC
Brookfield Place
200 Vesey Street, 8th Floor
New York, NY 10281
c/o UBS Securities LLC
1285 Avenue of the Americas
New York, New York 10019
Dear Sirs/Mesdames:
Brookfield Infrastructure Finance ULC (the “Company”), an unlimited liability company organized under the laws of Alberta, Canada, 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”), the respective amounts set forth in such Schedule 1 of $150,000,000 aggregate principal amount of 7.250% Subordinated Notes due 2084 (the “Firm Notes”) and also proposes to issue and sell to the Underwriters, at the option of the Underwriters, an aggregate amount of not more than $22,500,000 aggregate principal amount of its 7.250% Subordinated Notes due 2084 (the “Optional Notes” and, together with the Firm Notes, the “Notes”). The Notes are to be fully and unconditionally guaranteed, on a subordinated basis (the “Guarantees”, and, together with the Notes, the “Securities”), by Brookfield Infrastructure Partners L.P. (“BIP”), Brookfield Infrastructure L.P., BIP Bermuda Holdings I Limited, Brookfield Infrastructure Holdings (Canada) Inc., Brookfield Infrastructure LLC and BIPC Holdings Inc., each a majority owned subsidiary of BIP (collectively, the “Guarantors”). Brookfield Infrastructure Partners Limited, an exempted company existing under the laws of Bermuda is the general partner (the “General Partner”) of BIP.
Subject to the terms and conditions set forth in this Agreement, the Underwriters severally and not jointly offer to purchase the respective aggregate principal amount of Securities set forth opposite such Underwriter’s name in Schedule 1 hereto at a purchase price of 96.85% of the principal amount of the Notes sold to retail investors and 98.00% of the principal amount of the Notes sold to institutional investors, and by its acceptance of this offer the Company agrees to issue and sell the Securities to the Underwriters. All dollar amounts referred to herein are expressed in United States dollars and “$” shall mean United States dollars, except where otherwise indicated.
The Notes are to be issued pursuant to the indenture, dated as of May 24, 2021 (the “Base Indenture”), as supplemented by a second supplemental indenture, to be dated as of May 31, 2024 (the “Second Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company, the Guarantors, Computershare Trust Company, N.A., as U.S. trustee (the “U.S. Trustee”) and Computershare Trust Company of Canada, as Canadian trustee (the “Canadian Trustee”, and together with the U.S. Trustee, in such capacities, the “Trustees”).
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.
2
The Company and the Guarantors hereby jointly and severally confirm their agreement with the several Underwriters concerning the purchase and sale of the Securities, as follows:
| 1 | Definitions |
| 1.1 | Unless otherwise defined in this Agreement, the following terms shall have the following meanings, respectively: |
| (a) | “this Agreement”, “hereto”, “herein”, “hereunder”, “hereof” and similar expressions refer to the agreement resulting from the acceptance by the Company of this offer and not to any particular section or other portion of this Agreement; |
| (b) | “affiliate” has the meaning set forth in Rule 405 under the Securities Act; |
| (c) | “Agreements and Instruments” has the meaning ascribed thereto in Section 11.1(k) hereof; |
| (d) | “Applicable Securities Laws” means the Canadian Securities Laws and the Securities Laws; |
| (e) | “Applicable Time” means 4:25 p.m. ET on the date hereof; |
| (f) | “Audit Committee” has the meaning ascribed thereto in Section 11.1(v) hereof; |
| (g) | “Base Indenture” has the meaning ascribed thereto in the third paragraph of this Agreement; |
| (h) | “Base Prospectus” has the meaning ascribed thereto in Section 11.1(gg) hereof; |
| (i) | “BHC Act Affiliate” has the meaning ascribed thereto in Section 22 hereof; |
| (j) | “BIP” has the meaning ascribed thereto in the first paragraph of this Agreement; |
| (k) | “BIP Entities” means the entities listed on Schedule B to this Agreement; |
| (l) | “BIP Group” means BIP collectively with Brookfield Infrastructure L.P., Brookfield Infrastructure Corporation, the Holding Entities, the Operating Entities and any other direct or indirect subsidiary of a Holding Entity; |
| (m) | “Brookfield” means Brookfield Corporation and any affiliate of Brookfield Corporation, other than the BIP Group and including Brookfield Asset Management Ltd.; |
| (n) | “business day” means a day other than a Saturday, a Sunday or a statutory holiday in New York, New York or the City of Toronto, Ontario; |
| (o) | “Canadian Securities Laws” means 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 Company; |
| (p) | “Canadian Trustee” has the meaning ascribed thereto in the third paragraph of this Agreement; |
3
| (q) | “Class A Preferred Units” has the meaning ascribed thereto in Section 11.1(f). |
| (r) | “Closing Date” means May 31, 2024 or such earlier or later date, as the Underwriters and the Company may agree upon in writing; |
| (s) | “Closing Time” has the meaning ascribed thereto in Section 10.2 hereof; |
| (t) | “Company” has the meaning ascribed thereto in the first paragraph of this Agreement; |
| (u) | “Covered Entity” has the meaning ascribed thereto in Section 22 hereof; |
| (v) | “Default Right” has the meaning ascribed thereto in Section 22 hereof; |
| (w) | “Disclosure Package” means the Base Prospectus, as amended and supplemented by the Preliminary Prospectus dated May 29, 2024, the other information, if any, stated in Schedule A to this Agreement and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Schedule A hereto; |
| (x) | “DTC” has the meaning ascribed thereto in Section 10.5 hereof; |
| (y) | “Environmental Laws” has the meaning ascribed thereto in Section 11.1(r) hereof; |
| (z) | “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder; |
| (aa) | “Exchange Preferred Units” means units of a newly-issued series of Class A Preferred Units, which will be Series 16, into which the Notes, including accrued and unpaid interest thereon, will be exchanged automatically without the consent or action of the holders thereof upon the occurrence of certain events relating to bankruptcy and related events as described in the Prospectus; |
| (bb) | “Exchanges” means the TSX and the NYSE; |
| (cc) | “Existing Canadian Preferred Units” has the meaning ascribed thereto in Section 11.1(f) hereof. |
| (dd) | “General Partner” has the meaning ascribed thereto in the first paragraph of this Agreement; |
| (ee) | “Governmental Licenses” has the meaning ascribed thereto in Section 11.1(p) hereof; |
| (ff) | “Guarantees” has the meaning ascribed thereto in the first paragraph of this Agreement; |
| (gg) | “Guarantors” has the meaning ascribed thereto in the first paragraph of this Agreement; |
4
| (hh) | “Hazardous Materials” has the meaning ascribed thereto in Section 11.1(r) hereof; |
| (ii) | “Holding Entities” means certain holding subsidiaries of Brookfield Infrastructure L.P., from time-to-time, through which BIP holds all of its interests in its Operating Entities; |
| (jj) | “IFRS” has the meaning ascribed thereto in Section 11.1(c)(i) hereof; |
| (kk) | “Indemnified Company Parties” has the meaning ascribed thereto in Section 17.3 hereof; |
| (ll) | “Indemnified Parties” has the meaning ascribed thereto in Section 17.3 hereof; |
| (mm) | “Indemnified Underwriter Parties” has the meaning ascribed thereto in Section 17.1 hereof; |
| (nn) | “Indemnifying Party” has the meaning ascribed thereto in Section 17.5 hereof; |
| (oo) | “Indenture” has the meaning ascribed thereto in the third paragraph of this Agreement; |
| (pp) | “Investment Company Act” means the U.S. Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder; |
| (qq) | “Issuer Free Writing Prospectus” means any “issuer free writing prospectus”, as defined in Rule 433 under the Securities Act, relating to the Securities in the form filed or required to be filed with the SEC or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act; |
| (rr) | “IT Systems” has the meaning ascribed thereto in Section 11.1(ss) hereof; |
| (ss) | “LP Units” has the meaning ascribed thereto in Section 16.1 hereof; |
| (tt) | “material” or “materially”, when used in relation to BIP or the BIP Entities, means material in relation to the BIP Entities on a consolidated basis; |
| (uu) | “Material Adverse Effect” shall have the meaning ascribed thereto in Section 11.1(d) hereof; |
| (vv) | “Notes” has the meaning ascribed thereto in the first paragraph of this Agreement; |
| (ww) | “NYSE” means the New York Stock Exchange; |
| (xx) | “NYSE Rules” means the rules of the NYSE; |
| (yy) | “OFAC” has the meaning ascribed thereto in Section 11.1(y) hereof; |
5
| (zz) | “Operating Entities” means the entities which directly or indirectly hold BIP’s current operations and assets that it may acquire in the future, including any assets held through joint ventures, partnerships and consortium arrangements; |
| (aaa) | “Optional Notes” has the meaning ascribed thereto in the first paragraph of this Agreement; |
| (bbb) | “Option Closing Date” has the meaning ascribed thereto in Section 5.1 hereof; |
| (ccc) | “Option Closing Time” means 10:00 a.m. (New York City time) on the Option Closing Date, or such other time as the Underwriters and the Company may agree upon in writing; |
| (ddd) | “Personal Data” has the meaning ascribed thereto in Section 11.1(ss) hereof; |
| (eee) | “Preferred Units” means the preferred limited partnership units of BIP; |
| (fff) | “Preliminary Prospectus” has the meaning ascribed thereto in Section 11.1(gg) hereof; |
| (ggg) | “Prospectus” has the meaning ascribed thereto in Section 11.1(gg) hereof; |
| (hhh) | “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to such Securities 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 such Securities by any Underwriter or dealer; |
| (iii) | “Qualifying Jurisdictions” means each of the provinces and territories of Canada; |
| (jjj) | “Registration Statement” has the meaning ascribed thereto in Section 11.1(gg) hereof; |
| (kkk) | “Repayment Event” has the meaning ascribed thereto in Section 11.1(k) hereof; |
| (lll) | “Representatives” has the meaning ascribed thereto in the first paragraph of this Agreement; |
| (mmm) | “Rules and Regulations” means the rules and regulations of the SEC; |
| (nnn) | “Sanctioned Country” has the meaning ascribed thereto in Section 11.1(y) hereof; |
| (ooo) | “Sanctions” has the meaning ascribed thereto in Section 11.1(y) hereof; |
| (ppp) | “SEC” means the U.S. Securities and Exchange Commission; |
| (qqq) | “Second Supplemental Indenture” has the meaning ascribed thereto in the third paragraph of this Agreement; |
6
| (rrr) | “Securities” has the meaning ascribed thereto in the first paragraph of this Agreement; |
| (sss) | “Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereto; |
| (ttt) | “Securities Commissions” means the securities commission or other securities regulatory authority in each of the Qualifying Jurisdictions; |
| (uuu) | “Securities Laws” means, collectively, the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated thereunder (“Sarbanes-Oxley”), the Securities Act, the Exchange Act, the Rules and Regulations, the auditing principles, rules, standards and practices applicable to auditors of “issuers” (as defined in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board and, as applicable, NYSE Rules; |
| (vvv) | “Special Resolution Regime” has the meaning ascribed thereto in Section 22 hereof; |
| (www) | “Subsequent Disclosure Documents” means any filings with the SEC after the date of this Agreement which are incorporated by reference into the Registration Statement; |
| (xxx) | “subsidiary” has the meaning set forth in Rule 405 under the Securities Act; |
| (yyy) | “Triton” means Triton International Limited, a global intermodal logistics operation, which BIP acquired through its subsidiary Brookfield Infrastructure Corporation on September 28, 2023. |
| (zzz) | “Trust Indenture Act” has the meaning ascribed thereto in Section 11.1(gg) hereof; |
| (aaaa) | “Trustee” has the meaning ascribed thereto in the third paragraph of this Agreement; |
| (bbbb) | “TSX” means the Toronto Stock Exchange; |
| (cccc) | “U.S. Trustee” has the meaning ascribed thereto in the third paragraph of this Agreement. |
| (dddd) | “Underwriters” has the meaning ascribed thereto in the first paragraph of this Agreement; |
| (eeee) | “Underwriting Commissions” has the meaning ascribed thereto in Section 10.1 hereof; and |
| (ffff) | “Underwriting Information” has the meaning ascribed thereto in Section 17.3 hereof. |
7
Other terms which are defined elsewhere in this Agreement have the meanings so ascribed.
| 2 | [Reserved] |
| 3 | Filing of Prospectuses |
| 3.1 | The Company and the Guarantors, as applicable, shall: |
| (a) | file the Prospectus with the SEC within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act; file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; file promptly all reports and any other information required to be filed by BIP with the SEC pursuant to Sections 13(a), 13(c), 14 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 offer or sale of the Securities; |
| (b) | pay the SEC registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Closing Date or the Option Closing Date, as applicable; and |
| (c) | qualify the Securities 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 Securities; provided that neither the Company nor any Guarantor shall 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. |
| 4 | [Reserved] |
| 5 | Optional Notes |
| 5.1 | The Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to $22,500,000 aggregate principal amount of Optional Notes on the same terms as the sale of the Firm Notes, plus accrued interest, if any, from, and including, the Closing Date to the Option Closing Date, less the Underwriting Commission (which, for the avoidance of doubt, does not apply to any accrued interest payable for the Optional Notes). Such option may be exercised in whole or in part at any time on or before the 30th day after the date of the Prospectus upon written notice by the Representatives to the Company setting forth the aggregate principal amount of Optional Notes as to which the several Underwriters are exercising the option and the time and date of payment and delivery for such Optional Notes (the “Option Closing Date”), which shall be determined by the Representatives and may be the Closing Date, but shall not be later than three full business days after the exercise of such option, nor in any event prior to the Closing Date. If any Optional Notes are to be purchased, the number of Optional Notes to be purchased by each Underwriter shall be based upon the same percentage of the total number of the Optional Notes to be purchased by the several Underwriters as such Underwriter is purchasing of the Firm Notes, subject to such adjustments as the Representatives in their absolute discretion shall make. |
8
| 6 | Delivery of Prospectuses and Related Documents |
| 6.1 | Except as provided in Section 6.1(a) hereof, the Company shall deliver (or cause to be delivered) to the Underwriters’ counsel prior to or contemporaneously, as nearly as practicable, with the execution of this Agreement a copy of the following for each of the Underwriters and Underwriters’ counsel: |
| (a) | any Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus as filed with the SEC (to the extent not previously delivered) to the Underwriters in New York City on the business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request; and |
| (b) | a “comfort letter” from Deloitte LLP, auditors for BIP, dated as of the date hereof (with the requisite procedures to be completed by such auditors within two business days of the date hereof), addressed to the directors of the General Partner and to the Underwriters, in form and substance acceptable to the Underwriters, acting reasonably, with respect to the financial statements and certain financial or statistical information relating to BIP contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus. |
| 6.2 | The delivery by the Company to the Underwriters of the Disclosure Package and the Prospectus shall constitute a representation and warranty to the Underwriters by the Company that the Disclosure Package or the Prospectus, as applicable, except with respect to any Underwriting Information (as defined herein), does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such delivery shall also constitute the consent of the Company and the Guarantors to the use of the Disclosure Package and the Prospectus by the Underwriters in connection with the distribution of the Securities. |
| 6.3 | Before 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 Disclosure Package or the Prospectus, the Company 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 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. |
| 6.4 | The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the SEC in accordance with Rule 433 under the Securities Act. |
9
| 6.5 | BIP will make generally available to its security holders as soon as reasonably practicable an earnings statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act. |
| 7 | Commercial Copies of Prospectuses |
| 7.1 | The Company shall deliver to the Underwriters, as soon as practicable and in any event within two business days of the date of filing the Prospectus with the SEC, the number of commercial copies of the Prospectus reasonably specified by the Underwriters in writing. |
| 7.2 | During the Prospectus Delivery Period, the Company shall deliver, without charge, as many copies of the Prospectus (including all amendments and supplements thereto) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. |
| 8 | Distribution of Securities |
| 8.1 | The Underwriters shall offer the Securities for sale to the public directly and through banking and selling group members only as permitted by and in compliance with Securities Laws upon the terms and conditions set forth in the Disclosure Package, the Prospectus and in this Agreement. Without the prior consent of the Company, the Underwriters will not solicit offers to purchase or sell the Securities so as to require registration of the Securities or filing of a prospectus, registration statement or other notice or document with respect to the distribution of the Securities under the laws of any jurisdiction other than the United States, or which could subject the Company or any Guarantor to reporting obligations in any such jurisdiction or result in the listing of the securities of the Company or any Guarantor on any exchange other than an exchange where such securities are listed as of the date hereof and will require each banking and selling group member to agree with the Underwriters not to so solicit or sell. An Underwriter will not be liable to the Company or any Guarantor under this Section with respect to a default by another Underwriter or any banking and selling group member appointed by another Underwriter under this Section. |
| 8.2 | The Underwriters propose to offer the Securities initially at the price to the public listed on Schedule A hereto (the “Public Offering Price”). After a reasonable effort has been made to sell all of the Securities at the Public Offering Price, the Underwriters may subsequently reduce and thereafter change, from time to time, the price at which the Securities are offered; provided that such decrease in the Public Offering Price will not decrease the amount of the net proceeds of the offering to the Company. |
| 9 | Material Change |
| 9.1 | During the Prospectus Delivery Period, the Company or a Guarantor, as applicable, shall promptly notify the Underwriters in writing, with full particulars, of: |
| (a) | any change (actual, contemplated or threatened) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or ownership of the Company and the Guarantors on a consolidated basis (other than a change disclosed in the Disclosure Package or the Prospectus); or |
10
| (b) | any change in any matter covered by a statement contained or incorporated by reference in the Disclosure Package, the Prospectus or any Subsequent Disclosure Document or an amendment to the Disclosure Package or the Prospectus; or |
| (c) | any material fact that arises or has been discovered that would have been required to be stated in the Disclosure Package, the Prospectus or any Subsequent Disclosure Document or any amendment to the Disclosure Package and the Prospectus had that fact arisen or been discovered on or prior to the date of the Prospectus or any Subsequent Disclosure Document or any amendment to the Disclosure Package or the Prospectus, as the case may be, |
which change or fact is, or may be, of such a nature as to render the Disclosure Package, the Prospectus or any Subsequent Disclosure Document or any amendment to the Disclosure Package or the Prospectus misleading or untrue in any material respect or which would result in any of such documents not complying in any material respect with any of the Securities Laws or which would result in any of such documents containing any untrue statement of a material fact or omitting to state any material fact required to be stated therein or necessary to make the statements therein not misleading or which change would reasonably be expected to have a significant effect on the market price or value of the Securities. The Company shall in good faith discuss with the Underwriters any change in circumstances (actual or proposed within the knowledge of the Company) which is of such a nature that there is reasonable doubt whether notice need be given to the Underwriters pursuant to this Section and, in any event, prior to making any filing referred to in Section 9.4.
| 9.2 | The Company 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 Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed; (iii) of any request by the SEC for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the SEC relating to the Registration Statement or any other request by the SEC for any additional information; (iv) of the issuance by the SEC of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any of the 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 within the Prospectus Delivery Period as a result of which the Prospectus, the 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, the Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Company of any notice of objection of the SEC 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 Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and each of the Company and the Guarantors will use its commercially reasonable 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 Disclosure Package or the Prospectus or suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof. |
11
| 9.3 | If during the Prospectus Delivery Period (i) any event 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 Securities Laws, the Company will promptly notify the Underwriters thereof and forthwith prepare and, subject to Section 6.3, file with the SEC and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus 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 Prospectus will comply with law. If at any time prior to the Closing Date and, if applicable, the Option Closing Date, (i) any event shall occur or condition shall exist as a result of which the 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 Disclosure Package is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Disclosure Package to comply with Securities Laws, the Company will promptly notify the Underwriters thereof and forthwith prepare and, subject to Section 6.3 above, file with the SEC (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Disclosure Package as may be necessary so that the statements in the Disclosure Package as so amended or supplemented will not, in the light of the circumstances existing when the Disclosure Package is delivered to a purchaser, be misleading or so that the Disclosure Package will comply with Securities Laws. |
| 9.4 | The Company and the Guarantors shall promptly comply with all applicable filing and other requirements, if any, under the Securities Laws arising as a result of any change referred to in Section 9.1 and shall prepare and file under all Securities Laws, with all possible dispatch, and in any event within any time limit prescribed under Securities Laws, any Subsequent Disclosure Document or any amendment to the Disclosure Package or the Prospectus as may be required under Securities Laws during the Prospectus Delivery Period. The Company shall further promptly deliver to the Underwriters a copy for each of the Underwriters and the Underwriters’ counsel of opinions and comfort letters with respect to each such amendment to the Disclosure Package, the Prospectus and any Subsequent Disclosure Document substantially similar to those referred to in Section 6.1 and Section 13.1. |
12
| 9.5 | The delivery by the Company and the Guarantors to the Underwriters of any Subsequent Disclosure Document or any amendment to the Disclosure Package or the Prospectus shall constitute a representation and warranty to the Underwriters by the Company, with respect to such Subsequent Disclosure Document or the Disclosure Package or the Prospectus, as so amended by such amendment, and by each Subsequent Disclosure Document and each amendment to the Disclosure Package and the Prospectus previously delivered to the Underwriters, to the same effect as set forth in Section 6.2. Such delivery shall also constitute the consent of the Company to the use of the Disclosure Package and the Prospectus, as amended or supplemented by any such document, by the Underwriters in connection with the offer and sale of the Securities in the United States. |
| 10 | Closing |
| 10.1 | The Company agrees to issue and sell the Firm Notes 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 Company the respective aggregate principal amount of Firm Notes set forth opposite such Underwriter’s name in Schedule 1 hereto at a price to the public of 100%. On the Closing Date and, if applicable, the Option Closing Date, the Company will pay to the Underwriters, as an underwriting commission in respect of the public distribution of the Securities as set forth in this Agreement, the commission set forth as follows (“Underwriting Commission”): $0.5000 per $25 principal amount of Notes ($370,000 in the aggregate) (Institutional) and $0.7875 per $25 principal amount of Notes ($4,142,250 in the aggregate) (Retail). Such Underwriting Commission may be paid by the Company to the Underwriters by setting off the Underwriting Commission payable by the Company to the Underwriters against the amount payable by the Underwriters to the Company as the purchase price for the Securities. |
| 10.2 | Payment for the Notes shall be made by wire transfer in immediately available funds to the account specified by the Company to the Representatives, in the case of the Firm Notes, at the offices of Milbank LLP, 55 Hudson Yards, New York, NY 10001, at 10:00 A.M. New York City time, on May 31, 2024, 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 Company may agree upon in writing. The time and date of such payment for the Firm Notes is referred to herein as the “Closing Time” and “Closing Date.” |
| 10.3 | [Reserved] |
| 10.4 | The Company understands that the Underwriters intend to make a public offering of the Securities, and initially to offer the Securities on the terms set forth in the Disclosure Package and the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter. |
| 10.5 | Payment for the Securities to be purchased on the Closing Date and, if applicable, the Option Closing Date, shall be made against delivery to the Representatives for the respective accounts of the several Underwriters of the Securities to be purchased on such date with any transfer taxes payable in connection with the sale of such Securities duly paid by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct and the Securities shall be registered in such names and in such denominations as the Representatives shall request. Any certificates for the Securities 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 and, if applicable, the Option Closing Date. |
13
| 11 | Representations, Warranties and Covenants of the Company and the Guarantors |
| 11.1 | The Company and the Guarantors jointly and severally represent, warrant and covenant to the Underwriters that: |
| (a) | Compliance with Canadian Securities Laws. Each of the Company and BIP is a reporting issuer in each of the Qualifying Jurisdictions, is not in default under 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 TSX. No order, ruling or determination having the effect of suspending the sale or ceasing the trading of any securities of the Company or BIP has been issued or made by any Securities Commission and no proceedings for that purpose have been instituted or are pending or, to each of the Company’s and BIP’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. |
| (b) | Independent Accountants. Deloitte LLP, who has audited the annual financial statements of BIP included and incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, and KPMG LLP, who has audited the annual financial statements of Triton included and incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, are independent registered chartered professional accountants, as required by the Securities Act and the Rules and Regulations. |
| (c) | Financial Statements. |
| (i) | The financial statements of BIP included or incorporated by reference in the Disclosure Package and the Prospectus, together with the related schedules, if any, and notes, present fairly, in all material respects, the assets and liabilities, financial position, results of operations and cash flows 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. The financial statements of BIP 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, if any, of BIP, present fairly, in all material respects and 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 of BIP included or incorporated by reference in the Disclosure Package and the Prospectus, or otherwise deemed to be a part thereof or included therein, present fairly, in all material respects, the information shown therein and the selected consolidated financial data and the summary consolidated financial data of BIP have been compiled on a basis consistent with that of the audited consolidated financial statements included or incorporated by reference in the Disclosure Package and the Prospectus. There have been no changes in the assets or liabilities of BIP from the position thereof as set forth in the consolidated financial statements included or incorporated by reference in the 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 BIP and except for changes that are disclosed in the Disclosure Package and the Prospectus; and |
14
| (ii) | The pro forma financial statements included in the Disclosure Package and the Prospectus include assumptions that provide a reasonable basis for presenting the significant effects directly attributable to the transaction and events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma adjustments reflect the proper application of those adjustments to the historical financial statement amounts in the pro forma financial statements included in the Disclosure Package and the Prospectus. The pro forma financial statements included in the Disclosure Package and Prospectus comply as to form in all material respects with the applicable requirements of the Securities Act. |
| (d) | No Material Adverse Change in Business. Except as disclosed in the Disclosure Package and the Prospectus, since the date of the most recent audited financial statements of BIP incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus or any Subsequent Disclosure Documents, (A) there has been no change and there is no prospective change that would have a material adverse effect on the condition (financial or otherwise), results of operations or business of the BIP Entities, taken together as a single enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions entered into by the BIP Entities, other than those in the ordinary course of business, which are material with respect to the BIP Entities, taken together, as a single enterprise, and (C) there has been no dividend or distribution of any kind declared (other than as publicly disclosed), paid or made by BIP on any class or series of its securities. |
| (e) | Good Standing. Each of the Company and the Guarantors is an entity validly existing as an entity in good standing under the laws of the jurisdiction of its creation, has the power and authority to own, lease and operate its properties and to conduct its business as described in the 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 where the failure to so qualify or register would not result in a Material Adverse Effect. All of the issued and outstanding units in the capital of or other equity interests in each of the Company and the Guarantors have been duly authorized and validly issued and are fully paid and non-assessable, and all of the issued and outstanding units in the capital of or other equity interests in each subsidiary that is wholly-owned by a Guarantor is owned by such Guarantor, in each case directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except as disclosed in the Disclosure Package and the Prospectus. Each Guarantor owns that percentage of the outstanding units in the capital of or other equity interests in each subsidiary that is not wholly-owned as is set forth in the Disclosure Package and the Prospectus, and all such units or other equity interests owned by each such Guarantor are owned directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except as disclosed therein; none of the outstanding units in the capital of or other equity interests in each of the subsidiaries was issued in violation of pre-emptive or other similar rights of any securityholder thereof. |
15
| (f) | Capitalization; Distributions. The authorized capital of BIP consists of an unlimited number of limited partnership units, an unlimited number of Class A preferred limited partnership units (the “Class A Preferred Units”) and an unlimited number of general partner units. As of the date of this Agreement, approximately 461,511,981 limited partnership units; 4,989,265 Class A preferred limited partnership units, Series 1 (the “Series 1 Preferred Units”); 4,989,262 Class A preferred limited partnership units, Series 3 (the “Series 3 Preferred Units”); 7,986,595 Class A Preferred Units, Series 9 (the “Series 9 Preferred Units”); 9,936,190 Class A preferred limited partnership units, Series 11 (the “Series 11 Preferred Units”, and collectively with the Series 1 Preferred Units, the Series 3 Preferred Units and the Series 9 Preferred Units, the “Existing Canadian Preferred Units”); 8,000,000 Class A preferred limited partnership units, Series 13; 8,000,000 Class A preferred limited partnership units, Series 14; and one general partner unit were issued and outstanding as fully-paid and non-assessable units of BIP. As of the date hereof, there are no issued or outstanding Class A preferred limited partnership units, Series 2, Class A preferred limited partnership units, Series 4, Class A preferred limited partnership units, Series 5, Class A preferred limited partnership units, Series 6, Class A preferred limited partnership units, Series 7, Class A preferred limited partnership units, Series 8, Class A preferred limited partnership units, Series 10, Class A preferred limited partnership units, Series 12 or Class A preferred limited partnership units, Series 15 (the “Series 15 Preferred Units”). All of the issued and outstanding limited partnership units, Class A preferred limited partnership units and general partner units in the capital of BIP have been duly authorized and validly issued and are fully-paid and non-assessable and have been issued in compliance with all applicable U.S. and Canadian laws (except where the failure to do so would not have a Material Adverse Effect), and none of the outstanding limited partnership units, Class A preferred limited partnership units or general partner units in the capital of BIP were issued in violation of the pre-emptive or other similar rights of any securityholder of BIP. All distributions, including the distributions on all other securities of BIP ranking prior to or on a parity with the Securities with respect to the payment of distributions in respect of periods ending on or prior to the date hereof have been declared and paid or set apart for payment. |
16
| (g) | Authorization of Agreement. Each of the Company and the Guarantors has the power and authority to execute, deliver and perform its obligations under this Agreement, the Securities and the Indenture and this Agreement, the Indenture and the Securities have been duly authorized, executed and delivered by each of the Company and the Guarantors. |
| (h) | Authorization and Description of Notes. The Notes have been duly authorized by the Company for issuance and sale to the Underwriters pursuant to this Agreement and the Indenture, and when executed and delivered by the Company and authenticated by the Trustee in accordance with the terms of the Indenture and delivered against payment of the purchase price therefor, will conform to all statements relating thereto contained in the Disclosure Package and the Prospectus, such descriptions conforming to the rights set forth in the instruments defining the same, and will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles and will be entitled to the benefits of the Indenture. |
| (i) | Authorization and Description of Guarantees. The Guarantees have been duly authorized by each of the Guarantors, and when the Notes have been executed and delivered by the Company and authenticated by the Trustee in the manner provided for in accordance with the provisions of the Indenture and issued and delivered against payment of the purchase price therefor, will conform to all statements relating thereto contained in the Disclosure Package and the Prospectus, such descriptions conforming to the rights set forth in the instruments defining the same, and will constitute valid and legally binding agreements of each of the Guarantors, enforceable against each of the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles and will be entitled to the benefits of the Indenture. |
| (j) | Authorization and Description of Indenture. The Indenture has been duly authorized by each of the Company and the Guarantors, and when executed and delivered by the Company, the Guarantors and the Trustee, the Indenture will constitute a valid and legally binding instrument, enforceable against each of the Company and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture has been duly qualified under the Trust Indenture Act and is substantially in the form, save for any indenture supplements relating to a particular issuance of debt securities, filed as an exhibit to the Registration Statement; and the Indenture conforms, and the Securities will conform, to the descriptions thereof contained in each of the Disclosure Package and the Prospectus. |
17
| (k) | Absence of Defaults and Conflicts. None of the Company nor any of the Guarantors is in violation of its limited partnership agreement, articles, charter or by laws or in 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 Company or the Guarantors is a party or by which it or any of them may be bound, or to which any of the Company or the Guarantors or the property or assets of any of the Company or the Guarantors is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect. The execution, delivery and performance of this Agreement, the Securities, the Indenture and the consummation of the transactions contemplated therein and in the Disclosure Package and the Prospectus (including the authorization, issuance, sale and delivery of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by each of the Company and the Guarantors with its obligations hereunder 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 of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any of the Company or the Guarantors pursuant to, the Agreements and Instruments (except for such conflicts, breaches, 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, charter or by laws of any of the Company or the Guarantors, the resolutions of the general partner, unitholders, shareholders, directors or any committee of directors of any of the Company or the Guarantors 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 Company or the Guarantors or any of their assets, properties or operations (except 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 Company or the Guarantors. |
| (l) | Absence of Labor Dispute. No labor dispute with the employees of any of the BIP Entities or the Guarantors exists or, to the knowledge of BIP or the Guarantors is imminent, and neither BIP nor the Guarantors is aware of any existing or imminent labor disturbance by the employees of any of the BIP Entities’ or the Guarantors’ principal suppliers, manufacturers, customers or contractors, which, in either case, would result in a Material Adverse Effect. |
18
| (m) | Absence of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency, governmental instrumentality or body, domestic or foreign, now pending, or, to the knowledge of the Company or the Guarantors, threatened, against or affecting any of the BIP Entities or the Guarantors, which is required to be disclosed in the Disclosure Package and the Prospectus or 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 of the BIP Entities or the Guarantors or the consummation of the transactions contemplated by this Agreement or the performance by the Company or the Guarantors of their obligations hereunder; the aggregate of all pending legal or governmental proceedings to which any of the BIP Entities or the Guarantors is a party or of which any of their respective property or assets is the subject which are not described in the Disclosure Package and the Prospectus or the Subsequent Disclosure Documents, including ordinary routine litigation incidental to the business of any of the BIP Entities or the Guarantors, are not reasonably likely to result in a Material Adverse Effect. |
| (n) | Absence of Contracts, etc. There are no contracts or documents which are required to be described in the Disclosure Package and the Prospectus which have not been so described. |
| (o) | Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Company or any of the Guarantors of their obligations hereunder, in connection with the offer, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement or the Indenture, except such as have been or, prior to the Closing Date, and, if applicable, the Option Closing Date, will be, obtained, or as may be required, under Applicable Securities Laws or Exchange regulations (including, in the case of the listing application to the NYSE in respect of the Notes, extraterritorial registrations (except where the failure to do so would not have a Material Adverse Effect), the Trust Indenture Act and the Company fulfilling the requirements of the NYSE in connection therewith). |
| (p) | Possession of Licenses and Permits. Each of the BIP Entities and the Guarantors possesses such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them, except where the failure to so possess would not, singly or in the aggregate, result in a Material Adverse Effect; each of the BIP Entities and the Guarantors is in compliance with the terms and conditions of all such Governmental Licenses, except where the failure to so comply would not, singly 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, singly or in the aggregate, result in a Material Adverse Effect, and, except as described in each of the Registration Statement, the Disclosure Package and the Prospectus, none of the BIP Entities or the Guarantors has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly 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 BIP or the Guarantors, that could lead to the revocation, suspension, modification, withdrawal or termination of any such Governmental Licenses, which, singly 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 BIP and the Guarantors and except as described in the Disclosure Package and the Prospectus, no party granting any such Governmental Licenses is considering limiting, suspending, modifying, withdrawing, or revoking the same in any material respect. |
19
| (q) | Title to Property. Except as described in the Disclosure Package and the Prospectus, each of the BIP Entities and the Guarantors 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 BIP Entities and the Guarantors) which are material to each of the BIP Entities and the Guarantors. |
| (r) | Environmental Laws. Except as described in the Disclosure Package and the Prospectus and except as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) none of the BIP Entities or the Guarantors 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 BIP Entities and the Guarantors 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 Company or the Guarantors, 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 BIP Entities or the Guarantors 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 BIP Entities or the Guarantors relating to Hazardous Materials or any Environmental Laws. |
20
| (s) | No Stabilization or Manipulation. None of the Company, the Guarantors, nor, to their knowledge, any of their respective officers, directors or 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 Securities. |
| (t) | Other Information. There are no contracts, documents or other materials required to be described or referred to in the Disclosure Package and the Prospectus that are not described, referred to or filed as required. |
| (u) | Insurance. Each of the BIP Entities and the Guarantors 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 BIP Entities and the Guarantors, and all such insurance is in full force and effect, except, in each case, where the failure to possess would not, singly or in the aggregate, result in a Material Adverse Effect. Each of the BIP Entities and the Guarantors has no reason to believe that they will not be able to (A) renew existing insurance coverage as and when such policies expire; or (B) 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. None of the BIP Entities or the Guarantors has been denied any insurance coverage, which it has sought or for which it has applied. |
| (v) | Accounting Control. Except as described in the Registration Statement, the Disclosure Package and the Prospectus, each of the BIP Entities maintains 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 applicable requirements of the Exchange Act (including, where applicable, by exemptive relief) and that has been designed by, or under the supervision of, BIP’s principal executive and principal financial officers, which, on a consolidated basis, is 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 NYSE Rules. As of the date of the most recent balance sheet of BIP and its consolidated subsidiaries included in the Registration Statement, the Disclosure Package and the Prospectus, there were no material weaknesses in BIP’s internal controls. BIP has not publicly disclosed or reported to the Audit Committee or the General Partner, and, within the next 135 days, BIP 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 Securities laws, or any other similar matter which, in each case, would have a Material Adverse Effect. |
21
| (w) | Compliance with the Sarbanes-Oxley Act. There is and has been no failure on the part of BIP or, to the knowledge of BIP, any of BIP’s directors or officers, in their capacities as such, to comply in all material respects with any provision of Sarbanes-Oxley, including Section 402 related to loans and Sections 302 and 906 related to certifications, insofar as BIP is required to comply with the aforementioned act, rules and regulations. |
| (x) | Payment of Taxes. All United States federal and Canadian federal income tax returns and tax returns of foreign jurisdictions of the BIP Entities and the Guarantors 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, except where the failure to pay would not reasonably be expected to result in a Material Adverse Effect. Each of the BIP Entities and the Guarantors 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 BIP Entities and the Guarantors, 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 BIP Entities and the Guarantors 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. Subject to the assumptions, qualifications, and limitations referred to therein, the statements set forth in the Disclosure Package and the Prospectus under the caption “Certain United States Federal Income Tax Considerations,” insofar as they purport to constitute summaries of matters of United States federal income tax law or legal conclusions with respect thereto, fairly and accurately summarize the matters described therein in all material respects. |
| (y) | Sanctions. None of the BIP Entities or their subsidiaries, their respective directors or officers nor, to the knowledge of BIP, any agent, employee, affiliate or person acting on behalf of a BIP Entity or any subsidiaries of a BIP Entity, is (i) currently the subject or target of economic or financial sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), the U.S. Department of State (including, without limitation, through designation on OFAC’s Specially Designated Nationals and Blocked Persons list), or any sanctions administered by Global Affairs Canada, the United Nations Security Council or the European Union, His Majesty’s Treasury or other applicable sanctions authority (collectively, “Sanctions”), or (ii) domiciled, organized or resident in (A) a country or region that is, or whose government is, the subject of comprehensive Sanctions, including, as of the date hereof, Cuba, Iran, North Korea, Syria, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic and the Crimea region of Ukraine and (B) the Kherson and Zaporizhzhia regions of Ukraine (such countries, “Sanctioned Countries”), and none of the BIP Entities will directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of (x) 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, (y) funding or facilitating any activities of or business in any Sanctioned Country or (z) 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). Since April 24, 2019, the BIP Entities and their subsidiaries 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, in each case, in violation of applicable Sanctions. The representations and warranties given under the foregoing two sentences of this section shall not apply to any party in so far as such representation or warranty would result in a violation or conflict with the Foreign Extraterritorial Measures (United States) Order, 1992. |
22
| (z) | Investment Company Act. Each of the Company and the Guarantors is not and, after giving effect to the offer and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Prospectus, will not be required to register as an “investment company” as defined in the Investment Company Act. |
| (aa) | Foreign Private Issuer and SEC Foreign Issuer. BIP is a “foreign private issuer” within the meaning of Rule 405 under the Securities Act. |
| (bb) | Compliance with Laws. Each of the BIP Entities and the Guarantors and, to the knowledge of BIP and the Guarantors, others who perform services on behalf of the BIP Entities or the Guarantors in the performance of such services on behalf of the BIP Entities or the Guarantors, have been and are 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 Exchanges, except where the failure to be in compliance or conformity would not, singly or in the aggregate, result in a Material Adverse Effect; and none of the BIP Entities nor the Guarantors has received any notice citing action or inaction by any of the BIP Entities or the Guarantors, or others who perform services on behalf of the BIP Entities or the Guarantors, 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 BIP and the Guarantors, other than as set forth in the 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. |
23
| (cc) | [Reserved.] |
| (dd) | Director or Officer Loans. Except as disclosed in documents incorporated by reference into the 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 any of the BIP Entities or the Guarantors, to or for the benefit of any of the officers or directors of any of the BIP Entities or the Guarantors or any of their respective family members. |
| (ee) | Off-Balance Sheet Arrangements. There are no transactions, arrangements or other relationships between and/or among the BIP Entities and the Guarantors, 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 Company’s or the Guarantor’s liquidity or the availability of, or requirements for, its capital resources required to be described in the Disclosure Package and the Prospectus which have not been described as required. |
| (ff) | Exchange Listing. BIP 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 BIP and the NYSE 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. |
24
| (gg) | Filing and Effectiveness of Registration Statement; Certain Defined Terms. The Company and the Guarantors have filed with the SEC an “automatic shelf registration statement” as defined under Rule 405 under the Securities Act on Form F-3 (File Nos. 333-278529, 333-278529-01, 333-278529-02, 333-278529-03, 333-278529-04, 333-278529-05 and 333-278529-06), including any post-effective amendment thereto and a related prospectus or prospectuses, and have caused the Trustee to file a Form T-1 under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”) covering the registration of the Securities under the Securities Act not earlier than three years prior to the date hereof, such registration statement, and any post-effective amendment thereto, became effective on filing, and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or threatened by the SEC, and no notice of objection of the SEC 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 any of the Company or the Guarantors (the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the SEC on or prior to the date of this Agreement, is hereinafter called the “Base Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement and any amendment thereto) relating to the Securities filed with the SEC pursuant to Rule 424(b) under the Securities Act is hereinafter called a “Preliminary Prospectus”; the various parts of such registration statement, including all exhibits thereto and including any prospectus or information supplement relating to the Securities that is filed with the SEC and deemed by virtue of Rule 430B or 430C under the Securities Act to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”; the final prospectus supplement relating to the Securities to be filed with the SEC pursuant to Rule 424(b) under the Securities Act, including the Base Prospectus, is hereinafter called the “Prospectus”; any reference herein to the Base Prospectus, the Disclosure Package, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such prospectus; any reference to any amendment or supplement to the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Securities filed with the SEC pursuant to Rule 424(b) under the Securities Act and any documents filed under the Exchange Act, and incorporated therein, in each case after the date of the Base Prospectus, any Preliminary Prospectus, or the Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of BIP filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). |
| (hh) | Compliance with Securities Act Requirements. At the time the Registration Statement initially became effective, at the time of each amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether by post-effective amendment, incorporated report or form of prospectus), at the Applicable Time and on the Closing Date and, if applicable, the Option Closing Date, the Registration Statement conformed and will conform in all material respects to the requirements of the Securities Act and the Rules and Regulations and did not and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. On its date, at the time of filing the Prospectus pursuant to Rule 424(b) under the Securities Act and on the Closing Date and, if applicable, the Option Closing Date, the Prospectus will conform in all material respects to the requirements of the Securities Act and the Rules and Regulations, and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The preceding sentences do not apply to statements in or omissions from any such document made in reliance upon and in conformity with written information furnished to the Company or any Guarantor by any Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information is that described as “Underwriting Information” in Section 17.3 hereof. |
25
| (ii) | Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the SEC, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Securities Act and the Rules and Regulations, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements in or omissions from any Preliminary Prospectus made in reliance upon and in conformity with written information furnished to the Company or any Guarantor by any Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information is that described as “Underwriting Information” in Section 17.3 hereof. |
| (jj) | Disclosure Package; Issuer Free Writing Prospectuses. The Disclosure Package, as of the Applicable Time, did not, and as of the Closing Date and, if applicable, the Option Closing Date, will not, 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 under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule A hereto does not conflict with the information contained in the Registration Statement, the Disclosure Package or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Disclosure Package as of the Applicable Time, did not 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 under which they were made, not misleading. |
| (kk) | Incorporated Documents. The documents incorporated by reference in the Disclosure Package and the Prospectus, when they became effective or were filed with the SEC, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the Rules and Regulations, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; any further documents so filed and incorporated by reference in the Disclosure Package and the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the SEC, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the Rules and Regulations thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. |
26
| (ll) | WKSI; Ineligible Issuer Status. (A) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto 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), and (iii) at the time the Company 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 Securities in reliance on the exemption of Rule 163 under the Securities Act, BIP was a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act; and (B) (i) at the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities and (ii) at the date of this Agreement, BIP was not an “ineligible issuer” as defined in Rule 405 under the Securities Act. |
| (mm) | No Distribution of Other Offering Materials. None of the Company or the Guarantors or any of their subsidiaries has distributed nor, prior to the later to occur of the Closing Date, and, if applicable, the Option Closing Date, and completion of the distribution of the Securities will distribute any offering material in connection with the offer and sale of the Securities other than the Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus to which the Representatives have consented in accordance with this Agreement. |
| (nn) | Fair Summaries. The statements set forth in the Disclosure Package and the Prospectus under the caption “Description of Debt Securities and Guarantees” in the Base Prospectus and “Description of the Notes” in the Prospectus Supplement, insofar as they purport to constitute a summary of the terms of the Securities, and under the headings “Service of Process and Enforceability of Civil Liabilities” in the Base Prospectus, “Item 8. Indemnification of Directors and Officers” in the Registration Statement and “Underwriting” in the Prospectus Supplement, 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. |
| (oo) | [Reserved.] |
| (pp) | No Unlawful Payments. Each of BIP, its subsidiaries and their respective officers, directors or employees and, to the knowledge of BIP, its agents and controlled affiliates, has not violated, and by its participation in the offering will not violate, and BIP has instituted and maintains policies and procedures designed to ensure continued compliance by each of the foregoing with the following laws: (a) anti-bribery laws, including, but not limited to, any applicable law, rule, or regulation of any locality, including, but not limited to any law, rule, or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed December 17, 1997, including the U.S. Foreign Corrupt Practices Act of 1977, the Bribery Act 2010 of the United Kingdom and the Corruption of Foreign Public Officials Act (Canada), each as amended, and the rules and regulations promulgated thereunder, or any other law, rule or regulation of similar purpose and scope; (b) anti-money laundering laws, including, but not limited to, applicable U.S. federal, state, international, foreign or other laws, regulations or government guidance regarding anti-money laundering, including, without limitation, Title 18 U.S. Code section 1956 and 1957, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, as amended, and the rules and regulations promulgated thereunder, the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the rules and regulations promulgated thereunder, the Bank Secrecy Act, the applicable anti-money laundering laws of all jurisdictions where BIP 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 and international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering, of which the United States is a member and with which designation the United States representative to the group or organization continues to concur, all as amended, and any executive order, directive, or regulation pursuant to the authority of any of the foregoing, or any orders or licenses issued thereunder, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving BIP or its controlled affiliates with respect to the foregoing is pending or, to the knowledge of BIP, threatened; and (c) applicable Sanctions. |
27
| (qq) | Representation of Officers. Any certificate signed by any officer of the Company and any certificate signed by or on behalf of any Guarantor 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 Company or such Guarantor, as applicable, as to matters covered thereby, to each Underwriter. |
| (rr) | Disclosure Controls and Procedures. BIP 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 BIP in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, including controls and procedures designed to ensure that such information relating to BIP and its subsidiaries is accumulated and made known to BIP’s management as appropriate to allow timely decisions regarding required disclosure; and such disclosure controls and procedures are effective. |
| (ss) | Cybersecurity. The BIP Entities’ 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 BIP Entities as currently conducted, and to the best of the BIP Entities’ knowledge, are free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. BIP 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 where such breaches, violations, outages, unauthorized use or access, or incidents under internal review or investigations relating to the same, would not, individually or in the aggregate, result in a Material Adverse Effect. The BIP Entities 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 BIP Entities, 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. |
28
| (tt) | [Reserved.] |
| (uu) | 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 Securities by the Company or the execution and delivery of this Agreement. |
| (vv) | 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 SEC’s rules and guidelines applicable thereto. |
| (ww) | Statistical and Market-Related Data. The statistical and market-related data included in the Disclosure Package and the Prospectus and the consolidated financial statements of BIP and its subsidiaries included in the Disclosure Package and the Prospectus are based on or derived from sources that BIP believes to be reliable in all material respects. |
| 12 | Use of Proceeds |
The net proceeds from the offering will be used in accordance with the description thereof under the caption “Use of Proceeds” in the Disclosure Package and the Prospectus.
| 13 | Conditions Precedent |
| 13.1 | The following are conditions precedent to the obligation of the Underwriters to close the transaction contemplated by this Agreement, which conditions each of the Company and the Guarantors covenant to exercise its best efforts to have fulfilled at or prior to the Closing Time and, if applicable, the Option Closing Time, which conditions may be waived in writing in whole or in part by the Underwriters: |
| (a) | the Securities shall have attributes substantially as set forth in the Disclosure Package and the Prospectus; |
29
| (b) | at the Closing Time and, if applicable, the Option Closing Time, each of the Company and the Guarantors shall have delivered to the Underwriters a certificate, dated the Closing Date and, if applicable, the Option Closing Date, signed by or on behalf of the Company and the Guarantors, as applicable, by any two officers authorized to so execute for or on behalf of such entity satisfactory to the Underwriters, acting reasonably, and certifying that: |
| (i) | except as disclosed in or contemplated by the Disclosure Package and the Prospectus, or any amendments thereto: |
| (A) | there has been, since December 31, 2023 and prior to the Closing Time and, if applicable, the Option Closing Time, no material change (financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of BIP or any of the Guarantors, as applicable, on a consolidated basis; and |
| (B) | no transaction of a nature material to the Company or any of the Guarantors, as applicable, on a consolidated basis has been entered into, directly or indirectly, by the Company or any of the Guarantors since December 31, 2023; |
| (ii) | no order, ruling or determination (excluding temporary trading halts for the dissemination of information) having the effect of ceasing or suspending trading in any securities of the Company or any Guarantor has been issued in the United States and, to the Company’s or such Guarantor’s knowledge, as applicable, no proceedings for such purpose are pending, contemplated or threatened; |
| (iii) | the representations and warranties of the Company and the Guarantors contained herein are true and correct in all respects (subject to materiality or other qualifications expressly set forth in such representations and warranties) as of the Closing Time and, if applicable, the Option Closing Time, with the same force and effect as if made at and as of the Closing Time and, if applicable, the Option Closing Time, except for representations and warranties that by their express terms are made as of a specific date; and |
| (iv) | each of the Company and the Guarantors, as applicable, has complied with all terms and conditions of this Agreement to be complied with by the Company or such Guarantor at or prior to the Closing Time and, if applicable, the Option Closing Time, |
and all such matters shall in fact be true at the Closing Time and, if applicable, the Option Closing Time;
| (c) | the Underwriters shall have received evidence satisfactory to them, acting reasonably, that the Company has submitted an application for listing the Notes on the NYSE; |
30
| (d) | 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 Company or any of the Guarantors or any debt securities, convertible securities or preferred stock issued, or guaranteed by, the Company, any of the BIP Entities or any of the Guarantors 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 Company or any of the Guarantors or any such debt securities, convertible securities or preferred stock issued or guaranteed by any of the Company, the BIP Entities or any of the Guarantors (other than an announcement with positive implications of a possible upgrading); |
| (e) | on and as of the Closing Date and, if applicable, the Option Closing Date, the Securities shall have at least the rating specified in the Disclosure Package from each of S&P Global Ratings and Fitch Ratings Inc., and the Company shall have delivered to the Underwriters a letter on or prior to the Closing Date and, if applicable, the Option Closing Date, from each of S&P Global Ratings and Fitch Ratings Inc., or other evidence reasonably satisfactory to the Underwriters, confirming that the Securities have been assigned such rating; |
| (f) | at the Closing Time and, if applicable, the Option Closing Time, Stradley Ronon Stevens & Young, LLP, special Investment Company Act counsel for the Company and the Guarantors, shall have furnished to the Underwriters, at the request of the Company, their written opinion, dated the Closing Date and, if applicable, the Option Closing Date, and addressed to the Underwriters, such letter to be in form and content satisfactory to the Underwriters and their counsel, acting reasonably; |
| (g) | the Underwriters shall have received at the Closing Time and, if applicable, the Option Closing Time, the letter from Deloitte LLP, updating their “comfort letter” referred to in Section 6.1(b) to a date not more than two business days prior to the date of such letter, each such letter to be in form and content satisfactory to the Underwriters and their counsel, acting reasonably; |
| (h) | at the Closing Time and, if applicable, the Option Closing Time, the Underwriters shall have received a favorable legal opinion and 10b-5 negative assurance letter, dated the Closing Date and, if applicable, the Option Closing Date, on behalf of the Company and the Guarantors from Torys LLP, the Company’s and the Guarantor’s U.S. and Canadian legal counsel, addressed to the Underwriters with respect to such matters as may reasonably be requested by the Underwriters; |
| (i) | at the Closing Time and, if applicable, the Option Closing Time, the Underwriters shall have received a favorable legal opinion, dated the Closing Date and, if applicable, the Option Closing Date, on behalf of the Company and certain of the Guarantors from Appleby (Bermuda) Limited addressed to the Underwriters and their counsel with respect to such matters as may reasonably be requested by the Underwriters; |
31
| (j) | at the Closing Time and, if applicable, the Option Closing Time, the Underwriters shall have received a favorable legal opinion and 10b-5 negative assurance letter, dated the Closing Date and, if applicable, the Option Closing Date, from their U.S. counsel, Milbank LLP, with respect to such matters as the Underwriters may reasonably request; |
| (k) | [Reserved]. |
| (l) | 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) under the Securities Act or pursuant to Section 8A of the Securities Act, shall be pending before or threatened by the SEC; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the SEC 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 3.1 hereof; and all requests by the SEC for additional information shall have been complied with to the reasonable satisfaction of the Representatives. On the Closing Date and, if applicable, the Option Closing Date, the Indenture will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; |
| (m) | the Second Supplemental Indenture shall have been duly executed and delivered by a duly authorized officer of the Company and the Trustee, and the Notes shall have been duly executed and delivered by a duly authorized officer of the Company and duly authenticated by the Trustee; |
| (n) | on the date of this Agreement and on the Closing Date and, if applicable, the Option Closing Date, BIP and Triton 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 BIP, and of the chief financial officer of Triton, respectively, with respect to certain pro forma financial statements of BIP and certain financial statements of Triton, respectively, incorporated by reference in the Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representatives; and |
| (o) | the Securities to be delivered on the Closing Date and, if applicable, the Option Closing Date, shall have been cleared for settlement and trading by DTC. |
32
| 14 | Termination |
| 14.1 | In addition to any other remedies which may be available to the Underwriters, any Underwriter shall be entitled, at its option, to terminate and cancel its obligations under this Agreement, without any liability on their or its part, in the following circumstances: |
| (a) | Regulatory Proceeding Out. if after the Applicable Time and prior to the Closing Time and, if applicable, the Option Closing Time, an inquiry, action, suit, investigation or other proceeding is commenced or threatened or any order is made or issued under or pursuant to any law of Canada or the United States or by any other regulatory authority or stock exchange (except any such proceeding or order based solely upon the activities of any of the Underwriters), or there is any change of law or the interpretation or administration thereof, which in such Underwriter’s opinion, acting reasonably, would prevent, suspend, delay, restrict or adversely affect the trading in or the distribution of the Securities or any other securities of the Company or the Guarantors in the United States; or |
| (b) | Disaster Out. if after the Applicable Time and prior to the Closing Time and, if applicable, the Option Closing Time, there should develop, occur or come into effect or existence any event, action, state, condition or occurrence of national or international consequence or any action, governmental law or regulation, enquiry or other occurrence of any nature whatsoever which, in such Underwriter’s sole opinion in its absolute discretion, acting reasonably, might be expected to have a significant adverse effect on the market price or value of the Securities, including, without limitation, the outbreak or escalation of hostilities involving the United States or Canada or the declaration by the United States or Canada of a national emergency or war or the occurrence of any other calamity or crisis in the United States, Canada or elsewhere; or |
| (c) | Material Change. if after the Applicable Time and prior to the Closing Time and, if applicable, the Option Closing Time, there should occur, be discovered by the Underwriters or be announced by the Company or the Guarantors, any material change or a change in any material fact which, in the sole opinion of such Underwriter, might reasonably be expected to have a significant adverse effect on the market price or value of the Securities or makes it impracticable or inadvisable to proceed with the offer, sale or delivery of the Securities on the Closing Date and, if applicable, the Option Closing Date, on the terms and in the manner contemplated by this Agreement, the Disclosure Package and the Prospectus; or |
| (d) | Financial Market Out. if there is a suspension or material limitation in trading in securities generally on the NYSE, a suspension or material limitation in trading in the Company’s or any Guarantor’s securities on any of the Exchanges or a general moratorium on commercial banking activities declared by either Canadian, U.S. Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in Canada or the United States which, in each such instance, the effect is such as to make it, in the judgment of such Underwriter, acting reasonably, impracticable or inadvisable to proceed with the offer, sale or delivery of the Securities on the Closing Date and, if applicable, the Option Closing Date, on the terms and in the manner contemplated by this Agreement, the Disclosure Package and the Prospectus. |
| 14.2 | The rights of termination contained in Section 14.1 may be exercised by any Underwriter giving written notice thereof to the Company and the Representatives at any time prior to the Closing Time and, if applicable, the Option Closing Time, and are in addition to any other rights or remedies the Underwriters may have in respect of any default, act or failure to act or non-compliance by the Company and the Guarantors in respect of any of the matters contemplated by this Agreement or otherwise. In the event of any such termination, there shall be no further liability or obligation on the part of the Underwriters to the Company and the Guarantors or on the part of the Company and the Guarantors to the Underwriters except in respect of any liability or obligation under any of Sections 17 and 18 which will remain in full force and effect. |
33
| 15 | Conditions |
| 15.1 | All terms and conditions of this Agreement shall be construed as conditions and any material breach or failure to comply in all material respects with any such terms or conditions which are for the benefit of the Underwriters shall entitle any of the Underwriters to terminate their obligation to purchase the Securities by notice in writing to that effect given to the Company at or prior to the Closing Time and, if applicable, the Option Closing Time. The Underwriters may waive in whole or in part or extend the time for compliance with any of such terms and conditions without prejudice to their rights in respect of any other of such terms and conditions or any other or subsequent breach or non-compliance, provided that to be binding on an Underwriter any such waiver or extension must be in writing and signed by such Underwriter. |
| 16 | Restrictions on Further Issues or Sales |
| 16.1 | For a period of 30 days after the date of the Prospectus, the Company and BIP will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or 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 Company or BIP or the General Partner or any controlled affiliate of BIP or the General Partner or any person in privity with BIP or the General Partner or any controlled affiliate of BIP or the General Partner, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the SEC 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, in the United States of (i) any units of any class of capital stock of BIP (other than the Exchange Preferred Units or the Series 15 Preferred Units) that is preferred as to the payment of distributions, or as to the distribution of assets upon any liquidation or dissolution of BIP, over the LP Units (including any units of any class of partnership interests of BIP (other than the Exchange Preferred Units or the Series 15 Preferred Units) that ranks equally with the Exchange 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 Existing Canadian Preferred Units that are issued upon re-classification in accordance with terms of the corresponding series of Existing Canadian Preferred Units as described under “Description of the Exchange Preferred Units — Description of Class A Preferred Units — Series” in the Prospectus)), or (ii) any subordinate debt securities of BIP or securities exchangeable or convertible into debt securities of BIP which are substantially similar to the Notes. For the avoidance of doubt, nothing contained in this Section 16 shall prohibit any disposition or offering by BIP, the General Partner, their respective controlled affiliates or any other person of (i) the Class A Preferred Units outside of the United States, (ii) the 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 SEC 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 Forms F-1 and F-3 (as amended from time to time) filed by BIP and Brookfield Infrastructure Corporation with the SEC, (iii) debt securities of BIP or its subsidiaries or securities exchangeable or convertible into debt securities of BIP or its subsidiaries which rank senior to the Notes, or (iv) indebtedness issued pursuant to BIP’s commercial paper program. |
34
| 17 | Indemnification |
| 17.1 | The Company and the Guarantors shall jointly and severally agree to indemnify and hold harmless each of the Underwriters (which term, for the purpose of this Section shall be deemed to include affiliates of the Underwriters) and the Underwriters’ directors, officers and employees and each person who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (for the purposes of this Section 17, the “Indemnified Underwriter Parties”) from and against all liabilities, claims, demands, losses (other than loss of profit in connection with the distribution of the Securities), costs, damages and expenses (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, in any way caused by or arising directly or indirectly from or in consequence of: |
| (a) | any breach of or default under any representation, warranty, covenant or agreement of the Company or the Guarantors in this Agreement or any other document delivered pursuant hereto or thereto, or the failure of the Company or the Guarantors to comply with any of its obligations hereunder or thereunder; |
| (b) | any information or statement in the Disclosure Package and the Prospectus and any Subsequent Disclosure Document, or any omission or alleged omission to state therein any information; |
| (c) | any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto) or 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; |
| (d) | any untrue statement or alleged untrue statement of a material fact included in the Base Prospectus, any Preliminary Prospectus, the Disclosure Package, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, any Subsequent Disclosure Document or any other material filed in compliance or intended compliance with Securities Laws, or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; |
35
| (e) | The Company or the Guarantors not complying with any applicable requirement of the Securities Laws, or any breach or violation or alleged breach or violation of any Securities Laws or other applicable securities legislation of any jurisdiction; or |
| (f) | any order made or any inquiry, investigation, or proceeding instituted, threatened or announced by any court, securities regulatory authority, stock exchange, or other competent authority (except any such proceeding or order based solely upon the activities of any of the Underwriters) or any change of law or the interpretation or administration thereof which operates to prevent or restrict the trading in or the distribution of the Securities or any other securities of the Company or the Guarantors in the United States; |
provided that the Company and the Guarantors shall cease to be liable for indemnification under this Section 17.1 in respect of any liabilities, claims, demands, losses, costs, damages and expenses that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact or any omission or alleged omission of a material fact made in the Base Prospectus, any Preliminary Prospectus, the Disclosure Package, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, any Subsequent Disclosure Document or in any other material so filed in reliance upon and in conformity with information in respect of any of the Underwriters furnished in writing to the Company and each Guarantor by the Underwriters through the Representatives specifically for inclusion in such document, it being understood and agreed that the only such information furnished by any Underwriter consists of the “Underwriting Information” described in Section 17.3 below. The rights of indemnity contained in this Section 17.1 in respect of a claim based on an untrue statement or omission or alleged untrue statement or omission in any Subsequent Disclosure Document shall not apply if the Company has complied with Section 7.1 and, if applicable, Sections 7.2 and 9.5 and the person asserting such claim was not provided with a copy of any Subsequent Disclosure Document which corrects such untrue statement or omission of a material fact or alleged untrue statement or omission of a material fact.
| 17.2 | [Reserved.] |
| 17.3 | Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, each Guarantor and each of their respective directors and officers who signed the Registration Statement and each person who controls the Company or any Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (for the purposes of this Section 17, the “Indemnified Company Parties” and together with the Indemnified Underwriter Parties, the “Indemnified Parties”) to the same extent as the indemnity set forth in 17.1(c) and (d) above, but only with respect to any untrue statement or alleged untrue statement of a material fact or any omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company or any Guarantor by any Underwriter expressly for use in the Registration Statement, any Preliminary Prospectus, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus, the Disclosure Package or any Subsequent Disclosure Document, it being understood and agreed that the only such information furnished by any Underwriter consists of the following information under the heading “Underwriting” in the Preliminary Prospectus and the Prospectus furnished on behalf of each Underwriter: the information related to stabilizing transactions, and syndicate covering transactions contained in the two paragraphs under the subheading “Price Stabilization; Short Positions” thereunder (the “Underwriting Information”). |
36
| 17.4 | In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in Section 17.1 is unavailable, in whole or in part, for any reason to an Indemnified Underwriter Party in respect of any liabilities, claims, demands, losses, costs, damages and expenses referred to therein, the Company and the Guarantors shall contribute to the amount paid or payable (or, if such indemnity is unavailable only in respect of a portion of the amount so paid or payable, such portion of the amount so paid or payable) by such Indemnified Underwriter Party as a result of such liabilities, claims, demands, losses, costs, damages and expenses: |
| (a) | in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other hand from the offering of the Securities; or |
| (b) | if the allocation provided by clause (a) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (a) above but also the relative fault of the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, in connection with the matters or things referred to in Section 17.1 which resulted in such liabilities, claims, demands, losses, costs, damages or expenses, as well as any other relevant equitable considerations, |
provided that the Underwriters shall not in any event be liable to contribute, in the aggregate, any amount in excess of the Underwriting Commission or any portion thereof actually received. The relative benefits received by the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, shall be deemed to be in the same ratio as the total proceeds from the offering of the Securities (net of the Underwriting Commission payable to the Underwriters but before deducting expenses), received by the Company and the Guarantors is to the Underwriting Commission received by the Underwriters. The relative fault of the Company and the Guarantors on the one hand and of the Underwriters on the other hand shall be determined by reference to, among other things, whether the matters or things referred to in Section 17.1 that resulted in such liabilities, claims, demands, losses, costs, damages and expenses relate to information supplied by or steps or actions taken or done or not taken or done by or on behalf of the Company and the Guarantors or to information supplied by or steps or actions taken or done or not taken or done by or on behalf of the Underwriters and the relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or misrepresentation, or other matter or thing referred to in Section 17.1. The amount paid or payable by an Indemnified Underwriter Party as a result of the liabilities, claims, demands, losses, costs, damages and expenses referred to above shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Underwriter Party in connection with investigating or defending any such liabilities, claims, demands, losses, costs, damages and expenses, whether or not resulting in an action, suit, proceeding or claim. The parties agree that it would not be just and equitable if contribution pursuant to this Section 17.4 were determined by any method of allocation which does not take into account the equitable considerations referred to in this Section 17.4. Notwithstanding the provisions of this Section 17.4, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total Underwriting Commission received by such Underwriter with respect to the offering of the Securities 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 this Section 17.4 are several in proportion to their respective purchase obligations hereunder and not joint.
37
| 17.5 | If any claim contemplated by this Section 17 shall be asserted against any Indemnified Party, the Indemnified Party concerned shall promptly notify the Company and the Guarantors or the Underwriters, as applicable (referred to interchangeably for purposes of this Section 17 as the “Indemnifying Party”) of the nature of such claim (provided that any failure to so notify promptly shall relieve the Indemnifying Party of liability under this Section 17 only to the extent that such failure prejudices the ability of the Indemnifying Party to defend such claim), and the Indemnifying Party shall, subject as hereinafter provided, be entitled (but not required) to assume the defense of any suit or proceeding (including any governmental or regulatory investigation or proceeding) brought to enforce such claim. Any such defense shall be through legal counsel acceptable to the Indemnified Party (whose acceptance shall not be unreasonably withheld) and no admission of liability or settlement shall be made by the Indemnifying Party or any Indemnified Party in respect of any Indemnified Party without the prior written consent of the other, such consent not to be unreasonably withheld. An Indemnified Party shall have the right to employ separate counsel in any such suit and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless: (i) the Indemnifying Party fails to assume the defense of such suit on behalf of the Indemnified Party within a reasonable period of time; (ii) the employment of such counsel has been authorized in writing by the Indemnifying Party; or (iii) the named parties to any such suit or proceeding include both the Indemnified Party and the Indemnifying Party and the Indemnified Party shall have received a written opinion from counsel that there may be one or more legal defenses available to the Indemnified Party which are different from or in addition to those available to the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such suit or proceeding on behalf of the Indemnified Party and shall be liable to pay the reasonable fees and expenses of counsel for the Indemnified Party, it being understood, however, the Indemnifying Party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstance, be liable for the reasonable fees and expenses of more than one separate law firm (in addition to any local counsel) for all such Indemnified Parties). The Indemnifying Party shall not be liable for any settlement of any action or suit effected without its written consent. It is the intention of the Company and the Guarantors to constitute each of the Underwriters as trustees for the Underwriters’ directors, officers, employees, affiliates and persons who control any of the Underwriters, of the covenants of the Company and the Guarantors under Section 17.1 with respect to the Indemnified Parties and the Underwriters agree to accept such trust and to hold and enforce such covenants on behalf of such persons. The Indemnifying Party shall not, without the written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Party is or could have been a party and indemnification could have been sought hereunder by such Indemnified Party, unless such settlement (x) includes an unconditional release of such Indemnified Party, in form and substance reasonably satisfactory to such Indemnified Party, 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 Party. |
38
| 17.6 | Each of the Company and the Guarantors waives all right of contribution by statute or common law which it may have against the Underwriters in respect of losses, claims, costs, damages or liabilities which it may sustain as a direct or indirect consequence of the Base Prospectus, any Preliminary Prospectus, the Disclosure Package, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act or any Subsequent Disclosure Document or any other document containing or being alleged to contain a misrepresentation. |
| 17.7 | The rights provided in this Section 17 shall be in addition to and not in derogation of any other right which the Underwriters may have by statute or otherwise at law. |
| 18 | Expenses |
| 18.1 | Whether or not the offering is completed, the Company will be responsible for all expenses of or incidental to the creation, issue, delivery and marketing of the offering, including without limitation, all reasonable fees and disbursements of the Company’s legal counsel, all fees and disbursements of auditors, prospectus filing fees, rating agency fees and all expenses related to marketing activities and printing costs; provided, however, that the Underwriters will be responsible for their “out of pocket” expenses and the fees and disbursements of the Underwriters’ legal counsel. The Company will be responsible for all fees and expenses of any Trustee and any agent of any Trustee and the reasonable fees and disbursements of counsel for any Trustee in connection with any Indenture and the Securities. If the offering is terminated, other than by reason of a default of one of the Underwriters, the Company shall reimburse the Underwriters for any and all expenses reasonably incurred by them. |
39
| 19 | Several Obligations |
| 19.1 | The obligations of the Underwriters to purchase the Securities shall be several and not joint, and the percentage of the Securities that each of the Underwriters shall be severally obligated to purchase is as set forth in Schedule 1 to this Agreement. |
| 19.2 | If one or more of the Underwriters shall fail or refuse to purchase its applicable percentage of the Securities at the Closing Time or, if applicable, the Option Closing Time, and the aggregate principal amount of Securities not purchased is less than or equal to 5.1% of the aggregate principal amount of Securities agreed to be purchased by the Underwriters pursuant to this Agreement, each of the other Underwriters shall be obligated to purchase severally and not jointly, the Securities not taken up, on a pro rata basis or as they may otherwise agree as between themselves. |
| 19.3 | If one or more of the Underwriters shall fail or refuse to purchase its applicable percentage of the Securities at the Closing Time or, if applicable, the Option Closing Time, and the aggregate principal amount of Securities not purchased is greater than 5.1% of the aggregate principal amount of Securities agreed to be purchased by the Underwriters pursuant to this Agreement, those of the Underwriters who shall be willing and able to purchase their respective percentage of the Securities shall have the right, but not the obligation, to purchase severally the Securities not taken up on a pro rata basis or as they may otherwise agree as between themselves. In the event that such right is not exercised, the Underwriter or Underwriters that are willing and able to purchase its or their respective percentage of the Securities shall be relieved, without liability, of its or their obligations to purchase its or their respective percentage of the Securities on submission to the Company of reasonable evidence of its or their ability and willingness to fulfil its or their obligations under this Agreement at the Closing Time or the Option Closing Time, as the case may be. |
| 19.4 | Notwithstanding anything contained in Sections 19.2 or 19.3, nothing in this Section 19 shall oblige the Company to sell to the Underwriters less than all of the Securities. In addition, nothing contained in Sections 19.2 or 19.3 shall relieve from responsibility to the Company any one of the Underwriters who shall default in its obligation to purchase its respective percentage of the Securities. |
| 20 | Authority of the Representatives |
| 20.1 | All steps which must or may be taken by the Underwriters in connection with this Agreement, with the exception of any waiver of a material condition precedent pursuant to Section 13, any notice of termination pursuant to Section 14, any settlement of an indemnified claim pursuant to Section 17 and any agreement to amend this Agreement, may be taken by the Representatives on the Underwriters’ behalf, after consultation with the other Underwriters, and this is the authority to the Company for accepting notification of any such steps from the Representatives on their behalf without any further investigation or inquiry. |
40
| 21 | Notices |
| 21.1 | Any notices or other communication that may be required or desired to be given pursuant to this Agreement may be given in writing by email or by hand delivery, delivery or other charges prepaid, and: |
| (a) | in the case of notice to the Company or any Guarantor, be addressed to: |
Brookfield Infrastructure Finance ULC
181 Bay Street, Suite 100
Brookfield Place
Toronto, Ontario
Canada M5J 2T3
| Attention: | Corporate Secretary |
| Telecopy: | (441) 296-4475 |
with a copy (which shall not constitute notice) to:
Torys LLP
1114 Avenue of the Americas
23rd Floor
New York, New York 10036-7703
| Attention: | Mile Kurta / Christopher R. Bornhorst |
| Email: | [Redacted] / [Redacted] |
| (b) | in the case of notice to the Underwriters, be addressed to: |
Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, NC 28202
Attention: Transaction Management
Email: [Redacted]
BofA Securities, Inc.
1540 Broadway
NY8-540-26-02
New York, New York 10036
Facsimile: (646) 855-5958
Attention: High Grade Transaction Management/Legal
Email: [Redacted]
J.P. Morgan Securities LLC
383 Madison Avenue
New York, NY 10179
Attn: Investment Grade Syndicate Desk
Fax: (212) 834-6081
41
Morgan Stanley & Co. LLC
1585 Broadway, 29th Floor
New York, New York 10036
Attention: Investment Banking Division
Fax: (212) 507-8999
RBC Capital Markets, LLC
Brookfield Place
200 Vesey Street, 8th Floor
New York, NY 10281
Telephone: (212) 618-7706
Email: [Redacted]
Attention: DCM Transaction Management/Scott Primrose
UBS Securities LLC
1285 Avenue of the Americas
New York, New York 10019
Attention: Fixed Income Syndicate
Telephone: 203-719-1088
with copies (which shall not constitute notice) to:
Milbank LLP
55 Hudson Yards
New York, New York 10001
| Attention: | Paul Denaro |
| Email: | [Redacted] |
Any such notice or other communication shall be deemed to be given at the time emailed or delivered, if emailed or delivered to the recipient on a business day (in New York City) and before 5:00 p.m. (New York City time) on such business day, and otherwise shall be deemed to be given at 9:00 a.m. (New York City time) on the next following business day (in New York City).
| 22 | Recognition of the Special Resolution Regimes |
| 22.1 | In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a 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 such 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. |
| 22.2 | 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 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 Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States. |
42
As used in this Section 22:
“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); |
| (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.
“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.
| 23 | Miscellaneous |
| 23.1 | In connection with the distribution of the Securities, the Underwriters and members of their selling group (if any) may, in conformity with all applicable laws, effect transactions which stabilize or maintain the market price of the Securities at levels above those which might otherwise prevail on the open market in compliance with Securities Laws. Such stabilizing transactions, if any, may be discontinued at any time. |
| 23.2 | The representations and warranties contained in this Agreement or in documents submitted pursuant to this Agreement and in connection with the transactions contemplated hereby shall survive the purchase by the Underwriters of the Securities and shall continue in full force and effect unaffected by any subsequent disposition by the Underwriters of the Securities; provided that with respect to any action brought in any court of competent jurisdiction in Canada such representations and warranties shall continue in full force and effect for three years from such date of the issuance of the Securities. |
| 23.3 | Time shall be of the essence of this Agreement. |
| 23.4 | This Agreement may be executed in several counterparts by facsimile or electronic PDF copy, each of which when so executed shall be deemed to be an original but which together will constitute one and the same agreement. |
43
| 23.5 | This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, among such parties with respect to the subject matter hereof. |
| 23.6 | If any provision of this Agreement is determined to be void or unenforceable in whole or in part, it shall be deemed not to affect or impair the validity of any other provision of this Agreement and such void or unenforceable provision shall be severable from this Agreement. |
| 23.7 | This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York. |
| 23.8 | Each of the Company and the Guarantors hereby submits to the non-exclusive jurisdiction of the courts of the State of New York in the City and County of New York and of the United States for the Southern District of New York and the federal and provincial courts in the Province of Ontario in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. Each of the Company and the Guarantors irrevocably and unconditionally waives any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in the courts of the State of New York in the City and County of New York and of the United States for the Southern District of New York and the federal and provincial courts in the Province of Ontario and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum. Each of the Company and the Guarantors other than Brookfield Infrastructure LLC irrevocably appoints Brookfield Infrastructure LLC as its authorized agent in the Borough of Manhattan in the City of New York upon which process may be served in any such suit or proceeding, and agrees that service of process upon such agent, and written notice of said service to the Company or the Guarantors by the person serving the same to the address provided in Section 21.1(a), shall be deemed in every respect effective service of process upon the Company or the Guarantors in any such suit or proceeding. Each of the Company and the Guarantors further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of seven years from the date of this Agreement. |
| 23.9 | Each of the Company and the Guarantors acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the Public Offering Price, and any related discounts and commissions, is an arm’s-length commercial transaction between the Company and the Guarantors, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering and the process leading to such transaction, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company or the Guarantors or any of their equityholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company or the Guarantors with respect to the offering or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or the Guarantors on other matters) and no Underwriter has any obligation to the Company or the Guarantors with respect to the offering except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company or the Guarantors, (e) each of the Company and the Guarantors acknowledges that none of the activities of the Underwriters in connection with the offering of the Securities constitutes a recommendation, investment advice or solicitation or any action by the Underwriters with respect to the Company and the Guarantors and (f) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering and each of the Company and the Guarantors has consulted its own legal, accounting, regulatory and tax advisors to the extent each deems appropriate. |
44
| 23.10 | THE COMPANY, EACH OF THE GUARANTORS AND EACH OF THE UNDERWRITERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. |
| 23.11 | The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement. |
| 23.12 | Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. |
[Signature Pages Follow]
45
Accepted and agreed to as of the date first written above.
| BROOKFIELD INFRASTRUCTURE FINANCE ULC | ||
| By: | /s/ David Krant | |
|
Name: David Krant Title: Senior Vice President | ||
|
As Guarantors: |
| BROOKFIELD INFRASTRUCTURE PARTNERS L.P., by its general partner, BROOKFIELD INFRASTRUCTURE PARTNERS LIMITED | ||
| By: | /s/ Jane Sheere | |
|
Name: Jane Sheere Title: Secretary | ||
| BROOKFIELD INFRASTRUCTURE L.P., by its managing general partner, BROOKFIELD INFRASTRUCTURE PARTNERS L.P., by its general partner, BROOKFIELD INFRASTRUCTURE PARTNERS LIMITED | ||
| By: | /s/ Jane Sheere | |
|
Name: Jane Sheere Title: Secretary | ||
| BIP BERMUDA HOLDINGS I LIMITED | ||
| By: | /s/ Jane Sheere | |
|
Name: Jane Sheere Title: Secretary | ||
| BROOKFIELD INFRASTRUCTURE HOLDINGS (CANADA) INC. | ||
| By: | /s/ David Krant | |
|
Name: David Krant Title: Senior Vice President | ||
| BROOKFIELD INFRASTRUCTURE LLC | ||
| By: | /s/ Ralph Klatzkin | |
|
Name: Ralph Klatzkin Title: Vice President | ||
| BIPC HOLDINGS INC. | ||
| By: | /s/ David Krant | |
|
Name: David Krant Title: Senior Vice President | ||
| Very truly yours, | ||
| WELLS FARGO SECURITIES, LLC | ||
| By: | /s/ Jake Horstman | |
| Name: Jake Horstman | ||
| Title: Managing Director | ||
| BOFA SECURITIES, INC. | ||
| By: | /s/ Jon Klein | |
| Name: Jon Klein | ||
| Title: Managing Director | ||
| J.P. MORGAN SECURITIES LLC | ||
| By: | /s/ Som Bhattacharyya | |
| Name: Som Bhattacharyya | ||
| Title: Executive Director | ||
| MORGAN STANLEY & CO. LLC | ||
| By: | /s/ Natalie Smithson | |
| Name: Natalie Smithson | ||
| Title: Vice President | ||
| RBC CAPITAL MARKETS, LLC | ||
| By: | /s/ Scott G. Primrose | |
| Name: Scott G. Primrose | ||
| Title: Authorized Signatory | ||
| UBS SECURITIES LLC | ||
| By: | /s/ Dominic Hills | |
| Name: Dominic Hills | ||
| Title: Associate Director | ||
| By: | /s/ Jay Anderson | |
| Name: Jay Anderson | ||
| Title: Managing Director | ||
Schedule 1
| Underwriter | Aggregate Principal Amount of Firm Notes to be Purchased | |||
| Wells Fargo Securities, LLC | $ | 24,000,000 | ||
| BofA Securities, Inc. | $ | 24,000,000 | ||
| J.P. Morgan Securities LLC | $ | 24,000,000 | ||
| Morgan Stanley & Co. LLC | $ | 24,000,000 | ||
| RBC Capital Markets, LLC | $ | 24,000,000 | ||
| UBS Securities LLC | $ | 24,000,000 | ||
| Canaccord Genuity LLC | $ | 3,000,000 | ||
| Santander US Capital Markets LLC | $ | 3,000,000 | ||
| Total | $ | 150,000,000 | ||
Schedule A
Pricing Term Sheet dated May 29, 2024.
2
US$150,000,000 7.250% Subordinated Notes due 2084
(the “Notes”)
May 29, 2024
The information in this pricing term sheet relates to Brookfield Infrastructure Finance ULC’s offering of the Notes and should be read together with the preliminary prospectus supplement dated May 29, 2024 relating to the offering (the “Preliminary Prospectus Supplement”), including the documents incorporated by reference therein, and the base prospectus dated April 5, 2024, included in the registration statement on Form F-3ASR (File No. 333-278529) filed under the Securities Act of 1933, as amended. 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 Infrastructure Finance ULC (the “Issuer”) |
| Guarantors: |
Brookfield Infrastructure Partners L.P. (the “Partnership”) Brookfield Infrastructure L.P. BIP Bermuda Holdings I Limited Brookfield Infrastructure Holdings (Canada) Inc. Brookfield Infrastructure LLC BIPC Holdings Inc. |
| Security: | US$150,000,000 7.250% Subordinated Notes due 2084 |
| Ranking: | Subordinated unsecured |
| Principal Amount of Notes: | US$150,000,000 (or US$172,500,000 if the underwriters exercise the Over-Allotment Option in full). |
| Denominations: | Minimum denominations of US$25 and integral multiples of US$25 in excess thereof. |
| Maturity: | May 31, 2084. |
| Coupon: | 7.250% |
| Regular Record Dates for Interest: | March 16, June 15, September 15 and December 16, whether or not such day is a business day |
| Interest Payment Dates: | March 31, June 30, September 30 and December 31, commencing on September 30, 2024 |
| Day Count Convention: | 30/360 |
| Interest Deferral Right: | So long as no event of default has occurred and is continuing, the Issuer may elect, at its sole option, at any date other than an Interest Payment Date, to defer the interest payable on the Notes on one or more occasions for up to five consecutive years. There is no limit on the number of Deferral Periods that may occur. Any such deferral will not constitute an event of default or any other breach under the Indenture and the Notes. Deferred interest will accrue until paid. A Deferral Period terminates on any Interest Payment Date where the Issuer pays all accrued and unpaid interest on such date. No Deferral Period may extend beyond the Maturity Date. |
| First Call Date: | May 31, 2029 |
3
| Optional Redemption: | On or after May 31, 2029, the Issuer may, at its option, on giving not more than 60 nor less than 10 days’ notice to the holders of the Notes, redeem the Notes, in whole at any time or in part from time to time. The redemption price will be 100% of the principal amount of the Notes being redeemed, together with accrued and unpaid interest to, but excluding, the date fixed for redemption. Notes that are redeemed shall be cancelled and shall not be reissued. |
| Redemption on Rating Event: | At any time following the occurrence of a Rating Event, the Issuer may, at its option, redeem the Notes (in whole but not in part) at a redemption price equal to 102% of the principal amount thereof, together with accrued and unpaid interest to, but excluding, the date fixed for redemption. |
| Redemption on Tax Event: | At any time after the occurrence of a Tax Event, subject to applicable laws, the Issuer may, at its option, redeem the Notes (in whole but not in part) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest to, but excluding, the relevant redemption date. |
| Trade Date: | May 29, 2024 |
| Expected Settlement Date**: | May 31, 2024 (T+2) |
| Price to Public: | 100% (plus accrued interest, if any, from and including May 31, 2024 if settlement of the Notes occurs after that date) |
| Underwriting Discounts: |
US$0.7875 per Note for retail investors (US$4,142,250 in the aggregate) US$0.5000 per Note for institutional investors (US$370,000 in the aggregate) |
| Net Proceeds (before expenses): | US$145,487,750.00 |
| Listing: | The Issuer intends to apply to list the Notes on the New York Stock Exchange under the symbol “BIPJ”. |
| Automatic Exchange: |
The Notes, including accrued and unpaid interest thereon, will be exchanged automatically (the “Automatic Exchange”), without the consent of the holders thereof, into units of a newly issued series of Class A Preferred Units, being Class A Preferred Limited Partnership Units, Series 16 (the “Exchange Preferred Units”) upon the occurrence of: (i) the making by the Issuer of a general assignment for the benefit of its creditors or a proposal (or the filing of a notice of its intention to do so) under the Bankruptcy and Insolvency Act (Canada); (ii) any proceeding instituted by the Issuer and/or the Partnership seeking to adjudicate them as bankrupt (including any voluntary assignment in bankruptcy) or insolvent or, where the Issuer and/or the Partnership are insolvent, seeking liquidation, winding up, dissolution, reorganization, arrangement, compromise, adjustment, protection, relief or composition of their debts under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable), or seeking the entry of an order for the appointment of a receiver, interim receiver, trustee or other similar official for the Issuer and/or the Partnership or in respect of all or any substantial part of their property and assets in circumstances where the Issuer and/or the Partnership are adjudged as bankrupt (including any voluntary assignment in bankruptcy) or insolvent; (iii) a receiver, interim receiver, trustee or other similar official is appointed over the Issuer and/or the Partnership or for all or substantially all of their property and assets by a court of competent jurisdiction in circumstances where the Issuer and/or the Partnership are adjudged as bankrupt (including any voluntary assignment in bankruptcy) or insolvent under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable); or (iv) any proceeding is instituted against the Issuer and/or the Partnership seeking to adjudicate them as bankrupt (including any voluntary assignment in bankruptcy) or insolvent, or where the Issuer and/or the Partnership are insolvent, seeking liquidation, winding up, dissolution, reorganization, arrangement, compromise, adjustment, protection, relief or composition of their debts under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable), or seeking the entry of an order for the appointment of a receiver, interim receiver, trustee or other similar official for the Issuer and/or the Partnership or in respect of all or any substantial part of their property and assets in circumstances where the Issuer and/or the Partnership are adjudged as bankrupt or insolvent under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable), and in any such case, such proceeding has not been stayed or dismissed within 60 days of the institution of any such proceeding or the actions sought in such proceedings occur (including the entry of an order for relief against the Issuer and/or the Partnership or the appointment of a receiver, interim receiver, trustee, or other similar official for them or for all or substantially all of their property and assets) (each, an “Automatic Exchange Event”). |
4
| The Automatic Exchange shall occur upon an Automatic Exchange Event (the “Exchange Time”). As of the Exchange Time, noteholders will have the right to receive one Exchange Preferred Unit for each $25 principal amount of Notes held together with the number of Exchange Preferred Units (including fractional units, if applicable) calculated by dividing the amount of accrued and unpaid interest, if any, on the Notes, by $25. Such right will be automatically exercised, and the Notes shall be automatically exchanged, without the consent of the holders of the Notes, into the newly issued series of fully paid Exchange Preferred Units. At such time, all outstanding Notes shall be deemed to be immediately and automatically surrendered without need for further action by noteholders, who shall thereupon automatically cease to be holders of Notes and all rights of each such holder as a debtholder of the Issuer and as a beneficiary of the subordinated guarantees of the Guarantors shall automatically cease. | |
| Distribution Stopper Undertaking: | Unless the Issuer has paid all interest that has been deferred or is then payable on the Notes, subject to certain exceptions, neither the Issuer nor the Partnership will (i) declare any distributions or dividends on the Distribution Restricted Securities or pay any interest on any Parity Indebtedness, (ii) redeem, purchase or otherwise retire Distribution Restricted Securities or Parity Indebtedness, or (iii) make any payment to holders of any of the Distribution Restricted Securities or any Parity Indebtedness in respect of distributions or dividends not declared or paid on such Distribution Restricted Securities or interest not paid on such Parity Indebtedness, respectively, provided that the foregoing clauses (i) and (iii) shall not apply in respect of any pro rata dividend or distribution or any other payment on any Parity Indebtedness which is made with a pro rata payment of any accrued and payable interest with respect to the Notes. |
| CUSIP/ISIN: | 11276B 208 / US11276B2088 |
| Expected Ratings*: |
[Redacted] |
| Joint Book-Running Managers: | Wells Fargo Securities, LLC, BofA Securities, Inc., J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, RBC Capital Markets, LLC and UBS Securities LLC. |
| Co-Managers: |
Canaccord Genuity LLC Santander US Capital Markets LLC |
5
| * | 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. |
| ** | It is expected that the delivery of the securities will be made on or about the closing date specified on the cover page of the prospectus supplement, which will be the second business day following the date of the pricing of the securities (this settlement cycle being referred to as “T+2”). Under Rule 15c6-1 under the Exchange Act, trades in the secondary market generally are required to settle in one business day, unless the parties to such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the securities prior to the delivery date will be required, by virtue of the fact that the securities initially will settle in T+2, to specify alternate settlement arrangements at the time of any such trade to prevent a failed settlement and should consult their own advisor. |
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.
The Notes will not be offered or sold, directly or indirectly, in Canada or to any resident of Canada.
The Issuer and the Guarantors have filed a joint 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 Issuer, the Guarantors 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 and the Guarantors, 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 toll-free at 1-212-834-4533, Morgan Stanley & Co. LLC toll-free at 1-866-718-1649, RBC Capital Markets, LLC toll-free at 1-866-375-6829 or UBS Securities LLC toll-free at 1-888-827-7275.
No key information document (“KID”) required by Regulation (EU) No. 1286/2014 (as amended, the “PRIIPs Regulation”) for offering or selling the Notes or otherwise making them available to retail investors in the European Economic Area (“EEA”) has been prepared as the Notes will not be made available to any retail investor in the EEA.
No KID required by Regulation (EU) No 1286/2014 as it forms part of domestic law of the United Kingdom (“UK”) by virtue of the European Union (Withdrawal) Act 2018, as amended (“EUWA”) (the “UK PRIIPs Regulation”) for offering or selling the Notes or otherwise making them available to retail investors in the UK has been prepared as the Notes will not be made available to any retail investor in the UK.
6
Schedule B
List of BIP Entities
Brookfield Infrastructure Partners L.P.
Brookfield Infrastructure L.P.
Inter Pipeline Ltd.
Triton International Limited
BUUK Infrastructure No 1 Limited
Nova Transportadora do Sudeste S.A.
Exhibit 4.1
BROOKFIELD INFRASTRUCTURE FINANCE ULC, as Issuer
AND EACH OF
BROOKFIELD INFRASTRUCTURE PARTNERS L.P.
AND
BROOKFIELD INFRASTRUCTURE L.P.
AND
BIP BERMUDA HOLDINGS I LIMITED
AND
BROOKFIELD INFRASTRUCTURE HOLDINGS (CANADA) INC.
AND
BROOKFIELD INFRASTRUCTURE LLC
AND
BIPC HOLDINGS INC., as Guarantors
AND
COMPUTERSHARE TRUST COMPANY, N.A., as U.S. Trustee
AND
COMPUTERSHARE TRUST COMPANY OF CANADA, as Canadian Trustee
Second Supplemental
Indenture
Dated as of May 31, 2024
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of May 31, 2024 between Brookfield Infrastructure Finance ULC (the “Issuer”), an unlimited liability company organized under the laws of Alberta, Canada, Brookfield Infrastructure Partners L.P. (the “Partnership”), an exempted limited partnership organized under the laws of the Islands of Bermuda, Brookfield Infrastructure L.P., an exempted limited partnership formed under the laws of Bermuda, BIP Bermuda Holdings I Limited, a Bermuda exempted company, Brookfield Infrastructure Holdings (Canada) Inc. (“Can Holdco”), a corporation organized under the laws of Ontario, Brookfield Infrastructure LLC, a Delaware limited liability company (“BI LLC”), and BIPC Holdings Inc., a corporation organized under the laws of Ontario, Canada (collectively, the “Guarantors”), Computershare Trust Company, N.A., a national association formed under the laws of the State of Delaware, as U.S. trustee (the “U.S. Trustee”) and Computershare Trust Company of Canada, a trust company organized under the laws of Canada, as Canadian trustee (the “Canadian Trustee”, and together with the U.S. Trustee, the “Trustees”), to the Indenture, dated as of May 24, 2021, by and among the Issuer, the Partnership and the other guarantors party thereto and the Trustees (the “Original Indenture”, the Original Indenture, as amended and supplemented hereby, being referred to herein as the “Indenture”).
WITNESSETH
WHEREAS, the Issuer has duly authorized, as a separate series of Securities under the Indenture, its 7.250% Subordinated Notes due May 31, 2084 (the “Notes”) and each of the Guarantors has consented to and approved the issuance of the Notes;
WHEREAS, the Issuer and the Guarantors have duly authorized the execution and delivery of this Second Supplemental Indenture to establish the Notes as a separate series of Securities under the Original Indenture and to provide for, among other things, the issuance by the Issuer of and the form and terms of the Notes and additional covenants for purposes of the Notes and the Holders thereof;
WHEREAS, the Issuer and the Guarantors understand and agree that Brookfield Infrastructure US Holdings I Corporation, a guarantor under the Original Indenture, will not be a Guarantor in respect of the Notes, and BI LLC, which was not party to the Original Indenture, will be a Guarantor in respect of the Notes, and further, none of the Issuer or the Guarantors (other than BI LLC) are in default under the Original Indenture;
WHEREAS, all things necessary to make this Second Supplemental Indenture a valid agreement according to its terms have been done; and
WHEREAS, the foregoing recitals are made as statements of fact by the Issuer and the Guarantors and not by the Trustees;
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
1
Article 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
| 1.1 | Definitions. |
For all purposes of this Second Supplemental Indenture and the Notes, except as otherwise expressly provided or unless the subject matter or context otherwise requires:
“2081 Notes” means the series of 5.000% Subordinated Notes due 2081 issued by the Issuer.
“Additional Amounts” has the meaning specified in Section 2.12 of this Second Supplemental Indenture.
“Automatic Exchange” has the meaning specified in Section 2.7 of this Second Supplemental Indenture.
“Automatic Exchange Event” means an event giving rise to an Automatic Exchange, being the occurrence of any one of the following: (i) the making by the Issuer of a general assignment for the benefit of its creditors or a proposal (or the filing of a notice of its intention to do so) under the Bankruptcy and Insolvency Act (Canada); (ii) any proceeding instituted by the Issuer and/or the Partnership seeking to adjudicate them as bankrupt (including any voluntary assignment in bankruptcy) or insolvent or, where the Issuer and/or the Partnership are insolvent, seeking liquidation, winding up, dissolution, reorganization, arrangement, compromise, adjustment, protection, relief or composition of their debts under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable), or seeking the entry of an order for the appointment of a receiver, interim receiver, trustee or other similar official for the Issuer and/or the Partnership or in respect of all or any substantial part of their property and assets in circumstances where the Issuer and/or the Partnership are adjudged as bankrupt (including any voluntary assignment in bankruptcy) or insolvent; (iii) a receiver, interim receiver, trustee or other similar official is appointed over the Issuer and/or the Partnership or for all or substantially all of their property and assets by a court of competent jurisdiction in circumstances where the Issuer and/or the Partnership are adjudged as bankrupt (including any voluntary assignment in bankruptcy) or insolvent under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable); or (iv) any proceeding is instituted against the Issuer and/or the Partnership seeking to adjudicate them as bankrupt (including any voluntary assignment in bankruptcy) or insolvent, or where the Issuer and/or the Partnership are insolvent, seeking liquidation, winding up, dissolution, reorganization, arrangement, compromise, adjustment, protection, relief or composition of their debts under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable), or seeking the entry of an order for the appointment of a receiver, interim receiver, trustee or other similar official for the Issuer and/or the Partnership or in respect of all or any substantial part of their property and assets in circumstances where the Issuer and/or the Partnership are adjudged as bankrupt or insolvent under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable), and in any such case, such proceeding has not been stayed or dismissed within 60 days of the institution of any such proceeding or the actions sought in such proceedings occur (including the entry of an order for relief against the Issuer and/or the Partnership or the appointment of a receiver, interim receiver, trustee, or other similar official for them or for all or substantially all of their property and assets).
2
“Automatic Exchange Event Notice” has the meaning specified in Section 2.7.2 of this Second Supplemental Indenture.
“BI LLC” has the meaning ascribed to it in the recitals.
“BIPIC” means BIP Investment Corporation, a corporation established under the Business Corporations Act (British Columbia) and a subsidiary of Can Holdco.
“Can Holdco” has the meaning ascribed to it in the recitals.
“Clearing Agency” has the meaning specified in Section 2.7.3 of this Second Supplemental Indenture.
“Deferral Period” has the meaning specified in Section 2.8 of this Second Supplemental Indenture.
“Distribution Restricted Securities” means the partnership units of the Partnership and all equity issued by the Issuer.
“Exchange Notice” has the meaning specified in Section 2.7.2 of this Second Supplemental Indenture.
“Exchange Preferred Units” shall mean Class A Preferred Limited Partnership Units of the Partnership, being Class A Limited Partnership Units, Series 16, issued pursuant to that certain Sixth Amendment to the Amended and Restated Limited Partnership Agreement of the Partnership, dated as of the date hereof.
“Exchange Time” has the meaning specified in Section 2.7.1 of this Second Supplemental Indenture.
“FATCA” has the meaning specified in Section 2.12 of this Second Supplemental Indenture.
“Guarantee Obligations” means the subordinate guarantee obligations of the Guarantors pursuant to Article 5 of the Original Indenture but solely in respect of the Notes.
“Guarantor Senior Indebtedness” means, in respect of any Guarantor, all principal, interest, premium, fees and other amounts owing on, under or in respect of:
| (a) | all indebtedness, liabilities and obligations of such Guarantor, whether outstanding on the Issue Date or thereafter created, incurred, assumed or guaranteed; and |
| (b) | all renewals, extensions, restructurings, refinancings and refundings of any such indebtedness, liabilities or obligations; |
3
except that Guarantor Senior Indebtedness shall not include (i) the obligations of such Guarantor in respect of its guarantee of the Notes, the 2081 Notes and the Perpetual Notes, (ii) the liabilities and obligations of such Guarantor in respect of any equity (including any preferred equity) that has been issued by the Issuer, any Guarantor or BIPIC, and (iii) all indebtedness, liabilities and obligations of such Guarantor that, pursuant to the terms of an instrument creating or evidencing such indebtedness, liabilities or obligations, are stated to rank pari passu with or subordinate in right of payment to its guarantee of the Notes.
“Ineligible Person” means any Person whose address is in, or whom the Partnership or its transfer agent has reason to believe is a resident of, any jurisdiction outside of the United States to the extent that: (i) the issuance or delivery by the Partnership to such Person, upon an Automatic Exchange for Exchange Preferred Units, would require the Partnership to take any action to comply with securities or analogous laws of such jurisdiction; or (ii) withholding tax would be applicable in connection with the delivery to such Person of Exchange Preferred Units upon an Automatic Exchange.
“Issue Date” mean May 31, 2024.
“Issuer Senior Indebtedness” means all principal, interest, premium, fees and other amounts owing on, under or in respect of:
| (a) | all indebtedness, liabilities and obligations of the Issuer, whether outstanding on the Issue Date or thereafter created, incurred, assumed or guaranteed; and |
| (b) | all renewals, extensions, restructurings, refinancings and refundings of any such indebtedness, liabilities or obligations; |
except that Issuer Senior Indebtedness shall not include (i) the obligations of the Issuer in respect of the Notes, the 2081 Notes and the Issuer’s guarantee obligations in respect of the Perpetual Notes, (ii) all liabilities and obligations of the Issuer in respect of any equity (including any preferred equity) that has been issued by the Issuer, any Guarantor or BIPIC, and (iii) all indebtedness, liabilities and obligations of the Issuer that, pursuant to the terms of the instrument creating or evidencing such indebtedness, liabilities or obligations, are stated to rank pari passu with or subordinate in right of payment to the Notes.
“Maturity Date” means May 31, 2084.
“Notes” has the meaning ascribed to it in the recitals.
“Original Indenture” has the meaning ascribed to such term in the first recital to this Second Supplemental Indenture.
“Parity Indebtedness” means the 2081 Notes, the Issuer and Partnership’s guarantee obligations in respect of the Perpertual Notes and any other class or series of the Partnership’s indebtedness currently outstanding or hereafter created which ranks on a parity with the Partnership’s guarantee of the Notes (prior to any Automatic Exchange) as to distributions upon liquidation, dissolution or winding-up.
4
“Partnership Preferred Units” means preferred limited partnership units in the Partnership, including the Partnership’s Class A Preferred Limited Partnership Units (which will include the Exchange Preferred Units if issued).
“Perpetual Notes” means the series of 5.125% Perpetual Subordinated Notes issued by BIP Bermuda Holdings I Limited.
“Rating Agency” means any nationally recognized statistical rating organization (within the meaning of Section 3(a)(62) of the Securities Exchange Act of 1934, as amended) that publishes a rating for the Notes.
“Rating Event” means the occurrence of an event in which any Rating Agency, following the initial rating of the Notes by such Rating Agency, amends, clarifies or changes the criteria it uses to assign equity credit to securities such as the Notes, which amendment, clarification or change results in (a) the shortening of the length of time the Notes are assigned a particular level of equity credit by that Rating Agency as compared to the length of time the Notes would have been assigned that level of equity credit by that Rating Agency or its predecessor on the initial rating of the Notes by such Rating Agency; or (b) the lowering of the equity credit (including up to a lesser amount) assigned to the Notes by that Rating Agency compared to the equity credit assigned by that Rating Agency or its predecessor on the initial rating of the Notes by such Rating Agency.
“Relevant Taxing Jurisdiction” has the meaning specified in Section 2.12 of this Second Supplemental Indenture.
“Tax Act” has the meaning specified in Section 2.12 of this Second Supplemental Indenture.
“Tax Event” means the Issuer or any Guarantor (as applicable) has received an opinion of counsel of nationally recognized standing experienced in such matters to the effect that, as a result of (i) any amendment or change to the laws (or any regulations or rulings thereunder) of any Relevant Taxing Jurisdiction or any applicable tax treaty or (ii) any change in the application, administration or interpretation of such laws, regulations, rulings or treaties (including any judicial decision rendered by a court of competent jurisdiction with respect to such laws, regulations, rulings or treaties), in each case of (i) and (ii), by any legislative body, court, governmental authority or agency, regulatory body or taxing authority, which amendment or change is effective on or after the Issue Date (or if the Relevant Taxing Jurisdiction has changed since the Issue Date, the date on which the applicable jurisdiction became a Relevant Taxing Jurisdiction) (including, for the avoidance of doubt, any such amendment or change made on or after the Issue Date (or the date on which the applicable jurisdiction became a Relevant Taxing Jurisdiction, as applicable) that has retroactive effect to a date prior to the Issue Date (or the date on which the applicable jurisdiction became a Relevant Taxing Jurisdiction, as applicable)), either: (a) the Issuer or any Guarantor (as applicable) is, or may be, subject to more than a de minimis amount of additional taxes, duties or other governmental charges or civil liabilities because the treatment of any of its items of income, taxable income, expense, taxable capital or taxable paid-up capital with respect to the Notes, as or as would be reflected in any tax return or form filed, to be filed, or that otherwise could have been filed, will not be respected by a taxing authority (excluding as a result of any limitation on the deductibility of interest on the Notes as a result of any EBITDA, tax EBITDA, or other similar earnings or income-based limit on interest deductibility) or (b) the Issuer or any Guarantor (as applicable) has been or will be on the next Interest Payment Date obligated to pay Additional Amounts and neither the Issuer or Guarantor (as applicable) can avoid such obligation by taking commercially reasonable measures to avoid it.
5
“Taxes” has the meaning specified in Section 2.12 of this Second Supplemental Indenture.
All other terms and expressions used herein shall have the same meanings as corresponding expressions defined in the Original Indenture.
| 1.2 | To Be Read with Original Indenture |
The Second Supplemental Indenture is a supplemental indenture within the meaning of the Original Indenture, and the Original Indenture and this Second Supplemental Indenture shall be read together and shall have effect, so far as practicable, as though all the provisions of the Original Indenture and this Second Supplemental Indenture were contained in one instrument.
| 1.3 | Amendments to the Original Indenture |
The following definition in Article 1.1 of the Original Indenture, as such definition relates to the Notes, is hereby amended to read in its entirety as follows:
“Guarantor” means (i) the Partnership, (ii) BILP, (iii) Bermuda Holdco, (iv) Can Holdco, (v) BI LLC, (vi) BIPC Holdings, and (vii) any other Person that provides a guarantee under Article 5 of this Indenture in respect of one or more series of Securities, as evidenced by one or more indentures supplemental hereto.
The first paragraph in Article 11.4 of the Original Indenture is hereby amended to read in its entirety as follows:
So long as any of the Securities are Outstanding, each of the Issuer and the Partnership shall deliver to the Trustees, within 120 days after the end of each fiscal year of the Issuer and the Partnership, a brief certificate from its principal executive, financial or accounting officer as to his or her knowledge of the compliance of the Issuer and the Guarantors with all conditions and covenants under this Indenture (such compliance to be determined without regard to any period of grace or requirement of notice provided under this Indenture) which certificate shall comply with the requirements of TIA § 314(a)(4).
| 1.4 | Currency |
Except where expressly provided, all amounts in this Second Supplemental Indenture are stated in United States currency.
6
Article 2
THE NOTES
| 2.1 | Designation |
There is hereby authorized to be issued under the Original Indenture a separate series of Securities designated as “7.250% Subordinated Notes due May 31, 2084”.
| 2.2 | Limit of Aggregate Principal Amount |
The aggregate principal amount of Notes that may be authenticated and delivered pursuant to the Second Supplemental Indenture (except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 3.4, 3.5, 3.6, 10.6 or 12.7 of the Original Indenture and except for any Notes which, pursuant to the last sentence of Section 3.3 of the Original Indenture, are deemed never to have been authenticated and delivered) shall initially be limited to $172,500,000, of which $150,000,000 principal amount has been issued hereunder as of the date hereof. The Issuer may from time to time, without the consent of the Holders of the Notes but with the consent of the Guarantors, create and issue further notes having the same terms and conditions in all respects as the Notes being offered hereby except for the issue date, the issue price and the first payment of interest thereon. Additional notes issued in this manner will be consolidated with and will form a single series with the Notes, as the case may be, being offered hereby.
| 2.3 | Date of Payment of Principal |
The principal of the Notes shall be payable on May 31, 2084.
| 2.4 | Payments; Registration of Transfers |
All payments in respect of the Notes shall be made in immediately available funds. The Issuer hereby appoints the U.S. Trustee to act as the initial Paying Agent for the Notes. The “Place of Payment” for the Notes shall be at the address of the Paying Agent, currently located at 1505 Energy Park Drive, St. Paul, Minnesota 55108.
For such Notes (if any) as are not represented by a Global Security, payments of principal (and premium, if any) and interest on any Notes will be made at the Place of Payment, except that, at the option and expense of the Issuer, payment of interest may be made by (a) cheque mailed to the address of the Person entitled thereto as such address shall appear on the Security Register or (b) wire transfer to an account maintained by the Person entitled thereto as specified in the Security Register. The registration of transfers and exchanges of Notes will be made at the Corporate Trust Office of the U.S. Trustee currently located at 1505 Energy Park Drive, St. Paul, Minnesota 55108 and the Place of Payment.
| 2.5 | Interest |
| (a) | The Notes will be issued in initial denominations of $25.00 and multiples of $25.00 in excess thereof and shall bear interest at the rate of 7.250% per annum, payable quarterly in arrears, subject to deferral as set forth in Section 2.8. |
7
| (b) | Interest in respect of the Notes shall accrue from and including the Issue Date or from and including the most recent Interest Payment Date to which interest has been paid or duly provided for. |
| (c) | The Interest Payment Dates on which interest shall be payable in respect of the Notes shall be March 31, June 30, September 30 and December 31 in each year, commencing on September 30, 2024. |
| (d) | The Regular Record Dates for interest in respect of the Notes shall be March 16, June 15, September 15 and December 16 (whether or not a Business Day) in respect of the interest payable quarterly in arrears on March 31, June 30, September 30 and December 31, respectively. |
| 2.6 | Redemption and Purchase for Cancellation of the Notes |
Except as provided in this Section 2.6 of this Second Supplemental Indenture, the Notes are not redeemable prior to maturity.
2.6.1 Redemption of Notes at the Option of the Issuer. On or after May 31, 2029, the Issuer may, at its option, on giving not more than 60 days’ nor less than 10 days’ prior notice to the Holders thereof, redeem the Notes in whole at any time or in part from time to time without the consent of the Holders, at a Redemption Price equal to 100% of the principal amount thereof, plus an amount equal to all accrued and unpaid interest to, but excluding, the Redemption Date.
2.6.2 Early Redemption upon a Tax Event. At any time, after the occurrence of a Tax Event, subject to applicable laws, the Issuer may, at its option, on giving not more than 60 days’ nor less than 10 days’ prior notice to the Holders thereof, redeem the Notes (in whole but not in part) without the consent of the Holders. The Redemption Price shall be equal to 100% of the principal amount thereof and shall be paid together with accrued and unpaid interest to, but excluding, the Redemption Date.
2.6.3 Early Redemption upon a Rating Event. At any time, following the occurrence of a Rating Event, the Issuer may, at its option, on giving not more than 60 days’ nor less than 10 days’ prior notice to the Holders thereof, redeem the Notes (in whole but not in part) without the consent of the Holders. The Redemption Price shall be equal to 102% of the principal amount thereof and shall be paid together with accrued and unpaid interest to, but excluding, the Redemption Date.
2.6.4 Notice of Redemption. Notwithstanding the first paragraph of Section 12.4 of the Original Indenture, notice of any redemption will be delivered at least 10 days but not more than 60 days before the Redemption Date to each Holder of the Notes to be redeemed. All notices of redemption shall state the information required by Section 12.4 of the Original Indenture. On and after any Redemption Date, interest will cease to accrue on the Notes or any portion thereof called for redemption. On or before any Redemption Date, the Issuer shall deposit with the Paying Agent (or the U.S. Trustee) money sufficient to pay the Redemption Price of the Notes to be redeemed on such date. If less than all the Notes are to be redeemed, the Notes to be redeemed shall be selected by the U.S. Trustee at the Issuer’s direction by such method as the Issuer and the U.S. Trustee shall designate.
8
| 2.7 | Automatic Exchange |
2.7.1 Automatic Exchange. Upon the occurrence of an Automatic Exchange Event (such time, the “Exchange Time”), the Notes, including accrued and unpaid interest thereon, will be exchanged automatically (the “Automatic Exchange”), without the consent of the Holders thereof, into Exchange Preferred Units. As of the Exchange Time, Holders will have the right to receive one Exchange Preferred Unit for each $25.00 principal amount of Notes held together with the number of Exchange Preferred Units (including fractional units, if applicable) calculated by dividing the amount of accrued and unpaid interest, if any, on the Notes, by $25.00. Such right will be automatically exercised, and the Notes shall be automatically exchanged, without the consent of the Holders of the Notes, into Exchange Preferred Units in accordance with such exchange procedures as shall be reasonably determined by the Issuer in consultation with the U.S. Trustee. At such time, all outstanding Notes shall be deemed to be immediately and automatically surrendered without need for further action by the Holders of the Notes, who shall thereupon automatically cease to be Holders thereof and all rights of each such Holder as a debtholder of the Issuer and as a beneficiary of the subordinated guarantees of the Guarantors shall automatically cease.
2.7.2 Automatic Exchange Event Notice. The Issuer shall deliver to the U.S. Trustee a written notice of the occurrence of an Automatic Exchange (the “Automatic Exchange Event Notice”) within 10 days after the occurrence of such event, which Automatic Exchange Event Notice shall be signed by any director or officer (or equivalent) of the Issuer and shall be binding on the Holders of the Notes. As soon as practicable following receipt by the U.S. Trustee from the Issuer of an Automatic Exchange Event Notice, the U.S. Trustee shall deliver notice to the Holders of Notes of the occurrence of the Automatic Exchange; provided, however, that a failure to make such delivery shall not affect, reduce or modify in any way the effectiveness of the Automatic Exchange with effect as of the Exchange Time.
Following the occurrence of an Automatic Exchange, the Issuer shall, as soon as reasonably practicable, inform the Guarantors and the U.S. Trustee by notice in writing (the “Exchange Notice”) as to the number of Notes exchanged and transferred hereby. Such Exchange Notice shall specify the number of Exchange Preferred Units (including fractional units, if applicable) required in connection with the Automatic Exchange in accordance with this Indenture and shall specify whether, to the knowledge of the Issuer, such Holders of Notes (or Persons beneficially owning Notes represented by the Holders of such Notes) are Ineligible Persons.
2.7.3 Right Not to Deliver the Exchange Preferred Units. Upon an Automatic Exchange of the Notes, the Partnership reserves the right not to issue some or all of the Exchange Preferred Units to Ineligible Persons. In such circumstances, the Partnership will hold all Exchange Preferred Units that would otherwise be delivered to Ineligible Persons, as agent for such Ineligible Persons, and will attempt to facilitate the sale of such units through a registered broker or dealer retained by the Partnership for the purpose of effecting the sale (to parties other than the Partnership, its Affiliates or other Ineligible Persons) on behalf of such Ineligible Persons of such Exchange Preferred Units. Such sales, if any, may be made at any time and any price. The Partnership will not be subject to any liability for failing to sell Exchange Preferred Units on behalf of any such Ineligible Persons or at any particular price on any particular day. The net proceeds received by the Partnership from the sale of any such Exchange Preferred Units will be divided among the Ineligible Persons in proportion to the number of Exchange Preferred Units that would otherwise have been delivered to them, after deducting the costs of sale and any applicable Taxes or withholding on account of Taxes, if any. The Partnership will pay the aggregate net proceeds that it receives for such Exchange Preferred Units to The Depository Trust Company (the “Clearing Agency”) (if the Notes are then held in the book-entry only system) or to the trustee, registrar and/or transfer agent, as applicable (in all other cases) for distribution to such Ineligible Persons in accordance with the applicable procedures of the Clearing Agency or otherwise.
9
As a precondition to the delivery of any certificate or other evidence of issuance representing any Exchange Preferred Units or related rights following an Automatic Exchange, the Partnership may require a Holder of Notes (and Persons holding Notes represented by such Holder of Notes) to deliver a declaration, in form and substance satisfactory to the Partnership, confirming compliance with any applicable regulatory requirements to establish that such Holder of Notes is not, and does not represent, an Ineligible Person. The U.S. Trustee and the Partnership shall be entitled to rely exclusively on the declarations of the Holders.
| 2.8 | Deferral Right |
So long as no Event of Default has occurred and is continuing, the Issuer may elect, at its sole option, at any date other than an Interest Payment Date, to defer the interest payable on the Notes on one or more occasions for up to five consecutive years (a “Deferral Period”). Any such deferral will not constitute an Event of Default or any other breach under the Indenture and the Notes. Deferred interest will accrue until paid. A Deferral Period terminates on any Interest Payment Date on which the Issuer pays all accrued and unpaid interest on such date. No Deferral Period may extend beyond the date of Maturity.
The Issuer will give the Holders of the Notes written notice of its election to commence or continue a Deferral Period at least 10 days and not more than 60 days before the next Interest Payment Date. After the commencement of a Deferral Period, the Issuer will give the Holders of the Notes written notice of its election to continue or terminate, as applicable, such Deferral Period, at least 10 days and not more than 60 days before each subsequent Interest Payment Date until the termination of such Deferral Period.
There shall be no limit on the number of Deferral Periods that may occur pursuant to this Section 2.8.
| 2.9 | Form |
The Notes and the certificate of the U.S Trustee endorsed thereon shall each be issuable initially as one or more Global Securities in minimum denominations of $25.00 and integral multiples of $25.00 in excess thereof and shall be substantially in the form set forth in Annex A hereto. The Depositary for Global Securities shall be The Depository Trust Company.
10
| 2.10 | Events of Default |
The Events of Default contained in the Original Indenture shall not apply to the Notes.
Solely with respect to the Notes (and not with respect to any other Securities issued or outstanding under the Indenture), for so long as any of the Notes remain outstanding, “Event of Default” for purposes of the Indenture and the Notes will mean any one of the following events:
| (a) | default in the payment of any interest (including Additional Amounts thereon) when due and payable on the Notes, and continuance of such default for a period of 30 days (subject to the Issuer’s right, at its sole option, to defer interest payments as provided in Section 2.8 of this Second Supplemental Indenture); or |
| (b) | default in the payment of the principal of or any premium or Additional Amounts thereon, if any, when due and payable on the Notes. |
| 2.11 | Additional Covenants |
In the event that any Successor of the Issuer or a Guarantor is formed or organized outside of the United States, Canada or Bermuda, the applicable supplemental indenture in respect of such Successor shall include (i) a provision for the payment of Additional Amounts in the form substantially similar to that described in Section 2.12, with such modifications (including to the definition of “Relevant Taxing Jurisdiction”) as the Issuer, the Guarantors and such Successor reasonably determine are customary and appropriate for U.S. bondholders to address then-applicable (or potentially applicable future) taxes, duties, levies, imposts, assessments or other governmental charges imposed or levied by or on behalf of the applicable governmental authority in respect of payments made by such Successor under or with respect to the Notes, including any exceptions thereto as the Issuer, the Guarantors and such Successor shall reasonably determine would be customary and appropriate for U.S. bondholders and (ii) the right of the Issuer to redeem the Notes at 100% of the aggregate principal amount thereof plus accrued interest thereon in the event that Additional Amounts become payable by such Successor in respect of the Notes as a result of any change in law or official position regarding the application or interpretation of any law that is announced or becomes effective after the date of such supplemental indenture.
The covenants contained in Article 3 of this Second Supplemental Indenture shall apply to the Notes in addition to the covenants contained in the Original Indenture.
11
| 2.12 | Payment of Additional Amounts |
All payments made by the Issuer or any Guarantor under or with respect to the Notes will be made free and clear of, and without withholding or deduction for or on account of, any present or future tax, duty, levy, impost, assessment or other governmental charge (hereinafter, “Taxes”) imposed or levied by or on behalf of the government of Canada, Bermuda or of any province, territory or jurisdiction thereof or therein or by any authority or agency therein or thereof having power to tax (a “Relevant Taxing Jurisdiction”), unless the Issuer or any Guarantor (as applicable) is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Issuer or any Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made by it under or with respect to the Notes, the Issuer or such Guarantor (as applicable) will pay such additional amounts (hereinafter “Additional Amounts”) in respect of each such payment (excluding one payment of quarterly interest, other than deferred interest, in connection with a redemption of the Notes in accordance with the provisions described under Section 2.6.2 of this Second Supplemental Indenture) as may be necessary so that the net amount received (including Additional Amounts) by each Holder (including, as applicable, the beneficial owners in respect of any such Holder) after such withholding or deduction will not be less than the amount the Holder (including, as applicable, the beneficial owners in respect of any such Holder) would have received if such Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to: (a) any payment to a Holder or beneficial owner who is liable for such Taxes in respect of such Note (i) by reason of such Holder or beneficial owner, or any other Person entitled to payments on the Note, being a Person with whom the Issuer or a Guarantor does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the “Tax Act”)), (ii) by reason of the existence of any present or former connection between such Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction other than the mere ownership, or receiving payments under or enforcing any rights in respect of such Note, (iii) by reason of such Holder or beneficial owner being a “specified shareholder” of the Issuer or not dealing at arm’s length with a “specified shareholder” of the Issuer as defined in subsection 18(5) of the Tax Act, or (iv) by reason of such holder or beneficial owner being a “specified entity” in respect of the Issuer or any Guarantor as defined in proposals to amend the Tax Act with respect to “hybrid mismatch arrangements” contained in Bill C-59 tabled in Parliament on November 30, 2023; (b) any Tax that is levied or collected other than by withholding from payments on or in respect of the Notes; (c) any Note presented for payment (where presentation is required) more than 30 days after the later of (i) the date on which such payment first becomes due or (ii) if the full amount of the monies payable has not been paid to the Holders of the Notes on or prior to such date, the date on which the full amount of such monies has been paid to the Holders of the Notes, except to the extent that the Holder or beneficial owner of the Notes would have been entitled to such Additional Amounts on presentation of the same for payment on the last day of such period of 30 days; (d) any estate, inheritance, gift, sales, transfer, excise or personal property tax or any similar Tax; (e) any Tax imposed to the extent resulting from the failure of a Holder or beneficial owner to comply with certification, identification, declaration, filing or similar reporting requirements concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner, if such compliance is required by statute or by regulation, as a precondition to reduction of, or exemption, from such Tax; (f) any (i) withholding or deduction imposed pursuant to Sections 1471 to 1474 of the U.S. Internal Revenue Code of 1986, as amended (“FATCA”), or any successor version thereof, or any similar legislation imposed by any other governmental authority, or (ii) Tax or penalty arising from the Holder’s or beneficial owner’s failure to properly comply with the Holder’s or beneficial owner’s obligations imposed under the Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act (Canada) or any treaty, law or regulation or other official guidance enacted by Canada implementing FATCA or an intergovernmental agreement with respect to FATCA or any similar legislation imposed by any other governmental authority, including, for greater certainty, Part XVIII and Part XIX of the Tax Act; or (g) any combination of the foregoing clauses (a) to (f).
12
The Issuer or any Guarantor (as applicable) will also (1) make such withholding or deduction and (2) remit the full amount deducted or withheld by it to the relevant authority in accordance with applicable law. The Issuer or any Guarantor (as applicable) will furnish to the Holders of the Notes, within 30 days after the date the payment of any Taxes by it is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by it. The Issuer and the Guarantors will indemnify and hold harmless each Holder (including, as applicable, the beneficial owners in respect of any such Holder) and, upon written request, will reimburse each such Holder (including, as applicable, the beneficial owners in respect of any such Holder) for the amount of (i) any Taxes (other than any Taxes for which Additional Amounts would not be payable pursuant to clauses (a) through (g) above) levied or imposed and paid by such Holder (including, as applicable, the beneficial owners in respect of any such Holder) as a result of payments made under or with respect to the Notes which have not been withheld or deducted and remitted by the Issuer or any Guarantor (as applicable) in accordance with applicable law, (ii) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (iii) any Taxes (other than any Taxes for which Additional Amounts would not be payable pursuant to clauses (a) through (g) above) imposed with respect to any reimbursement under clause (i) or (ii) above in this paragraph, but excluding any such Taxes on such Holder’s (including, as applicable, the beneficial owners in respect of any such Holder’s) net income.
Whenever in the Indenture there is mentioned, in any context, the payment of principal (and premium, if any), redemption amount, purchase price, interest or any other amount payable under or with respect to any Note, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof (and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if applicable)).
The obligations of the Issuer and the Guarantors under this Section 2.12 shall survive the termination of this Indenture and the payment of all amounts under or with respect to the Notes.
| 2.13 | Defeasance |
The Notes shall be defeasible pursuant to both of Section 14.2 and Section 14.3 of the Original Indenture.
In the event the Issuer exercises its defeasance option with respect to the Notes pursuant to Section 14.2 of the Original Indenture, the Issuer’s and the Guarantors’ obligations with respect to the Notes under Section 2.12 of this Second Supplemental Indenture shall survive.
13
| 2.14 | Subordination of the Notes |
2.14.1 Notes Subordinate.
The Issuer covenants and agrees, and each Holder of Notes, by the acceptance thereof, covenants and agrees, that the Notes will be direct unsecured subordinated obligations of the Issuer. The obligations of the Issuer under the Notes are hereby subordinated in right of payment to all present and future Issuer Senior Indebtedness. The payment of all principal, premium (if any), interest and Additional Amounts on the Notes shall rank senior to all obligations of the Issuer in respect of its own equity and in respect of equity (including preferred equity) that has been issued by any Guarantor or BIPIC (including pursuant to any guarantee by the Issuer of the existing equity obligations of any such other Person), and will rank pari passu with the 2081 Notes and the Issuer’s guarantee obligations in respect of the Perpetual Notes.
The Notes and the obligations of the Issuer under the Indenture will be fully and unconditionally guaranteed by each Guarantor pursuant to the Indenture, on a subordinated and joint and several basis, as to payment of principal, premium, interest and Additional Amounts (if any) and all other Obligations payable by the Issuer in respect of the Notes. All Guarantee Obligations are hereby subordinated in right of payment to all present and future Guarantor Senior Indebtedness. The Guarantee Obligations of each Guarantor shall rank senior to all obligations of such Guarantor in respect of its own equity and in respect of equity (including preferred equity) that has been issued by the Issuer, any other Guarantor or BIPIC (including pursuant to any guarantee by such Guarantor of the existing equity obligations of any such Person).
In the event that, notwithstanding the foregoing, any payment or distribution of any character, whether in cash, securities, or other property, shall be received by any Trustee or any Holder in contravention of the subordination provisions set out in this Second Supplemental Indenture, such payment or distribution shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable, at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable. In the event of the failure of the Trustees or any Holder to endorse or assign any such payment, distribution, or any security or property related thereto, each holder of Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable, is irrevocably authorized to endorse or assign the same.
The provisions of this Section 2.14.1 shall not impair any rights, interests, remedies, or powers of any holder of any Issuer Senior Indebtedness or any Guarantor Senior Indebtedness.
2.14.2 No Payment When Issuer Senior Indebtedness or Guarantor Senior Indebtedness in Default.
In the event and during the continuation of any default in the payment of any Issuer Senior Indebtedness or any Guarantor Senior Indebtedness, as applicable, that is due and payable, or in the event that any event of default with respect to any Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable, shall have occurred and be continuing permitting the holders of such Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable (or the trustee on behalf of the holders of such Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable) to declare such Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable, due and payable prior to the date on which it would otherwise have become due and payable, unless and until such default or event of default shall have been cured or waived or shall have ceased to exist and any such declaration and its consequences shall have been rescinded or annulled, then no payment shall be made by the Issuer or the applicable Guarantors on account of the principal of, premium (if any), interest or any other amounts on the Notes or on account of the purchase or other acquisition of the Notes.
14
In the event that, notwithstanding the foregoing, the Issuer or a Guarantor shall make any payment to any Trustee or Holder of any Note that is prohibited by this Section 2.14.2, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustees, by a written notice delivered to a Responsible Officer of the U.S. Trustee at the Corporate Trust Office of the U.S. Trustee, by a holder of Issuer Senior Indebtedness or Guarantor Senior Indebtedness, the Issuer, a Guarantor or a Holder, as applicable, then and in such event such payment shall be paid over and delivered to the Issuer or such Guarantor, as applicable.
2.14.3 Payment Permitted if No Default.
Nothing contained in this Section 2.14 (except in Section 2.14.4) or elsewhere in this Second Supplemental Indenture, or in any of the Notes, shall prevent the application by the U.S. Trustee or any Paying Agent of any moneys deposited with it under the Indenture to payments of the principal of, premium (if any), interest or any other amounts on the Notes if, at the time of such deposit, a Responsible Officer of the U.S. Trustee had not received at the Corporate Trust Office of the U.S. Trustee the Officers’ Certificate or written notice provided for in Section 2.14.2 of any event prohibiting the making of such payment or if, at the time of such deposit (whether or not in trust) by the Issuer with the U.S. Trustee, such payment would not have been prohibited by the provisions of this Section 2.14, and the U.S. Trustee shall not be affected by any notice to the contrary received by it on or after such date.
2.14.4 Trustee Not Charged with Knowledge of Prohibition.
Anything in this Section 2.14 or elsewhere contained in the Indenture to the contrary notwithstanding, the Trustees shall not at any time be charged with knowledge of the existence of any facts which would prohibit the making of any payment of moneys to or by the Trustees, and shall be entitled conclusively to assume that no such facts exist and that no event specified in Section 2.14.1 or Section 2.14.2 has happened, unless and until a Responsible Officer of the U.S. Trustee shall have received at the Corporate Trust Office of the U.S. Trustee (i) an Officers’ Certificate to that effect or (ii) notice in writing to that effect signed by or on behalf of the holder or holders, or their representatives, of Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable, who shall have been certified by the Issuer or such Guarantor, as possible, or otherwise established to the reasonable satisfaction of the U.S. Trustee to be such holder or holders or representatives or from any trustee under any indenture pursuant to which such Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable, shall be outstanding; and before the receipt of any such Officers’ Certificate or written notice, the U.S. Trustee shall be entitled in all respects to assume that no such facts exist; provided, however, that if the U.S. Trustee shall not have received the Officers’ Certificate or the written notice provided for in this Section 2.14 at least three (3) Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of or interest on any Security) then, anything herein contained to the contrary notwithstanding, the U.S. Trustee shall have all power and authority to receive such money and to apply the same to the purpose for which such money were received and shall not be affected by any notice to the contrary which may be received by it during or after such three (3) Business Day period.
15
The Issuer shall give prompt written notice to the U.S. Trustee and to the Paying Agent of any facts which would prohibit the payment of money or assets to or by the U.S. Trustee or any Paying Agent.
2.14.5 Trustee to Effectuate Subordination.
Each Holder of Notes by such Holder’s acceptance thereof authorizes and directs the U.S. Trustee on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination as between such Holder and holders of Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable, as provided in this Section 2.14 and appoints the U.S. Trustee its attorney-in-fact for any and all such purposes.
2.14.6 Rights of Trustees as Holder of Issuer Senior Indebtedness.
Each Trustee shall be entitled to all the rights set forth in this Section 2.14 with respect to any Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable, which may at the time be held by it, to the same extent as any other holder of Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable. Nothing in this Section 2.14 shall deprive the Trustees of any rights as such holders.
2.14.7 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the U.S. Trustee shall have been appointed by the Issuer and be then acting under this Indenture, the term “U.S. Trustee” as used in this Section 2.14 shall in such case (unless the context shall otherwise require) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if the Paying Agent were named in this Section 2.14 in addition to or in place of the U.S. Trustee, provided, however, that Sections 2.14.4 and 2.14.5 shall not apply to the Issuer or any Affiliate of the Issuer if the Issuer or such Affiliate acts as Paying Agent.
2.14.8 Subordination Rights Not Impaired by Acts or Omissions of the Issuer or Holders of Issuer Senior Indebtedness or Guarantor Senior Indebtedness.
No right of any present or future holders of any Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable, to enforce the subordination that is provided for in this Second Supplemental Indenture shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Issuer or any Guarantor, or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Issuer or any Guarantor with the terms, provisions, and covenants of the Indenture, regardless of any knowledge which any such holder may have or be otherwise charged with. The holders of Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable, may, at any time or from time to time and in their absolute discretion, change the manner, place, or terms of payment, change or extend the time of payment of, or renew or alter, any Issuer Senior Indebtedness or Guarantor Senior Indebtedness, or amend or supplement any instrument pursuant to which any Issuer Senior Indebtedness or Guarantor Senior Indebtedness is issued or by which it may be secured, or release any security, or exercise or refrain from exercising any other of their rights under any Issuer Senior Indebtedness or Guarantor Senior Indebtedness, including, without limitation, the waiver of default, all without notice to or assent from the Holders of the Notes or the Trustees and without affecting the obligations of the Issuer, any Guarantor, the Trustees, or the Holders of the Notes under this Section 2.14.
16
2.14.9 Trustee’s Rights to Compensation, Reimbursement of Expenses and Indemnification.
Nothing in this Section 2.14 shall apply to claims of, or payments to, the Trustees under or pursuant to Sections 6.6 or 7.10 of the Original Indenture.
2.14.10 Modification of Subordination Provisions.
Anything in this Section 2.14 or elsewhere contained in the Indenture to the contrary notwithstanding, no modification or amendment and no supplemental indenture shall modify the subordination provisions of this Section 2.14 in a manner that would adversely affect the holders of Issuer Senior Indebtedness or Guarantor Senior Indebtedness.
| 2.15 | Consent and Acknowledgement of the Guarantors |
Pursuant to Section 3.1 of the Original Indenture, the Partnership hereby consents to the issuance of the Notes by the Issuer and each Guarantor acknowledges and confirms that its obligations with respect to the Notes constitute Guarantee Obligations.
Article 3
COVENANTS OF THE PARTNERSHIP APPLICABLE TO THE NOTES
| 3.1 | Distribution Stopper Undertaking |
Unless the Issuer has paid all interest that has been deferred or is then payable on the Notes, neither the Issuer nor the Partnership will:
17
| (a) | declare any distributions or dividends on the Distribution Restricted Securities or pay any interest on any Parity Indebtedness (other than dividends or distributions in the form of stock or units, respectively, on the Distribution Restricted Securities); |
| (b) | redeem, purchase or otherwise retire any Distribution Restricted Securities or Parity Indebtedness (except (i) with respect to Distribution Restricted Securities or Parity Indebtedness, out of the net cash proceeds of a substantially concurrent issue of Distribution Restricted Securities or Parity Indebtedness, respectively, or (ii) pursuant to any purchase obligation, sinking fund, retraction privilege or mandatory redemption provisions attaching to any series of Distribution Restricted Securities); or |
| (c) | make any payment to holders of any of the Distribution Restricted Securities or any Parity Indebtedness in respect of distributions or dividends not declared or paid on such Distribution Restricted Securities or interest not paid on such Parity Indebtedness, respectively. |
provided that the foregoing clauses (a) and (c) shall not apply in respect of any pro rata dividend or distribution or any other payment on any Parity Indebtedness which is made with a pro rata payment of any accrued and unpaid interest with respect to the Notes.
| 3.2 | Issuance of Partnership Preferred Units |
The Partnership covenants for the benefit of Holders of Notes that, for so long as the Notes are Outstanding, the Partnership will not create or issue any Partnership Preferred Units which, in the event of insolvency, liquidation, dissolution or winding-up of the Partnership, would rank in right of payment in priority to the Exchange Preferred Units.
Article 4
MISCELLANEOUS
| 4.1 | Guarantors of the Notes |
Brookfield Infrastructure US Holdings I Corporation, a guarantor under the Original Indenture, will not be a Guarantor in respect of the Notes, and BI LLC, which was not party to the Original Indenture, will be a Guarantor in respect of the Notes and hereby agrees to be bound by the terms of the Indenture, including Article 5 of the Original Indenture.
| 4.2 | Ratification of Original Indenture |
The Original Indenture, as amended and supplemented by this Second Supplemental Indenture, is in all respects ratified and confirmed, and this Second Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided.
18
| 4.3 | Acceptance of Trust by Trustees |
The Trustees hereby accept the trusts and duties declared and provided for in, and as otherwise contemplated by, this Second Supplemental Indenture and hereby agree to perform the same upon the terms and conditions set forth herein and as contemplated hereby and in the Original Indenture, in each case as supplemented and amended from time to time.
| 4.4 | Benefits of Indenture |
Nothing in this Second Supplemental Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any Securities Registrar and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Second Supplemental Indenture.
| 4.5 | Governing Law |
This Second Supplemental Indenture, the Notes and the Guarantors’ Guarantee Obligations shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws principles thereof. Notwithstanding the preceding sentence of this Section 4.4, the exercise, performance or discharge by the Canadian Trustee of any of its rights, powers, duties or responsibilities hereunder shall be construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable thereto.
| 4.6 | Separability |
In case any one or more of the provisions contained in this Second Supplemental Indenture or in the Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Second Supplemental Indenture or of the Notes, but this Second Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
| 4.7 | Counterparts |
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. This instrument may be executed and delivered by facsimile or other electronic transmission of a counterpart hereof bearing a manual, facsimile or other electronic signature.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
19
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the day and year first above written.
| BROOKFIELD INFRASTRUCTURE FINANCE ULC | |||
| By: | /s/ David Krant | ||
| Name: | David Krant | ||
| Title: | Senior Vice President and Chief Financial Officer | ||
| BROOKFIELD INFRASTRUCTURE PARTNERS L.P., by its general partner, BROOKFIELD INFRASTRUCTURE PARTNERS LIMITED | |||
| By: | /s/ Jane Sheere | ||
| Name: | Jane Sheere | ||
| Title: | Secretary | ||
| BROOKFIELD INFRASTRUCTURE L.P., by its managing general partner, BROOKFIELD INFRASTRUCTURE PARTNERS L.P., by its general partner, BROOKFIELD INFRASTRUCTURE PARTNERS LIMITED | |||
| By: | /s/ Jane Sheere | ||
| Name: | Jane Sheere | ||
| Title: | Secretary | ||
| BIP BERMUDA HOLDINGS I LIMITED | |||
| By: | /s/ Jane Sheere | ||
| Name: | Jane Sheere | ||
| Title: | Secretary | ||
[Signature page – Second Supplemental Indenture]
| BROOKFIELD INFRASTRUCTURE HOLDINGS (CANADA) INC. | |||
| By: | /s/ David Krant | ||
| Name: | David Krant | ||
| Title: | Senior Vice President and Chief Financial Officer | ||
| BROOKFIELD INFRASTRUCTURE LLC | |||
| By: | /s/ Ralph Klatzkin | ||
| Name: | Ralph Klatzkin | ||
| Title: | Vice President | ||
| BIPC HOLDINGS INC. | |||
| By: | /s/ David Krant | ||
| Name: | David Krant | ||
| Title: | Senior Vice President | ||
[Signature page – Second Supplemental Indenture]
| COMPUTERSHARE TRUST COMPANY OF CANADA, as Canadian Trustee | |||
| By: | /s/ Yana Nedyalkova | ||
| Name: | Yana Nedyalkova | ||
| Title: | Corporate Trust Officer | ||
| By: | /s/ Raji Sivalingam | ||
| Name: | Raji Sivalingam | ||
| Title: | Associate Trust Officer | ||
[Signature page – Second Supplemental Indenture]
| COMPUTERSHARE TRUST COMPANY, N.A., as U.S. Trustee | |||
| By: | /s/ Jerry Urbanek | ||
| Name: | Jerry Urbanek | ||
| Title: | Trust Officer | ||
[Signature page – Second Supplemental Indenture]
ANNEX A
[Face of Note]
[Insert if the Security is a Global Security — THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Unless this certificate is presented by an authorized representative of The Depository Trust Company (“DTC”), a New York corporation, to Brookfield Infrastructure Finance ULC or its agent for registration of transfer, exchange or payment, and any certificate issued in respect thereof 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 since the registered owner hereof, Cede & Co., has an interest herein.]
BROOKFIELD INFRASTRUCTURE FINANCE ULC
7.250% Subordinated Notes Due May 31, 2084
| CUSIP: 11276B 208 | |
| ISIN: US11276B2088 | |
| No. ● | US$● |
Brookfield Infrastructure Finance ULC, an unlimited liability company organized under the laws of Alberta, Canada (herein called the “Issuer”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to ●, or registered assigns, the principal sum of ● (●) United States Dollars on May 31, 2084 and to pay interest thereon from and including the Issue Date or from and including the most recent Interest Payment Date to which interest has been paid or duly provided for, quarterly in arrears on March 31, June 30, September 30 and December 31 in each year, commencing on September 30, 2024, at a rate of 7.250% per annum, until the principal hereof is paid or made available for payment, calculated as set forth above, from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand. As provided in the Original Indenture (as defined on the reverse of this Note), interest shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Interest shall accrue from and including the Issue Date.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be March 16, June 15, September 15 or December 16 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the U.S. Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.
1
So long as no Event of Default (as defined in the Indenture) has occurred and is continuing, the Issuer may elect, at its sole option, at any date other than an Interest Payment Date, to defer the interest payable on the Securities on one or more occasions for up to five consecutive years (a “Deferral Period”). There shall be no limit on the number of Deferral Periods that may occur. Such deferral will not constitute an Event of Default or any other breach under the Indenture and the Securities. Deferred interest will accrue until paid. A Deferral Period terminates on any Interest Payment Date on which the Issuer pays all accrued and unpaid interest on such date. No Deferral Period may extend beyond the Maturity Date.
This Security will be automatically exchanged into Exchange Preferred Units (as defined in the Indenture) upon an Automatic Exchange Event, in the manner, with the effect and as of the effective time contemplated in the Indenture.
The indebtedness evidenced by this Security and by all other Securities now or hereafter certified and delivered under the Indenture is subordinated and subject in right of payment, to the extent and in the manner provided in the Indenture, to the prior payment in full of all present and future Issuer Senior Indebtedness, whether outstanding at the date of the Indenture or thereafter created, incurred, assumed or guaranteed. The Guarantors’ Guarantee Obligations rank subordinate in rank and priority of payment in full of all Guarantor Senior Indebtedness on the same basis as this Security and the obligations of the Issuer hereunder are subordinated to all Issuer Senior Indebtedness.
Payment of the principal of (and premium, if any) and interest on this Security will be made at the Place of Payment in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debt; provided, however, that, at the option and expense of the Issuer, payment of interest may be made by (i) cheque mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (ii) by wire transfer to an account maintained by the Person entitled thereto as specified in the Security Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall, for all purposes, have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the U.S. Trustee referred to on the reverse hereof by manual, facsimile or other electronic signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
2
[The balance of this page is intentionally left blank; signature page follows]
3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed under its corporate seal.
Dated: , 2024
| BROOKFIELD INFRASTRUCTURE FINANCE ULC | |||
| By: | |||
| Name: David Krant | |||
| Title: Senior Vice President and Chief Financial Officer | |||
| Attest: | |||
| Name: Keir Hunt | |||
| Title: President | |||
4
(FORM OF U.S. TRUSTEE’S CERTIFICATE OF AUTHENTICATION)
U.S. TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This Note is one of the Notes referred to in the Indenture referred to above.
| COMPUTERSHARE TRUST COMPANY N.A., as U.S. Trustee | |
| By: Authorized Officer | |
| Dated: |
(FORM OF REGISTRATION PANEL)
(NO WRITING HEREON EXCEPT BY THE U.S. TRUSTEE OR OTHER REGISTRAR)
| DATE OF REGISTRY |
IN WHOSE NAME REGISTERED |
SIGNATURE OF U.S. TRUSTEE OR OTHER REGISTRAR | ||
[Reverse of Note.]
This Security is one of a duly authorized issue of securities of the Issuer (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of May 24, 2021 (the “Original Indenture”), as supplemented by the Second Supplemental Indenture, dated as of May 31, 2024 (the “Second Supplemental Indenture”) (the Original Indenture and the Second Supplemental Indenture together herein called the “Indenture”, which term shall have the meaning assigned to it in such instrument), by and among the Issuer, Brookfield Infrastructure Partners L.P., Brookfield Infrastructure L.P., BIP Bermuda Holdings I Limited, Brookfield Infrastructure Holdings (Canada) Inc., Brookfield Infrastructure LLC and BIPC Holdings Inc. (the “Guarantors”), as guarantors, and Computershare Trust Company N.A., as U.S. trustee (the “U.S. Trustee”) and Computershare Trust Company of Canada, as Canadian trustee (the “Canadian Trustee”, and together with the U.S. Trustee, the “Trustees”, which term includes any successor trustees under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Guarantors, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to US$172,500,000, of which $150,000,000 principal amount has been issued as of the date hereof. The Issuer may from time to time, without the consent of the holders of the Securities, create and issue further securities having the same terms and conditions in all respects as the Securities issued on the date hereof, except for the issue date, the issue price and the first payment of interest thereon. Additional securities issued in this manner will be consolidated with and will form a single series with the Securities; provided that if any additional securities issued after the date hereof are not fungible with the Securities issued on the date hereof for U.S. federal income tax purposes, then such additional securities shall be issued with a separate CUSIP or ISIN number so that they are distinguishable from the Securities.
5
The Issuer or a Guarantor (as applicable) will pay to each relevant Holder or beneficial owner certain Additional Amounts in the event of the withholding or deduction of certain Canadian or Bermudian taxes as described in the Second Supplemental Indenture. In addition, certain Other Additional Amounts may be payable as contemplated in Section 2.12 of the Second Supplemental Indenture and as described in the applicable supplemental indenture.
The Securities are redeemable at the Redemption Prices as described in the Second Supplemental Indenture and in any applicable supplemental indenture as contemplated in Section 2.12 of the Second Supplemental Indenture.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
In the event of purchase of this Security in part only, a new Security or Securities of this series and of like tenor for the unpurchased portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer, the Guarantors and the Trustees with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Issuer or the Guarantors with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange hereafter or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the Corporate Trust Office of the U.S. Trustee or the Place of Payment, duly endorsed by, or accompanied by a written instrument of transfer, in form satisfactory to the Issuer and the Security Registrar, duly executed by the Holder hereof or attorney duly authorized in writing, and, thereupon, one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
6
The Securities of this series are issuable only in registered form without coupons in initial denominations of US$25.00 and multiples of US$25.00 in excess thereof.
No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Issuer, the Trustees and any agent of the Issuer or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Issuer, the Trustee nor any such agent shall be affected by notice to the contrary.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE AND THE SECURITIES, without regard to conflicts of laws principles thereof. Notwithstanding the preceding sentence, the exercise, performance or discharge by the Canadian Trustee of any of its rights, powers, duties or responsibilities hereunder shall be construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable thereto.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
7
Exhibit 4.3
BROOKFIELD INFRASTRUCTURE PARTNERS L.P.
SIXTH AMENDMENT TO THE
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
THIS AMENDMENT (the “Amendment”) to the Amended and Restated Limited Partnership Agreement dated as of February 16, 2018 (the “Agreement”) of Brookfield Infrastructure Partners L.P. (the “Partnership”) is made as of May 31, 2024 (the “Effective Date”), by the undersigned. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement.
WHEREAS, on March 12, 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 XVII 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 of the Agreement is hereby deleted in its entirety and replaced with the following: |
“Agreement” means this Amended and Restated Limited Partnership Agreement of Brookfield Infrastructure Partners L.P., as amended by the First Amendment to the Amended and Restated Limited Partnership Agreement of the Partnership dated as of September 12, 2018, the Second Amendment to the Amended and Restated Limited Partnership Agreement of the Partnership dated as of February 27, 2020, the Third Amendment to the Amended and Restated Limited Partnership Agreement of the Partnership dated as of September 21, 2020, the Fourth Amendment to the Amended and Restated Limited Partnership Agreement of the Partnership dated as of January 21, 2021, the Fifth Amendment to the Amended and Restated Limited Partnership Agreement of the Partnership dated as of May 24, 2021 and the Sixth Amendment to the Amended and Restated Limited Partnership Agreement of the Partnership dated as of May 31, 2024;
- 2 -
| 2. | Schedule A of the Agreement is hereby amended by adding Part XVII of Schedule A to this Amendment as Part XVII of Schedule A of the Agreement. |
| 3. | This Amendment shall be effective as of the Effective Date. |
| 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 Effective Date.
|
GENERAL PARTNER: BROOKFIELD INFRASTRUCTURE PARTNERS LIMITED | |||
| By: | /s/ James Bodi | ||
| Name: | James Bodi | ||
| Title: | Vice President | ||
[Sixth Amendment to BIP A&R LPA]
SCHEDULE A
PART XVII
Number and Designation of and Rights, Privileges, Restrictions and Conditions
Attaching to the Class A Preferred Limited Partnership Units, Series 16
The sixteenth 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 16 (the “Series 16 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(C)(e)(i) to this Part XVII of Schedule A.
“Arrears” means, with respect to the Series 16 Distributions, the full cumulative Series 16 Distributions through the most recent Series 16 Distribution Payment Date that have not been paid on all Outstanding Series 16 Preferred Units.
“Assignee” means a Person to whom one or more Partnership Interests have been transferred in a manner permitted under this Agreement.
“Automatic Exchange Event” means the occurrence of any of: (i) the making by the Issuer of a general assignment for the benefit of its creditors or a proposal (or the filing of a notice of its intention to do so) under the Bankruptcy and Insolvency Act (Canada); (ii) any proceeding instituted by the Issuer and/or the Partnership seeking to adjudicate them as bankrupt (including any voluntary assignment in bankruptcy) or insolvent or, where the Issuer and/or the Partnership are insolvent, seeking liquidation, winding up, dissolution, reorganization, arrangement, compromise, adjustment, protection, relief or composition of their debts under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable), or seeking the entry of an order for the appointment of a receiver, interim receiver, trustee or other similar official for the Issuer and/or the Partnership or in respect of all or any substantial part of their property and assets in circumstances where the Issuer and/or the Partnership are adjudged as bankrupt (including any voluntary assignment in bankruptcy) or insolvent; (iii) a receiver, interim receiver, trustee or other similar official is appointed over the Issuer and/or the Partnership or for all or substantially all of their property and assets by a court of competent jurisdiction in circumstances where the Issuer and/or the Partnership are adjudged as bankrupt (including any voluntary assignment in bankruptcy) or insolvent under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable); or (iv) any proceeding is instituted against the Issuer and/or the Partnership seeking to adjudicate them as bankrupt (including any voluntary assignment in bankruptcy) or insolvent, or where the Issuer and/or the Partnership are insolvent, seeking liquidation, winding up, dissolution, reorganization, arrangement, compromise, adjustment, protection, relief or composition of their debts under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable), or seeking the entry of an order for the appointment of a receiver, interim receiver, trustee or other similar official for the Issuer and/or the Partnership or in respect of all or any substantial part of their property and assets in circumstances where the Issuer and/or the Partnership are adjudged as bankrupt or insolvent under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable), and in any such case, such proceeding has not been stayed or dismissed within 60 days of the institution of any such proceeding or the actions sought in such proceedings occur (including the entry of an order for relief against the Issuer and/or the Partnership or the appointment of a receiver, interim receiver, trustee, or other similar official for them or for all or substantially all of their property and assets).
- A-2 -
“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 May 31, 2024; 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.
“Depositary” means, with respect to any Series 16 Preferred Units issued in global form, The Depository Trust Company and its successors and permitted assigns.
“Issuer” means Brookfield Infrastructure Finance ULC, an unlimited liability company organized under the laws of the Province of Alberta, Canada.
“Notes” means the 7.250% subordinated notes due May 31, 2084 issued by the Issuer and guaranteed, on a subordinated basis, by the Partnership, Brookfield Infrastructure L.P., BIP Bermuda Holdings I Limited, Brookfield Infrastructure Holdings (Canada) Inc., Brookfield Infrastructure LLC and BIPC Holdings Inc.
“NYSE” means the New York Stock Exchange.
“Paying Agent” means the Series 16 Transfer Agent, acting in its capacity as paying agent for the Series 16 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 16 Preferred Units, the General Partner shall act in such capacity.
- A-3 -
“Relevant Date” has the meaning specified in Section 2(C)(e)(ii) to this Part XVII 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 16 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.
“Series 16 Distribution Payment Date” means the last calendar day of each of March, June, September and December of each year following the Series 16 Original Issue Date; provided however, that if any Series 16 Distribution Payment Date would otherwise occur on a day that is not a Business Day, such Series 16 Distribution Payment Date shall instead be on the immediately succeeding Business Day without the accrual of additional distributions.
“Series 16 Distribution Period” means a period of time from and including the preceding Series 16 Distribution Payment Date to, but excluding, the next Series 16 Distribution Payment Date for such Series 16 Distribution Period (other than the initial Series 16 Distribution Period, which means a period of time from and including the Series 16 Original Issue Date to, but excluding, the first Series 16 Distribution Payment Date thereafter).
“Series 16 Distribution Rate” means the distribution rate payable on the Series 16 Preferred Units from time to time, being the same rate as the interest rate which would have accrued on the Notes at any such time if such Notes had not been automatically converted into Series 16 Preferred Units upon an Automatic Exchange Event, and had remained outstanding.
“Series 16 Distribution Record Date” has the meaning given to such term in Section 2(C)(b)(iii) to this Part XVII of Schedule A.
“Series 16 Distributions” means distributions with respect to Series 16 Preferred Units pursuant to Section 2(C)(b) to this Part XVII of Schedule A.
“Series 16 Holder” means a Record Holder of Series 16 Preferred Units.
“Series 16 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 Series 16 Preferred Units, including Equity Units and the General Partner Units, but excluding any Series 16 Parity Securities and Series 16 Senior Securities.
“Series 16 Liquidation Preference” means a liquidation preference for each Series 16 Preferred Unit equal to $25.00 per unit (subject to adjustment for any splits, combinations or similar adjustments to the Series 16 Preferred Units).
- A-4 -
“Series 16 Original Issue Date” means the day upon which the Series 16 Preferred Units are issued upon the occurrence of an Automatic Exchange Event in accordance with this Part XVII of Schedule A.
“Series 16 Parity Securities” means (i) every class or series of the Class A Preferred Units and Series 16 Preferred Units and (ii) any class or series of Partnership Interests established after the Series 16 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 16 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 16 Preferred Units” has the meaning given to such term in the preamble to this Part XVII of Schedule A.
“Series 16 Redemption Date” has the meaning given such term in Section 2(C)(d)(i) to this Part XVII of Schedule A.
“Series 16 Redemption Notice” has the meaning given such term in Section 2(C)(d)(ii) to this Part XVII of Schedule A.
“Series 16 Redemption Payments” means payments to be made to the Series 16 Holders to redeem Series 16 Preferred Units in accordance with Section 2(C)(d) to this Part XVII of Schedule A.
“Series 16 Redemption Price” has the meaning given such term in Section 2(C)(d)(i) to this Part XVII of Schedule A.
“Series 16 Senior Securities” means any class or series of Partnership Interests established after the Series 16 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 16 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 16 Transfer Agent” means Computershare Inc., and its successors and assigns, or any other transfer agent and registrar appointed by the General Partner for the Series 16 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(C)(d)(i) to this Part XVII of Schedule A.
- A-5 -
| 2. | Terms of Series 16 Preferred Units |
| A. | General. Each Series 16 Preferred Unit shall be identical in all respects to every other Series 16 Preferred Unit, except as to the respective dates from which the Series 16 Liquidation Preference shall increase or from which Series 16 Distributions may begin accruing, to the extent such dates may differ. The Series 16 Preferred Units represent perpetual interests in the Partnership and shall not give rise to a claim by the Partnership or a Series 16 Holder for conversion or, except as set forth in Section 2(C)(d) to this Part XVII of Schedule A, redemption thereof at a particular date. |
| B. | Issuance. The issue price of each Series 16 Preferred Unit shall be $25.00 principal amount of Notes or $25.00 of accrued and unpaid interest on the Notes, if any. |
| C. | Rights of Series 16 Preferred Units. The Series 16 Preferred Units shall have the following rights, preferences and privileges and shall be subject to the following duties and obligations: |
| a. | Series 16 Preferred Units. |
| i. | The authorized number of Series 16 Preferred Units shall be unlimited. Series 16 Preferred Units that are purchased or otherwise acquired by the Partnership shall be cancelled. |
| ii. | The Series 16 Preferred Units shall be represented by one or more global Certificates registered in the name of the Depositary or its nominee, and no Series 16 Holder shall be entitled to receive a definitive Certificate evidencing its Series 16 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 16 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 16 Preferred Units, payments and communications made by the Partnership to Series 16 Holders shall be made by making payments to, and communicating with, the Depositary. |
| b. | Distributions. |
| i. | Distributions on each Outstanding Series 16 Preferred Unit shall be cumulative and shall accrue at the applicable Series 16 Distribution Rate from and including the Series 16 Original Issue Date (or, for any subsequently issued and newly Outstanding Series 16 Preferred Units, from and including the Series 16 Distribution Payment Date immediately preceding the issue date of such Series 16 Preferred Units) until such time as the Partnership pays the Series 16 Distribution or redeems such Series 16 Preferred Unit in accordance with Section 2(C)(d) to this Part XVII of Schedule A, whether or not such Series 16 Distributions shall have been declared. Series 16 Holders shall be entitled to receive Series 16 Distributions from time to time out of any assets of the Partnership legally available for the payment of distributions at the Series 16 Distribution Rate per Series 16 Preferred Unit when, as, and, if declared by the General Partner. Series 16 Distributions, to the extent declared by the General Partner to be paid by the Partnership in accordance with this Section 2(C)(b) to this Part XVII of Schedule A, shall be paid, in Arrears, on each Series 16 Distribution Payment Date. Series 16 Distributions shall accrue in each Series 16 Distribution Period, provided that distributions shall accrue on accrued but unpaid Series 16 Distributions at the Series 16 Distribution Rate. If any Series 16 Distribution Payment Date otherwise would occur on a date that is not a Business Day, declared Series 16 Distributions shall be paid on the immediately succeeding Business Day without the accrual of additional distributions. Series 16 Distributions shall be payable based on a 360-day year consisting of twelve 30-day months. All Series 16 Distributions that are (1) accrued and unpaid or (2) payable by the Partnership pursuant to this Section 2(C)(b) or 2(C)(e)(i) to this Part XVII 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 16 Distribution Period shall be for the account of Series 16 Holders as of the applicable Series 16 Distribution Record Date, or as otherwise reasonably determined by the General Partner. |
- A-6 -
| ii. | [Intentionally Omitted] |
| iii. | Not later than 5:00 p.m., New York City time, on each Series 16 Distribution Payment Date, the Partnership shall pay those Series 16 Distributions, if any, that shall have been declared by the General Partner to Series 16 Holders on the Record Date for the applicable Series 16 Distribution. The Record Date (the “Series 16 Distribution Record Date”) for the payment of any Series 16 Distributions shall be the last business day of the calendar month prior to the applicable Series 16 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 XVII of Schedule A. So long as any Series 16 Preferred Units are Outstanding, no distribution shall be declared or paid or set aside for payment on any Series 16 Junior Securities (other than a distribution payable solely in Series 16 Junior Securities) unless all accrued and unpaid Series 16 Distributions up to and including such distributions payable for the last completed Series 16 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 16 Preferred Units and Series 16 Parity Securities, have been declared and paid or set apart for payment; provided, however, notwithstanding anything to the contrary in this Section 2(C)(b)(iii) to this Part XVII of Schedule A, if a distribution period with respect to a class of Series 16 Junior Securities or Series 16 Parity Securities is shorter than the Series 16 Distribution Period, the General Partner may declare and pay regular distributions with respect to such Series 16 Junior Securities or Series 16 Parity Securities, so long as, at the time of declaration of such distribution, (i) there are no Series 16 Distributions in Arrears, and (ii) the General Partner expects to have sufficient funds to pay the full distribution in respect of the Series 16 Preferred Units on the next successive Series 16 Distribution Payment Date. Accrued Series 16 Distributions in Arrears for any past Series 16 Distribution Period may be declared by the General Partner and paid on any date fixed by the General Partner, whether or not a Series 16 Distribution Payment Date, to Series 16 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 16 Distributions in Arrears on all Outstanding Series 16 Preferred Units and all accrued distributions in arrears on any Series 16 Preferred Units and any Series 16 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 16 Preferred Units and accrued distributions in arrears on any such Series 16 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 16 Preferred Units and any other Series 16 Parity Securities are to be paid for any distribution period, any partial payment shall be made pro rata with respect to the Series 16 Preferred Units and any such other Series 16 Parity Securities entitled to a distribution payment at such time in proportion to the aggregate distribution amounts remaining due in respect of such Series 16 Preferred Units and such other Series 16 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. For purposes of the preceding sentence, each distribution period for any Series 16 Parity Securities that ends on a date other than the last day of March, June, September or December of any year shall be deemed the same distribution period as the distribution period for Series 16 Parity Securities that ends on the last day of March, June, September or December, respectively, of such year. Subject to Sections 13.3 of the Agreement and Section 2(C)(g) to this Part XVII of Schedule A, Series 16 Holders shall not be entitled to any distribution, whether payable in cash, property or Partnership Interests, in excess of full cumulative Series 16 Distributions. Except insofar as distributions accrue on the amount of any accrued and unpaid Series 16 Distributions as described in Section 2(C)(b)(i) to this Part XVII 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 16 Preferred Units. So long as the Series 16 Preferred Units are held of record by the Depositary or its nominee, declared Series 16 Distributions shall be paid to the Depositary in same-day funds on each Series 16 Distribution Payment Date or other distribution payment date in the case of payments for Series 16 Distributions in Arrears. If on any Series 16 Distribution Payment Date, the Series 16 Distributions accrued to such date are not paid in full on all of the Series 16 Preferred Units then Outstanding, such Series 16 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 16 Distributions under Bermuda law. |
- A-7 -
| c. | Voting Rights. |
| i. | Notwithstanding anything to the contrary in this Agreement, the Series 16 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(C)(c) to this Part XVII of Schedule A or as otherwise required by Bermuda law. |
| ii. | The Series 16 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 16 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 16 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 16 Preferred Unit held. No other voting rights shall attach to the Series 16 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 16 Holders shall forthwith cease (unless and until the same default shall again arise under the provisions of this Section 2(C)(c)(ii) to this Part XVII of Schedule A). |
- A-8 -
| iii. | Notwithstanding anything to the contrary in this Agreement or as otherwise required by Bermuda law, 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 16 Preferred Units unless such amendment (i) is approved by a resolution signed by Series 16 Holders owning not less than the percentage of the Series 16 Preferred Units that would be necessary to authorize such action at a meeting of Series 16 Holders at which all Series 16 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 16 Holders duly called for that purpose and at which the holders of at least 25% of the outstanding Series 16 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(C)(c)(ii) to this Part XVII of Schedule A and (y) for purposes of this Section 2(C)(c)(ii) to this Part XVII 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 16 Preferred Units remain Outstanding with the terms thereof materially unchanged in any respect adverse to the Series 16 Holders shall be deemed to materially and adversely affect the powers, preferences, duties, or special rights of the Series 16 Preferred Units. If at any such meeting the holders of Series 16 Preferred Units of at least 25% of the then Outstanding Series 16 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 16 Holders present or represented by proxy may transact the business for which the meeting was originally called and the Series 16 Holders then present or represented by proxy shall form the necessary quorum. |
| iv. | For any matter described in this Section 2(C)(c) to this Part XVII of Schedule A in which the Series 16 Holders are entitled to vote as a series (whether separately or together with the holders of any Series 16 Parity Securities), such Series 16 Holders shall be entitled to one vote per Series 16 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 16 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 16 Preferred Units held by the Partnership or any of its Subsidiaries or their Affiliates shall not be entitled to vote. |
- A-9 -
| v. | Notwithstanding Section 2(C)(c)(ii) to this Part XVII of Schedule A and Section 5.4 of Part I of Schedule A to this Agreement, no vote of the Series 16 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 16 Preferred Units at the time Outstanding. |
| d. | Optional Redemption; Change in Tax Law. |
| i. | The Partnership shall have the right (i) at any time, and from time to time, on or after May 31, 2029, in whole or in part, or (ii) 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 16 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 16 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 16 Redemption Date”). The Partnership shall effect any such redemption by paying cash for each Series 16 Preferred Unit to be redeemed equal to 100%, of the Series 16 Liquidation Preference for such Series 16 Preferred Unit on such Series 16 Redemption Date plus an amount equal to all unpaid Series 16 Distributions thereon from the Series 16 Original Issue Date to, but excluding, the Series 16 Redemption Date (whether or not such distributions shall have been declared) (the “Series 16 Redemption Price”). So long as the Series 16 Preferred Units to be redeemed are held of record by the Depositary or the nominee of the Depositary, the Series 16 Redemption Price shall be paid by the Paying Agent to the Depositary on the Series 16 Redemption Date. |
| ii. | The Partnership shall give notice of any redemption by mail, postage prepaid, not less than 30 days and not more than 60 days before the scheduled Series 16 Redemption Date to the Series 16 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 16 Preferred Units to be redeemed as such Series 16 Holders’ names appear on the books of the Series 16 Transfer Agent and at the address of such Series 16 Holders shown therein. Such notice (the “Series 16 Redemption Notice”) shall state, as applicable: (1) the Series 16 Redemption Date, (2) the number of Series 16 Preferred Units to be redeemed and, if less than all Outstanding Series 16 Preferred Units are to be redeemed, the number (and in the case of Series 16 Preferred Units in certificated form, the identification) of Series 16 Preferred Units to be redeemed from such Series 16 Holder, (3) the Series 16 Redemption Price, (4) the place where any Series 16 Preferred Units in certificated form are to be redeemed and shall be presented and surrendered for payment of the Series 16 Redemption Price therefor (which shall occur automatically if the Certificate representing such Series 16 Preferred Units is issued in the name of the Depositary or its nominee), (5) that distributions on the Series 16 Preferred Units to be redeemed shall cease to accrue from and after such Series 16 Redemption Date. So long as the Series 16 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, and (6) any conditions precedent to redemption; in addition, if such redemption or notice of redemption is subject to satisfaction of one or more conditions precedent, such notice of redemption shall state that, in the Partnership’s discretion, the Series 16 Redemption Date may be delayed until such time as any or all such conditions precedent shall be satisfied or waived, and a new Series 16 Redemption Date will be set by the Partnership in accordance with applicable depositary or trustee procedures, or such redemption may not occur and such notice of redemption may be rescinded in the event that any or all such conditions precedent shall not have been satisfied or waived by the Series 16 Redemption Date, or by the Series 16 Redemption Date as so delayed, or such notice may be rescinded at any time if in the good faith judgement of the Partnership any or all of such conditions will not be satisfied or waived. |
- A-10 -
| iii. | If less than all of the then Outstanding Series 16 Preferred Units are at any time to be redeemed, then the particular Series 16 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 16 Redemption Price for any such partial redemption of the Outstanding Series 16 Preferred Units shall be allocated correspondingly among the redeemed Series 16 Preferred Units. The Series 16 Preferred Units not redeemed shall remain Outstanding and entitled to all the rights, preferences and duties provided in this Section 2 to this Part XVII of Schedule A. |
| iv. | If the Partnership gives or causes to be given a Series 16 Redemption Notice, the Partnership shall deposit with the Paying Agent funds sufficient to redeem the Series 16 Preferred Units as to which such Series 16 Redemption Notice shall have been given, no later than 10:00 a.m. New York City time on the Series 16 Redemption Date, and shall give the Paying Agent irrevocable instructions and authority to pay the Series 16 Redemption Price to each Series 16 Holder whose Series 16 Preferred Units are to be redeemed upon surrender or deemed surrender (which shall occur automatically if the Certificate representing such Series 16 Preferred Units is issued in the name of the Depositary or its nominee) of the Certificates therefor as set forth in the Series 16 Redemption Notice. If a Series 16 Redemption Notice shall have been given, from and after the Series 16 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 16 Redemption Notice, all Series 16 Distributions on such Series 16 Preferred Units to be redeemed shall cease to accrue and all rights of holders of such Series 16 Preferred Units as Limited Partners with respect to such Series 16 Preferred Units to be redeemed shall cease, except the right to receive the Series 16 Redemption Price, and such Series 16 Preferred Units shall not thereafter be transferred on the books of the Series 16 Transfer Agent or be deemed to be Outstanding for any purpose whatsoever. The Series 16 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 16 Preferred Units, that remain unclaimed or unpaid after one year after the applicable Series 16 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 16 Holders entitled to such redemption or other payment shall have recourse only to the Partnership. Notwithstanding any Series 16 Redemption Notice, there shall be no redemption of any Series 16 Preferred Units called for redemption until funds sufficient to pay the full Series 16 Redemption Price of such Series 16 Preferred Units shall have been deposited by the Partnership with the Paying Agent. |
- A-11 -
| v. | Any Series 16 Preferred Units that are redeemed or otherwise acquired by the Partnership shall be cancelled. If only a portion of the Series 16 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 16 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 16 Holders a new Certificate (or adjust the applicable book-entry account) representing the number of Series 16 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 XVII of Schedule A, unless all accrued and unpaid Series 16 Distributions up to and including the distribution payable for the last completed Series 16 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 16 Preferred Units and Series 16 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 16 Preferred Units or Series 16 Parity Securities, except pursuant to a purchase or exchange offer made on the same relative terms to all Series 16 Holders and holders of any Series 16 Parity Securities. So long as any Series 16 Preferred Units are Outstanding, except out of the net cash proceeds of a substantially concurrent issue of Series 16 Junior Securities, unless all accrued and unpaid Series 16 Distributions up to and including the distribution payable for the last completed Series 16 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 16 Preferred Units and Series 16 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 16 Junior Securities. |
- A-12 -
| e. | Payment of Additional Amounts. |
| i. | The Partnership shall make all payments on the Series 16 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 for the Series 16 Preferred Units 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(C)(e) and Section 2(C)(f) to this Part XVII of Schedule A, pay to the Series 16 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 16 Preferred Units or any Series 16 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 16 Holders; |
- A-13 -
| 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 16 Preferred Units; |
| 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 16 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 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 16 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 16 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 16 Preferred Units. |
- A-14 -
| f. | Variation. |
| i. | At any time following a Change in Tax Law, the Partnership may, without the consent of any Series 16 Holder, vary the terms of the Series 16 Preferred Units such that they remain 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 16 Preferred Units as a result of a Change in Tax Law. The terms of the varied securities considered in the aggregate cannot be less favorable to holders than the terms of the Series 16 Preferred Units prior to being varied; provided that no such variation of terms 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 16 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 16 Preferred Units, or change the foregoing list of items that may not be so amended as part of such variation. Further, no such variation of terms 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. |
| ii. | Prior to any variation, the Partnership shall be required to receive an opinion of independent legal advisers to the effect that holders and beneficial owners of the Series 16 Preferred Units (including as holders and beneficial owners of the varied securities) will not recognize income, gain or loss for United States federal income tax purposes as a result of such variation 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 not occurred. |
| iii. | Any variation of the Series 16 Preferred Units described above shall be made after notice is given to the Series 16 Holders not less than 30 days nor more than 60 days prior to the date fixed for variation. |
| 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 16 Holders shall be entitled to receive the Series 16 Liquidation Preference per Series 16 Preferred Unit held by them, together with all accrued (whether or not declared) and unpaid Series 16 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 16 Junior Securities. Upon payment of the amounts set forth in the immediately preceding sentence, the Series 16 Holders shall not be entitled to share in any further distribution of the assets of the Partnership. |
- A-15 -
| h. | Rank. The Series 16 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 16 Junior Securities; |
| ii. | on parity in right of payment with any Series 16 Parity Securities; and |
| iii. | junior to all existing and future indebtedness of the Partnership with respect to assets available to satisfy claims against the Partnership and any other Series 16 Senior Securities. |
| i. | No Sinking Fund. The Series 16 Preferred Units shall not have the benefit of any sinking fund. |
| j. | Record Holders. To the fullest extent permitted by applicable law, the General Partner, the Partnership, the Series 16 Transfer Agent, and the Paying Agent may deem and treat any Series 16 Holder as the true, lawful, and absolute owner of the applicable Series 16 Preferred Units for all purposes, and neither the General Partner, the Partnership, the Series 16 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 16 Preferred Units may be listed or admitted to trading, if any. |
| k. | Fractional Units. The Series 16 Preferred Units may be issued in whole or in fractional units. Each fractional Series 16 Preferred Unit shall carry and be subject to the rights, privileges, restrictions and conditions (including voting rights and distribution rights) of the Series 16 Preferred Units in proportion to the applicable fractions. |
| l. | Other Rights; Fiduciary Duties. The Series 16 Preferred Units and the Series 16 Holders shall not have any designations, preferences, rights, powers, guarantees 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 16 Holders, other than the General Partner’s duty to act at all times in good faith. |
Exhibit 4.4
BROOKFIELD INFRASTRUCTURE L.P.
NINTH AMENDMENT TO THE
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
THIS AMENDMENT (the “Amendment”) to the Amended and Restated Limited Partnership Agreement dated as of February 16, 2018 (the “Agreement”) of Brookfield Infrastructure L.P. (the “Partnership”) is made as of May 31, 2024 (the “Effective Date”), by the undersigned. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement.
WHEREAS, on March 12, 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 Managing 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 XVII of Schedule A to this Amendment;
AND WHEREAS, pursuant to Section 18.1 of the Agreement, subject to compliance with the requirements of the Limited Partnership Act and the Exempted Partnerships Act, the Managing General Partner (pursuant to its powers of attorney from the Special General Partner or any Partner and 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 18.1.6 of the Agreement, an amendment that the Managing 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 Managing General Partner desires to amend the Agreement as set out herein;
NOW THEREFORE,
| 1. | Section 1.1.3 of the Agreement is hereby deleted in its entirety and replaced with the following: |
“Agreement” means this Amended and Restated Limited Partnership Agreement of the Partnership, as amended by the First Amendment to the Amended and Restated Limited Partnership Agreement of the Partnership dated as of September 12, 2018, the Second Amendment to the Amended and Restated Limited Partnership Agreement of the Partnership dated as of August 1, 2019, the Third Amendment to the Amended and Restated Limited Partnership Agreement of the Partnership dated as of February 27, 2020, the Fourth Amendment to the Amended and Restated Limited Partnership Agreement of the Partnership dated as of March 31, 2020, the Fifth Amendment to the Amended and Restated Limited Partnership Agreement of the Partnership dated as of September 21, 2020, the Sixth Amendment to the Amended and Restated Limited Partnership Agreement of the Partnership dated as of January 21, 2021, the Seventh Amendment to the Amended and Restated Limited Partnership Agreement dated as of May 24, 2021, the Eighth Amendment to the Amended and Restated Limited Partnership Agreement dated as of June 10, 2022 and the Ninth Amendment to the Amended and Restated Limited Partnership Agreement dated as of May 31, 2024;
- 2 -
| 2. | Schedule A of the Agreement is hereby amended by adding Part XVII of Schedule A to this Amendment as Part XVII of Schedule A of the Agreement. |
| 3. | This Amendment shall be effective as of the Effective Date. |
| 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 Managing General Partner has executed this Amendment as of the Effective Date.
| MANAGING GENERAL PARTNER: BROOKFIELD INFRASTRUCTURE PARTNERS L.P., by its general partner, BROOKFIELD INFRASTRUCTURE PARTNERS LIMITED | |||
| By: | /s/ James Bodi | ||
| Name: | James Bodi | ||
| Title: | Vice President | ||
[Ninth Amendment to BILP A&R LPA]
SCHEDULE A
PART XVII
Number and Designation of and Rights, Privileges,
Restrictions and Conditions
Attaching to the Class A Preferred Limited Partnership Units, Series 16
The sixteenth 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 16 (the “Series 16 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 16 Distributions, the full cumulative Series 16 Distributions through the most recent Series 16 Distribution Payment Date that have not been paid on all Outstanding Series 16 Units.
“Assignee” means a Person to whom one or more Partnership Interests have been transferred in a manner permitted under this Agreement.
“Automatic Exchange Event” means the occurrence of any of: (i) the making by the Note Issuer of a general assignment for the benefit of its creditors or a proposal (or the filing of a notice of its intention to do so) under the Bankruptcy and Insolvency Act (Canada); (ii) any proceeding instituted by the Note Issuer and/or BIP seeking to adjudicate them as bankrupt (including any voluntary assignment in bankruptcy) or insolvent or, where the Note Issuer and/or BIP are insolvent, seeking liquidation, winding up, dissolution, reorganization, arrangement, compromise, adjustment, protection, relief or composition of their debts under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable), or seeking the entry of an order for the appointment of a receiver, interim receiver, trustee or other similar official for the Note Issuer and/or BIP or in respect of all or any substantial part of their property and assets in circumstances where the Note Issuer and/or BIP are adjudged as bankrupt (including any voluntary assignment in bankruptcy) or insolvent; (iii) a receiver, interim receiver, trustee or other similar official is appointed over the Note Issuer and/or BIP or for all or substantially all of their property and assets by a court of competent jurisdiction in circumstances where the Note Issuer and/or BIP are adjudged as bankrupt (including any voluntary assignment in bankruptcy) or insolvent under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable); or (iv) any proceeding is instituted against the Note Issuer and/or BIP seeking to adjudicate them as bankrupt (including any voluntary assignment in bankruptcy) or insolvent, or where the Note Issuer and/or BIP are insolvent, seeking liquidation, winding up, dissolution, reorganization, arrangement, compromise, adjustment, protection, relief or composition of their debts under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable), or seeking the entry of an order for the appointment of a receiver, interim receiver, trustee or other similar official for the Note Issuer and/or BIP or in respect of all or any substantial part of their property and assets in circumstances where the Note Issuer and/or BIP are adjudged as bankrupt or insolvent under any law relating to bankruptcy or insolvency in Canada or Bermuda (as applicable), and in any such case, such proceeding has not been stayed or dismissed within 60 days of the institution of any such proceeding or the actions sought in such proceedings occur (including the entry of an order for relief against the Note Issuer and/or BIP or the appointment of a receiver, interim receiver, trustee, or other similar official for them or for all or substantially all of their property and assets).
- A-2 -
“BIP” means Brookfield Infrastructure Partners L.P.
“BIP Series 16 Additional Amounts” means “Additional Amounts” as defined in the BIP Partnership Agreement.
“BIP Series 16 Change in Tax Law” shall have the meaning given to it in Schedule A to Part XVII of that certain Sixth Amendment to the Amended and Restated Limited Partnership Agreement of BIP, dated as of the date hereof.
“BIP General Partner” means Brookfield Infrastructure Partners Limited.
“BIP Series 16 Units” means BIP’s Class A Preferred Limited Partnership Units, Series 16.
“BIP Series 16 Successor Entity” means a “Successor Entity” as defined in the BIP Partnership Agreement.
“Note Issuer” means Brookfield Infrastructure Finance ULC, an unlimited liability company organized under the laws of the Province of Alberta, Canada.
“Notes” means the 7.250% subordinated notes due May 31, 2084 issued by the Note Issuer and guaranteed, on a subordinated basis, by BIP, the Partnership, BIP Bermuda Holdings I Limited, Brookfield Infrastructure Holdings (Canada) Inc., Brookfield Infrastructure LLC and BIPC Holdings Inc.
“Series 16 Distribution Payment Date” means the last calendar day of each of March, June, September and December of each year following the Series 16 Original Issue Date; provided however, that if any Series 16 Distribution Payment Date would otherwise occur on a day that is not a Business Day, such Series 16 Distribution Payment Date shall instead be on the immediately succeeding Business Day without the accrual of additional distributions.
“Series 16 Distribution Period” means a period of time from and including the preceding Series 16 Distribution Payment Date to, but excluding, the next Series 16 Distribution Payment Date for such Series 16 Distribution Period (other than the initial Series 16 Distribution Period, which means a period of time from and including the Series 16 Original Issue Date to, but excluding, the first Series 16 Distribution Payment Date thereafter).
- A-3 -
“Series 16 Distribution Rate” means the distribution rate payable on the Series 16 Units from time to time, being the same rate as the interest rate which would have accrued on the Notes at any such time if such Notes had not been automatically converted into Series 16 Units upon an Automatic Exchange Event, and had remained outstanding.
“Series 16 Distribution Record Date” has the meaning given to such term in Section 2(B)(b)(iii) to this Part XVII of Schedule A.
“Series 16 Distributions” means distributions with respect to Series 16 Units pursuant to Section 2(B)(b) to this Part XVII of Schedule A.
“Series 16 Holder” means a Record Holder of Series 16 Units.
“Series 16 Liquidation Preference” means a liquidation preference for each Series 16 Unit equal to $25.00 per unit (subject to adjustment for any splits, combinations or similar adjustments to the Series 16 Units).
“Series 16 Original Issue Date” means the day upon which the BIP Series 16 Units are issued.
“Series 16 Units” has the meaning given to such term in the preamble to this Part XVII of Schedule A.
“Series 16 Redemption Date” has the meaning given such term in Section 2(B)(d)(i) to this Part XVII of Schedule A.
“Series 16 Redemption Price” has the meaning given such term in Section 2(B)(d)(i) to this Part XVII of Schedule A.
| 2. | Terms of Series 16 Units. |
| A. | General. Each Series 16 Unit shall be identical in all respects to every other Series 16 Unit, except as to the respective dates from which the Series 16 Liquidation Preference shall increase or from which Series 16 Distributions may begin accruing, to the extent such dates may differ. The Series 16 Units represent perpetual interests in the Partnership and shall not give rise to a claim by the Partnership or a Series 16 Holder for conversion or, except as set forth in Section 2(B)(d) to this Part XVII of Schedule A, redemption thereof at a particular date. |
| B. | Rights of Series 16 Units. The Series 16 Units shall have the following rights, preferences and privileges and shall be subject to the following duties and obligations: |
| a. | Series 16 Units. |
| i. | The authorized number of Series 16 Units shall be unlimited. Series 16 Units that are purchased or otherwise acquired by the Partnership shall be cancelled. |
- A-4 -
| ii. | The Series 16 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 16 Holder. |
| b. | Distributions. |
| i. | Distributions on each Outstanding Series 16 Unit shall be cumulative and shall accrue at the applicable Series 16 Distribution Rate from and including the Series 16 Original Issue Date (or, for any subsequently issued and newly Outstanding Series 16 Units, from and including the Series 16 Distribution Payment Date immediately preceding the issue date of such Series 16 Units) until such time as the Partnership pays the Series 16 Distribution or redeems such Series 16 Unit in accordance with Section 2(B)(d) to this Part XVII of Schedule A, whether or not such Series 16 Distributions shall have been declared. Series 16 Holders shall be entitled to receive Series 16 Distributions from time to time out of any assets of the Partnership legally available for the payment of distributions at the Series 16 Distribution Rate per Series 16 Unit when, as, and, if declared by the Managing General Partner. Series 16 Distributions, to the extent declared by the Managing General Partner to be paid by the Partnership in accordance with this Section 2(B)(b) to this Part XVII of Schedule A, shall be paid, in Arrears, on each Series 16 Distribution Payment Date. Series 16 Distributions shall accrue in each Series 16 Distribution Period, provided that distributions shall accrue on accrued but unpaid Series 16 Distributions at the Series 16 Distribution Rate. If any Series 16 Distribution Payment Date otherwise would occur on a date that is not a Business Day, declared Series 16 Distributions shall be paid on the immediately succeeding Business Day without the accrual of additional distributions. Series 16 Distributions shall be payable based on a 360-day year consisting of twelve 30-day months. All Series 16 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 XVII 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 Managing 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 Managing 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 16 Distribution Period shall be for the account of Series 16 Holders as of the applicable Series 16 Distribution Record Date, or as otherwise reasonably determined by the Managing General Partner. |
| ii. | [Intentionally Omitted] |
- A-5 -
| iii. | Not later than 5:00 p.m., New York City time, on each Series 16 Distribution Payment Date, the Partnership shall pay those Series 16 Distributions, if any, that shall have been declared by the Managing General Partner to Series 16 Holders on the Record Date for the applicable Series 16 Distribution. The Record Date (the “Series 16 Distribution Record Date”) for the payment of any Series 16 Distributions shall be the last business day of the calendar month prior to the applicable Series 16 Distribution Payment Date, or such other record date as may be fixed by the Managing General Partner in accordance with this Section 2 to this Part XVII of Schedule A. So long as any Series 16 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 16 Distributions up to and including such distributions payable for the last completed Series 16 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 XVII of Schedule A, if a distribution period with respect to a class of Junior Securities or Parity Securities is shorter than the Series 16 Distribution Period, the Managing 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 16 Distributions in Arrears, and (ii) the Managing General Partner expects to have sufficient funds to pay the full distribution in respect of the Series 16 Units on the next successive Series 16 Distribution Payment Date. Accrued Series 16 Distributions in Arrears for any past Series 16 Distribution Period may be declared by the Managing General Partner and paid on any date fixed by the Managing General Partner, whether or not a Series 16 Distribution Payment Date, to Series 16 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 16 Distributions in Arrears on all Outstanding Series 16 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 16 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 16 Units and any other Parity Securities are to be paid for any distribution period, any partial payment shall be made pro rata with respect to the Series 16 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 16 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. For purposes of the preceding sentence, each distribution period for any series of Parity Securities that ends on a date other than the last day of March, June, September or December of any year shall be deemed the same distribution period as the distribution period for Parity Securities that ends on the last day of March, June, September or December, respectively, of such year. Subject to Sections 17.4 of this Agreement and Section 2(B)(f) to this Part XVII of Schedule A, Series 16 Holders shall not be entitled to any distribution, whether payable in cash, property or Partnership Interests, in excess of full cumulative Series 16 Distributions. Except insofar as distributions accrue on the amount of any accrued and unpaid Series 16 Distributions as described in Section 2(B)(b)(i) to this Part XVII 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 16 Units. Declared Series 16 Distributions shall be paid to the Series 16 Holders in same-day funds on each Series 16 Distribution Payment Date or other distribution payment date in the case of payments for Series 16 Distributions in Arrears. |
- A-6 -
| c. | Voting Rights. |
| i. | Notwithstanding anything to the contrary in this Agreement, the Series 16 Units shall not have any voting rights or rights to consent or approve any action or matter, except as set forth in Sections 5.4 and 6 of Part I of Schedule A to this Agreement, this Section 2(B)(c) to this Part XVII of Schedule A or as otherwise required by Bermuda law. |
| ii. | The rights, privileges, restrictions and conditions attached to the Series 16 Units may be added to, changed or removed but only with the approval of the holders of a majority of the Outstanding Series 16 Units, given as hereinafter specified. |
| iii. | The approval of the holders of the Series 16 Units as a series in respect of any matter requiring the consent of the holders of the Series 16 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 16 Units as a series duly called and held for that purpose in accordance with Article 18 of this Agreement or given by resolution signed by holders of Series 16 Units as a series in accordance with Article 18 of this Agreement. |
| iv. | Each Series 16 Unit shall entitle the holder thereof to one vote for the purposes of any approval at a meeting of the holders of the Series 16 Units or by written consent. |
| d. | Optional Redemption. |
| i. | The Partnership shall have the right to redeem the Series 16 Units (i) at any time, and from time to time, on or after May 31, 2029, in whole or in part, or (ii) if BIP redeems the BIP Series 16 Units following a BIP Series 16 Change in Tax Law where, in BIP’s reasonable determination, a substantial probability that BIP or any BIP Series 16 Successor Entity would become obligated to pay any BIP Series 16 Additional Amounts on the next succeeding distribution payment date with respect to the BIP Series 16 Units and the payment of those BIP Series 16 Additional Amounts cannot be avoided by the use of any reasonable measures available to BIP or any BIP Series 16 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 Managing General Partner (the “Series 16 Redemption Date”). The Partnership shall effect any such redemption by paying cash for each Series 16 Unit to be redeemed equal to 100%, of the Series 16 Liquidation Preference for such Series 16 Unit on such Series 16 Redemption Date plus an amount equal to all unpaid Series 16 Distributions thereon from the Series 16 Original Issue Date to, but excluding, the Series 16 Redemption Date (whether or not such distributions shall have been declared) (the “Series 16 Redemption Price”). The Series 16 Redemption Price shall be paid by the Partnership to the Series 16 Holders on the Series 16 Redemption Date. |
- A-7 -
| ii. | The Partnership shall give notice of any redemption not less than 30 days and not more than 60 days before the scheduled Series 16 Redemption Date to the Series 16 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 16 Units to be redeemed as such Series 16 Holders’ names appear on the books of the Partnership and at the address of such Series 16 Holders shown therein. Such notice shall state any conditions precedent to redemption; in addition, if such redemption or notice of redemption is subject to satisfaction of one or more conditions precedent, such notice of redemption shall state that, in the Partnership’s discretion, the Series 16 Redemption Date may be delayed until such time as any or all such conditions precedent shall be satisfied or waived, and a new Series 16 Redemption Date will be set by the Partnership in accordance with applicable depositary or trustee procedures, or such redemption may not occur and such notice of redemption may be rescinded in the event that any or all such conditions precedent shall not have been satisfied or waived by the Series 16 Redemption Date, or by the Series 16 Redemption Date as so delayed, or such notice may be rescinded at any time if in the good faith judgement of the Partnership any or all of such conditions will not be satisfied or waived. |
| iii. | If the Partnership elects to redeem less than all of the Outstanding Series 16 Units in the event of an optional redemption on or after May 31, 2029, the number of Series 16 Units to be redeemed shall be determined by the Managing General Partner, and such Series 16 Units shall be redeemed by such method of selection as the Managing General Partner shall determine, either apportioned equally among all Series 16 Holders in accordance with the relative number or percentage of Series 16 Units held by each such Series 16 Holder or by lot, with adjustments to avoid redemption of fractional Series 16 Units. The aggregate Series 16 Redemption Price for any such partial redemption of the Outstanding Series 16 Units shall be allocated correspondingly among the redeemed Series 16 Units. The Series 16 Units not redeemed shall remain Outstanding and entitled to all the rights, preferences and duties provided in this Section 2 to this Part XVII of Schedule A. |
| iv. | No later than 10:00 a.m. New York City time on the Series 16 Redemption Date, the Partnership shall pay or cause to be paid to the Series 16 Holders immediately available funds sufficient to pay the Series 16 Redemption Price to each Series 16 Holder whose Series 16 Units are to be redeemed upon surrender or deemed surrender of the Certificates (or book entry position) therefor. |
- A-8 -
| v. | Any Series 16 Units that are redeemed or otherwise acquired by the Partnership shall be cancelled. If only a portion of the Series 16 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 16 Holders a new Certificate (or adjust the applicable book-entry account) representing the number of Series 16 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 XVII of Schedule A, unless all accrued and unpaid Series 16 Distributions up to and including the distribution payable for the last completed Series 16 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 16 Units or Parity Securities, except pursuant to a purchase or exchange offer made on the same relative terms to all Series 16 Holders and holders of any Parity Securities. So long as any Series 16 Units are Outstanding, except out of the net cash proceeds of a substantially concurrent issue of Junior Securities, unless all accrued and unpaid Series 16 Distributions up to and including the distribution payable for the last completed Series 16 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 BIP shall be required, pursuant to Section 2(C)(e) of Part XVII of Schedule A of the BIP Partnership Agreement to pay additional amounts to holders of the BIP Series 16 Units, the Partnership shall pay to the Series 16 Holders such additional amounts as distributions on the Series 16 Units as may be necessary such that the additional amounts paid as distributions by the Partnership shall equal the additional amounts paid by BIP pursuant to 2(C)(e) of Part XVII of Schedule A of the BIP 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 17.3 of the Agreement, the Series 16 Holders shall be entitled to receive the Series 16 Liquidation Preference per Series 16 Unit held by them, together with all accrued (whether or not declared) and unpaid Series 16 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 16 Holders shall not be entitled to share in any further distribution of the assets of the Partnership.
- A-9 -
g. No Sinking Fund. The Series 16 Units shall not have the benefit of any sinking fund.
h. Record Holders. To the fullest extent permitted by applicable law, the Managing General Partner and the Partnership may deem and treat any Series 16 Holder as the true, lawful, and absolute owner of the applicable Series 16 Units for all purposes, and neither the Managing General Partner nor the Partnership shall be affected by any notice to the contrary, except as otherwise provided by law.
i. Fractional Units. The Series 16 Units may be issued in whole or in fractional units. Each fractional Series 16 Unit shall carry and be subject to the rights, privileges, restrictions and conditions (including voting rights and distribution rights) of the Series 16 Units in proportion to the applicable fractions.
j. Other Rights; Fiduciary Duties. The Series 16 Units and the Series 16 Holders shall not have any designations, preferences, rights, powers, guarantees 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 Managing General Partner nor any other Indemnified Party shall owe any duties, including fiduciary duties, or have any liabilities to Series 16 Holders, other than the Managing General Partner’s duty to act at all times in good faith.
Exhibit 5.1
 |
1114 Avenue of the Americas 23rd Floor New York, New York 10036.7703 USA Tel 212.880.6000 Fax 212.682.0200 www.torys.com |
May 31, 2024
Brookfield Infrastructure Partners L.P.
73 Front Street, 5th Floor
Hamilton, HM 12, Bermuda
Brookfield Infrastructure Finance ULC
4600-525 8th Avenue S.W.
Calgary, Alberta, Canada T2P 1G1
Brookfield Infrastructure L.P.
73 Front Street, 5th Floor
Hamilton, HM 12, Bermuda
BIP Bermuda Holdings I Limited
73 Front Street, 5th Floor
Hamilton, HM 12, Bermuda
Brookfield Infrastructure Holdings (Canada) Inc.
Suite 100, 181 Bay Street
Toronto, Ontario, Canada M5J 2T3
Brookfield Infrastructure LLC
Brookfield Place
250 Vesey Street, 15th Floor
New York, New York, United States 10281-1023
BIPC Holdings Inc.
Suite 100, 181 Bay Street
Toronto, Ontario, Canada M5J 2T3
RE: Brookfield Infrastructure Finance ULC – 7.250% Subordinated Notes due 2084 Guaranteed by Brookfield Infrastructure Partners L.P. and the other Guarantors (as defined below)
Automatic Shelf Registration Statement on Form F-3ASR (File Nos. 333-278529, 333-278529-01, 333-278529-02, 333-278529-03, 333-278529-04, 333-278529-05 and 333-278529-06)
- 2 -
Ladies and Gentlemen:
We have acted as special New York, Ontario and Alberta counsel for Brookfield Infrastructure Partners L.P., an exempted limited partnership organized under the laws of Bermuda (“BIP”), Brookfield Infrastructure Finance ULC, an unlimited liability company organized under the laws of Alberta, Canada (“Finco”), Brookfield Infrastructure L.P., an exempted limited partnership organized under the laws of Bermuda (“BILP”), BIP Bermuda Holdings I Limited, a Bermuda exempted company (“Bermuda Holdco”), Brookfield Infrastructure Holdings (Canada) Inc., a corporation organized under the laws of Ontario, Canada (“Can Holdco”), Brookfield Infrastructure LLC, a Delaware limited liability company (“BI LLC”) and BIPC Holdings Inc., a corporation organized under the laws of Ontario, Canada (“BIPC Holdings”, and together with BIP, BILP, Bermuda Holdco, Can Holdco and BI LLC, the “Guarantors” and together with Finco, the “Registrants”) in connection with the offering by Finco of US$150,000,000 aggregate principal amount of its 7.250% Subordinated Notes due 2084 (the “Notes”), guaranteed, on a subordinated basis, by the Guarantors (the “Guarantees” and together with the Notes, the “Securities”), pursuant to a prospectus supplement, dated as of May 29, 2024 (the “Prospectus Supplement”) filed with the U.S. Securities and Exchange Commission (the “Commission”) pursuant to Rule 424(b)(5) under the U.S. Securities Act of 1933, as amended (the “Securities Act”) to the Registration Statement on Form F-3ASR (File Nos. 333-278529, 333-278529-01, 333-278529-02, 333-278529-03, 333-278529-04, 333-278529-05 and 333-278529-06) (the “Registration Statement”). The Securities are to be sold pursuant to the underwriting agreement, dated as of May 29, 2024 (the “Underwriting Agreement”) among Finco, the Guarantors and the underwriters named therein (the “Underwriters”), and issued pursuant to the provisions of the indenture, dated as of May 24, 2021 (the “Base Indenture”) among Finco as the issuer, BIP and the other guarantors party thereto, as guarantors, Computershare Trust Company of Canada (the “Canadian Trustee”) and Computershare Trust Company N.A. (the “U.S. Trustee” and together with the Canadian Trustee, the “Trustees”), and the Second Supplemental Indenture thereto, dated as of May 31, 2024 (the “Supplemental Indenture” and together with the Base Indenture, the “Indenture”) among Finco, the Guarantors and the Trustees.
We, as your counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
In rendering the opinions expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all signatures on all documents that we reviewed are genuine, (iv) all natural persons executing documents had and have the legal capacity to do so, (v) all statements in certificates of public officials and directors, as the case may be, and officers of the Registrants (including the general partner of BIP) that we reviewed were and are accurate, (vi) all representations made by the Registrants as to matters of fact in the documents that we reviewed were and are accurate, and (vii) the Indenture has been duly authorized, executed and delivered by, and represents a legal, valid and binding obligation of, the Trustees. We have also assumed that each of BIP, BILP and Bermuda Holdco (i) is validly existing, (ii) has the requisite power to enter into the Indenture, (iii) has duly authorized entering into the Indenture and (iv) has duly executed and delivered the Indenture, in each case, under the laws of Bermuda.
Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we advise you that, in our opinion, when the Notes have been duly executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, the Notes will constitute valid and binding obligations of Finco, and the Guarantees thereof will constitute valid and binding obligations of the Guarantors, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law or (y) the effect of fraudulent conveyance, fraudulent transfer or similar provisions of applicable law on the conclusions expressed above.
- 3 -
In connection with the opinion expressed above, we have assumed that at or prior to the time of the delivery of any Securities, (i) the effectiveness of the Registration Statement under the Securities Act has not been terminated or rescinded; (ii) the Indenture remains qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”); (iii) all corporate or other action required to be taken to duly authorize each proposed issuance of the Securities and any related documentation shall have been duly completed by the Guarantors (other than Can Holdco, BI LLC and BIPC Holdings), and shall remain in full force and effect; (iv) the Indenture and the Securities are each valid, binding and enforceable agreements of each party thereto (other than as expressly covered above in respect of Finco and the Guarantors); and (v) there shall not have occurred any change in law affecting the validity or enforceability of the Securities. We have also assumed that the execution, delivery and performance by Finco and the Guarantors of any Securities (a) require no action by or in respect of, or filing with, any governmental body, agency or official, except as has been obtained under the Securities Act and the Trust Indenture Act; and (b) do not contravene, or constitute a default under, any provision of applicable law or regulation (although, for greater certainty, we have not made any such assumptions with respect to the Applicable Laws (as defined below)) or any judgment, injunction, order or decree or any agreement or other instrument binding upon Finco and the Guarantors.
We are qualified to practice law in the Province of Alberta, the Province of Ontario and the State of New York, and we do not express any opinion with respect to the laws of any jurisdiction other than (a) the laws of the Province of Alberta, (b) the laws of the Province of Ontario, (c) the laws of the State of New York and (d) the Delaware Limited Liability Company Act (the “DLLCA”), in each case, in force at the date of this opinion letter (collectively, the “Applicable Laws”). Notwithstanding the foregoing and our opinions above, we express no opinion with respect to the compliance or non-compliance with applicable privacy laws in connection with the Indenture or the Securities.
All opinions expressed in this letter concerning the laws of the Province of Ontario have been given by members of the Law Society of Ontario. For purposes of the above-mentioned opinions concerning the laws of the Province of Alberta, such opinions have been given by members of The Law Society of Alberta. For purposes of the above-mentioned opinions concerning the laws of the State of New York and the DLLCA, such opinions have been given by members of the New York State Bar.
We hereby consent to the reference to our name under the caption “Certain Canadian Federal Income Tax Considerations” in the Prospectus Supplement, which is a part of the Registration Statement.
We also hereby consent to the filing of this opinion letter as an exhibit to a report on Form 6-K to be filed by BIP on the date hereof and its incorporation by reference into the Registration Statement as an exhibit thereto and further consent to the reference to our name under the caption “Legal Matters” in the Prospectus Supplement, which is a part of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Torys LLP
Exhibit 5.2
| Brookfield Infrastructure Partners L.P. Brookfield Infrastructure L.P. BIP Bermuda Holdings I Limited 73 Front Street Hamilton Bermuda HM 11 |
Email CLangley@applebyglobal.com Direct Dial +1 441 298 3202 |
Appleby Ref 136873.0052/CL/AK |
Bermuda Office
Appleby (Bermuda)
Limited
Canon's Court
22 Victoria Street
PO Box HM 1179
Hamilton HM EX
Bermuda
Tel +1 441 295 2244
Fax +1 441 292 8666
applebyglobal.com
Ladies and Gentlemen
Prospectus Supplement relating to Registration Statement on Form F-3ASR
We have acted as legal advisers as to matters of Bermuda law to Brookfield Infrastructure Partners L.P., an exempted limited partnership formed under the laws of Bermuda (BIP), acting by its general partner, Brookfield Infrastructure Partners Limited, a Bermuda exempted company (BIPL), and Brookfield Infrastructure L.P., an exempted limited partnership formed under the laws of Bermuda (BILP), acting by its managing general partner, BIP, itself acting by its general partner, BIPL, and BIP Bermuda Holdings I Limited (Holdings). We have been requested to render this opinion in connection with the joint filing by, inter alios, BIP, BILP and Holdings, of the Prospectus Supplement (as defined below) relating to the Offering (as defined below). In connection therewith, we have reviewed:
| 1. | an automatic shelf registration statement on Form F-3ASR (Registration Statement) for the purpose of registering under the U.S. Securities Act of 1933, as amended (Securities Act), among other securities, (a) debt securities (Debt Securities) which may be issued by Brookfield Infrastructure Finance ULC, a Canadian indirect consolidated subsidiary of BIP (Issuer), and guarantees of such Debt Securities which may be issued by, inter alios, BIP, BILP and Holdings, such Debt Securities and guarantees thereof to be issued pursuant to the indenture dated as of 24 May 2021, by and among the Issuer, as issuer, BIP, BILP, Holdings and the other guarantors party thereto, as guarantors, and Computershare Trust Company, N.A. (U.S. Trustee) and Computershare Trust Company of Canada (Canadian Trustee, and together with the U.S. Trustee, Trustees), as trustees, as supplemented from time to time (Base Indenture); and (b) Class A preferred limited partnership units of BIP; |
| 2. | the base prospectus, dated as of 5 April 2024, contained in the Registration Statement (Prospectus); |
Bermuda ■ British Virgin Islands ■ Cayman Islands ■ Guernsey ■ Hong Kong ■ Isle of Man ■ Jersey ■ Mauritius ■ Seychelles
| 3. | a prospectus supplement dated 29 May 2024 (Prospectus Supplement) to the Prospectus used in connection with the offering (Offering) of (a) unsecured 7.250% subordinated notes due 2084 of the Issuer (Notes), as described in the Prospectus Supplement and as established in a second supplemental indenture to the Base Indenture entered into by and among the Issuer, as issuer, BIP, BILP, Bermuda and the other guarantors party thereto, as guarantors, and Trustees, as trustees (Supplemental Indenture, and together with the Base Indenture, Indenture); (b) guarantees of the Notes by BIP, BILP, Holdings and the other guarantors as described in the Prospectus Supplement and as provided in the Indenture (Guarantees); and (c) Class A preferred limited partnership units, Series 16, of BIP to be issued upon automatic exchange of the Notes upon occurrence of certain events as described in the Prospectus Supplement (Preferred Units, and together with the Notes and the Guarantees, Securities), which series will be established by the Sixth Amendment to BIP’s Amended and Restated Limited Partnership Agreement dated 31 May 2024 (LPA Amendment); and |
| 4. | a term sheet relating to the Securities dated 29 May 2024 (Term Sheet) which has been filed as a “free writing prospectus” within the meaning of Rule 405 under the U.S. Securities Act of 1933, as amended (Securities Act), relating to the Offering, |
each of which has been filed with the Securities and Exchange Commission (SEC).
Note that BIPL acting as general partner of BIP and BIP acting as the managing general partner of BILP may be referred to as the General Partner(s) and BIP and BILP may be referred to as the Partnership(s) in this opinion. Note that the General Partners, the Partnerships and Holdings may be referred to as the Bermuda Entities.
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, notarised or photostatic copies; |
| 2. | the genuineness of all signatures on the Documents, as applicable; |
| 3. | the authority, capacity and power of persons signing the Documents, as applicable; |
Bermuda ■ British Virgin Islands ■ Cayman Islands ■ Guernsey ■ Hong Kong ■ Isle of Man ■ Jersey ■ Mauritius ■ Seychelles
2
| 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 where incomplete documents, drafts or signature pages only have been supplied to us for the purposes of issuing this opinion, the original documents have been or will be duly completed and correspond in all material respects with the last version of the relevant documents examined by us prior to giving our opinion; |
| 7. | that the Documents do not differ in any material respects from any forms or drafts of the same which we have examined and upon which this opinion is based; |
| 8. | that the Documents are in the form of the documents approved in the Resolutions; |
| 9. | 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 Bermuda Entities in connection with the Registration Statement, the Securities, the Indenture, the Prospectus Supplement or the Term Sheet, 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, the Securities, the Indenture, the Prospectus Supplement or the Term Sheet 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; |
| 10. | the accuracy, completeness and currency of the records and filing systems maintained at the public offices where we have searched or enquired or have caused searches or enquiries to be conducted, that such search and enquiry did not fail to disclose any information which had been filed with or delivered to the relevant body but had not been processed at the time when the search was conducted and the enquiries were made, and that the information disclosed by the Company and Partnership Searches, Registry General Searches and the Litigation Search is accurate and complete in all respects and such information has not been materially altered since the date and time of the Company and Partnership Searches, Registry General Searches and the Litigation Search; and |
Bermuda ■ British Virgin Islands ■ Cayman Islands ■ Guernsey ■ Hong Kong ■ Isle of Man ■ Jersey ■ Mauritius ■ Seychelles
3
| 11. | the terms and transactions contemplated by the Prospectus Supplement or the Indenture adopted are not inconsistent with the applicable Resolutions and the terms and transactions contemplated by the Prospectus and the Registration Statement. |
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. | Each Partnership is an exempted limited partnership formed and existing under the laws of Bermuda. Each Partnership possesses the capacity to sue and be sued in its own name and is in good standing under the laws of Bermuda. All suits in respect of the business of each Partnership shall be prosecuted by and against its respective general partner(s). |
| 2. | Each of BIPL and Holdings is an exempted company limited by shares and duly incorporated in Bermuda under the Companies Act 1981, each possessing the capacity to sue and be sued in its own name, and is validly existing and in good standing under the laws of Bermuda. |
| 3. | The execution, delivery and performance of the Supplemental Indenture, the Notes and the LPA Amendment, and the performance of the Indenture, as applicable, by each General Partner on behalf of the applicable Partnership, and the transactions contemplated thereby (including the Offering), have been duly authorised by all necessary corporate action by each General Partner on behalf of the applicable Partnership, as applicable. |
RESERVATIONS
We have the following reservations:
| 1. | In opinion paragraphs 1. and 2. above, the term "good standing" means only that the Bermuda Entities have each received a Certificate of Compliance from the Registrar of Companies in Hamilton Bermuda which confirms that they have neither failed to make any filing with any Bermuda governmental authority nor to pay any Bermuda government fee or tax, which might make it liable to be struck off the Register of Companies and thereby cease to exist under the laws of Bermuda. |
| 2. | 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. |
Bermuda ■ British Virgin Islands ■ Cayman Islands ■ Guernsey ■ Hong Kong ■ Isle of Man ■ Jersey ■ Mauritius ■ Seychelles
4
| 3. | 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. |
| 4. | Where a person is vested with a discretion or may determine a matter in his or its opinion, such discretion may have to be exercised reasonably or such an opinion may have to be based on reasonable grounds. |
| 5. | Any provision in any Indenture that certain calculations or certificates will be conclusive and binding will not be effective if such calculations or certificates are fraudulent or erroneous on their face and will not necessarily prevent juridical enquiries into the merits of any claim by an aggrieved party. |
| 6. | Any reference in this opinion to Units being "non-assessable" shall mean, in relation to fully-paid Units of BIP and subject to any contrary provision in any agreement in writing between BIP and the holder of Units, that: no holder shall be obliged to contribute further amounts to the capital of BIP, either in order to complete payment for their Units, to satisfy claims of creditors of BIP, or otherwise. |
| 7. | The Limited Partnership Act 1883 (the Act) provides that a limited partner shall be liable as a general partner if he takes part in the management of the partnership. |
| 8. | A limited partner is liable to a Partnership, or to its creditors, for any amount in respect of such limited partner’s contribution to such 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. |
| 9. | 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. |
| 10. | 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 against the Act. |
| 11. | With respect to opinion 3, we have relied upon statements and representations made to us in the Officers’ Certificates provided to us by an authorised officer of each of BIPL and Holdings for the purposes of this opinion. We have made no independent verification of the matters referred to in the Officers’ Certificates, and we qualify such opinion to the extent that the statements or representations made in the Officers’ Certificates are not accurate in any respect. |
Bermuda ■ British Virgin Islands ■ Cayman Islands ■ Guernsey ■ Hong Kong ■ Isle of Man ■ Jersey ■ Mauritius ■ Seychelles
5
| 12. | In order to issue this opinion we have carried out the Company and Partnership Searches as referred to in the Schedule and have not enquired as to whether there has been any change since the date of such searches. |
| 13. | In order to issue this opinion we have carried out the Litigation Search as referred to in the Schedule and have not enquired as to whether there has been any change since the date of such search. |
| 14. | Searches of the Register of Companies at the office of the Registrar of Companies and of the Supreme Court Causes Book at the Registry of the Supreme Court and of the Register of Mortgages maintained 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 do not reveal: |
| 14.1 | 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 or the Registry General would have or should have been disclosed on the public file, the Causes Book or 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 the Register of Mortgages; |
| 14.2 | Details of matters which should have been lodged for filing or registration at the Registrar of Companies, the Registry of the Supreme Court or the Registry General but have not been lodged for filing or registration at the date the search is concluded; |
| 14.3 | 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; |
| 14.4 | Whether any arbitration or administrative proceedings are pending or whether any proceedings are threatened, or whether any arbitrator has been appointed; or |
| 14.5 | 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 Act. |
Bermuda ■ British Virgin Islands ■ Cayman Islands ■ Guernsey ■ Hong Kong ■ Isle of Man ■ Jersey ■ Mauritius ■ Seychelles
6
| DISCLOSURE |
This opinion is addressed to you in connection with the registration of the Units with the SEC and is not to be used, quoted or relied upon for any other purpose. We consent to the filing of this opinion as an exhibit to the Registration Statement of the Partnership.
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
Appleby (Bermuda) Limited
Bermuda ■ British Virgin Islands ■ Cayman Islands ■ Guernsey ■ Hong Kong ■ Isle of Man ■ Jersey ■ Mauritius ■ Seychelles
7
SCHEDULE
| 1. | The electronic extract provided in respect of each Bermuda Entity by the office of the Registrar of Companies on 30 May 2024 (Company and Partnership Searches). |
| 2. | The response provided in respect of General Partners and/or each Partnership by the office of the Registry General on 30 May 2024 (Registry General Searches). |
| 3. | The entries and filings shown and available for inspection in respect of the Bermuda Entities in the Cause and Judgment Books of the Supreme Court Causes Book maintained at the Registry of the Supreme Court in Hamilton, Bermuda, as revealed by searches conducted on 30 May 2024 (Litigation Search). |
| 4. | Certified copies of the following documents in respect of BIP: the Certificate of Registration of an Exempted and Limited Partnership effective 13 June 2007 and supplements thereto; the Amended and Restated Limited Partnership Agreement of BIP dated 16 February 2018, the First Amendment to the Amended and Restated Limited Partnership Agreement dated 12 September 2018, the Second Amendment to the Amended and Restated Limited Partnership Agreement dated 27 February 2020, the Third Amendment to the Amended and Restated Limited Partnership Agreement dated 21 September 2020, the Fourth Amendment to the Amended and Restated Limited Partnership Agreement dated 21 January 2021, the Fifth Amendment to the Amended and Restated Limited Partnership Agreement dated 24 May 2021 and the Sixth Amendment to the Amended and Restated Limited Partnership Agreement dated 31 May 2024 (collectively, BIP Partnership Documents). |
| 5. | Certified copies of the following documents in respect of BILP: a copy of the Certificate of Registration of an Exempted and Limited Partnership effective 28 August 2007 and supplements thereto; and a copy of the Amended and Restated Limited Partnership Agreement of BILP dated 16 February 2018, the First Amendment to the Amended and Restated Limited Partnership Agreement dated 12 September 2018, the Second Amendment to the Amended and Restated Limited Partnership Agreement dated 1 August 2019 (effective 30 November 2018), the Third Amendment to the Amended and Restated Limited Partnership Agreement dated 27 February 2020, the Fourth Amendment to the Amended and Restated Limited Partnership Agreement dated 31 March 2020, the Fifth Amendment to the Amended and Restated Limited Partnership Agreement dated 21 September 2020, the Sixth Amendment to the Amended and Restated Limited Partnership Agreement dated 21 January 2021, the Seventh Amendment to the Amended and Restated Limited Partnership Agreement dated 24 May 2021, the Eighth Amendment to the Amended and Restated Limited Partnership Agreement dated 10 June 2022 and the Ninth Amendment to the Amended and Restated Limited Partnership Agreement dated 31 May 2024 (BILP Partnership Documents, together with the BIP Partnership Documents, Limited Partnership Documents). |
Bermuda ■ British Virgin Islands ■ Cayman Islands ■ Guernsey ■ Hong Kong ■ Isle of Man ■ Jersey ■ Mauritius ■ Seychelles
8
| 6. | Certified copies of the following documents in respect of each of BIPL: Certificate of Incorporation, memorandum of association and Bye-laws (GP Documents). |
| 7. | Certified copies of the following documents in respect of each of Holdings: Certificate of Incorporation, memorandum of association and Bye-laws (Holdings Documents, and collectively with the Limited Partnership Documents and the GP Documents, Constitutional Documents). |
| 8. | Copies of the Minutes of the Meetings of the Board of Directors of BIPL held on each of 29 April 2024 and 30 April 2024 and of the unanimous written resolutions of the Board of Directors of Holdings effective as of 5 April 2024 and as of 16 May 2024 (Resolutions). |
| 9. | An officer’s certificate signed by an officer of each of BIPL and Holdings dated 31 May 2024 (collectively, Officers’ Certificates). |
| 10. | Certificates of Compliance each dated 30 May 2024 issued by the Registrar of Companies in respect of each Bermuda Entity. |
| 11. | The Registration Statement. |
| 12. | The Prospectus. |
| 13. | The Prospectus Supplement. |
| 14. | The Term Sheet. |
| 15. | The Base Indenture. |
| 16. | The Supplemental Indenture. |
Bermuda ■ British Virgin Islands ■ Cayman Islands ■ Guernsey ■ Hong Kong ■ Isle of Man ■ Jersey ■ Mauritius ■ Seychelles
9
Exhibit 23.2
| Goodmans LLP | Bay Adelaide Centre - West Tower 333 Bay Street, Suite 3400 Toronto, Ontario M5H 2S7
Telephone: 416.979.2211 Facsimile: 416.979.1234 goodmans.ca |
May 31, 2024
To: The United States Securities and Exchange Commission (the “Commission”)
Brookfield Infrastructure Finance ULC (the “Company”)
We refer to the registration statement on Form F-3ASR filed by the Company, Brookfield Infrastructure Partners L.P., Brookfield Infrastructure L.P., BIP Bermuda Holdings I Limited, Brookfield Infrastructure Holdings (Canada) Inc., Brookfield Infrastructure LLC and BIPC Holdings Inc. (File Nos. 333-278529, 333-278529-01, 333-278529-02, 333-278529-03, 333-278529-04, 333-278529-05 and 333-278529-06), which became automatically effective upon filing with the Commission on April 5, 2024.
In connection with the prospectus supplement of the Company dated May 29, 2024, we consent to the reference to our firm’s name under the heading “Legal Matters”, and consent to the use of our firm’s name and reference to our opinion under the heading “Certain Canadian Federal Income Tax Considerations”.
Yours truly,
/s/ Goodmans LLP