Emera Inc 6-K, filed Mar 23, 2026
Emera Inc (EMA)
About this 6-K
Emera Inc filed this 6-K on March 23, 2026.
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 March, 2026
Commission File Number: 001-42631
Emera Incorporated
(Exact name of registrant as specified in its charter)
5151 Terminal Road
Halifax NS B3J 1A1
Canada
(Address of principal executive offices)
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 ☐ Form 40-F ☒
This report on Form 6-K, except for Exhibit 99.1 hereto, shall be deemed to be filed and incorporated by reference in the Registration Statements (as defined herein) and to be a part thereof from the date on which this report is furnished, to the extent not superseded by documents or reports subsequently filed or furnished.
On March 23, 2026, Emera US Finance, LLC (the “Issuer”) completed an offering of US$375,000,000 aggregate principal amount of its 6.650% Series A Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 (the “Series A Notes”) and US$375,000,000 aggregate principal amount of its 6.850% Series B Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 (the “Series B Notes” and, together with the Series A Notes, the “Notes”). The Notes are fully and unconditionally guaranteed by Emera Incorporated (“Emera”) and Emera US Holdings Inc. (“EUSHI”, and together with Emera, the “Guarantors”). EUSHI is an indirect wholly-owned subsidiary of Emera and the Issuer is an indirect, wholly-owned subsidiary of Emera.
The Notes were sold pursuant to an underwriting agreement dated March 17, 2026 (the “Underwriting Agreement”) among the Issuer, the Guarantors and J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC, as representatives of the several underwriters named therein. The Notes were issued pursuant to an indenture, dated as of March 23, 2026 (the “Base Indenture”), as supplemented by a first supplemental indenture establishing the terms of the Series A Notes and the related Guarantees, dated as of March 23, 2026 (the “First Supplemental Indenture”) and a second supplemental indenture establishing the terms of the Series B Notes and the related Guarantees, dated as of March 23, 2026 (the “Second Supplemental Indenture”, and together with the First Supplemental Indenture and the Base Indenture, the “Indenture”), with Equiniti Trust Company, LLC as trustee (the “Trustee”). The Notes were offered pursuant to registration statements on Form F-3 (File Nos. 333-294017-01 and 333-294017-02) filed by the Issuer and EUSHI with the Securities and Exchange Commission on March 4, 2026 (the “Form F-3 Registration Statement”) and Form F-10 (File No. 333-294020) filed by Emera with the Securities Exchange Commission on March 4, 2026 (the “Form F-10 Registration Statement”, and together with the Form F-3 Registration Statement, the “Registration Statements”).
The Series A Notes bear interest (i) from and including March 23, 2026 to but excluding October 1, 2031 (the “Series A First Reset Date”), at the rate of 6.650% per annum and (ii) from and including the Series A First Reset Date, during each Series A Reset Period (as defined in the Indenture), at a rate per annum equal to the Five-year U.S. Treasury Rate (as defined in the Indenture) as of the most recent Series A Reset Interest Determination Date (as defined in the Indenture), plus a spread of 2.866% to be reset on each Series A Reset Date (as defined in the Indenture); provided, that the interest rate during any Series A Reset Period will not reset below 6.650% (which equals the initial interest rate on the Series A Notes). Interest is payable on April 1 and October 1 of each year, commencing on October 1, 2026. The Issuer may defer interest payments during one or more deferral periods for up to 20 consecutive semi-annual interest payment periods as described in the Indenture. The Notes will mature on October 1, 2056, unless earlier redeemed. The Notes are unsecured and subordinated obligations of the Issuer. The Guarantees are unsecured and subordinated obligations of the Guarantors.
The Series B Notes bear interest (i) from and including March 23, 2026 to but excluding October 1, 2031 (the “Series B First Reset Date”), at the rate of 6.850% per annum and (ii) from and including the Series B First Reset Date, during each Series B Reset Period (as defined in the Indenture), at a rate per annum equal to the Five-year U.S. Treasury Rate (as defined in the Indenture) as of the most recent Series B Reset Interest Determination Date (as defined in the Indenture), plus a spread of 2.648% to be reset on each Series B Reset Date (as defined in the Indenture); provided, that the interest rate during any Series B Reset Period will not reset below 6.850% (which equals the initial interest rate on the Series B Notes). Interest is payable on April 1 and October 1 of each year, commencing on October 1, 2026. The Issuer may defer interest payments during one or more deferral periods for up to 20 consecutive semi-annual interest payment periods as described in the Indenture. The Notes will mature on October 1, 2056, unless earlier redeemed. The Notes are unsecured and subordinated obligations of the Issuer. The Guarantees are unsecured and subordinated obligations of the Guarantors.
The preceding is a summary of the terms of the Underwriting Agreement, the Indenture and the Notes, and is qualified in its entirety by reference to the Underwriting Agreement attached hereto as Exhibit 1.1, the Base Indenture attached hereto as Exhibit 4.1, the First Supplemental Indenture attached hereto as Exhibit 4.2, the Second Supplemental Indenture attached hereto as Exhibit 4.4, the form of the Series A Notes attached hereto as Exhibit 4.3 and the form of the Series B Notes attached hereto as Exhibit 4.5, each of which is incorporated herein by reference as though they were fully set forth herein.
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.
| EMERA INCORPORATED | ||||||
| Date: March 23, 2026 | By: | /s/ Brian C. Curry | ||||
| Name: Brian C. Curry | ||||||
| Title: Corporate Secretary | ||||||
EXHIBIT INDEX
Exhibit 1.1
EMERA US FINANCE, LLC
fully and unconditionally guaranteed by the Guarantors (as defined herein)
USD $375,000,000 6.650% Series A Fixed-to-Fixed Reset Rate Junior Subordinated Notes due
2056
USD $375,000,000 6.850% Series B Fixed-to-Fixed Reset Rate Junior Subordinated Notes due
2056
Underwriting Agreement
March 17, 2026
| J.P. Morgan Securities LLC | Morgan Stanley & Co. LLC | |
| 270 Park Avenue | 1585 Broadway | |
| New York, New York 10017 | New York, New York 10036 |
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017
To the Addressees:
Emera US Finance, LLC, a Delaware limited liability company (the “Issuer”), an indirect wholly-owned subsidiary of Emera Incorporated, a Nova Scotia company (“Emera”), 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”), USD $375,000,000 in aggregate principal amount of its 6.650% Series A Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 (the “Series A Notes”) and USD $375,000,000 in aggregate principal amount of its 6.850% Series B Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 (the “Series B Notes”, and together with the Series A Notes, the “Notes”). The Notes will be issued pursuant to an Indenture to be dated as of March 23, 2026 (the “Base Indenture”), among the Issuer and Emera US Holdings Inc., a Delaware corporation (“EUSHI Holdco”), and Emera, as guarantors (each a “Guarantor” and, collectively, the “Guarantors”) and Equiniti Trust Company, LLC, as trustee (the “Trustee”), to be supplemented by a first supplemental indenture to be dated as of March 23, 2026 for the Series A Notes (the “First Supplemental Indenture”) and a second supplemental indenture to be dated as of March 23, 2026 for the Series B Notes (the “Second Supplemental Indenture” and, together with the Base Indenture and the First Supplemental Indenture, the “Indenture”) and will be fully and unconditionally guaranteed, on a joint, several and subordinated basis by each of the Guarantors (the “Guarantees”). The Notes and the Guarantees are hereby collectively referred to as the “Securities.” The Issuer and the Guarantors are hereby collectively referred to as the “Obligors.”
The Obligors hereby confirm their agreement with the several Underwriters concerning the purchase and resale of the Securities, as follows:
1. Representations and Warranties of the Obligors. The Obligors jointly and severally represent and warrant to each Underwriter (it being understood and agreed that all representations and warranties of the Obligors with respect to the subsidiaries of Emera are to their subsidiaries whose financial statements are consolidated or combined (“consolidated subsidiaries”) with those of Emera):
(a) Shelf Procedure Eligibility. The Issuer meets the eligibility requirements under the Securities Act (Nova Scotia) and the rules, regulations and national, multijurisdictional or local instruments and published policy statements applicable in the Province of Nova Scotia (collectively, as applied and interpreted, the “Nova Scotia Securities Laws”) adopted by the Nova Scotia Securities Commission (the “NSSC”), including the rules and procedures established pursuant to National Instrument 44-101 – Short Form Prospectus Distributions and National Instrument 44-102 – Shelf Distributions that would have been applicable to the transactions contemplated hereby if the Issuer were to have filed a short form base shelf prospectus with the NSSC for distribution of the Securities in the Province of Nova Scotia (the “Shelf Procedures”). The Obligors selected the Province of Nova Scotia as review jurisdiction for the Registration Statement (as defined below) and filed the Registration Statement with the NSSC; the Obligors obtained a notification of clearance from the NSSC in respect of the Registration Statement; no order having the effect of ceasing or suspending the distribution of the Securities has been issued by NSSC and no proceeding for that purpose has been initiated or, to the best of the Obligors’ knowledge, is pending or threatened by the NSSC; there are no reports or other information that in accordance with the requirements of the NSSC must be made publicly available in connection with the offering of the Securities that have not been made publicly available as required; there are no documents required to be filed with the NSSC in connection with the Registration Statement that have not been filed as required (other than the reports or information required to be filed or made public after the date hereof in conformity with the Shelf Procedures); there are no contracts, documents or other materials required to be described or referred to in the Registration Statement (as defined below) or the Prospectus (as defined below) or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, referred to or filed or incorporated by reference as required and, in the case of those documents filed, delivered to the Representatives.
(b) Registration Requirement Compliance. Emera meets the general eligibility requirements for use of Form F-10 (“Form F-10”) under the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations of the Securities and Exchange Commission (the “Commission”) thereunder, and each of the Issuer, EUSHI Holdco and EUSHI Finance, Inc. (“EUSHI Finance”) meets the general eligibility requirements for use of Form F-3 (“Form F-3”) under the Securities Act and the rules and regulations of the Commission thereunder, and each have prepared and filed with the Commission a combined registration statement on Forms F-3 and F-10 (File Nos. 333-294017-01, 333-294017-02, 333-294017 and 333-294020 respectively) providing for the registration of debt securities of the Issuer and guarantees of the Issuer’s debt securities by Emera and EUSHI Holdco, debt securities of EUSHI Finance and guarantees of EUSHI Finance’s debt securities by Emera and EUSHI Holdco (collectively, the “Shelf Securities”) with such deletions therefrom and additions or changes thereto as are permitted or
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required by Form F-10 or F-3, as applicable, and the applicable rules and regulations of the Commission and an appointment of agent for service of process on Form F-X (the “Form F-X”) relating to such registration statement (the registration statement as amended as of the Effective Date (as defined below), including the prospectus constituting a part thereof, all exhibits thereto (but excluding the Form T-1 (as defined below)) and the documents incorporated by reference therein at the time such registration statement became effective, is hereinafter called the “Registration Statement”); the Obligors have caused the Trustee to prepare and file with the Commission a Form T-1 Statement of Eligibility and Qualification of the Trustee (the “Form T-1”) under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”); the “Effective Date” means the effective date of the Registration Statement under the Securities Act for purposes of liability under Section 11 of the Securities Act of the Underwriters with respect to the offering of the Securities; and (ii) the base prospectus relating to the Shelf Securities filed as part of the Registration Statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Base Prospectus”; the Base Prospectus, as supplemented by the preliminary prospectus supplement specifically relating to the Securities, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter referred to as the “Preliminary Prospectus”. For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Information” means the Preliminary Prospectus together with each free writing prospectus listed on Annex A hereto, and “Prospectus” means the final prospectus supplement relating to the offering of the Securities that discloses the public offering price and other final terms of the Securities, together with the Base Prospectus, filed with the Commission pursuant to Rule 424(b) under the Securities Act or General Instruction II.L. of Form F-10, as applicable, in accordance with Section 3(a) hereof. As used herein, the terms “Base Prospectus,” “Preliminary Prospectus,” “Time of Sale Information” and “Prospectus” shall include the documents, if any, included or incorporated by reference therein. The terms “supplement,” “amendment,” and “amend” as used herein with respect to the Registration Statement, the Base Prospectus, the Preliminary Prospectus, the Time of Sale Information, any free writing prospectus or the Prospectus shall include any document subsequently filed by the Obligors pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or pursuant to Nova Scotia Securities Laws, as the case may be, that are deemed to be incorporated by reference therein.
(c) Incorporated Documents. Each document, if any, filed or to be filed with the NSSC and incorporated by reference in any Preliminary Prospectus or the Prospectus, as amended or supplemented, if applicable, when such documents were or are filed with the NSSC, conformed or will conform when so filed in all material respects to the requirements of the Nova Scotia Securities Laws, and none of such documents, as of their respective dates, contained or will contain any untrue statement of a material fact or omitted or will 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; each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement, the Time of Sale Information or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, and none of such documents, as of their respective dates, contained or will contain any untrue statement of a material fact or omitted or will 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 any statements or omissions contained in the Registration Statement, the Time of Sale Information or the Prospectus, as amended or supplemented, if applicable, made in reliance upon and in conformity with information furnished to the Obligors in writing by any Underwriter through the Representatives expressly for use therein.
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(d) Disclosure Conformity. Except for the omission of disclosure that (x) is not applicable to the offering and sale of the Securities in the United States or (y) is permitted to be omitted from a prospectus contained in Part I of a registration statement on Form F-10 (collectively, the “Omitted Disclosure”), the Base Prospectus, at the time the NSSC issued its notification of clearance for the Registration Statement, conformed in all material respects with the applicable requirements of Nova Scotia Securities Laws (including the Shelf Procedures) that would have applied if the Prospectus was qualifying as a public offering of the Securities in the Province of Nova Scotia.
(e) Registration Statement and Prospectus. (i) The Registration Statement has been declared effective by the Commission; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before, or to the knowledge of the Obligors, threatened by the Commission; (ii) the Registration Statement, as of the Effective Date, did not contain, and, as amended or supplemented, if applicable, will not contain any 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; (iii) the Registration Statement, as of the Effective Date, the Preliminary Prospectus, as of its date, and the Time of Sale Information, as of the Time of Sale (which shall be defined to be 3:30 p.m. New York City time on the date hereof), complied, and the Prospectus, as of the date of the final prospectus supplement specifically relating to the Securities, and as amended or supplemented on or prior to the Closing Date, if applicable, will comply, in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and, except for the omission of the Omitted Disclosure, with the applicable disclosure requirements of Nova Scotia Securities Law (including the Shelf Procedures) that would have applied if the Prospectus was qualifying a public offering of securities in the Province of Nova Scotia, (iv) the Time of Sale Information, as of the Time of Sale, did not, and at the Closing Date, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) on the Effective Date and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules and regulations thereunder, and (vi) the Prospectus, as amended or supplemented, if applicable, as of the date of the final prospectus supplement specifically relating to the Securities and as of the Closing Date, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to (A) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Obligors in writing by such Underwriter through the Representatives expressly for use therein or (B) that part of the Registration Statement that constitutes the Form T-1. The Form F-X conforms in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission under the Securities Act. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom.
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(f) Issuer Free Writing Prospectus. The Obligors (including their respective agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Obligors or their respective agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, including any documents listed on Annex C hereto, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complies in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of such Issuer Free Writing Prospectus, did not at the Time of Sale, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Obligors make no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Obligors in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(g) Financial Statements of Emera. The consolidated financial statements and the related notes thereto of Emera and its subsidiaries included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus comply in all material respects with the applicable requirements of the securities laws, rules, regulations and published policy statements, blanket orders, orders, national and local instruments and notices applicable in each of the provinces of Canada (“Canadian Securities Laws”), the Securities Act and the Exchange Act, as applicable and present fairly the financial position of Emera and its subsidiaries, taken as a whole, as of the dates indicated and the results of operations and cash flows for the periods specified; and such financial statements have been prepared in conformity with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods covered thereby (except as otherwise noted therein), and the other financial information included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus has been derived from the accounting records of Emera and its subsidiaries, and present fairly the information shown thereby therein.
(h) No Material Adverse Change. Except as has been or will be disclosed in or contemplated by the Registration Statement, the Time of Sale Information and the Prospectus, subsequent to December 31, 2025, there has not been any material adverse change, actual or to the knowledge of the Obligors, after reasonable inquiry of senior officers of the Obligors, pending, in the capital, assets, liabilities (absolute, accrued, contingent or otherwise), earnings, business, operations or condition (financial or otherwise) or results of the operations of the Obligors and the Subsidiaries (as defined below), taken as a whole.
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(i) Organization and Good Standing. The Obligors and each of the entities set forth in Schedule 2 to this Agreement have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified, in good standing or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the earnings, business, or properties of the Obligors and the Subsidiaries (as defined below) taken as a whole (a “Material Adverse Effect”). The subsidiaries listed in Schedule 2 to this Agreement are the only consolidated subsidiaries which meet the definition of “significant subsidiaries” of Emera (the “Subsidiaries”), as that term is defined in Regulation S-X.
(j) Capitalization. Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, all the outstanding shares of capital stock or other equity interests of each subsidiary of Emera, which are owned directly or indirectly by Emera: (A) have been duly and validly authorized and issued, are fully paid and non-assessable and (B) are free and clear of any lien, charge, encumbrance, security interest, restriction on voting or any other claim of any third party, except as set forth in Schedule 3 hereto.
(k) Due Authorization. The Obligors have full right, power and authority to execute and deliver this Agreement, the Securities and the Indenture (including each Guarantee set forth therein) (collectively, the “Transaction Documents”) and to perform their respective obligations hereunder and thereunder; and all action required to be taken by the Obligors for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.
(l) The Base Indenture and the Supplemental Indenture. Each of the Base Indenture, the First Supplemental Indenture and the Second Supplemental Indenture has been duly authorized by the Obligors and on the Closing Date, the Base Indenture, the First Supplemental Indenture and the Second Supplemental Indenture will be duly executed and delivered by the Obligors and the Indenture, when duly executed and delivered in accordance with their terms by each of the parties thereto, will constitute valid and legally binding agreements of the Obligors enforceable against the Obligors in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”).
(m) The Notes and the Guarantees. The Notes have been duly authorized by the Issuer and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by each of the Guarantors and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be valid and legally binding obligations of each of the Guarantors, enforceable against each of the Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
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(n) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Obligors.
(o) Descriptions of the Transaction Documents. The statements in the Registration Statement, the Time of Sale Information and the Prospectus under the headings “Description of Debt Securities and Guarantees” and “Description of the Notes” insofar as such statements summarize agreements, documents or proceedings discussed therein, are accurate and fair summaries of such agreements, documents or proceedings in all material respects.
(p) No Violation or Default. Neither Emera nor any of its Subsidiaries is (i) in violation of its charter, by-laws, certificate of formation, limited liability agreement, partnership agreement or other formation or organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Emera or any of its Subsidiaries is a party or by which Emera or any of its Subsidiaries is bound or to which any property, right or asset of Emera or any of its Subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(q) No Conflicts. The execution, delivery and performance by the Obligors of each of the Transaction Documents to which it is a party, the issuance and sale of the Securities and compliance by the Obligors with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in the termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any property, right or asset of the Issuer, Emera or any of its Subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Emera or any of its Subsidiaries is a party or by which Emera or any of its Subsidiaries is bound or to which any property, right or asset of Emera or any of its Subsidiaries is subject, (ii) result in any violation of the provisions of the charter, by-laws, certificate of formation, limited liability agreement, partnership agreement or other formation or organizational documents of Emera or any of its Subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and, in the case of clause (i) above, for any conflict, breach, violation, default, lien, charge or encumbrance that will cease to be a conflict, breach, violation, default, lien, charge or encumbrance on or prior to the Closing Date.
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(r) No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority will be required for the execution, delivery and performance by the Obligors of each of the Transaction Documents to which each is a party, the creation, issuance and sale of the Notes and the issuance of the Guarantees by the Issuer and the Guarantors, as applicable, and compliance by the Obligors with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for (i) the registration of the Securities under the Securities Act and such governmental authorization as may be required under Nova Scotia Securities Laws, (ii) the qualification of the Indenture under the Trust Indenture Act, (iii) such consents, approvals, authorizations, orders and registrations or qualifications as may be required under applicable state or provincial securities laws in connection with the purchase and distribution of the Securities by the Underwriters, (iv) such consents, approvals, authorizations, orders and registrations or qualifications which have been, or will on or prior to the Closing Date be, obtained, and (v) the filing with applicable securities regulatory authorities in each of the provinces of Canada (the “Canadian Securities Regulators”) of one or more reports of exempt distribution under NI 45-106, together with delivery or filing, as applicable, of a copy of the Prospectus with the applicable Canadian Securities Regulators, together with the payment of any requisite filing fees related thereto.
(s) Legal Proceedings. Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, there is no action, suit or proceeding (whether or not purportedly by or on behalf of, Emera or any of its Subsidiaries) or order made or, to the knowledge of Emera and the Issuer, pending or threatened against or affecting Emera or any of its Subsidiaries at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, regulatory agency or stock exchange having jurisdiction over Emera or any of its Subsidiaries, domestic or foreign, or preventing or suspending trading in any securities of Emera or any of its Subsidiaries, except for any such action, suit, proceeding or order that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(t) Independent Accountants. Ernst & Young LLP, who have audited certain consolidated financial statements of Emera and its subsidiaries are an independent public accounting firm within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) as required by the Securities Act.
(u) Reporting Issuer. Emera is a reporting issuer in each of the provinces of Canada and each of the Obligors is in compliance with or is exempt from its timely disclosure obligations under the applicable securities laws in all of the provinces of Canada and the Exchange Act, as applicable, except where such noncompliance would not, singly or in the aggregate, be expected to have a Material Adverse Effect.
(v) Investment Company Act. Neither the Issuer nor any of the Guarantors is, and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, none of them will be, an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Investment Company Act”).
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(w) Taxes. Each of Emera and the Subsidiaries has, on a timely basis, filed all material tax returns and notices and has paid or made provision for all applicable taxes to the date hereof to the extent such taxes are shown to be due and payable, except any such taxes that are being contested in good faith by appropriate proceedings and for which Emera and the Subsidiaries, to the extent required by GAAP, have set aside on its books adequate reserves and except to the extent that the failure to do any of the foregoing could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and Emera is not aware of any material tax deficiencies or material interest or penalties accrued or accruing thereon with respect to itself or any of the Subsidiaries which have had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(x) Compliance With Environmental Laws. Except as set forth in or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus, Emera and its Subsidiaries are (i) in substantial compliance with all applicable foreign, federal, provincial, state and local laws and regulations, as well as any obligations or requirements arising under the common law, relating to occupational health and safety applicable to employees of Emera and its Subsidiaries or relating to hazardous or toxic substances or wastes, pollutants or contaminants or to the protection of the environment (“Environmental Laws”), (ii) have received and are in substantial compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. Except as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, none of Emera or any of its Subsidiaries has been named as a “potentially responsible party” under the United States Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.
(y) Disclosure Controls. Emera and its Subsidiaries maintain an effective system of “disclosure controls and procedures” as required by Rule 13a-15 or Rule 15d-15 under the Exchange Act and as contemplated by the certifications required under Form 52-109F1 and Form 52-109F2 under National Instrument – Certification of Disclosure in Issuers’ Annual and Interim Filings (“NI 52-109”) that is designed to ensure that information required to be disclosed by Emera in reports that it files with Canadian Securities Regulators, is recorded, processed, summarized and reported within the time periods specified in the Commission’s or the NSSC’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to Emera’s management as appropriate to allow timely decisions regarding required disclosure. Emera and its Subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as contemplated by NI 52-109.
(z) Accounting Controls. Emera and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is
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compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) material information relating to it is made known to those within Emera or such Subsidiary responsible for the preparation of the financial statements during the period in which the financial statements have been prepared and that such material information is disclosed to the public within the time periods required by applicable Canadian Securities Laws and the Exchange Act. Emera and its Subsidiaries’ internal control over financial reporting is effective and Emera is not aware of (a) any material weaknesses in the design or operation of internal control over financial reporting (as such term is defined by Rules 13a-15(f) and 15d-15(f) under the Exchange Act and, in Canada, under NI 52-109) which are reasonably likely to adversely affect Emera’s ability to record, process, summarize and report financial information or (b) any fraud, whether or not material, that involves management or other employees who have a significant role in Emera’s internal controls over financial reporting.
(aa) No Unlawful Payments. None of Emera or any of its Subsidiaries nor, to the knowledge of the Obligors, any director, officer, agent, employee, affiliate or other person associated with or acting on behalf of Emera or any of its Subsidiaries has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or the Corruption of Foreign Public Officials Act (Canada), or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption laws; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. Emera and its Subsidiaries have instituted, and maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(bb) Compliance with Anti-Money Laundering Laws. The operations of Emera and its Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the applicable money laundering statutes of all jurisdictions where Emera and its Subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental or regulatory agency (collectively, the “Anti-Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving Emera or any of its Subsidiaries with respect to the Anti-Money Laundering Laws is, to the best knowledge of the Obligors, pending or threatened.
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(cc) No Conflicts with Sanctions Laws. None of Emera or any of its Subsidiaries or, to the knowledge of the Obligors, any agent, or affiliate or other person associated with or acting on behalf of Emera or any of its Subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the Canadian Office of the Superintendent of Financial Institutions and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is Emera or any of its Subsidiaries located, organized or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, Cuba, Iran, North Korea, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine and any other “Covered Region” of Ukraine identified pursuant to Executive Order 14065 (each, a “Sanctioned Country”); and the Issuer will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or the target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(dd) No Broker’s Fees. There is no person, firm or corporation which has been engaged by the Issuer to act for the Issuer and which is entitled to any brokerage or finder’s fee in connection with the issuance and sale of the Securities (other than pursuant to this Agreement), and in the event any such person, firm or corporation establishes a claim for any fee from the Underwriters, the Issuer covenants to indemnify and hold harmless the Underwriters with respect thereto and with respect to all costs reasonably incurred in the defense thereof.
(ee) No Stabilization. None of the Obligors has taken, directly or indirectly, and will not take any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Securities Act or Nova Scotia Securities Laws or otherwise, stabilization or manipulation of the price of the Securities.
(ff) Status under the Securities Act. Each of the Obligors is not an ineligible issuer as defined under the Securities Act, at the times specified in the Securities Act in connection with the offering of the Securities.
(gg) Cybersecurity; Data Protection. (i)(x) Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, there has been no security breach or other compromise of or relating to any of Emera’s or its Subsidiaries’ information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers and vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”) and (y) Emera and its Subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to their IT Systems and Data, except that could not reasonably be expected, in the case of this clause (i), individually or in the aggregate, to have a Material Adverse Effect; (ii) Emera and its Subsidiaries are presently in compliance with all applicable laws and statutes, all judgments, orders, rules and regulations of
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any court or arbitrator or governmental or regulatory authority, all internal policies and all contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except that could not reasonably be expected, in the case of this clause (ii), individually or in the aggregate, to have a Material Adverse Effect; and (iii) except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, Emera and its Subsidiaries have implemented backup and disaster recovery technology reasonably consistent with industry standards and practices.
(hh) FINRA Exemption. Emera qualifies as an “experienced issuer” (within the meaning of Financial Industry Regulatory Authority, Inc. Rule 5110(j)(6).
2. Purchase of the Securities by the Underwriters.
(a) (i) The Issuer agrees to issue and sell the Securities 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 Issuer the respective principal amount of Securities set forth opposite such Underwriter’s name in Schedule 1 hereto at a price equal to 99.000% of the principal amount thereof of the Series A Notes plus accrued interest, if any, from March 23, 2026 to the Closing Date (as defined below) and at a price equal to 99.000% of the principal amount thereof of the Series B Notes plus accrued interest, if any, from March 23, 2026 to the Closing Date. The Issuer will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.
(b) The Issuer understands that the Underwriters intend to make a public offering of the Securities in the United States and an offering in certain provinces of Canada on a private placement basis under one or more exemptions from the prospectus requirement under the securities laws of the applicable provinces of Canada, either directly or through their respective U.S. or Canadian affiliates upon the terms set forth in the Prospectus, as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Securities on the terms set forth in the Time of Sale Information and in the Prospectus. The Issuer acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Securities will be made at the offices of Davis Polk & Wardwell LLP at 10:00 A.M., New York City time, on March 23, 2026, 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 Obligors may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date”.
(d) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Issuer to the Representatives against delivery to the nominee of The Depository Trust Company (“DTC”), for the account of the Underwriters, of one or more global notes representing the Securities (collectively, the “Global Notes”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Issuer in accordance with Section 10 of this Agreement. The Global Notes will be made available for inspection by the Representatives not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
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(e) The Obligors acknowledge and agree that each Underwriter is acting solely in the capacity of an arm’s-length contractual counterparty to the Obligors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, any Obligor or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Obligors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Obligors shall consult with their own respective advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriter shall have no responsibility or liability to the Obligors with respect thereto. Any review by the Representatives or any Underwriter of the Obligors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Underwriter, as the case may be, and shall not be on behalf of the Obligors or any other person.
(f) Each Underwriter that is not resident in Canada for the purposes of the Income Tax Act (Canada) severally and not jointly represents and warrants to the Issuer that such Underwriter has not rendered nor will it render any services hereunder physically in Canada and no portion of the discounts, fees or commissions payable to such Underwriter will relate to services rendered physically in Canada.
3. Further Agreements of the Issuer and the Guarantors. The Issuer and the Guarantors jointly and severally covenant and agree with each Underwriter that:
(a) Required Filings. The Issuer will prepare the Prospectus setting forth the principal amount of Securities covered thereby, the terms not otherwise specified in the Base Prospectus, as applicable, pursuant to which the Securities are being issued, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Securities are to be purchased by the Underwriters from the Issuer, the public offering price, and the selling concession and reallowance, if any, in a form approved by the Representatives and shall file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act or General Instruction II.L. of Form F-10, as applicable, not later than the Commission’s close of business on the second business day following the date of this Agreement. The Obligors will promptly file all reports required to be filed by them with the Canadian Securities Regulators pursuant to Canadian Securities Laws, and the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172) in connection with the offering or sale of the Securities.
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(b) Delivery of Copies. The Obligors will deliver, without charge, (i) to the Representatives upon request, two signed copies of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents incorporated by reference therein; and (ii) to each Underwriter upon request (A) a conformed copy of the Registration Statement as originally filed with the NSSC and the Commission and each amendment thereto, in each case including all exhibits and consents filed therewith and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request, provided, however, that the Obligors shall not be required to deliver copies of documents publicly available on Commission’s Electronic Data Gathering, Analysis and Retrieval (EDGAR) system, the Canadian Securities Administrators’ System for Electronic Document Analysis and Retrieval (SEDAR+) or any successor system. As used herein, the term “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 the 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 the Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to or filing or delivering, as applicable, any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, the Obligors will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably objects.
(d) Notice to the Representatives. The Obligors 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 amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the NSSC or the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the NSSC or the Commission for any additional information; (iv) of the issuance by the NSSC or the Commission of any order suspending the distribution of the Securities or the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus 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 Time of Sale Information 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 required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; and (vi) of the receipt by the Obligors 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 the Obligors will use their commercially reasonable efforts to prevent the issuance of any such order suspending the distribution of the Securities or the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or any 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.
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(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Time of Sale Information 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 under which they were made, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with law, the Obligors will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (d) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Time of Sale Information (or any document to be filed with the NSSC or the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the Time of Sale Information as so amended or supplemented (including such documents to be incorporated by reference therein) will not, in the light of the circumstances under which they were made, be misleading or so that any of the Time of Sale Information will comply with law.
(f) Ongoing Compliance. 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 required to be stated therein or 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 such Prospectus to comply with law, the Obligors will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (b) above, file with the NSSC or the Commission, as applicable, and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to such Prospectus (or any document to be filed with the NSSC or the Commission and incorporated by reference therein) as may be necessary so that the statements in such Prospectus as so amended or supplemented (including such documents to be incorporated by reference therein) will not, in the light of the circumstances existing when such Prospectus is delivered to a purchaser, be misleading or so that such Prospectus will comply with law.
(g) Blue Sky Compliance. The Issuer will qualify the Securities for offer and sale under the securities or Blue Sky laws of such states, possessions or territories of the United States as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for the offering and resale of the Securities; provided that neither the Issuer nor any of the Guarantors 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, (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject, or (iv) file any prospectus, registration statement or similar document to register or qualify the Securities or offers and sales thereof under such Blue Sky laws.
(h) Earning Statement. Emera will make generally available to its security holders and the Representatives as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of Emera occurring after the “effective date” (as defined in Rule 158) of the Registration Statement.
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(i) Clear Market. During the period from the date hereof through and including the Closing Date, the Issuer and each of the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Issuer or any of the Guarantors and having a tenor of more than one year (other than USD senior debt securities issued by the Issuer and guaranteed by the Guarantors).
(j) Use of Proceeds. The Issuer will apply the net proceeds from the sale of the Securities as described in each of the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Use of Proceeds.”
(k) DTC. The Issuer will assist the Underwriters in arranging for the Securities to be eligible for clearance and settlement through DTC.
(l) No Stabilization. Neither the Issuer nor any of the Guarantors will take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(m) Record Retention. The Obligors will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
4. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Obligors and not incorporated by reference into the Registration Statement and any press release issued by the Obligors) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 1(f) or Section 3(d) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Obligors in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”). Notwithstanding the foregoing, the Underwriters may use the Pricing Term Sheet referred to in Annex B hereto without the consent of the Obligors.
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Obligors if any such proceeding against it is initiated during the Prospectus Delivery Period).
5. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to purchase Securities on the Closing Date as provided herein is subject to the performance by the Obligors of their respective covenants and other obligations hereunder and to the following additional conditions:
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(a) Registration Compliance; No Stop Order. Each prospectus supplement relating to the Securities that supplements the Base Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act or General Instruction II.L. of Form F-10 under the Securities Act, as applicable, in each case, within the applicable time period prescribed for such filing and in accordance with Section 3(a) hereof; no order preventing or suspending the distribution of the Securities or the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission or the NSSC; and the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the NSSC and the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), as applicable, and in accordance with Section 3(a) hereof; and all requests by the Commission or the NSSC for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Obligors contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Obligors and their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by Emera or any of the Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined under Section 3(a)(62) under 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 Securities or of any other debt securities or preferred stock issued or guaranteed by Emera or any of the Subsidiaries (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement, no event or condition of a type described in Section 1(h) hereof shall have occurred or shall exist, which event or condition is not described in each of the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) the effect of which in the reasonable judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the Closing Date a certificate of an executive officer of the Issuer and of each Guarantor who has specific knowledge of the Issuer’s or such Guarantor’s financial matters and is satisfactory to the Representatives (i) confirming that such officer has carefully reviewed the Time of Sale Information and the Prospectus and, to the best knowledge of such officer, the representations set forth in Sections 1(e) and 1(f) hereof are true and correct, (ii) confirming that, to the best knowledge of such officer, the other representations and warranties of the Obligors in this Agreement are true and correct and that, to the best knowledge of such officer, the Obligors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
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(f) Comfort Letters. On the date of this Agreement and on the Closing Date, Ernst & Young LLP shall have furnished to the Representatives, at the request of the Obligors, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to Underwriters with respect to the financial statements and certain financial information of the Obligors contained or incorporated by reference in each of the Time of Sale Information and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(g) Opinion and 10b-5 Statement of United States Counsel for the Obligors. Davis Polk & Wardwell LLP, United States counsel for the Obligors, shall have furnished to the Representatives, at the request of the Obligors, their written opinion and 10b-5 statement, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex D hereto.
(h) Opinion of Internal Counsel for the Obligors. Brian Curry, internal counsel for the Obligors, shall have furnished to the Representatives, at the request of the Obligors, his written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex E hereto.
(i) Opinion and 10b-5 Statement of United States Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date an opinion and 10b-5 statement, addressed to the Underwriters, of Hunton Andrews Kurth LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Notes or the issuance of the Guarantees; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Notes or the issuance of the Guarantees.
(k) Good Standing. The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Obligors in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(l) Post-Trade Distribution Filings. The Issuer will file (or deliver, as applicable) or cause to be filed (or delivered, as applicable) all documents required to be filed or delivered by the Issuer under applicable Canadian Securities Laws, within the time period prescribed thereby, in connection with the transactions contemplated by this Agreement so that the offering, issuance, sale and delivery of the Securities to the Underwriters or their respective affiliates and the offer and sale of the Securities to purchasers in Canada may be effected in a manner exempt from the
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prospectus requirements of Canadian Securities Laws pursuant to the “accredited investor exemption” (as defined in NI 45-106), including any required reports on Form 45-106F1 – Report of Exempt Distribution (“Form 45-106F1”) pursuant to NI 45-106, and will pay all filing or other fees applicable in connection therewith. The Representatives shall deliver to the Issuer, as soon as practicable and, in any event, no later than three (3) business days following the Closing Date and otherwise in sufficient time to allow the Issuer to comply with all Canadian Securities Laws and other regulatory requirements applicable in any province or territory of Canada, all information pertaining to purchasers in Canada necessary to complete Form 45-106F1.
(m) DTC. The Securities shall be eligible for clearance and settlement through DTC.
(n) Indenture and Securities. The Indenture shall have been duly executed and delivered by a duly authorized officer of the Issuer, each of the Guarantors and the Trustee, and the Securities shall have been duly executed and delivered by a duly authorized officer of the Issuer and duly authenticated by the Trustee.
(o) Additional Documents. On or prior to the Closing Date, the Obligors shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
6. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Obligors jointly and severally agree to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses reasonably incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, to which any of them may become subject, under the Securities Act, the Exchange Act, any Canadian Securities Laws or otherwise, insofar as such losses, claims, damages and liabilities arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, or caused by 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, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Obligors in writing by such Underwriter through the Representatives expressly for use therein.
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(b) Indemnification of the Issuer and the Guarantors. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Obligors, each of their respective directors and officers who signed the Registration Statement and each person, if any, who controls the Obligors within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Obligors in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only such information consists of the following paragraphs in any Preliminary Prospectus and the Prospectus: the statements regarding delivery of the Securities set forth on the cover page and the concession and reallowance figures and the statement regarding the offering price of the Securities and the paragraph relating to stabilization by the Underwriters appearing under the caption “Underwriting.”
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 6 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid or reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing
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by J.P. Morgan Securities LLC and any such separate firm for the Obligors, their respective directors and officers who signed the Registration Statement and any control persons of the Obligors shall be designated in writing by the Obligors. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraph (a) or (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Obligors on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Obligors on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Obligors on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Issuer from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the Obligors on the one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Obligors or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
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(e) Limitation on Liability. The Obligors and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 6, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the 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 6 are several in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
7. Effectiveness of Agreement. This Agreement shall become effective as of the date first written above.
8. Termination. This Agreement may be terminated in the absolute discretion of the Representatives, by notice to Emera, if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange, the Toronto Stock Exchange or the over-the-counter market; (ii) trading of any securities issued or guaranteed by the Obligors shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by authorities in the United States, Canada or New York State; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, Canada, or elsewhere, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
9. Defaulting Underwriter.
(a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Obligors on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Obligors shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Obligors may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Obligors
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or counsel for the Underwriters may be necessary in the Registration Statement, the Time of Sale Information, the Prospectus or in any other document or arrangement, and the Obligors agree to promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Information or the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 9, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Obligors as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Obligors shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Obligors as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Obligors shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 9 shall be without liability on the part of the Obligors, except that the Obligors will continue to be liable for the payment of expenses as set forth in Section 10(b) hereof and except that the provisions of Section 6 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Obligors or any non-defaulting Underwriter for damages caused by its default.
10. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Obligors jointly and severally agree to pay or cause to be paid all reasonable costs and expenses incident to the performance of their respective obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any transfer taxes and any stamp or other duties payable upon the sale, issuance and delivery of the Securities to the Underwriters, and any filing fees payable to Canadian securities regulatory authorities; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and any Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Obligors’ counsels and independent accountants; (v) the fees and expenses incurred in connection with the qualification of the Securities under the securities or Blue Sky laws of such
23
states, possessions or territories of the United States as the Representatives shall reasonably request in accordance with the provisions of Section 3(h) hereof, including the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) the fees and expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties); (vii) all expenses and application fees incurred in connection with the approval of the Securities for book-entry transfer by DTC; and (viii) all expenses incurred by the Issuer in connection with any “road show” presentation to potential investors, including, without limitation, travel and lodging expenses of the representatives and officers of the Guarantors; provided, however, that with respect to the cost of aircraft chartered in connection with any “road show” to the extent that such aircraft was jointly used by the representatives and officers of the Obligors and the Underwriters in connection with any “road show,” the Underwriters shall be responsible for 50% of the cost of such chartered aircraft.
(b) If this Agreement is terminated pursuant to Section 8, the Obligors for any reason fails to tender the Securities for delivery to the Underwriters or the Underwriters decline to purchase the Securities for any reason permitted under this Agreement, the Obligors jointly and severally agree to reimburse the Underwriters for all out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and any controlling persons referred to herein, and the affiliates of each Underwriter referred to in Section 6 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Obligors and the Underwriters contained in this Agreement or made by or on behalf of the Obligors or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Obligors or the Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City, New York or Halifax, Nova Scotia; (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act; and (d) the term “significant subsidiary” has the meaning set forth in Rule 1-02 of Regulation S-X under the Exchange Act.
14. Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Issuer, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
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15. Miscellaneous.
(a) Authority of the Representatives. Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives c/o J.P. Morgan Securities LLC, 270 Park Avenue, New York, New York 10017, Attention: Investment Grade Syndicate Desk, 3rd Floor, Fax No.: (212) 834-6081 and Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Investment Banking Division, Fax No.: (212) 507-8999. Notices to the Issuer and the Guarantors shall be given to them at Emera Incorporated, 5151 Terminal Road, Halifax, Nova Scotia B3J 1A1, (fax: (902) 428-6171); Attention: Brian C. Curry, Corporate Secretary.
(c) Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York.
(d) Submission to Jurisdiction; Agent for Service; Waiver of Immunity. The Obligors hereby submit to the exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Obligors waive any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. The Obligors agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Obligors and may be enforced in any court to the jurisdiction of which the Obligors, as applicable, is subject by a suit upon such judgment. The Obligors have appointed the Issuer as its authorized agent (the “Authorized Agent”) upon whom process may be served in any such action arising out of or based on this Agreement or the transactions contemplated hereby which may be instituted in any New York Court by any Underwriter or by any person who controls any Underwriter, expressly consents to the jurisdiction of any such court in respect of any such action, and waives any other requirements of or objections to personal jurisdiction with respect thereto. Such appointment shall be irrevocable and in full force and effect so long as any securities are outstanding. The Obligors represent and warrant that the Authorized Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Obligors shall be deemed, in every respect, effective service of process upon the Obligors.
To the extent that the Issuer or any Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, it hereby irrevocably waives such immunity in respect of its obligations under the above-referenced documents, to the extent permitted by law.
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The provisions of this Section 15(d) shall survive any termination of this Agreement, in whole or in part.
(e) Judgment Currency. In respect of any judgment or order given or made for any amount due hereunder that is expressed and paid in a currency (the “judgment currency”) other than United States dollars, the Obligors, joint and severally, will indemnify each Underwriter against any loss incurred by such Underwriter as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the judgment currency for the purpose of such judgment or order and (ii) the rate of exchange at which an Underwriter is able to purchase United States dollars with the amount of judgment currency actually received by such Underwriter. The foregoing indemnity shall constitute a separate and independent obligation of the Obligors and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of or conversion into United States dollars.
(f) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(g) Counterparts; Electronic Signatures. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument. The words “execution,” “executed,” “signed,” signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement shall include images of manually executed signatures transmitted by facsimile, email or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
(h) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(i) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
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16. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section 16:
“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.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
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If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
| Very truly yours, | ||
| EMERA US FINANCE, LLC | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer& Manager | ||
| By: | /s/ Brian C/ Curry | |
| Name: Brian C. Curry | ||
| Title: Secretary | ||
| EMERA INCORPORATED, as Guarantor | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer | ||
| By: | /s/ Brian C/ Curry | |
| Name: Brian C. Curry | ||
| Title: Corporate Secretary | ||
| EMERA US HOLDINGS INC., as Guarantor | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer | ||
| By: | /s/ Brian C/ Curry | |
| Name: Brian C. Curry | ||
| Title: Secretary | ||
[Signature Page—Underwriting Agreement]
Accepted: As of the date first written above
| J.P. MORGAN SECURITIES LLC | ||
| By: | Saee Athalye | |
| Name: Saee Athalye | ||
| Title: Vice President | ||
| MORGAN STANLEY & CO. LLC | ||
| By: | Natalie Smithson | |
| Name: Natalie Smithson | ||
| Title: Vice President | ||
For themselves and on behalf of the
several Underwriters listed in Schedule 1 hereto
[Signature Page—Underwriting Agreement]
Schedule 1
| Underwriter | Aggregate Principal Amount of Series A Notes to be Purchased |
Aggregate Principal Amount of Series B Notes to be Purchased |
||||||
| J.P. Morgan Securities LLC |
USD $ | 46,875,000 | USD $ | 46,875,000 | ||||
| Morgan Stanley & Co. LLC |
USD $ | 46,875,000 | USD $ | 46,875,000 | ||||
| MUFG Securities Americas Inc. |
USD $ | 42,188,000 | USD $ | 42,187,000 | ||||
| RBC Capital Markets, LLC |
USD $ | 42,188,000 | USD $ | 42,187,000 | ||||
| Scotia Capital (USA) Inc. |
USD $ | 42,187,000 | USD $ | 42,188,000 | ||||
| Wells Fargo Securities, LLC |
USD $ | 42,187,000 | USD $ | 42,188,000 | ||||
| BMO Capital Markets Corp. |
USD $ | 22,500,000 | USD $ | 22,500,000 | ||||
| BofA Securities, Inc. |
USD $ | 22,500,000 | USD $ | 22,500,000 | ||||
| CIBC World Markets Corp. |
USD $ | 22,500,000 | USD $ | 22,500,000 | ||||
| TD Securities (USA) LLC |
USD $ | 22,500,000 | USD $ | 22,500,000 | ||||
| Truist Securities, Inc. |
USD $ | 22,500,000 | USD $ | 22,500,000 | ||||
|
|
|
|
|
|||||
| Total |
USD $ | 375,000,000 | USD $ | 375,000,000 | ||||
1-1
Schedule 2
Emera Subsidiaries
| • | Nova Scotia Power Incorporated |
| • | Tampa Electric Company |
| • | Peoples Gas System, Inc. |
2-1
Schedule 3
Exceptions to Section 1(j)
(i) to the extent that the failure to be so authorized, issued, fully paid and non-assessable or free and clear of any lien, charge, encumbrance, security interest, restriction on voting or any other claim of any third party could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(ii) the equity of Emera Brunswick Pipeline Company Ltd. (“EBPC”) which is pledged to secure a limited recourse guarantee (with recourse thereunder limited to such equity of EBPC) in connection with existing third-party financing of EBPC; and
(iii) the equity of NSP Maritime Link Incorporated (“NSPML”) which is pledged under a certificated securities limited recourse pledge agreement to secure the payment and performance of all secured obligations of NSPML in connection with the amended and restated credit agreement dated December 16, 2024 and the equity of any subsidiary of NSPML which is charged under a debenture to secure such credit agreement.
3-1
ANNEX A
Time of Sale Information
1. Pricing Term Sheet, dated March 17, 2026, containing the terms of the Securities, substantially in the form of Annex B.
A-1
ANNEX B
Form of Pricing Term Sheet
Emera US Finance, LLC
6.650% Series A Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056
6.850% Series B Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056
The information in this pricing term sheet relates to the offering by Emera US Finance, LLC of its Series A Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 and Series B Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 (together, the “Offering”) and should be read together with the preliminary prospectus supplement dated March 17, 2026 relating to the Offering (the “Preliminary Prospectus Supplement”), filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended, including the documents incorporated by reference therein, and the related base prospectus dated March 4, 2026, included in the Registration Statement Nos. 333-294020, 333-294017-01 and 333-294017-02. The information in this pricing term sheet supersedes the information in the Preliminary Prospectus Supplement and the accompanying prospectus to the extent it is inconsistent with the information in the Preliminary Prospectus Supplement or the accompanying prospectus. Terms not defined in this pricing term sheet have the meanings given to such terms in the Preliminary Prospectus Supplement.
| Issuer: | Emera US Finance, LLC (the “Issuer”) | |
| Guarantors: | Emera Incorporated (“Emera”) and Emera US Holdings Inc. (together, with Emera, the “Guarantors”) | |
| Legal Format: | SEC registered | |
| Expected Ratings (Moody’s/S&P/Fitch)*: | [Intentionally Omitted] | |
| Security: | 6.650% Series A Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 (the “Series A Notes”) 6.850% Series B Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 (the “Series B Notes”, and together with the Series A Notes, the “Notes”) | |
| Principal Amount: | Series A Notes: U.S. $375,000,000 Series B Notes: U.S. $375,000,000 | |
| Offering Price: | Series A Notes: 100% of the principal amount Series B Notes: 100% of the principal amount | |
| Interest Rate: | Series A Notes: The Series A Notes will bear interest (i) from and including March 23, 2026 to but excluding October 1, 2031 (the “Series A First Reset Date”), at the rate of 6.650% per annum and (ii) from and including the Series A First Reset Date, during each Series A Reset Period (as defined in the Preliminary Prospectus), at a rate per annum equal to the Five-year U.S. Treasury Rate (as defined in the Preliminary Prospectus) as of the most recent Series A Reset Interest Determination Date (as defined in the Preliminary Prospectus), plus a spread of 2.866% to be reset on each Series A Reset Date (as defined in the Preliminary Prospectus); provided, that the interest rate during any Reset Period will not reset below 6.650% (which equals the initial interest rate on the Series A Notes). | |
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| Series B Notes: The Series B Notes will bear interest (i) from and including March 23, 2026 to but excluding October 1, 2036 (the “Series B First Reset Date”), at the rate of 6.850% per annum and (ii) from and including the Series B First Reset Date, during each Series B Reset Period (as defined in the Preliminary Prospectus), at a rate per annum equal to the Five-year U.S. Treasury Rate (as defined in the Preliminary Prospectus) as of the most recent Series B Reset Interest Determination Date (as defined in the Preliminary Prospectus), plus a spread of 2.648% to be reset on each Series B Reset Date (as defined in the Preliminary Prospectus); provided, that the interest rate during any Reset Period will not reset below 6.850% (which equals the initial interest rate on the Series B Notes).
For the definitions of the terms “Series A Reset Period,” “Series B Reset Period,” “Series A Reset Interest Determination Date,” “Series B Reset Interest Determination Date,” “Series A Reset Date,” “Series B Reset Date” and “Five-year U.S. Treasury Rate,” and for other important information concerning the calculation of interest on the Notes, see “Description of the Notes—Interest Rate and Maturity” in the Preliminary Prospectus. | ||
| Interest Payment Dates: | Series A Notes: April 1 and October 1 of each year, beginning October 1, 2026 Series B Notes: April 1 and October 1 of each year, beginning October 1, 2026
(subject to the Issuer’s right to defer interest payments as described under “Optional Interest Deferral” below) | |
| Optional Interest Deferral: | So long as no Event of Default (as defined in the Preliminary Prospectus) with respect to the Notes of a series has occurred and is continuing, the Issuer may, at its option, defer interest payments on of the Notes of such series, from time to time, for one or more deferral periods of up to 20 consecutive semi-annual Interest Payment Periods (as defined in the Preliminary Prospectus) each, except that no such Optional Deferral Period may extend beyond the final maturity date of the Notes of such series or end on a day other than the day immediately preceding an interest payment date. No interest will be due or payable on such Notes during any such Optional Deferral Period unless the Issuer elects, at its option, to redeem Notes of the applicable series during such Optional Deferral Period, in which case accrued and unpaid interest to but excluding the redemption date will be due and payable on such redemption date only on the applicable series of Notes being redeemed, or unless the principal of and interest on the applicable Notes shall have been declared due and payable as the result of an Event of Default with respect to the applicable series of Notes, in which case all accrued and unpaid interest on the Notes of the applicable series shall become due and payable. The Issuer may elect, at its option, to extend the length of any Optional Deferral Period that is shorter than 20 consecutive semi-annual Interest Payment Periods (so long as the entire Optional Deferral Period does not exceed 20 consecutive semi-annual Interest Payment Periods or extend beyond the final maturity date of a given series of Notes) and to shorten the length of any Optional Deferral Period. The Issuer cannot begin a new Optional Deferral Period until the Issuer or the Guarantors have paid all accrued and unpaid interest on the Notes of the applicable series from any previous Optional Deferral Period. During any Optional Deferral Period, interest on the Notes of the applicable series will continue to accrue at the then applicable interest rate on the Notes of such series (as reset from time to time on any Series A Reset Date or Series B Reset Date, as applicable, occurring during such Optional Deferral Period in accordance with the terms of such series of Notes). In addition, during any Optional Deferral Period, interest on the deferred interest will accrue at the then-applicable interest rate on the Notes of such series (as reset from time to time on any Series A Reset Date or Series B Reset Date, as applicable, occurring during such Optional Deferral Period in accordance with the terms of the Notes of such series), compounded semi-annually, to the extent permitted by applicable law. | |
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| For additional information and the definitions of the terms “Event of Default,” “Optional Deferral Period” and “Interest Payment Period,” see “Description of the Notes—Events of Default” and “Description of the Notes—Option to Defer Interest Payments” in the Preliminary Prospectus. | ||
| Maturity Date: | Series A Notes: October 1, 2056 Series B Notes: October 1, 2056 | |
| Optional Redemption Terms: | At its option, the Issuer may redeem some or all of the Notes of either series, as applicable, before their maturity, as follows:
• in whole or in part (i) on any day in the period commencing on the date falling 90 days prior to the Series A First Reset Date or Series B First Reset Date, as applicable, and ending on and including the Series A First Reset Date or Series B First Reset Date, as applicable, and (ii) after the Series A First Reset Date or Series B First Reset Date, as applicable, on any interest payment date, at a redemption price in cash equal to 100% of the principal amount of the Notes of the applicable series being redeemed, plus, subject to the terms described in the first paragraph under “Description of the Notes— Redemption—Redemption Procedures; Cancellation of Redemption” in the Preliminary Prospectus, accrued and unpaid interest on the Notes of such series to be redeemed to but excluding the redemption date;
• in whole but not in part, at any time following the occurrence and during the continuance of a Tax Event (as defined in the Preliminary Prospectus) at a redemption price in cash equal to 100% of the principal amount of the Notes of the applicable series, plus, subject to the terms described in the first paragraph under “Description of the Notes—Redemption—Redemption Procedures; Cancellation of Redemption” in the Preliminary Prospectus, accrued and unpaid interest on the Notes of such series to but excluding the redemption date; and
• in whole but not in part, at any time following the occurrence and during the continuance of a Rating Agency Event (as defined in the Preliminary Prospectus) at a redemption price in cash equal to 102% of the principal amount of the Notes of the applicable series, plus, subject to the terms described in the first paragraph under “Description of the Notes—Redemption—Redemption Procedures; Cancellation of Redemption” in the Preliminary Prospectus, accrued and unpaid interest on the Notes of such series to but excluding the redemption date.
For additional information and the definitions of the terms “Tax Event” and “Rating Agency Event,” see “Description of the Notes—Redemption” in the Preliminary Prospectus. | |
| CUSIP / ISIN: | Series A Notes: 29103HAA5 / US29103HAA59 Series B Notes: 29103HAB3 / US29103HAB33 | |
| Denominations: | $2,000 and integral multiples of $1,000 in excess thereof | |
| Pricing Date: | March 17, 2026 | |
| Expected Settlement Date: | March 23, 2026 (T+4) | |
| Joint Book-Running Managers: | J.P. Morgan Securities LLC Morgan Stanley & Co. LLC | |
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| MUFG Securities Americas Inc. RBC Capital Markets, LLC Scotia Capital (USA) Inc. Wells Fargo Securities, LLC | ||
| Co-Managers | BMO Capital Markets Corp. BofA Securities, Inc. CIBC World Markets Corp. TD Securities (USA) LLC Truist Securities, Inc. | |
| * Note: A securities rating is not a recommendation to buy, sell or hold a security and may be subject to revision or withdrawal at any time. | ||
The Issuer expects that delivery of the Notes will be made against payment therefor on or about March 23, 2026, which will be the fourth business day following the date of pricing of the Notes (this settlement cycle being herein referred to as “T+4”). Under Rule 15c6-1 of the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in one business day, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade Notes more than one business day prior to the scheduled settlement date will be required, by virtue of the fact that the Notes initially will settle in T+4, to specify an alternate settlement cycle at the time of any such trade to prevent a failed settlement. Purchasers of the Notes who wish to make such trades should consult their own advisor.
The Issuer and the Guarantors have filed a joint registration statement on Forms F-3 / F-10 (including a prospectus) and a preliminary prospectus supplement with the SEC for the Offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement, the preliminary prospectus supplement and other documents the Issuer and the Guarantors have 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 website at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by contacting each of: J.P. Morgan Securities LLC collect at (212) 834-4533 or Morgan Stanley & Co. LLC toll-free at (866) 718-1649.
Any disclaimer or other notice that may appear below is not applicable to this communication and should be disregarded. Such disclaimer or notice was automatically generated as a result of this communication being sent by Bloomberg or another email system.
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ANNEX C
| • | None |
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ANNEX D
Form of Opinion and 10b-5 Statement of Davis Polk & Wardwell LLP
March 23 2026
J.P. Morgan Securities LLC
Morgan Stanley & Co. LLC
as Representatives of the several Underwriters named in
Schedule 1 to the Underwriting Agreement referred to below
| c/o | J.P. Morgan Securities LLC |
270 Park Avenue
New York, New York 10017
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
We have acted as special United States counsel for Emera US Finance, LLC, a Delaware limited liability company (the “Company”), as issuer, and Emera Incorporated, a Nova Scotia company (“Emera”), and Emera US Holdings, Inc., a Delaware corporation (“EUSHI”), as guarantors (the “Guarantors”), in connection with the Underwriting Agreement dated March 17, 2026 (the “Underwriting Agreement”) with you and the other several Underwriters named in Schedule 1 thereto under which you and such other Underwriters have severally agreed to purchase from the Company USD $375,000,000 aggregate principal amount of its 6.650% of Series A Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 (the “Series A Notes”) and USD $375,000,000 aggregate principal amount of its 6.850% of Series B Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 (the “Series B Notes” and, together with the Series A Notes, the “Notes”), guaranteed by the Guarantors (the “Guarantees” and, together with the Notes, the “Securities”). The Securities are to be issued pursuant to the provisions of the Indenture dated as of March 23, 2026 (the “Base Indenture”) among the Company, the Guarantors and Equiniti Trust Company, LLC, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture establishing the terms of the Series A Notes and the related Guarantees, dated as of March 23, 2026, among the Company, the Guarantors and the Trustee (the “First Supplemental Indenture”) and the Second Supplemental Indenture establishing the terms of the Series B Notes and the related Guarantees, dated as of March 23, 2026, among the Company, the Guarantors and the Trustee (the “Second Supplemental Indenture” and, together with the Base Indenture and the First Supplemental Indenture, the “Indenture”), establishing the terms of the Securities, among the Company, the Guarantors and the Trustee.
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We 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.
We have also participated in the preparation of the Company’s and the Guarantors’ registration statement on Form F-10 and Form F-3 (File Nos. 333-294020, 333-294017-01 and 333-294017-02) (other than the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company and have participated in the preparation of the preliminary prospectus supplement dated March 16, 2026 relating to the Securities and the prospectus supplement dated March 16, 2026 relating to the Securities (the “Prospectus Supplement”), and have reviewed the Incorporated Documents. In addition, we have examined evidence that the registration statement was declared effective under the Act and the Indenture qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), on March 13, 2026. The registration statement at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement,” and the related prospectus (including the Incorporated Documents) dated March 4, 2026 relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Securities (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Securities under Rule 173 under the Act), is hereinafter referred to as the “Prospectus.”
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 documents filed with or submitted to the Commission through its Electronic Data Gathering, Analysis and Retrieval (“EDGAR”) system (except for required EDGAR formatting changes) conform to the versions of such documents reviewed by us prior to such formatting, (iv) all documents filed with or submitted to the Canadian Securities Administrators through their secure web-based system used to file, disclose and search for information in Canada’s capital markets (“SEDAR+”) (except for required SEDAR+ formatting changes) conform to the versions of such documents reviewed by us prior to such formatting, (v) all signatures on all documents that we reviewed are genuine, (vi) all natural persons executing documents had and have the legal capacity to do so, (vii) all statements in certificates of public officials and officers of the Company and the Guarantors that we reviewed were and are accurate and (viii) all representations made by the Company and the Guarantors as to matters of fact in the documents that we reviewed were and are accurate.
Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we are of the opinion that:
| 1. | The Company is validly existing as a limited liability company in good standing under the laws of the State of Delaware, and the Company has the limited liability company power and authority to issue the Notes, to enter into the Underwriting Agreement and the Indenture and to perform its obligations thereunder. |
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| 2. | EUSHI is validly existing as a corporation in good standing under the laws of the State of Delaware, and the EUSHI has the corporate power and authority to issue its Guarantee, to enter into the Underwriting Agreement and the Indenture and to perform its obligations thereunder. |
| 3. | The Indenture has been duly authorized, executed and delivered by the Company and EUSHI, and, assuming the due authorization, execution and delivery by Emera, the Indenture is a valid and binding agreement of the Company and each Guarantor, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and may be subject to possible judicial or regulatory actions giving effect to governmental actions or foreign laws affecting creditors’ rights, provided that we express no opinion as to (w) the enforceability of any waiver of rights under any usury or stay law, (x) (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (ii) any provision of the Indenture that purports to avoid the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law by limiting the amount of any Guarantor’s obligation or (y) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined to constitute unearned interest. |
| 4. | The Notes have been duly authorized by the Company, the Guarantee of EUSHI has been duly authorized by EUSHI, and, assuming the due authorization of the Guarantee by Emera, the Notes, when 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, will be valid and binding obligations of the Company and the Guarantors, respectively, 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, and may be subject to possible judicial or regulatory actions giving effect to governmental actions or foreign laws affecting creditors’ rights, and will be entitled to the benefits of the Indenture pursuant to which such Securities are to be issued, provided that we express no opinion as to the (w) enforceability of any waiver of rights under any usury or stay law, effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (y) validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined to constitute unearned interest. |
| 5. | The Underwriting Agreement has been duly authorized, executed and delivered by the Company and EUSHI. |
| 6. | None of the Company or any of the Guarantors is, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus none will be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. |
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| 7. | The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Indenture, the Securities and the Underwriting Agreement (collectively, and together with the Guarantees, the “Documents”) and the execution and delivery by each Guarantor of, and the performance by each Guarantor of its obligations under the Documents, will not contravene (i) any provision of the statutory laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Documents, the General Corporation Law of the State of Delaware or the Delaware Limited Liability Company Act provided that we express no opinion as to federal or state securities laws or (ii) the certificate of incorporation, or by-laws of the Company or EUSHI. |
| 8. | No consent, approval, authorization, or order of, or qualification with, any governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Documents, the General Corporation Law of the State of Delaware or the Delaware Limited Liability Company Act is required for the execution, delivery and performance by the Company or each Guarantor of its respective obligations under the Documents, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion. |
| 9. | Except as stated below, a money judgment obtained in Canada and enforcing the provisions of the Documents will be enforced by U.S. federal courts located in the State of New York and by courts of the State of New York if the judgment rendered by the Canadian court is final, conclusive and enforceable in Canada. To be conclusive, a judgment must be rendered under a system that provides impartial tribunals and procedures that observe the requirements of due process of law, and by tribunals that have jurisdiction over the parties and the subject matter of the litigation in which judgment was rendered. A U.S. federal court sitting in the State of New York or the courts of the State of New York may refuse to recognize even a final, conclusive and enforceable judgment rendered by a Canadian court on any of the following further discretionary grounds: (1) the defendant did not receive notice of the proceedings in sufficient time to enable him to defend, (2) the judgment was obtained by fraud, (3) the cause of action underlying the judgment is repugnant to public policy in the State of New York or under U.S. federal law, (4) the judgment conflicts with another final and conclusive judgment, (5) the Canadian proceedings were in contravention of an agreement between the parties to settle the dispute otherwise, and (6) jurisdiction was based only on personal service and the Canadian court was a seriously inconvenient forum. |
We have considered the statements included in the Prospectus under the captions “Description of Debt Securities and Guarantees” and “Description of the Notes” insofar as they summarize provisions of the Indenture and the Securities. In our opinion, such statements fairly summarize these provisions in all material respects. The statements included in the Prospectus under the caption “Material Income Tax Considerations,” insofar as they purport to describe provisions of U.S. federal income tax laws or legal conclusions with respect thereto, and subject to the qualifications, limitations and assumptions set forth therein, in our opinion fairly and accurately summarize the matters referred to therein in all material respects.
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In rendering the opinions in paragraphs (3) through (5) above, we have assumed that each party to the Documents has been duly incorporated or organized, as the case may be, and is validly existing and in good standing under the laws of the jurisdiction of its organization (other than as expressly covered above in respect of the Company and EUSHI). In addition, we have assumed that (i) the execution, delivery and performance by each party thereto of each Document to which it is a party, (a) are within its corporate or limited liability company powers, (b) do not contravene, or constitute a default under, the certificate of incorporation or bylaws or other constitutive documents of such party, (c) require no action by or in respect of, or filing with, any governmental body, agency or official and (d) do not contravene, or constitute a default under, any provision of applicable law or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party, provided that we make no such assumption to the extent that we have specifically opined as to such matters with respect to the Company and the Guarantors and (ii) each Document (other than the Underwriting Agreement) is a valid, binding and enforceable agreement of each party thereto (other than as expressly covered above in respect of the Company and the Guarantors).
In rendering the opinions set forth in paragraph (6) above, we have relied solely on officer’s certificates provided by the Company, EUSHI and Emera as to certain factual matters.
We are members of the Bar of the State of New York, and the foregoing opinion is limited to the laws of the State of New York, the federal laws of the United States of America, the General Corporation Law of the State of Delaware and the Delaware Limited Liability Company Act, except that we express no opinion as to (i) any law, rule or regulation that is applicable to the Company or the Guarantors, the Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due to the specific assets or business of such party or such affiliate or (ii) any law, rule or regulation relating to national security. With respect to all matters of the laws of the Province of Nova Scotia and the federal laws of Canada, you have received, and we understand that you are relying upon, the opinion of Brian C. Curry, delivered pursuant to Section 5 of the Underwriting Agreement.
This opinion is rendered solely to you and the other several Underwriters in connection with the Underwriting Agreement. This opinion may not be relied upon by you or the other several Underwriters for any other purpose or relied upon by any other person (including any person acquiring Securities from the several Underwriters) or furnished to any other person without our prior written consent.
Very truly yours,
D-5
March 23 2026
J.P. Morgan Securities LLC
Morgan Stanley & Co. LLC
as Representatives of the several Underwriters named in
Schedule 1 to the Underwriting Agreement referred to below
| c/o | J.P. Morgan Securities LLC |
270 Park Avenue
New York, New York 10017
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
We have acted as special United States counsel for Emera US Finance, LLC, a Delaware limited liability company (the “Company”), as issuer, and Emera Incorporated, a Nova Scotia company (“Emera”), and Emera US Holdings, Inc., a Delaware corporation (“EUSHI”), as guarantors (the “Guarantors”), in connection with the Underwriting Agreement dated March 17, 2026 (the “Underwriting Agreement”) with you and the other several Underwriters named in Schedule 1 thereto under which you and such other Underwriters have severally agreed to purchase from the Company USD $375,000,000 aggregate principal amount of its 6.650% of Series A Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 (the “Series A Notes”) and USD $375,000,000 aggregate principal amount of its 6.850% of Series B Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 (the “Series B Notes” and, together with the Series A Notes, the “Notes”), guaranteed by the Guarantors (the “Guarantees” and, together with the Notes, the “Securities”). The Securities are to be issued pursuant to the provisions of the Indenture dated as of March 23, 2026 (the “Base Indenture”) among the Company, the Guarantors and Equiniti Trust Company, LLC, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture establishing the terms of the Series A Notes and the related Guarantees, dated as of March 23, 2026, among the Company, the Guarantors and the Trustee (the “First Supplemental Indenture”) and the Second Supplemental Indenture establishing the terms of the Series B Notes and the related Guarantees, dated as of March 23, 2026, among the Company, the Guarantors and the Trustee (the “Second Supplemental Indenture” and, together with the Base Indenture and the First Supplemental Indenture, the “Indenture”), establishing the terms of the Securities, among the Company, the Guarantors and the Trustee.
We have participated in the preparation of the Company’s and the Guarantors’ registration statement on Form F-10 and Form F-3 (File Nos. 333-294020, 333-294017-01 and 333-294017-02) (other than the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from
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time to time by the Company and have participated in the preparation of the preliminary prospectus supplement dated March 16, 2026 relating to the Securities, the free writing prospectus dated March 16, 2026 relating to the Securities and the prospectus supplement dated March 16, 2026 relating to the Securities (the “Prospectus Supplement”), and have reviewed the Incorporated Documents. The registration statement at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement,” and the related prospectus (including the Incorporated Documents) dated March 4, 2026 relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the Preliminary Prospectus Supplement, together with the free writing prospectus dated March 16, 2026 relating to the Securities are hereinafter referred to as the “Disclosure Package.” The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Securities (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Securities under Rule 173 under the Act), is hereinafter referred to as the “Prospectus.”
We have, without independent inquiry or investigation, assumed that (i) all documents filed with or submitted to the Commission through its Electronic Data Gathering, Analysis and Retrieval (“EDGAR”) system (except for required EDGAR formatting changes) conform to the versions of such documents reviewed by us prior to such formatting and (ii) all documents filed with or submitted to the Canadian Securities Administrators through their secure web-based system used to file, disclose and search for information in Canada’s capital markets (“SEDAR+”) (except for required SEDAR+ formatting changes) conform to the versions of such documents reviewed by us prior to such formatting.
The primary purpose of our professional engagement was not to establish or confirm factual matters or financial, accounting or quantitative information. Furthermore, many determinations involved in the preparation of the Registration Statement, the Disclosure Package and the Prospectus are of a wholly or partially non-legal character or relate to legal matters outside the scope of our opinion separately delivered to you today in respect of certain matters under the laws of the State of New York, the federal laws of the United States of America, the General Corporation Law of the State of Delaware and the Delaware Limited Liability Company Act. As a result, we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus, and we have not ourselves checked the accuracy, completeness or fairness of, or otherwise verified, the information furnished in such documents (except to the extent expressly set forth in our opinion letter separately delivered to you today as to statements included in the Prospectus under the captions “Description of Debt Securities and Guarantees,” “Description of the Notes” and “Material Income Tax Considerations”). However, in the course of our acting as counsel to the Company and the Guarantors in connection with the review of the Registration Statement, the Disclosure Package and the Prospectus, we have generally reviewed and discussed with your representatives and your counsel and with certain officers and employees of, including Canadian counsel and independent public accountants for, the Company and the Guarantors the information furnished, whether or not subject to our check and verification. We have also reviewed and relied upon certain corporate records and documents, letters from counsel and accountants and oral and written statements of officers and other representatives of the Company and the Guarantors and others as to the existence and consequence of certain factual and other matters.
On the basis of the information gained in the course of the performance of the services rendered above, but without independent check or verification except as stated above:
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| (i) | the Registration Statement and the Prospectus appear on their face to be appropriately responsive in all material respects to the requirements of the Act and the applicable rules and regulations of the Commission thereunder; the Indenture appears on its face to be appropriately responsive in all material respects to the requirements of the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder; and the Form F-X filed by Emera with the Commission on March 4, 2026, as of its date, appears on its face to be appropriately responsive to form in all material respects with the requirements of the Act and the applicable rules and regulations of the Commission thereunder; and |
| (ii) | nothing has come to our attention that causes us to believe that, insofar as relevant to the offering of the Securities: |
| (a) | on the date of the Underwriting Agreement, the Registration Statement contained any 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, |
| (b) | at 3:30 P.M. New York City time on the date of the Underwriting Agreement, the Disclosure Package contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or |
| (c) | the Prospectus as of the date of the Underwriting Agreement or as of the date hereof contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. |
For the purposes of paragraph (i) above, we have assumed that (a) the disclosure documents incorporated by reference in the Registration Statement and the Prospectus are the only reports or information that in accordance with the requirements of Nova Scotia and Canadian law must be made publicly available in connection with the offering of the Securities, (b) the Prospectus was prepared in accordance with the disclosure requirements of Canadian law as interpreted and applied by the relevant regulators, except in each case for modifications required or permitted by Form F-10 or Form F-3, and (c) there were no publicly available documents filed with any Canadian regulatory authority concurrently with the Prospectus.
In providing this letter to you and the other several Underwriters, we have not been called to pass upon, and we express no view regarding, the financial statements or financial schedules or other financial or accounting data included in the Registration Statement, the Disclosure Package, the Prospectus, or the Statement of Eligibility of the Trustee on Form T-1. In addition, we express no view as to the conveyance of the Disclosure Package or the information contained therein to investors.
D-3
This letter is delivered solely to you and the other several Underwriters in connection with the Underwriting Agreement. This letter may not be relied upon by you or the other several Underwriters for any other purpose or relied upon by any other person (including any person acquiring Securities from the several Underwriters) or furnished to any other person without our prior written consent.
Very truly yours,
D-4
ANNEX E
Form of Opinion of Brian Curry, Internal Counsel for the Obligors
March 23, 2026
| J.P. Morgan Securities LLC 270 Park Avenue New York, New York 10017
Morgan Stanley & Co. LLC 1585 Broadway New York, New York 10036 |
Equiniti Trust Company, LLC 28 Liberty Street, 53rd Floor New York, NY 10005 |
Dear Sirs/Mesdames:
Emera Incorporated – Offering by Emera US Finance, LLC of US$375,000,000 of 6.650% Series A Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 and US$375,000,000 of 6.850% Series B Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056
I, Brian C. Curry, the Corporate Secretary of Emera Incorporated (the “Company”), have acted in such capacity in connection with the issuance and sale today by Emera US Finance, LLC, a Delaware limited liability company (the “Issuer”), and the Company and Emera US Holdings Inc., a Delaware corporation (“EUSHI” and together with the Company, the “Guarantors”), of: US$375,000,000 in aggregate principal amount of the Issuer’s 6.650% Series A Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 (the “Series A Notes”) and US$375,000,000 in aggregate principal amount of the Issuer’s 6.850% Series B Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 (the “Series B Notes” and, together with the Series A Notes, the “Notes”) and the related Guarantees, all pursuant to an underwriting agreement dated March 17, 2026 (the “Underwriting Agreement”) among the Issuer, the Company, EUSHI and J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC, as representatives of the several underwriters listed in Schedule 1 thereto (the “Underwriters”).
The Notes will be issued pursuant to an indenture dated March 23, 2026 (the “Base Indenture”), as supplemented pursuant to a first supplemental indenture establishing the terms of the Series A Notes and the related Guarantees, dated as of March 23, 2026, among the Company, the Guarantors and the Trustee (the “First Supplemental Indenture”) and a second supplemental indenture establishing the terms of the Series B Notes and the related Guarantees, dated as of March 23, 2026, among the Company, the Guarantors and the Trustee (the “Second Supplemental Indenture” and, together with the Base Indenture and the First Supplemental Indenture, the “Indenture”), in each case, among the Issuer, the Guarantors, as guarantors, and Equiniti Trust Company, LLC, as trustee, and will be unconditionally guaranteed, on a joint, several and subordinated basis by each of the Guarantors (the “Guarantees”). The Notes and the Guarantees are hereby collectively referred to as the “Securities”. The Notes are being offered and sold by the Underwriters pursuant to a preliminary prospectus supplement dated March 16, 2026 and an accompanying prospectus dated March 4, 2026 (the “Preliminary Prospectus”) and a prospectus supplement dated March 16, 2026 and an accompanying prospectus dated March 4, 2026 (the “Prospectus”), forming part of the Issuer’s and Guarantors’ registration statements on Forms F-3 and F-10, as applicable.
E-1
This opinion is being furnished to you pursuant to Section 5(h) of the Underwriting Agreement. Capitalized terms used but not defined in this opinion shall have the meanings ascribed to such terms in the Underwriting Agreement.
As counsel to the Company, I have examined originals or copies, certified or otherwise to my satisfaction, of the following:
| 1. | the Preliminary Prospectus; |
| 2. | the Prospectus; |
| 3. | resolutions of the Board of Directors of the Company approving and authorizing, among other things, the Guarantees, the Underwriting Agreement and the Indenture; |
| 4. | the documents incorporated by reference in the Preliminary Prospectus and the Prospectus; |
| 5. | the Underwriting Agreement; |
| 6. | the Indenture; and |
| 7. | the global certificates in respect of the Securities. |
I have examined originals or copies, certified or otherwise identified to my satisfaction, of such documents, records of corporate proceedings, certificates and acknowledgements of governmental officials and others and such other material as I have considered necessary or appropriate for the purpose of the opinions hereinafter expressed. In particular, I have examined those documents that were delivered today on closing of the Securities.
For purposes of the opinions hereinafter expressed, I have assumed the genuineness of all signatures (whether on originals or copies of documents), the legal capacity of all individuals, the authenticity of all documents submitted to me as originals, and the conformity to authentic originals of all documents submitted to me as certified, conformed, photostatic or facsimile copies thereof.
The opinions expressed below are limited to the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein (the “Applicable Laws”), as such laws exist and are construed as of the date hereof. In addition, the opinions expressed below do not extend to the effect or applicability of any Canadian federal, provincial, territorial and local laws, rules or regulations relating to the regulation of the generation, transportation, distribution or delivery of electricity, natural gas, oil or other specially regulated commodities or services, including pipelines, transmission lines, storage facilities and related facilities and equipment, or the import or export of such commodities or services.
In giving the opinion in paragraphs 1 and 2 below as to the existence of the Company and Nova Scotia Power Incorporated, I have also relied on a Certificate of Status dated March 17, 2026 issued by the Registrar of Joint Stock Companies in respect of the Company and Nova Scotia Power Incorporated. In expressing the opinion in paragraph 2 below, I note that the Nova Scotia Utility and Review Board is now known as the Nova Scotia Energy Board.
Based upon the foregoing, and subject to the qualifications expressed herein, I am of the opinion that:
| 1. | the Company is a company incorporated and existing under the laws of Nova Scotia and has the corporate power to conduct its business as described in the Time of Sale Information and the Prospectus; |
D-2
| 2. | Nova Scotia Power Incorporated is a corporation incorporated and existing under the laws of Nova Scotia and has the corporate power to conduct its business as described in the Time of Sale Information and the Prospectus; |
| 3. | the Company’s authorized share capital consists of an unlimited number of common shares, an unlimited number of first preferred shares and an unlimited number of second preferred shares; |
| 4. | the Company has the corporate power to enter into and deliver the Transaction Documents, to issue the Guarantees and to perform its obligations thereunder and to carry out the transactions contemplated thereby; each of the Transaction Documents to which the Company is a party has been duly authorized and, to the extent execution and delivery are governed by Applicable Laws, executed and delivered by the Company; and no registration, filing or recording of the Indenture under the Applicable Laws is necessary in order to preserve or protect the validity or enforceability of the Indenture or the Securities; |
| 5. | no consent, approval or authorization or order or registration, qualification, recording or filing with any government body or agency under the Applicable Laws is required for the execution, delivery and performance by the Company of the Transaction Documents to which it is a party or the consummation by the Company, of the transactions contemplated therein, except such as may have been made or obtained; and |
| 6. | the execution, delivery and performance by the Company of each of the Transaction Documents to which it is a party, the issuance of the Guarantees and compliance by the Company with the terms therein and the consummation of the transactions contemplated by the Transaction Documents to which it is a party do not and will not contravene provisions of: |
| (i) | the memorandum and articles of association, as amended, of the Company; |
| (ii) | to the best of my knowledge, the terms of any indenture, mortgage, deed of trust, loan, credit agreement, note or any other material agreement on the part of the Company or its Subsidiaries; |
| (iii) | any Applicable Law, excluding any such statute, law, rule or regulation applicable to the Company’s and any of its Subsidiaries specially regulated activities (as to which I express no opinion); or |
| (iv) | to the best of my knowledge, any judgment, order or decree of any governmental body, agency or court in Canada having jurisdiction over the Company or its Subsidiaries, except for those conflicts, breaches, violations, defaults, liens, charges or encumbrances related to the opinions set forth in sub paragraphs 6(ii), 6(iii) and 6(iv) hereof which would not reasonably be expected to have a Material Adverse Effect. |
D-3
Exhibit 4.1
EMERA US FINANCE, LLC
as Issuer
EMERA INCORPORATED
EMERA US HOLDINGS INC.
as Guarantors
AND
EQUINITI TRUST COMPANY, LLC
as Trustee
Indenture
Dated as of March 23, 2026
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of March 23, 2026
| Trust Indenture Act Section | Indenture Section | |
| § 310(a)(1) | 6.07 | |
| § 310(b) | 6.04, 6.07, 6.08(d)(1) | |
| § 311 | 1.01(2), 6.04 | |
| § 312(b) | 7.01 | |
| § 313 | 1.01 (“Outstanding”) | |
| § 313(c) | 6.01 | |
| § 315(a)-(d) | 6.02 | |
| § 315(e) | 6.08 | |
| § 316(c) | 1.04(d) |
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE 1 |
| |||||
| DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
| |||||
| SECTION 1.01 |
Definitions | 1 | ||||
| SECTION 1.02 |
Compliance Certificates and Opinions | 14 | ||||
| SECTION 1.03 |
Form of Documents Delivered to Trustee | 15 | ||||
| SECTION 1.04 |
Acts of Holders | 16 | ||||
| SECTION 1.05 |
Notices, etc. to Trustee, Issuer and Guarantors | 17 | ||||
| SECTION 1.06 |
Notice to Holders; Waiver | 17 | ||||
| SECTION 1.07 |
Effect of Headings and Table of Contents | 18 | ||||
| SECTION 1.08 |
Successors and Assigns | 18 | ||||
| SECTION 1.09 |
Separability Clause | 18 | ||||
| SECTION 1.10 |
Benefits of Indenture | 18 | ||||
| SECTION 1.11 |
Governing Law | 18 | ||||
| SECTION 1.12 |
Legal Holidays | 19 | ||||
| SECTION 1.13 |
Agent for Service; Submission to Jurisdiction; Waiver of Immunities | 19 | ||||
| SECTION 1.14 |
Conversion of Currency | 20 | ||||
| SECTION 1.15 |
Currency Equivalent | 21 | ||||
| SECTION 1.16 |
No Recourse Against Others | 21 | ||||
| SECTION 1.17 |
Multiple Originals | 21 | ||||
| SECTION 1.18 |
Conflict with Trust Indenture Act | 21 | ||||
| SECTION 1.19 |
Force Majeure | 22 | ||||
| SECTION 1.20 |
No Joint Venture | 22 | ||||
| SECTION 1.21 |
Rules of Construction | 22 | ||||
| SECTION 1.22 |
No Security Interest Created | 22 | ||||
| ARTICLE 2 |
| |||||
| SECURITY FORMS |
| |||||
| SECTION 2.01 |
Forms Generally | 23 | ||||
| SECTION 2.02 |
Form of Trustee’s Certificate of Authentication | 24 | ||||
| SECTION 2.03 |
Securities Issuable in Global Form | 24 | ||||
| SECTION 2.04 |
Guarantee by Guarantors; Form of Guarantee | 25 | ||||
| ARTICLE 3 |
| |||||
| THE SECURITIES |
| |||||
| SECTION 3.01 |
Amount Unlimited; Issuable in Series | 25 | ||||
| SECTION 3.02 |
Denominations | 29 | ||||
| SECTION 3.03 |
Execution, Authentication, Delivery and Dating | 29 | ||||
| SECTION 3.04 |
Reserved | 31 | ||||
| SECTION 3.05 |
Registration, Registration of Transfer and Exchange | 31 | ||||
i
| SECTION 3.06 |
Mutilated, Destroyed, Lost and Stolen Securities | 33 | ||||
| SECTION 3.07 |
Payment of Principal and Interest; Interest Rights Preserved | 34 | ||||
| SECTION 3.08 |
Reserved | 36 | ||||
| SECTION 3.09 |
Persons Deemed Owners | 36 | ||||
| SECTION 3.10 |
Cancellation | 37 | ||||
| SECTION 3.11 |
Computation of Interest | 37 | ||||
| SECTION 3.12 |
Currency and Manner of Payments in Respect of Securities | 37 | ||||
| SECTION 3.13 |
Appointment and Resignation of Successor Exchange Rate Agent | 41 | ||||
| SECTION 3.14 |
Certain Transfers and Exchanges | 41 | ||||
| ARTICLE 4 |
| |||||
| SATISFACTION AND DISCHARGE |
| |||||
| SECTION 4.01 |
Satisfaction and Discharge of Indenture | 46 | ||||
| SECTION 4.02 |
Application of Trust Money | 47 | ||||
| ARTICLE 5 |
| |||||
| REMEDIES |
| |||||
| SECTION 5.01 |
Events of Default | 48 | ||||
| SECTION 5.02 |
Acceleration of Maturity; Rescission and Annulment | 49 | ||||
| SECTION 5.03 |
Collection of Indebtedness and Suits for Enforcement by Trustee | 51 | ||||
| SECTION 5.04 |
Trustee May File Proofs of Claim | 51 | ||||
| SECTION 5.05 |
Trustee May Enforce Claims Without Possession of Securities | 52 | ||||
| SECTION 5.06 |
Application of Money Collected | 52 | ||||
| SECTION 5.07 |
Limitation on Suits | 53 | ||||
| SECTION 5.08 |
Unconditional Right of Holders to Receive Principal, Premium and Interest | 53 | ||||
| SECTION 5.09 |
Restoration of Rights and Remedies | 54 | ||||
| SECTION 5.10 |
Rights and Remedies Cumulative | 54 | ||||
| SECTION 5.11 |
Delay or Omission Not Waiver | 54 | ||||
| SECTION 5.12 |
Control by Holders | 54 | ||||
| SECTION 5.13 |
Waiver of Past Defaults | 55 | ||||
| SECTION 5.14 |
Waiver of Stay or Extension Laws | 55 | ||||
| SECTION 5.15 |
Undertaking for Costs | 56 | ||||
| ARTICLE 6 |
| |||||
| THE TRUSTEE |
| |||||
| SECTION 6.01 |
Certain Duties and Responsibilities | 56 | ||||
| SECTION 6.02 |
Notice of Defaults | 57 | ||||
| SECTION 6.03 |
Certain Rights of Trustee | 57 | ||||
| SECTION 6.04 |
Trustee Not Responsible for Recitals or Issuance of Securities | 59 | ||||
| SECTION 6.05 |
May Hold Securities | 59 | ||||
| SECTION 6.06 |
Money Held in Trust | 59 | ||||
ii
| SECTION 6.07 |
Compensation and Reimbursement | 60 | ||||
| SECTION 6.08 |
Corporate Trustee Required; Eligibility; Conflicting Interests | 60 | ||||
| SECTION 6.09 |
Resignation and Removal; Appointment of Successor | 61 | ||||
| SECTION 6.10 |
Acceptance of Appointment by Successor | 62 | ||||
| SECTION 6.11 |
Merger, Conversion, Consolidation or Succession to Business | 63 | ||||
| SECTION 6.12 |
Appointment of Authenticating Agent | 64 | ||||
| ARTICLE 7 |
| |||||
| HOLDERS’ LISTS AND REPORTS BY TRUSTEE, ISSUER AND GUARANTORS |
| |||||
| SECTION 7.01 |
Disclosure of Names and Addresses of Holders | 65 | ||||
| SECTION 7.02 |
Reports by Trustee | 65 | ||||
| SECTION 7.03 |
Reports by the Company | 66 | ||||
| SECTION 7.04 |
The Company to Furnish Trustee Names and Addresses of Holders | 67 | ||||
| ARTICLE 8 |
| |||||
| CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
| |||||
| SECTION 8.01 |
Issuer and Guarantors May Amalgamate or Consolidate, etc., Only on Certain Terms | 67 | ||||
| SECTION 8.02 |
Successor Person Substituted | 68 | ||||
| ARTICLE 9 |
| |||||
| SUPPLEMENTAL INDENTURES |
| |||||
| SECTION 9.01 |
Supplemental Indentures Without Consent of Holders | 69 | ||||
| SECTION 9.02 |
Supplemental Indentures with Consent of Holders | 70 | ||||
| SECTION 9.03 |
Execution of Supplemental Indentures; Effect of Supplemental Indentures | 71 | ||||
| SECTION 9.04 |
Conformity with Trust Indenture Act | 71 | ||||
| SECTION 9.05 |
Reference in Securities to Supplemental Indentures | 71 | ||||
| SECTION 9.06 |
Notice of Supplemental Indentures | 72 | ||||
| SECTION 9.07 |
Subordination Unimpaired | 72 | ||||
| ARTICLE 10 |
| |||||
| COVENANTS |
| |||||
| SECTION 10.01 |
Payment of Principal, Premium, if any, and Interest | 72 | ||||
| SECTION 10.02 |
Maintenance of Office or Agency | 72 | ||||
| SECTION 10.03 |
Money for Securities Payments to Be Held in Trust | 73 | ||||
| SECTION 10.04 |
Statement as to Compliance | 74 | ||||
| SECTION 10.05 |
Additional Amounts | 75 | ||||
| SECTION 10.06 |
Reserved | 78 | ||||
| SECTION 10.07 |
Reserved | 78 | ||||
| SECTION 10.08 |
Company Existence | 78 | ||||
| SECTION 10.09 |
Reserved | 78 | ||||
| SECTION 10.10 |
Waiver of Certain Covenants | 78 | ||||
iii
| ARTICLE 11 |
| |||||
| REDEMPTION OF SECURITIES |
| |||||
| SECTION 11.01 |
Applicability of Article | 79 | ||||
| SECTION 11.02 |
Election to Redeem; Notice to Trustee | 79 | ||||
| SECTION 11.03 |
Selection by Trustee of Securities to Be Redeemed | 79 | ||||
| SECTION 11.04 |
Notice of Redemption | 80 | ||||
| SECTION 11.05 |
Deposit of Redemption Price | 81 | ||||
| SECTION 11.06 |
Securities Payable on Redemption Date | 81 | ||||
| SECTION 11.07 |
Securities Redeemed in Part | 82 | ||||
| ARTICLE 12 |
| |||||
| SUBORDINATION OF SECURITIES |
| |||||
| SECTION 12.01 |
Subordination Terms | 82 | ||||
| SECTION 12.02 |
Notice to Trustee of Facts Prohibiting Payments | 82 | ||||
| SECTION 12.03 |
Application by Trustee of Moneys Deposited With It | 83 | ||||
| SECTION 12.04 |
Subrogation | 83 | ||||
| SECTION 12.05 |
Right of Trustees to Hold Senior Indebtedness | 83 | ||||
| SECTION 12.06 |
Not to Prevent Events of Default | 83 | ||||
| SECTION 12.07 |
Trustee’s Rights to Compensation, Reimbursement of Expenses and Indemnification | 83 | ||||
| SECTION 12.08 |
Article Applicable to Paying Agents | 83 | ||||
| SECTION 12.09 |
Trustee Not Fiduciary for Holders of Senior Indebtedness | 84 | ||||
| ARTICLE 13 |
| |||||
| RESERVED |
| |||||
| ARTICLE 14 |
| |||||
| DEFEASANCE AND COVENANT DEFEASANCE |
| |||||
| SECTION 14.01 |
Option to Effect Defeasance or Covenant Defeasance | 84 | ||||
| SECTION 14.02 |
Defeasance and Discharge | 84 | ||||
| SECTION 14.03 |
Covenant Defeasance | 85 | ||||
| SECTION 14.04 |
Conditions to Defeasance or Covenant Defeasance | 85 | ||||
| SECTION 14.05 |
Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions | 87 | ||||
| SECTION 14.06 |
Reinstatement | 88 | ||||
| ARTICLE 15 |
| |||||
| GUARANTEE OF GUARANTEED SECURITIES |
| |||||
| SECTION 15.01 |
Unconditional Guarantees | 88 | ||||
| SECTION 15.02 |
Execution and Delivery of Notation of Guarantees | 91 | ||||
iv
| ARTICLE 16 |
| |||||
| MISCELLANEOUS PROVISIONS |
| |||||
| SECTION 16.01 |
Certain Provisions Concerning the Payment of Interest | 92 | ||||
| SECTION 16.02 |
Execution in Counterparts | 92 | ||||
| TESTIMONIUM | 101 | |
| SIGNATURES | 101 | |
| RESERVED | EXHIBIT A | |
| FORMS OF CERTIFICATION | EXHIBIT B |
v
INDENTURE, dated as of March 23, 2026, by and among EMERA US FINANCE, LLC, a limited liability company organized and existing under the laws of the State of Delaware (herein called the “Issuer”), having its principal office at 3600 Midtown Drive, Tampa, Florida, United States 33607, EMERA INCORPORATED, a company duly organized and existing under the laws of the Province of Nova Scotia (herein called the “Company”), EMERA US HOLDINGS INC., a corporation duly organized and existing under the laws of the State of Delaware (“EUSHI” and, together with the Company, the “Guarantors” and each a “Guarantor” and EQUINITI TRUST COMPANY, LLC, a New York limited liability trust company, as trustee (herein called the “Trustee”).
RECITALS
The Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured, subordinated debentures, notes or other evidences of indebtedness (herein called the “Securities”), which may be convertible into or exchangeable for any securities of any Person (including the Issuer and the Guarantors), to be issued in one or more series as in this Indenture provided.
Each Guarantor has duly authorized the execution and delivery of this Indenture, and the making of the Guarantees pursuant to this Indenture (the “Guarantees”).
All things necessary to make this Indenture a valid agreement of the Issuer and the Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein, and the terms “cash transaction” and “self-liquidating paper”, as used in TIA Section 311, shall have the meanings assigned to them in the rules of the Commission (as defined herein) adopted under the Trust Indenture Act;
1
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles used in the Company’s annual financial statements contained in the Company’s annual report delivered to its shareholders in respect of the fiscal year immediately prior to the date of such computation; and
(4) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article 3, are defined in that Article.
“Act”, when used with respect to any Holder, has the meaning specified in Section 1.04.
“Additional Amounts” has the meaning specified in Section 10.05.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agent Member” means any member of, or participant in, the Depositary.
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, Euroclear and Clearstream, in each case to the extent applicable to such transaction and as in effect from time to time.
“Authenticating Agent” means any Person appointed by the Trustee to act on behalf of the Trustee pursuant to Section 6.12 to authenticate Securities.
“Authorized Newspaper” means a newspaper, in the English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection with which the term is used or in the financial community of each such place.
“Bankruptcy Law” has the meaning specified in Section 5.01.
“Bankruptcy Order” has the meaning specified in Section 5.01.
“Board of Directors” means with respect to the Issuer or the Guarantors, as the case may be:
2
(1) with respect to a corporation, the Board of Directors of the corporation or any committee thereof duly authorized to act on behalf of such Board of Directors;
(2) with respect to a partnership, the Board of Directors or other governing body of the general partner of the partnership or any committee thereof duly authorized to act on behalf of such Board of Directors;
(3) with respect to a limited liability company, the Board of Directors or other governing body or any committee thereof duly authorized to act on behalf of such Board of Directors, and in the absence of same, the manager or board of managers or the managing member or members or any controlling committee thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a similar function.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Issuer or the Guarantors, as the case may be, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day”, when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment or other location are authorized or obligated by law or executive order to close.
“calculation period” has the meaning specified in Section 3.11.
“Canadian Taxes” has the meaning specified in Section 10.05.
“Capital Lease Obligations” means the obligation of a Person, as lessee, to pay rent or other amounts to the lessor under a lease of real or personal property which is required to be classified and accounted for as a capital lease on a consolidated balance sheet of such Person in accordance with Generally Accepted Accounting Principles;
“Clearstream” means Clearstream Banking, société anonyme, or its successor.
“Commission” means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Common Shares” means shares of any class or classes of the share capital of a corporation or securities representing ownership interests in any Person other than a corporation, the rights of the Holders of which to participate in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding-up of such corporation or other Person are not restricted to a fixed sum or to a fixed sum plus accrued dividends or other periodic distributions.
3
“Company” means the Person named as the “Company” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person. For purposes of clarity, it is hereby understood and agreed that the Company is, where appropriate in the context, sometimes referred to herein as a “Guarantor” or, collectively with Emera US Holdings Inc., the “Guarantors”.
“Component Currency” has the meaning specified in Section 3.12.
“Conversion Date” has the meaning specified in Section 3.12(d).
“Conversion Event” means the cessation of use of (i) a Foreign Currency (other than the Euro or other currency unit) both by the government of the country which issued such Currency and by a central bank or other public institution of or within the international banking community for the settlement of transactions, (ii) the Euro or (iii) any currency unit (or composite currency) other than the Euro for the purposes for which it was established.
“Corporate Trust Office” shall mean, with respect to the Trustee, 48 Wall Street, 22nd Floor, New York, NY 10005, Attention: Legal Department; or any other address that the Trustee may designate with respect to itself from time to time by notice to the Company and the Holders.
“corporation” includes corporations, associations, companies and business trusts.
“covenant defeasance” has the meaning specified in Section 14.03.
“Currency” means any currency or currencies, composite currency or currency unit or currency units, including, without limitation, the Euro, issued by the government of one or more countries or by any recognized confederation or association of such governments.
“Custodian” has the meaning specified in Section 5.01.
“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Defaulted Interest” has the meaning specified in Section 3.07.
“defeasance” has the meaning specified in Section 14.02.
“Depositary” means, with respect to the Securities of any series, The Depository Trust Company, or any successor thereto, or any other Person designated pursuant to Section 3.01 with respect to the Securities of such series.
“Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.
“Dollar Equivalent of the Currency Unit” has the meaning specified in Section 3.12(g).
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“Dollar Equivalent of the Foreign Currency” has the meaning specified in Section 3.12(f).
“Election Date” has the meaning specified in Section 3.12(h).
“Euro” means the single currency of the participating member states from time to time of the European Union described in legislation of the European Council for the operation of a single unified European currency (whether known as the Euro or otherwise).
“Euroclear” means Euroclear Bank, S.A./N.V., or its successor, as operator of the Euroclear System.
“EUSHI” means Emera US Holdings Inc. For purposes of clarity, it is hereby understood and agreed that EUSHI is, where appropriate in the context, sometimes referred to herein as a “Guarantor” or, collectively with the Company, the “Guarantors.”
“Event of Default” has the meaning specified in Section 5.01.
“Exchange Rate Agent” means, with respect to Securities of or within any series, unless otherwise specified with respect to any Securities pursuant to Section 3.01, a New York Clearing House bank, designated pursuant to Section 3.13.
“Exchange Rate Officer’s Certificate” means a tested telex or a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest denomination principal amount determined in accordance with Section 3.02 in the relevant Currency), payable with respect to a Security of any series on the basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in the case of a certificate) by an officer or director of the Issuer.
“Exchange Securities” means the Securities issued in exchange for, and in an aggregate principal amount equal to, Restricted Global Securities and Regulation S Global Securities pursuant to the terms of a registration rights agreement and containing terms substantially identical to the Restricted Global Securities and Regulation S Global Securities exchanged therefor (except that such Exchange Securities will be registered under the Securities Act and will not bear the Private Placement Legend).
“Federal Bankruptcy Code” means the Bankruptcy Act of Title 11 of the United States Code, as amended from time to time.
“Financial Instrument Obligations” means obligations arising under:
(i) interest rate swap agreements, forward rate agreements, floor, cap or collar agreements, futures or options, insurance or other similar agreements or arrangements, or any combination thereof, entered into by a Person of which the subject matter is dependent or based upon interest rates in effect from time to time or fluctuations in interest rates occurring from time to time (excluding obligations which are considered to be Indebtedness of such Person by virtue of any provision of the definition of Indebtedness other than clause (ii) thereof);
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(ii) currency swap agreements, cross currency agreements, forward agreements, floor, cap or collar agreements, futures or options, insurance or other similar agreements or arrangements, or any combination thereof, entered into by a Person of which the subject matter is currency exchange rates or pursuant to which the price, value or amount payable thereunder is dependent or based upon currency exchange rates in effect from time to time or fluctuations in currency exchange rates occurring from time to time; and
(iii) commodity swap agreements, floor, cap or collar agreements, commodity futures or options or other similar agreements or arrangements, or any combination thereof, entered into by a Person of which the subject matter is one or more commodities or pursuant to which the price, value or amount payable thereunder is dependent or based upon the price of one or more commodities in effect from time to time or fluctuations in the price of one or more commodities occurring from time to time.
“First Currency” has the meaning specified in Section 1.15.
“Foreign Currency” means any Currency other than Currency of the United States of America.
“Generally Accepted Accounting Principles” means, as at any date of determination, generally accepted accounting principles in effect in the United States at such date.
“Global Security” has the meaning specified in Section 2.01.
“Governmental Authority” means any nation or government, any state, province, territory or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Government Obligations” means, unless otherwise specified with respect to any series of Securities pursuant to Section 3.01, securities which are (a) direct obligations of the government which issued the Currency in which the Securities of a particular series are payable or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the government which issued the Currency in which the Securities of such series are payable, the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government payable in such Currency and are not callable or redeemable at the option of the issuer thereof and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of a holder of a depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest or principal of the Government Obligation evidenced by such depositary receipt.
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“Guarantee” or “Guarantees” means the guarantee of the Guarantors as endorsed on a Security authenticated and delivered pursuant to this Indenture and shall include the provisions set forth in Section 15.01 of this Indenture and all other obligations and covenants of the Guarantors contained in this Indenture and any Securities.
“Guarantor” means each Person named as “Guarantor” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean such successor Person.
“Holder” means the Person in whose name a Security is registered in the Security Register.
“Indebtedness” means, with respect to any Person, without duplication,
(i) all obligations of such Person for borrowed money, including obligations with respect to bankers’ acceptances and contingent reimbursement obligations relating to letters of credit and other financial instruments;
(ii) all Financial Instrument Obligations;
(iii) all obligations issued or assumed by such Person in connection with the acquisition of property in respect of the deferred purchase price of property;
(iv) all Capital Lease Obligations and Purchase Money Obligations of such Person, and
(v) all obligations of the type referred to in clauses (i) through (iv) of this definition of another Person, the payment of which such Person has guaranteed or for which such Person is responsible or liable,
provided that obligations of such Person or of another Person of the type referred to in clauses (i) through (iii) of this definition shall exclude trade accounts payable, dividends and other distributions payable to shareholders, future income taxes, obligations in respect of Preferred Shares, accrued liabilities arising in the ordinary course of business which are not overdue or which are being contested by such Person or such other Person in good faith, and non-monetary obligations in respect of performance guarantees.
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of particular series of Securities established as contemplated by Section 3.01; provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated by Section 3.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a party.
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“Indexed Security” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.
“interest”, when used with respect to an Original Issue Discount Security, shall be deemed to mean interest payable after Maturity at the rate prescribed in such Original Issue Discount Security.
“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Issuer” means the Person named as “Issuer” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Issuer” shall refer to such successor Person.
“Issuer Request” or “Issuer Order” means a written request or order signed in the name of the Issuer by any two officers or directors of the Issuer, and delivered to the Trustee.
“Judgment Currency” has the meaning specified in Section 1.14.
“Lien” means any mortgage, charge, lien, pledge or security interest of any kind created, incurred, issued, assumed or guaranteed in order to secure payment of Indebtedness.
“Market Exchange Rate” means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, (i) for any conversion involving a currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 3.01 for the Securities of the relevant series, (ii) for any conversion of Dollars into any Foreign Currency, the noon (New York City time) buying rate for such Foreign Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased with the Foreign Currency from which conversion is being made from major banks located in either New York City, London or any other principal market for Dollars or such purchased Foreign Currency, in each case determined by the Exchange Rate Agent. Unless otherwise specified with respect to any Securities pursuant to Section 3.01, in the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in New York City,
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London or another principal market for the Currency in question, or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is more than one market for dealing in any Currency by reason of foreign exchange regulations or otherwise, the market to be used in respect of such Currency shall be that upon which a non-resident issuer of securities designated in such Currency would purchase such Currency in order to make payments in respect of such Securities.
“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption, notice of option to elect repayment or otherwise.
“Non-Recourse Debt” means any Indebtedness incurred to finance or refinance the creation, development, design, engineering, procurement, construction, servicing, management, operation, ownership and/or acquisition of any project or asset and any increases in or extensions, renewals or refunding of any such Indebtedness in respect of which the person or persons to whom any such Indebtedness is or may be owed by the relevant borrower has, or have no recourse whatsoever to any of the Issuer, the Company, or EUSHI for the repayment of that Indebtedness other than:
(i) recourse directly or indirectly to the Issuer, the Company or EUSHI, as applicable, for amounts limited to the cash flow or net cash flow (other than historic cash flow or historic net cash flow) from, or ownership interests or other investments in, such project or asset; and/or
(ii) recourse directly or indirectly to the Issuer, the Company or EUSHI, as applicable, for the purpose only of enabling amounts to be claimed in respect of such Indebtedness in an enforcement of any encumbrance given by the Issuer, the Company or EUSHI, as applicable, over such project or asset or the income, cash flow or other proceeds deriving from the project (or given by any shareholder or the like, or other investor in, the borrower or in the owner of such project or asset over its shares or the like in the capital of, or other investment in, the borrower or in the owner of such project or asset) to secure such Indebtedness, provided that the extent of such recourse to the Issuer, the Company or EUSHI, as applicable, is limited solely to the amount of any recoveries made on any such enforcement; and/or
(iii) recourse directly or indirectly to the Issuer, the Company or EUSHI, as applicable, under any form of assurance, indemnity, undertaking or support, which recourse is limited to a claim for damages (other than liquidated damages and damages required to be calculated in a specified way) for breach of an obligation (not being a payment obligation or an obligation to procure payment by another or an indemnity in respect of a payment obligation, or any obligation to comply or to procure compliance by another with any financial ratios or other tests of financial condition) by the person against which such recourse is available.
“Non-U.S. Person” means a Person who is not a U.S. Person as defined in Regulation S under the Securities Act (as hereinafter defined).
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“Officers’ Certificate” means a certificate signed by, in the case of the Issuer or a Guarantor, any two authorized officers or directors and delivered to the Trustee on behalf of the Issuer or the Guarantor, as applicable, without personal liability.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Issuer or the Guarantors, including an employee of the Issuer or the Guarantors, and who shall be acceptable to the Trustee.
“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
“Other Currency” has the meaning specified in Section 1.15.
“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption or repayment at the option of the Holder, money in the necessary amount has been theretofore deposited with the Trustee or any other Paying Agent (other than the Issuer or a Guarantor) in trust or set aside and segregated in trust by the Issuer or a Guarantor (if the Issuer or such Guarantor shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 14.02 and 14.03, with respect to which the Issuer has effected defeasance and/or covenant defeasance as provided in Article 14; and
(iv) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Issuer;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculations required by TIA Section 313, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the maturity thereof pursuant to Section 5.02, (ii) the principal amount of any Security denominated in a Foreign
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Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Issuer as set forth in an Exchange Rate Officer’s Certificate delivered to the Trustee, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (i) above) of such Security, (iii) the principal amount of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such Security pursuant to Section 3.01, and (iv) Securities owned by the Issuer, a Guarantor or any other obligor upon the Securities or any Affiliate of the Issuer, a Guarantor or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee certifies to the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Issuer, a Guarantor or any other obligor upon the Securities or any Affiliate of the Issuer, a Guarantor or such other obligor.
“Paying Agent” means the Trustee and any other Person (including the Issuer acting as Paying Agent) authorized by the Issuer to pay the principal of (or premium, if any) or interest, if any, on any Securities on behalf of the Issuer.
“Person” means an individual, a corporation, a partnership, a trustee or an unincorporated organization; and pronouns have a similarly extended meaning.
“Place of Payment” means, when used with respect to the Securities of or within any series, the place or places where the principal of (and premium, if any) and interest, if any, on such Securities are payable as specified as contemplated by Sections 3.01 and 10.02.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security, as the case may be.
“Preferred Shares” means
(i) securities which on the date of issue thereof by a Person
(ii) have a term to maturity of more than 30 years,
(iii) rank subordinate to the unsecured and unsubordinated Indebtedness of such Person outstanding on such date,
(iv) entitle such Person to satisfy the obligation to pay the principal thereof from the proceeds of the issuance of Common Shares;
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(v) entitle such Person to defer the payment of interest thereon for more than 4 years without thereby causing an event of default to occur,
(vi) entitle such Person to satisfy the obligation to make payments of interest thereon from the proceeds of the issuance of Common Shares, and
(vii) shares of any class of the share capital of a corporation or securities representing ownership interests in any Person other than a corporation which, in either case, are not Common Shares.
“Private Placement Legend” has the meaning specified in Section 3.14(f).
“Purchase Money Obligation” means Indebtedness of the Issuer or the Guarantors incurred or assumed to finance the purchase price, in whole or in part, of any property or incurred to finance the cost, in whole or in part, of construction or installation of or improvements to any property; provided that such Indebtedness is incurred or assumed substantially concurrently with the purchase of such property or the completion of such construction, installation or improvements, as the case may be, and includes any extension, renewal or refunding of any such Indebtedness so long as the principal amount thereof outstanding on the date of such extension, renewal or refunding is not increased.
“rate(s) of exchange” has the meaning specified in Section 1.14.
“Redemption Date”, when used with respect to any Security to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Registered Security” means any Security registered in the Security Register.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Registered Securities of or within any series means the date specified for that purpose as contemplated by Section 3.01.
“Regulation S Global Security” means a Regulation S Permanent Global Security or a Regulation S Temporary Global Security.
“Regulation S Permanent Global Security” has the meaning specified in Section 2.01.
“Regulation S Temporary Global Security” has the meaning specified in Section 2.01.
“Required Currency” has the meaning specified in Section 1.14.
“Resale Restriction Termination Date” means (x) in the case of any Security sold pursuant to Rule 144A under the Securities Act, the date which is one year (or such other date when resales of securities by non-affiliates are first permitted under Rule 144(d) under the Securities Act without condition) after the later of the date of the original issue of the Securities or the date of any subsequent reopening of the Security and the last date on which the Issuer or any of its affiliates were the owner of such Security (or any predecessor thereto) or, in the case of any Security sold pursuant to Regulation S under the Securities Act, 40 days or (y) in any case, such later date, if any, as may be required by applicable law.
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“Responsible Officer” when used with respect to the Trustee, means any officer assigned to the Corporate Trust Office of the Trustee having direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
“Restricted Global Security” has the meaning specified in Section 2.01.
“Restricted Period” means the 40 day restricted period as defined in Regulation S under the Securities Act.
“securities” means any stock, shares, units, installment receipts, voting trust certificates, bonds, debentures, notes, other evidences of indebtedness, or other documents or instruments commonly known as securities or any certificates of interest, shares or participations in temporary or interim certificates for, receipts for, guarantees of, or warrants, options or rights to subscribe for, purchase or acquire any of the foregoing.
“Securities Act” means the United States Securities Act of 1933, as amended.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 3.05.
“Senior Indebtedness” means, with respect to the Notes and the Guarantees, (i) indebtedness of the Issuer or the Guarantors, whether outstanding at the date of the indenture or incurred, created or assumed after such date, (a) in respect of money borrowed by the Issuer or the Guarantors (including any financial derivative, hedging or futures contract or similar instrument, to the extent any such item is primarily a financing transaction) and (b) evidenced by debentures, bonds, notes, credit or loan agreements or other similar instruments or agreements issued or entered into by the Issuer or the Guarantors; (ii) all finance lease obligations of the Issuer or the Guarantors; (iii) all obligations of the Issuer or the Guarantors issued or assumed as the deferred purchase price of property, all conditional sale obligations of the Issuer or the Guarantors and all obligations of the Issuer or the Guarantors under any title retention agreement (but excluding, for the avoidance of doubt, trade accounts payable arising in the ordinary course of business and long-term purchase obligations); (iv) all obligations of the Issuer or the Guarantors for the reimbursement of any letter of credit, banker’s acceptance, security purchase facility or similar credit transaction; and (v) all obligations of the type referred to in clauses (i) through (iv) above of other persons for the payment of which the Issuer or the Guarantors are responsible or liable as obligor, guarantor or otherwise, except for any obligations, instruments or agreements of the type referred to in any of clauses (i) through (v) above that, by the terms of the instruments or agreements creating or evidencing the same or pursuant to which the same is outstanding, are subordinated or equal in right of payment to each of the Notes and the Guarantees.
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“Specified Amount” has the meaning specified in Section 3.12.
“Special Record Date” for the payment of any Defaulted Interest on the Registered Securities of or within any series means a date fixed by the Trustee pursuant to Section 3.07.
“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as amended and as in force at the date as of which this Indenture was executed except as provided in Section 9.05.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder.
“United States” means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
“U.S. GAAP” means generally accepted accounting principles that are in effect from time to time in the United States of America.
“U.S. Person” means a “U.S. person” as defined in Rule 902 of Regulation S under the Securities Act.
“Valuation Date” has the meaning specified in Section 3.12(c).
“Yield to Maturity” means the yield to maturity, computed at the time of issuance of a Security (or, if applicable, at the most recent redetermination of interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.
SECTION 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Issuer or a Guarantor to the Trustee to take any action under any provision of this Indenture, the Issuer or such Guarantor shall furnish to the Trustee, an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
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Every certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (other than pursuant to Section 10.04) shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such reasonable examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such covenant or condition has been complied with.
SECTION 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer or a Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Issuer or a Guarantor, as the case may be, stating that the information with respect to such factual matters is in the possession of the Issuer or a Guarantor unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Any certificate or opinion of an officer of the Issuer or a Guarantor or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of, or representations by, an accountant or firm of accountants in the employ of the Issuer or a Guarantor, unless such officer or counsel, as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the accounting matters upon which such certificate or opinion may be based are erroneous. Any certificate or opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is independent.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
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SECTION 1.04 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee, and, where it is hereby expressly required, to the Issuer and the Guarantors. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee, the Issuer and a Guarantor, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
(d) If the Issuer or a Guarantor shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Issuer or the Guarantor, as the case may be, may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but such Issuer or Guarantor, as the case may be, shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Issuer or the applicable Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.
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SECTION 1.05 Notices, etc. to Trustee, Issuer and Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Issuer or a Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing or sent by facsimile to the Trustee at its Corporate Trust Office;
(2) the Issuer or a Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, or sent by overnight courier to the Issuer or a Guarantor, as the case may be, addressed to it at 5151 Terminal Road, Second Floor, Halifax, Nova Scotia B3J 1A1, Attention: Corporate Secretary, or at any other address previously furnished in writing to the Trustee by the Issuer or a Guarantor, as the case may be.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods so long as an electronic copy of the executed instructions or directions on applicable letterhead are included with the electronic communication (for example, in an e-mail attachment); provided, however, that, if the Trustee so requests, (a) the party providing such written instructions, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee in a timely manner, and (b) such originally executed instructions or directions shall be signed by an authorized representative of the party providing such instructions or directions.
SECTION 1.06 Notice to Holders; Waiver.
Where this Indenture provides for notice of any event (1) to Holders of Registered Securities by the Issuer, the Guarantors, or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice and (2) such notice shall be sufficiently given to Holders if published at least twice in an Authorized Newspaper or Newspapers in the City of New York, the first publication to be not later than two business days prior to the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Registered Securities. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in regular mail service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders of Registered Securities when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be directed by the Issuer shall be deemed to be sufficient giving of such notice for every purpose hereunder.
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In the event of suspension of publication of any Authorized Newspapers or by reason of any other cause it shall be impracticable to give notice by publication, such notification as shall be given with the approval of the Trustee shall constitute sufficient notice for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 1.07 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.08 Successors and Assigns.
All covenants and agreements in this Indenture by each of the Issuer and the Guarantors shall bind its successors and assigns and inure to the benefit of its successors and assigns, whether so expressed or not.
SECTION 1.09 Separability Clause.
In case any provision in this Indenture or in any Security shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.10 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any Security Registrar and their successors hereunder (except, in each case, the Trustee) and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.11 Governing Law.
This Indenture, the Guarantees and the Securities shall be governed by and construed in accordance with the law of the State of New York. This Indenture is subject to the provisions of the Trust Indenture Act that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.
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SECTION 1.12 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of any Security other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu of this Section), payment of principal (or premium, if any) or interest, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date or at the Stated Maturity or Maturity; provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, Stated Maturity or Maturity, as the case may be.
SECTION 1.13 Agent for Service; Submission to Jurisdiction; Waiver of Immunities.
By the execution and delivery of this Indenture, the Company (i) irrevocably designates and appoints, and acknowledges that it has irrevocably designated and appointed the Issuer as its authorized agent upon which process may be served in any suit, action or proceeding arising out of or relating to any Securities, the Guarantee or this Indenture that may be instituted in any United States federal or New York state court in The City of New York or brought under federal or state securities laws or brought by the Trustee (whether in its individual capacity or in its capacity as Trustee hereunder), or by any Holder of Securities or Guarantees in any United States federal or New York state court in The City of New York, (ii) submits to the non-exclusive jurisdiction of any such court in any such suit, action or proceeding, and (iii) agrees that service of process upon the Issuer and written notice of said service to the Company (mailed or delivered to its General Counsel in the manner specified in Section 1.05 hereof), shall be deemed in every respect effective service of process upon the Company in any such suit, action or proceeding. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of the Issuer in full force and effect so long as any of the Securities shall be Outstanding or any amounts shall be payable in respect of any Securities.
Each of the Issuer and the Guarantors irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such action, suit or proceeding in any such court or any appellate court with respect thereto and irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of any such action, suit or proceeding in any such court.
To the extent that the Issuer or any Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, each of them hereby irrevocably waives such immunity in respect of its obligations under this Indenture, the Guarantees and the Securities, to the extent permitted by law.
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SECTION 1.14 Conversion of Currency.
The Issuer and the Guarantors covenant and agree that the following provisions shall apply to conversion of Currency in the case of the Securities, the Guarantees and this Indenture to the fullest extent permitted by applicable law:
(a) (i) If for the purposes of obtaining judgment in, or enforcing the judgment of, any court in any country, it becomes necessary to convert into a currency (the “Judgment Currency”) an amount due or contingently due under the Securities of any series or this Indenture in any other currency (the “Required Currency”), then the conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which the judgment is given or the order of enforcement is made, as the case may be (unless a court shall otherwise determine).
(ii) If there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment is given or an order of enforcement is made, as the case may be (or such other date as a court shall determine), and the date of receipt of the amount due, the Issuer or the Guarantor, as the case may be, shall pay such additional (or, as the case may be, such lesser) amount, if any, as may be necessary so that the amount paid in the Judgment Currency when converted at the rate of exchange prevailing on the date of receipt will produce the amount in the Required Currency originally due.
(b) In the event of the winding-up of the Issuer or a Guarantor at any time while any amount or damages owing under the Securities, the Guarantees and this Indenture, or any judgment or order rendered in respect thereof, shall remain unpaid or outstanding, the Issuer or a Guarantor, as the case may be, shall indemnify and hold the Holders and the Trustee harmless against any deficiency arising or resulting from any variation in rates of exchange between (1) the date as of which the equivalent of the amount in the Required Currency (other than under this subsection (b)) is calculated for the purposes of such winding-up and (2) the final date for the filing of proofs of claim in such winding-up. For the purpose of this subsection (b) the final date for the filing of proofs of claim in the winding-up of the Issuer or a Guarantor, as the case may be, shall be the date fixed by the liquidator or otherwise in accordance with the relevant provisions of applicable law as being the latest practicable date as at which liabilities of the Issuer or a Guarantor, as the case may be, may be ascertained for such winding-up prior to payment by the liquidator or otherwise in respect thereto.
(c) The obligations contained in subsections (a)(ii) and (b) of this Section shall constitute separate and independent obligations of the Issuer or the applicable Guarantor, as the case may be, from its other obligations under the Securities, the Guarantees and this Indenture, shall give rise to separate and independent causes of action against the Issuer and the applicable Guarantor, shall apply irrespective of any waiver or extension granted by any Holder or Trustee from time to time and shall continue in full force and effect notwithstanding any judgment or order or the filing of any proof of claim in the winding-up of such Issuer or Guarantor for a liquidated sum in respect of amounts due hereunder (other than under subsection (b) above) or under any such judgment or order. Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Holders or the Trustee, as the case may be, and no proof or evidence of any actual loss shall be required by the Issuer, the applicable Guarantor or the applicable liquidator. In the case of subsection (b) above, the amount of such deficiency shall not be deemed to be reduced by any variation in rates of exchange occurring between the said final date and the date of any liquidating distribution.
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(d) The term “rate(s) of exchange” shall mean (i) in the case that either the Required Currency or the Judgment Currency is the Canadian dollar, the Bank of Canada noon rate for purchases on the relevant date of the Required Currency with the Judgment Currency, as reported by Telerate on screen 3194 (or such other means of reporting the Bank of Canada noon rate as may be agreed upon by each of the parties to this Indenture) or (ii) in all other cases, the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the relevant date and in each case includes any premiums and costs of exchange payable.
SECTION 1.15 Currency Equivalent.
Except as otherwise provided in this Indenture, for purposes of the construction of the terms of this Indenture or of the Securities, in the event that any amount is stated herein in the Currency of one nation (the “First Currency”), as of any date such amount shall also be deemed to represent the amount in the Currency of any other relevant nation (the “Other Currency”) which is required to purchase such amount in the First Currency (i) at the Bank of Canada noon rate as reported by Reuters Telerate successor page 3194 as reported by Bloomberg L.P. (or such other means of reporting the Bank of Canada noon rate as may be agreed upon by each of the parties to this Indenture) on the date of determination or (ii) if the Bank of Canada noon rate is not available, in accordance with normal banking procedures in The City of New York on the date of determination.
SECTION 1.16 No Recourse Against Others.
A director, officer, employee or shareholder, as such, of the Issuer or a Guarantor shall not have any liability for any obligations of such Issuer or Guarantor under the Securities, the Guarantees or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder shall waive and release all such liability. Such waiver and release shall be part of the consideration for the issue of the Securities.
SECTION 1.17 Multiple Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture.
SECTION 1.18 Conflict with Trust Indenture Act.
If and to the extent that any provision hereof limits, qualifies or conflicts with another provision that is required or deemed to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required or deemed provision shall control.
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SECTION 1.19 Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or third party computer (software and hardware) services; it being understood that the Trustee, as applicable, shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
SECTION 1.20 No Joint Venture.
Nothing contained in this Indenture (i) shall constitute the parties hereto as members of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, (ii) shall be construed to impose any liability as such on any of them or (iii) shall be deemed to confer on any of them any express, implied or apparent authority to incur any obligation or liability on behalf of the other.
SECTION 1.21 Rules of Construction.
Unless the context otherwise requires, (a) words in the singular include the plural, and words in the plural include the singular and (b) “including” means, where not already so indicated, “including without limitation.” Unless otherwise stated in this Indenture, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.” “Herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not any particular Article, Section or other subdivision. Unless otherwise specified, references in this Indenture to any Article, Section or Exhibit are references to such Article or Section of, or Exhibit to, this Indenture, and references in any Article, Section, Exhibit or definition to any subsection or clause are references to such subsection or clause of such Article, Section, Exhibit or definition. All references in this Indenture to an agreement, instrument or other document shall be construed as a reference to that agreement, instrument or document as the same may be amended, modified, varied, supplemented or novated from time to time.
SECTION 1.22 No Security Interest Created.
Unless expressly provided for in a supplement to this Indenture entered into pursuant to the terms of this Indenture, nothing in this Indenture or in the Securities shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect in any jurisdiction where property of the Issuer or the Guarantors is or may be located.
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ARTICLE 2
SECURITY FORMS
SECTION 2.01 Forms Generally.
The Registered Securities of each series shall be in substantially the form as shall be established by or pursuant to a Board Resolution of the Issuer or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as the Guarantors or the Issuer may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or as may, consistently herewith, be determined by the Issuer. If the form of Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Issuer and delivered to the Trustee at or prior to the delivery of the Issuer Order contemplated by Section 3.03 for the authentication and delivery of such Securities. Any portion of the text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Security.
The Trustee’s certificate of authentication on all Securities shall be in substantially the form set forth in this Article 2.
The definitive Securities and Guarantee shall be printed, lithographed or engraved on steel-engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities. A Security (including the Guarantee endorsed thereon) may be in any form established by or pursuant to authority granted by one or more Board Resolutions and set forth in an Officers’ Certificate or supplemental indenture pursuant to Section 3.01.
Securities offered and sold in reliance on Rule 144A under the Securities Act shall be issued initially in the form of one or more permanent Registered Securities in global form (the “Restricted Global Securities”) registered in the name of the Depositary or its nominee and deposited with the Trustee, as custodian for the Depositary. The aggregate principal amount of the Restricted Global Securities may from time to time be increased or decreased by adjustments made on the records of the Depositary or its nominee, or of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.
Securities initially offered and sold in reliance on Regulation S under the Securities Act shall be issued initially in the form of one or more temporary Global Securities (the “Regulation S Temporary Global Securities”), which shall be deposited on behalf of the purchasers of the Securities represented thereby with the Trustee, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. The Restricted Period will be terminated upon the receipt by the Trustee of a written certificate from the Depositary, together with copies of certificates from Euroclear and Clearstream certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of each Regulation S Temporary Global Security (except to the extent of any beneficial owners thereof who acquired an interest therein during the Restricted Period pursuant to another exemption from registration under the Securities Act and who will take delivery of a beneficial ownership interest in a Restricted Global Security).
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Following the termination of the Restricted Period, beneficial interests in each Regulation S Temporary Global Security will be exchanged for beneficial interests in permanent Global Securities (the “Regulation S Permanent Global Securities” and, together with the Regulation S Temporary Global Securities, the “Regulation S Global Securities”; and the Regulation S Global Securities together with the Restricted Global Securities, the “Global Securities”) of the same series, pursuant to the Applicable Procedures. Simultaneously with the authentication of each Regulation S Permanent Global Security, the Trustee will cancel the Regulation S Temporary Global Security of the same series. The aggregate principal amount of each Regulation S Temporary Global Security and Regulation S Permanent Global Security may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of interest as hereinafter provided.
SECTION 2.02 Form of Trustee’s Certificate of Authentication.
Subject to Section 6.12, the Trustee’s certificate of authentication shall be in substantially the following form:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| EQUINITI TRUST COMPANY, LLC, as Trustee | ||
| By |
| |
| Authorized Officer | ||
SECTION 2.03 Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as specified as contemplated by Section 3.01, then, notwithstanding clause (10) of Section 3.01, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person or Persons as shall be specified therein or in the Issuer Order to be delivered to the Trustee pursuant to Section 3.03. Subject to the provisions of Section 3.03, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Issuer Order. If an Issuer Order pursuant to Section 3.03 has been, or simultaneously is, delivered, any instructions by the Issuer with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel.
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The provisions of the last sentence of Section 3.03 shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Issuer and the Issuer delivers to the Trustee, as applicable, the Security in global form together with written instructions (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 3.03.
Notwithstanding the provisions of Section 3.07, unless otherwise specified as contemplated by Section 3.01, payment of principal of (and premium, if any) and interest, if any, on any Security in permanent global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.09 and except as provided in the preceding paragraph, the Issuer, the Guarantors, the Trustee, and any agent of the Issuer, the Guarantors, or the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a permanent global Security the Holder of such permanent global Security.
SECTION 2.04 Guarantee by Guarantors; Form of Guarantee.
Each Guarantor by its execution of this Indenture hereby agrees with each Holder of a Security of each series authenticated and delivered by the Trustee on behalf of each such Holder, to be unconditionally and irrevocably bound by the terms and provisions of the Guarantee set forth in Article 15 and authorizes the Trustee to confirm such Guarantee to the Holder of each such Security by its delivery of each such Security, with such Guarantee endorsed thereon, authenticated and delivered by the Trustee.
ARTICLE 3
THE SECURITIES
SECTION 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in one or more Board Resolutions of the Issuer or pursuant to authority granted by one or more Board Resolutions of the Issuer and, subject to Section 3.03, set forth in, or determined in the manner provided in, an Officers’ Certificate of the Issuer, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, any or all of the following, as applicable:
(1) [Reserved];
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(2) the title of the Securities of the series (which shall distinguish the Securities of the series from all other series of Securities);
(3) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Sections 3.05, 3.06, 9.06 or 11.07 and, in the event that no limit upon the aggregate principal amount of the Securities of that series is specified, the Issuer shall have the right, subject to any terms, conditions or other provisions specified pursuant to this Section 3.01 with respect to the Securities of such series, to re-open such series for the issuance of additional Securities of such series from time to time;
(4) the date or dates, or the method by which such date or dates will be determined or extended, on which the principal of the Securities of the series is payable;
(5) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on any Registered Security on any Interest Payment Date, or the method by which such date or dates shall be determined, and the basis upon which interest shall be calculated if other than on the basis of a 360-day year of twelve 30-day months;
(6) the place or places, if any, other than the Corporate Trust Office, where the principal of (and premium, if any) and interest, if any, on Securities of the series shall be payable, where any Registered Securities of the series may be surrendered for registration of transfer, where Securities of the series may be surrendered for exchange, where Securities of the series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable, and, if different than the location specified in Section 1.05, the place or places where notices or demands to or upon the Issuer in respect of the Securities of the series and this Indenture may be served; and the extent to which, or the manner in which, any interest payment or Additional Amounts due on a global Security of that series on an Interest Payment Date will be paid (if different than for other Securities of such series);
(7) whether the Securities of any such series may be redeemed, and if so, the period or periods within which, the price or prices at which, the Currency (if other than Dollars) in which, and other terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Issuer, if the Issuer is to have that option;
(8) the obligation, if any, of the Issuer to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous provision or at the option of a Holder thereof, and the period or periods within which, the price or prices at which, the Currency (if other than Dollars) in which, and other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
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(9) [Reserved];
(10) if other than denominations of $2,000 and integral multiple of $1,000 in excess thereof, the denomination or denominations in which any Registered Securities of the series shall be issuable;
(11) if other than the Trustee, the identity of each Security Registrar and/or Paying Agent;
(12) if other than the principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or the method by which such portion shall be determined;
(13) if other than Dollars, the Currency in which payment of the principal of (or premium, if any) or interest, if any, on the Securities of the series shall be payable or in which the Securities of the series shall be denominated and the particular provisions applicable thereto in accordance with, in addition to or in lieu of any of the provisions of Section 3.12;
(14) whether the amount of payments of principal of (or premium, if any) or interest, if any, on the Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more Currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;
(15) whether the principal of (or premium, if any) or interest, if any, on the Securities of the series are to be payable, at the election of the Issuer or a Holder thereof, in a Currency other than that in which such Securities are denominated or stated to be payable, the period or periods within which (including the Election Date), and the terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are denominated or stated to be payable and the Currency in which such Securities are to be so payable, in each case in accordance with, in addition to or in lieu of any of the provisions of Section 3.12;
(16) the designation of the initial Exchange Rate Agent, if any;
(17) the applicability, if any, of Sections 14.02 and/or 14.03 to the Securities of the series and any provisions in modification of, in addition to or in lieu of any of the provisions of Article 14 that shall be applicable to the Securities of the series;
(18) provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;
(19) any deletions from, modifications of or additions to the Events of Default or covenants of the Guarantors or the Issuer with respect to Securities of the series, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;
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(20) whether beneficial owners of interests in any global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 3.05, and if Securities of the series are to be issuable in global form, the identity of any initial depositary therefor if other than The Depository Trust Company;
(21) the Person to whom any interest on any Registered Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(22) if Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and/or terms of such certificates, documents or conditions;
(23) if the Securities of the series are to be issued upon the exercise of warrants, the time, manner and place for such Securities to be authenticated and delivered;
(24) any deletions from, modifications of or additions to Section 10.05 with respect to the Securities of such series, or a statement to the effect that Section 10.05 shall not be applicable with respect to the Securities of such series;
(25) if the Securities of the series are to be convertible into or exchangeable for any securities of any Person, the terms and conditions upon which such Securities will be so convertible or exchangeable;
(26) whether Securities of the series are to be issuable as Restricted Global Securities, Regulation S Global Securities or both, or issued without a Private Placement Legend because such Securities are initially issued pursuant to an effective registration statement under the Securities Act, or otherwise, and the obligation, if any, of the Issuer to issue Exchange Securities in exchange therefor pursuant to any registration rights agreement, and any other related terms;
(27) the subordination terms of the Securities of the series; and
(28) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to the series (which terms shall not be inconsistent with the requirements of the Trust Indenture Act but which need not be consistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to denomination, and except as may otherwise be provided in or pursuant to such Board Resolution (subject to Section 3.03) and set forth in such Officers’ Certificate or in any such indenture supplemental hereto. Not all Securities of any one series need be issued at the same time, and, unless otherwise provided, a series may be reopened for issuances of additional Securities of such series.
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If any of the terms of the series are established by action taken pursuant to one or more Board Resolutions, such Board Resolutions shall be delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the series.
SECTION 3.02 Denominations.
The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 3.01. With respect to Securities of any series denominated in Dollars, in the absence of any such provisions, the Registered Securities of such series, other than Registered Securities issued in global form (which may be of any denomination), shall be issuable in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
SECTION 3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Issuer by any two authorized officers or directors of the Issuer. The signature of any of these officers on the Securities may be the manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Issuer shall bind the Issuer notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Exchange Securities to be issued in exchange for any series of Restricted Global Securities and Regulation S Global Securities, executed by the Issuer and endorsed by the Guarantors to the Trustee for authentication, together with an Issuer Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Issuer Order shall authenticate and deliver such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series, executed by the Issuer and endorsed by the Guarantors to the Trustee for authentication, together with an Issuer Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Issuer Order shall authenticate and deliver such Securities. If not all the Securities of any series are to be issued at one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Issuer Order may set forth procedures acceptable to the Trustee for the issuance of such Securities and determining terms of particular Securities of such series such as interest rate, stated maturity, date of issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to TIA Sections 315(a) through 315(d)) shall be fully protected in relying upon, an Opinion or Opinions of Counsel of the Issuer and the Guarantors stating:
(a) that the form or forms of such Securities and the Guarantee have been established in conformity with the provisions of this Indenture;
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(b) that the terms of such Securities and the Guarantee have been established in conformity with the provisions of this Indenture;
(c) that such Securities and the Guarantee, when completed by appropriate insertions and executed and delivered by the Issuer and the Guarantors to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by the Issuer and the Guarantors in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute the legal, valid and binding obligations of the Issuer and the Guarantors, respectively, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights, to general equitable principles and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Securities;
(d) that all laws and requirements in respect of the execution and delivery by the Issuer of such Securities and of the supplemental indentures, if any, and by the Guarantors of the Guarantee and of the supplemental indentures, if any, have been complied with and that authentication and delivery of such Securities and the execution and delivery of the supplemental indenture, if any, by the Trustee will not violate the terms of the Indenture;
(e) that each of the Issuer and the Guarantors has the power to issue such Securities and Guarantee, respectively, and has duly taken all necessary action with respect to such issuance; and
(f) that the issuance of such Securities and Guarantee will not contravene the articles of incorporation or by-laws of the Issuer or the Guarantors, or result in any violation of any of the terms or provisions of any law or regulation applicable to the Issuer or the Guarantors.
Notwithstanding the provisions of Section 3.01 and of the preceding two paragraphs, if not all the Securities of any series are to be issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 3.01 or the Issuer Order and Opinion of Counsel otherwise required pursuant to the preceding two paragraphs prior to or at the time of issuance of each Security, but such documents shall be delivered prior to or at the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate and deliver any such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication.
No Security or Guarantee endorsed thereon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled, together with the Guarantee endorsed thereon to the
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benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and the Issuer shall deliver such Security to the Trustee for cancellation as provided in Section 3.10 together with a written statement (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Issuer, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 3.04 Reserved.
SECTION 3.05 Registration, Registration of Transfer and Exchange.
The Issuer shall cause to be kept at the Corporate Trust Office a register for each series of Securities issued by the Issuer (the registers maintained in the Corporate Trust Office and in any other office or agency of the Issuer in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Security Register shall be in written form or any other form capable of being converted into written form within a reasonable time. Upon three Business Days’ prior written request, the Security Register shall be open during normal business hours to inspection by the Trustee. The Trustee is hereby initially appointed as security registrar (the “Security Registrar”) for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided. The Issuer shall have the right to remove and replace from time to time the Security Registrar for any series of Securities; provided, however, that no such removal or replacement shall be effective until a successor Security Registrar with respect to such series of Registered Securities shall have been appointed by the Issuer and shall have accepted such appointment by the Issuer. There shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security of any series at the office or agency in a Place of Payment for that series, the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee, one or more replacement Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor and evidencing the same indebtedness and having endorsed thereon a Guarantee executed by the Guarantors.
At the option of the Holder, Registered Securities of any series may be exchanged for other replacement Registered Securities of the same series, of any authorized denomination and of a like aggregate principal amount and tenor and evidencing the same indebtedness, upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Registered Securities, and having endorsed thereon a Guarantee executed by the Guarantors, which the Holder making the exchange is entitled to receive.
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Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 3.01, any permanent global Security shall be exchangeable only as provided in this paragraph and the two following paragraphs. If any beneficial owner of an interest in a permanent global Security is entitled to exchange such interest for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated by Section 3.01 and provided that any applicable notice provided in the permanent global Security shall have been given, then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Issuer shall deliver to the Trustee definitive Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s interest in such permanent global Security, executed by the Issuer and having a Guarantee executed by the Guarantors endorsed thereon. On or after the earliest date on which such interests may be so exchanged, such permanent global Security shall be surrendered by the Depositary for such permanent global Security to the Trustee, as the Issuer’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in exchange for each portion of such permanent global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor and evidencing the same indebtedness as the portion of such permanent global Security to be exchanged which shall be in the form of Registered Securities. If a Registered Security is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, then (in the case of clause (i)) interest or (in the case of clause (ii)) Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person who was the Holder of such permanent global Security at the close of business on the relevant Regular Record Date or Special Record Date, as the case may be.
If at any time the Depositary for Securities of a series notifies the Issuer that it is unwilling or unable to continue as Depositary for Securities of such series or if at any time the Depositary for global Securities for such series shall no longer be a clearing agency registered as such under the Securities Exchange Act of 1934, as amended, the Issuer shall appoint a successor depositary with respect to the Securities for such series. If a successor to the Depositary for Securities is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such condition, as the case may be, the Issuer’s election pursuant to Section 3.01 shall no longer be effective with respect to the Securities for such series and the Issuer will execute, and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver replacement Securities of such series in definitive registered form, in authorized denominations and with the duly executed Guarantee duly endorsed thereon, and in an aggregate principal amount equal to the principal amount of the global Security or Securities representing such series and evidencing the same indebtedness in exchange for such global Security or Securities. The provisions of the last sentence of the immediately preceding paragraph shall be applicable to any exchange pursuant to this paragraph.
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The Issuer may at any time and in its sole discretion determine that the Securities of any series issued in the form of one or more global Securities shall no longer be represented by such global Security or Securities. In such event, the Issuer will execute, and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver replacement Securities of such series in definitive registered form, in authorized denominations and with the duly executed Guarantee duly endorsed thereon, and in an aggregate principal amount equal to the principal amount of the global Security or Securities representing such series and evidencing the same indebtedness in exchange for such global Security or Securities. The provisions of the last sentence of the second preceding paragraph shall be applicable to any exchange pursuant to this paragraph.
Upon the exchange of a global Security for Securities in definitive registered form, such global Security shall be cancelled by the Trustee. Securities issued in exchange for a global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.
All Securities and Guarantees issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Issuer and the Guarantors, respectively, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities and the Guarantee surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuer or the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Issuer and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuer or Security Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 9.06 or 11.07 not involving any transfer.
Neither the Issuer nor the Security Registrar shall be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of that series under Section 11.03 and ending at the close of business on the day of the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to issue, register the transfer of or exchange any Security which has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated but fully identifiable Security is surrendered to the Trustee, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a replacement Security of the same series and of like tenor and principal amount and evidencing the same indebtedness and having endorsed thereon a Guarantee executed by the Guarantors and bearing a number not contemporaneously outstanding.
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If there shall be delivered to the Issuer and the Trustee (i) evidence to their satisfaction of the destruction (including but not limited to mutilation causing the Security to not be fully identifiable), loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and the Guarantors and any agent of each of them harmless, then, in the absence of notice to the Issuer or the Trustee that such Security has been acquired by a bona fide purchaser, the Issuer shall execute and upon Issuer Order the Trustee shall authenticate and deliver, in lieu of any such mutilated, destroyed, lost or stolen Security, a replacement Security of the same series and of like tenor and principal amount and evidencing the same indebtedness and having endorsed thereon a Guarantee executed by the Guarantors and bearing a number not contemporaneously outstanding.
Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Security under this Section, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every replacement Security of any series and the Guarantee endorsed thereon issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security shall constitute a contractual obligation of the Issuer and the Guarantors, respectively, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to Section 3.01 of this Indenture with respect to particular securities or generally, are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07 Payment of Principal and Interest; Interest Rights Preserved.
(a) Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest, if any, on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest at the office or agency of the Issuer maintained for such purpose pursuant to Section 10.02; provided, however, that each installment of interest, if any, on any Registered Security may at the Issuer’s option be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 3.09, to the address of such Person as it appears on the Security Register or (ii) wire transfer to an account maintained by the Person entitled to such payment as specified in the Security Register. Principal paid in relation to any Security at Maturity shall be paid to the Holder of such Security only upon presentation and surrender of such Security to any office or agency referred to in this Section 3.07(a).
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Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such defaulted interest at the rate specified in the Securities of such series (such defaulted interest and, if applicable, interest thereon herein collectively called “Defaulted Interest”) shall be paid by the Issuer, at its election in each case, as provided in clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of the Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given in the manner provided in Section 1.06, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose name the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Issuer may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
(b) Subject to the foregoing provisions of this Section and Section 3.05, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
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In the case of any Registered Security of any series that is convertible, which Registered Security is converted after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Registered Security whose Maturity is prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or duly provided for) shall be paid to the Person in whose name that Registered Security (or one or more predecessor Registered Securities) is registered at the close of business on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Registered Security which is converted, interest whose due date or Interest Payment Date is after the date of conversion of such Registered Security shall not be payable.
SECTION 3.08 Reserved.
SECTION 3.09 Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of transfer, the Issuer, the Guarantors, the Trustee, the Security Registrar, the Paying Agent and any agent of any of the foregoing may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 3.05 and 3.07) interest, if any, on such Security and for all other purposes whatsoever (other than the payment of Additional Amounts, if any), whether or not such Security be overdue, and none of the Issuer, the Guarantors, the Trustee, the Security Registrar, the Paying Agent or any agent of any of the foregoing shall be affected by notice to the contrary.
None of the Issuer, the Guarantors, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing herein shall prevent the Issuer, the Guarantors, the Trustee, the Security Registrar, the Paying Agent or any agent of any of the foregoing from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such global Security or impair, as between such depositary and owners of beneficial interests in such global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such global Security.
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SECTION 3.10 Cancellation.
Unless otherwise specified pursuant to Section 3.01, all Securities surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit against any current or future sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities so delivered to the Trustee shall be promptly cancelled by it. The Issuer or the Guarantors may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Issuer or any Guarantor may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Issuer has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. If the Issuer shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation.
No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures and certification of their disposal shall be delivered to the Issuer upon the Issuer’s written request unless by Issuer Order the Issuer shall direct that cancelled Securities be returned to it.
SECTION 3.11 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 with respect to any Securities, interest, if any, on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. For the purposes of disclosure under the Interest Act (Canada), the yearly rate of interest to which interest calculated under a Security for any period in any calendar year (the “calculation period”) is equivalent, is the rate payable under a Security in respect of the calculation period multiplied by a fraction the numerator of which is the actual number of days in such calendar year and the denominator of which is the actual number of days in the calculation period.
SECTION 3.12 Currency and Manner of Payments in Respect of Securities.
(a) With respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, except as provided in paragraph (d) below, payment of the principal of (and premium, if any) and interest, if any, on any Registered Security of such series will be made in the Currency in which such Registered Security, as the case may be, is denominated or stated to be payable. The provisions of this Section 3.12 may be modified or superseded with respect to any Securities pursuant to Section 3.01.
(b) It may be provided pursuant to Section 3.01 with respect to Registered Securities of any series that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive payments of principal of (or premium, if any) or interest, if any, on such Registered Securities in any of the Currencies which may be designated for such election by delivering to the Trustee a written election with signature guarantees and in the applicable form established pursuant to Section 3.01, not later than the close of business on the Election Date immediately preceding the applicable payment date. If a Holder so elects to receive such payments in any such Currency, such election will remain in effect for such Holder or any transferee of such Holder until changed by such Holder or such transferee by written notice to the Trustee (but any such change must be
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made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date and no such change or election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred or with respect to which the Issuer has deposited funds pursuant to Article 4 or 14 or with respect to which a notice of redemption has been given by the Issuer or a notice of option to elect repayment has been sent by such Holder or such transferee). Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant Currency as provided in Section 3.12(a). The Trustee shall notify the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Registered Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 3.01, if the election referred to in paragraph (b) above has been provided for pursuant to Section 3.01, then, unless otherwise specified pursuant to Section 3.01, not later than the fourth Business Day after the Election Date for each payment date for Registered Securities of any series, the Exchange Rate Agent will deliver to the Issuer a written notice specifying, in the Currency in which Registered Securities of such series are payable, the respective aggregate amounts of principal of (and premium, if any) and interest, if any, on the Registered Securities to be paid on such payment date, specifying the amounts in such Currency so payable in respect of the Registered Securities as to which the Holders of Registered Securities of such series shall have elected to be paid in another Currency as provided in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 3.01 and if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 3.01, on the second Business Day preceding such payment date the Issuer will deliver to the Trustee for such series of Registered Securities an Exchange Rate Officer’s Certificate in respect of the Dollar or Foreign Currency payments to be made on such payment date. Unless otherwise specified pursuant to Section 3.01, the Dollar or Foreign Currency amount receivable by Holders of Registered Securities who have elected payment in a Currency as provided in paragraph (b) above shall be determined by the Issuer on the basis of the applicable Market Exchange Rate in effect on the third Business Day (the “Valuation Date”) immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other than pursuant to an election provided for pursuant to paragraph (b) above, then with respect to each date for the payment of principal of (and premium, if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency occurring after the last date on which such Foreign Currency was used (the “Conversion Date”), the Dollar shall be the Currency of payment for use on each such payment date. Unless otherwise specified pursuant to Section 3.01, the Dollar amount to be paid by the Issuer to the Trustee and by the Trustee or any other Paying Agent to the Holders of such Securities with respect to such payment date shall be, in the case of a Foreign Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of the Currency Unit, in each case as determined by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
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(e) Unless otherwise specified pursuant to Section 3.01, if the Holder of a Registered Security denominated in any Currency shall have elected to be paid in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency, such Holder shall receive payment in the Currency in which payment would have been made in the absence of such election; and if a Conversion Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such Holder shall receive payment in Dollars as provided in paragraph (d) above.
(f) The “Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange Rate Agent and shall be obtained for each subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The “Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate Agent and subject to the provisions of paragraph (h) below shall be the sum of each amount obtained by converting the Specified Amount of each Component Currency into Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.12 the following terms shall have the following meanings:
A “Component Currency” shall mean any Currency which, on the Conversion Date, was a component currency of the relevant currency unit, including, but not limited to, the Euro.
A “Specified Amount” of a Component Currency shall mean the number of units of such Component Currency or fractions thereof which were represented in the relevant currency unit, including, but not limited to, the Euro, on the Conversion Date. If after the Conversion Date the official unit of any Component Currency is altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be divided or multiplied in the same proportion. If after the Conversion Date two or more Component Currencies are consolidated into a single currency, the respective Specified Amounts of such Component Currencies shall be replaced by an amount in such single Currency equal to the sum of the respective Specified Amounts of such consolidated Component Currencies expressed in such single Currency, and such amount shall thereafter be a Specified Amount and such single Currency shall thereafter be a Component Currency. If after the Conversion Date any Component Currency shall be divided into two or more currencies, the Specified Amount of such Component Currency shall be replaced by amounts of such two or more currencies, having an aggregate Dollar Equivalent value at the Market Exchange Rate on the date of such replacement equal to the Dollar Equivalent value of the Specified Amount of such former Component Currency at the Market Exchange Rate immediately before such division and such amounts shall thereafter be Specified Amounts and such currencies shall thereafter be Component Currencies. If, after the Conversion Date of the relevant currency unit, including, but not limited to, the Euro, a Conversion Event (other than any event referred to above in this definition of “Specified Amount”) occurs with respect to any Component Currency of such currency unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall, for purposes of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect on the Conversion Date of such Component Currency.
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“Election Date” shall mean the date for any series of Registered Securities as specified pursuant to clause (15) of Section 3.01 by which the written election referred to in paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Issuer, the Trustee and all Holders of such Securities denominated or payable in the relevant Currency. The Exchange Rate Agent shall promptly give written notice to the Issuer and the Trustee of any such decision or determination.
In the event that the Issuer determines in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Issuer will immediately give written notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter transmit such notice in the manner provided for in Section 1.06 to the affected Holders) specifying the Conversion Date. In the event the Issuer so determines that a Conversion Event has occurred with respect to the Euro or any other currency unit in which Securities are denominated or payable, the Issuer will immediately transmit such written notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter transmit such notice in the manner provided for in Section 1.06 to the affected Holders) specifying the Conversion Date and the Specified Amount of each Component Currency on the Conversion Date. In the event the Issuer determines in good faith that any subsequent change in any Component Currency as set forth in the definition of Specified Amount above has occurred, the Issuer will similarly give written notice thereof to the Trustee and the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying and acting upon information received by it from the Issuer and the Exchange Rate Agent pursuant to this Section 3.12 with no liability for relying thereon and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information independent of the Issuer or the Exchange Rate Agent.
For purposes of any provision of the Indenture where the Holders of Outstanding Securities may perform an Act which requires that a specified percentage of the Outstanding Securities of all series perform such Act and for purposes of any decision or determination by the Trustee of amounts due and unpaid for the principal (and premium, if any) and interest on the Securities of all series in respect of which moneys are to be disbursed ratably, the principal of (and premium, if any) and interest on the Outstanding Securities denominated in a Foreign Currency will be the amount in Dollars based upon the Market Exchange Rate for Securities of such series, as of the date for determining whether the Holders entitled to perform such Act have performed it, or as of the date of such decision or determination by the Trustee, as the case may be.
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SECTION 3.13 Appointment and Resignation of Successor Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 3.01, if and so long as the Securities of any series (i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision of this Indenture, then the Issuer will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent. The Issuer will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 3.01 for the purpose of determining the applicable rate of exchange and, if applicable, for the purpose of converting the issued Currency into the applicable payment Currency for the payment of principal (and premium, if any) and interest, if any, pursuant to Section 3.12.
(b) The Issuer shall have the right to remove and replace from time to time the Exchange Rate Agent for any series of Securities. No resignation or removal of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the Issuer and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent for any cause with respect to the Securities of one or more series, the Issuer, by or pursuant to a Board Resolution, shall promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series and that, unless otherwise specified pursuant to Section 3.01, at any time there shall only be one Exchange Rate Agent with respect to the Securities of any particular series that are originally issued by the Issuer on the same date and that are initially denominated and/or payable in the same Currency).
SECTION 3.14 Certain Transfers and Exchanges.
Subject to Section 3.01, transfers and exchanges of Securities and beneficial interests in a Global Security of the kinds specified in this Section 3.14 shall be made only in accordance with this Section 3.14.
(a) If, at any time, whether prior to or after the expiration of the holding period with respect to the Securities set forth in Rule 144(d) under the Securities Act, an owner of a beneficial interest in a Restricted Global Security deposited with the Trustee, as custodian for the Depositary, wishes to transfer its interest in such Restricted Global Security to a Person who is required or permitted to take delivery thereof in the form of an interest in a Regulation S Global Security, such owner shall, subject to the Applicable Procedures, exchange or cause the exchange of such interest for an equivalent beneficial interest in a Regulation S Global Security as provided in this Section 3.14(a). Upon receipt by the Trustee of (1) written instructions given in accordance with the Applicable Procedures from an Agent Member directing the Trustee to credit or cause to be credited a beneficial interest in the Regulation S Global Security in an amount equal to the beneficial interest in the applicable Restricted Global Security to be exchanged, (2) a written order given in accordance with the Applicable Procedures containing information regarding the participant account of the Depositary and the Euroclear or Clearstream
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account (if applicable) to be credited with such increase and (3) a certificate substantially in the form of Exhibit B-1 hereto given by the owner of such beneficial interest, the Trustee, as Security Registrar, shall instruct the Depositary to reduce or cause to be reduced the aggregate principal amount of the applicable Restricted Global Security and to increase or cause to be increased the aggregate principal amount of the applicable Regulation S Global Security by the principal amount of the beneficial interest in the Restricted Global Security to be exchanged, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Regulation S Global Security equal to the reduction in the aggregate principal amount of the applicable Restricted Global Security, and to debit, or cause to be debited, from the account of the Person making such exchange or transfer the beneficial interest in the Restricted Global Security that is being exchanged or transferred.
(b) If, at any time prior to the expiration of one year from the date of the acquisition of the Securities from the Issuer, or from an Affiliate of the Issuer, an owner of a beneficial interest in a Regulation S Global Security deposited with the Trustee as custodian for the Depositary wishes to transfer its interest in such Regulation S Global Security to a Person who is required or permitted to take delivery thereof in the form of an interest in a Restricted Global Security, such owner shall, subject to the Applicable Procedures, exchange or cause the exchange of such interest for an equivalent beneficial interest in a Restricted Global Security, as provided in this Section 3.14(b). Upon receipt by the Trustee of (1) written instructions given in accordance with the Applicable Procedures from an Agent Member, directing the Trustee, as Security Registrar, to credit or cause to be credited a beneficial interest in the Restricted Global Security equal to the beneficial interest in the Regulation S Global Security to be exchanged; (2) a written order given in accordance with the Applicable Procedures containing information regarding the participant account of the Depositary to be credited with such increase; and (3) a certificate substantially in the form of Exhibit B-2 hereto given by the owner of such beneficial interest, the Trustee, as Security Registrar, shall instruct the Depositary to reduce or cause to be reduced the aggregate principal amount of such Regulation S Global Security and to increase or cause to be increased the aggregate principal amount of the applicable Restricted Global Security by the principal amount of the beneficial interest in the Regulation S Global Security to be exchanged, and the Trustee, as Security Registrar, shall instruct the Depositary, concurrently with such reduction, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the applicable Restricted Global Security equal to the reduction in the aggregate principal amount of such Regulations S Global Security and to debit or cause to be debited from the account of the Person making such transfer the beneficial interest in the Regulation S Global Security that is being transferred.
(c) If the holder of a beneficial interest in a Regulation S Global Security wishes, at any time after the expiration of one year from the date of the acquisition of the Securities from the Issuer, or from an Affiliate of the Issuer, to (A) transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Restricted Global Security or (B) to exchange such interest for a beneficial interest in the Restricted Global Security, such transfer or exchange may be effected, subject to the Applicable Procedures, only in accordance with this Section 3.14(c). Upon receipt by the Trustee of (1) written instructions given in accordance with the Applicable Procedures from an Agent Member directing the Trustee to credit or cause to be credited a beneficial interest in the Restricted Global Security in an amount equal to the beneficial interest in the Regulation S Global Security to be so transferred or
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exchanged, (2) a written order given in accordance with the Applicable Procedures containing information regarding the participant account of the Depositary to be credited with such beneficial interest and (3) a certificate substantially in the form of Exhibit B-3 hereto given by the holder of such beneficial interest, the Trustee, as Security Registrar, shall instruct the Depositary to reduce or cause to be reduced the aggregate principal amount of such Regulation S Global Security and to increase or cause to be increased the aggregate principal amount of the applicable Restricted Global Security by the principal amount of the beneficial interest in the Regulation S Global Security to be so transferred or exchanged, and the Trustee, as Security Registrar, shall instruct the Depositary, concurrently with such reduction, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the applicable Restricted Global Security equal to the reduction in the aggregate principal amount of such Regulations S Global Security and to debit or cause to be debited from the account of the Person making such transfer or exchange the beneficial interest in the Regulation S Global Security that is being transferred or exchanged.
(d) Beneficial interests in a Restricted Global Security may be transferred to a Person who takes delivery in the form of an interest in such Restricted Global Security without any written certification from the transferor or the transferee, but the transferee will be deemed to make the representations set forth in Exhibit B-2 or Exhibit B-3, as applicable.
(e) Beneficial interests in a Regulation S Global Security may be transferred to a Person who takes delivery in the form of an interest in such Regulation S Global Security without any written certification from the transferor or the transferee; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Global Security may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other than a distributor (as defined in Regulation S under the Securities Act)).
(f) The following legends (the “Private Placement Legend”) shall appear on the face of all Global Securities and definitive Securities issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Each Global Security and each definitive Security (and all Securities issued in exchange therefor or substitution thereof) shall bear a legend, until the Resale Restriction Termination Date, in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
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THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)), OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, ONLY (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN EACH CASE, THE SECURITIES LAWS OF ANY OTHER JURISDICTION, INCLUDING ANY STATE OF THE UNITED STATES, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL SATISFACTORY TO EACH OF THEM AND/OR A CERTIFICATE OF TRANSFER OR EXCHANGE IN THE FORM PRESCRIBED IN THE INDENTURE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
BY ITS ACQUISITION AND HOLDING OF THIS SECURITY THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED, WARRANTED AND AGREED THAT EITHER (I) IT IS NOT AND WILL NOT BE FOR SO LONG AS IT HOLDS ANY SECURITY (OR INTEREST IN A SECURITY) AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE FIDUCIARY RESPONSIBILITY REQUIREMENTS OF TITLE I OF U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A “PLAN” OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF SUCH EMPLOYEE BENEFIT PLAN OR
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PLAN’S INVESTMENT IN THE ENTITY, OR A GOVERNMENTAL, NON-U.S., CHURCH OR OTHER PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR (II) THE PURCHASE, HOLDING AND DISPOSITION OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR, IN THE CASE OF A GOVERNMENTAL, NON-U.S., CHURCH OR OTHER PLAN, A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
(ii) Global Security Legend. Each Global Security shall bear a legend in substantially the following form:
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE REGISTRAR MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.05 OF THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 3.05 OF THE INDENTURE AND (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 3.10 OF THE INDENTURE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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 INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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(iii) Regulation S Temporary Global Security Legend. Each Regulation S Temporary Global Security shall bear a legend in substantially the following form:
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR A REGULATION S PERMANENT GLOBAL SECURITY, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
(g) By its acceptance of any Security bearing the Private Placement Legend, each Holder of such a Security acknowledges the restrictions on transfer of such Security set forth in this Indenture and in the Private Placement Legend, and agrees that it will transfer such Security only as provided in this Indenture.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge of Indenture.
This Indenture shall upon Issuer Request cease to be of further effect with respect to any series of Securities issued by the Issuer specified in such Issuer Request (except as to any surviving rights of registration of transfer or exchange of Securities of such series expressly provided for herein or pursuant hereto, and the rights of Holders of Outstanding Securities to receive, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities when such payments are due and except as provided in the last paragraph of this Section 4.01) and the Trustee, at the expense of the Issuer, shall execute proper instruments prepared by the Issuer acknowledging satisfaction and discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated and delivered (other than (i) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06, (ii) Securities called for redemption and maturing after the relevant Redemption Date, whose surrender has been waived as provided in Section 11.06, and (iii) Securities of such series for whose payment money has theretofore been deposited in trust with the Trustee or any Paying Agent or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or
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(B) all Securities of such series and, in the case of (i) or (ii) below, not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) if redeemable at the option of the Issuer, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose an amount in the Currency in which the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Issuer or the Guarantors has paid or caused to be paid all other sums payable hereunder by the Issuer or the Guarantors, as the case may be, and
(3) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the provisions of Section 10.05, the obligations of the Issuer to the Trustee under Section 6.07, the obligations of the Trustee to any other Authenticating Agent under Section 6.12 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the provisions of Sections 1.13, 1.14, 3.05, 3.06, 10.02, 10.03 and any other applicable provisions of Article 11 and the obligations of the Trustee under Section 4.02 shall survive such satisfaction and discharge and remain in full force and effect.
SECTION 4.02 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or a Guarantor acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
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ARTICLE 5
REMEDIES
SECTION 5.01 Events of Default.
“Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless such event is specifically deleted or modified in or pursuant to a supplemental indenture, Board Resolution or Officers’ Certificate establishing the terms of such series pursuant to Section 3.01 of this Indenture:
(1) the Issuer defaults in the payment of any interest upon any Security of that series when it becomes due and payable and such default continues for a period of 60 days (whether or not such payment is prohibited by the subordination provisions applicable to any such series of Securities); provided that this clause (1) shall not apply to the deferral of interest payments in accordance with the terms of any such series of Securities, to the extent such concept exists therein; or
(2) the Issuer defaults in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity and continuance of such default for a period of three Business Days thereafter (whether or not such payment is prohibited by the subordination provisions applicable to any such series of Securities); or
(3) the Issuer defaults in the deposit of any sinking fund payment when and as due by the terms of a Security of that series and continuance of such default for a period of three Business Days thereafter; or
(4) the Issuer or the Guarantors, as applicable, fails to observe or perform any covenant in this Indenture or agreement with respect to a series of Securities, and there is a continuance of such failure to observe or perform for a period of 90 days after there has been given, by registered or certified mail, to the Issuer and the Guarantors by the Trustee, or to the Issuer, the Guarantors and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series, a written notice specifying such failure to observe or perform and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(5) the Issuer or the Guarantors pursuant to or under or within the meaning of any Bankruptcy Law:
(i) commences a proceeding or makes an application seeking a Bankruptcy Order;
(ii) consents to the making of a Bankruptcy Order or the commencement of any proceeding or application seeking the making of a Bankruptcy Order against it;
(iii) consents to the appointment of a Custodian of it or for any substantial part of its property;
(iv) makes a general assignment for the benefit of its creditors or files a proposal or notice of intention to make a proposal or other scheme of arrangement involving the rescheduling, reorganizing or compromise of its indebtedness;
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(v) files an assignment in bankruptcy; or
(vi) consents to the filing of an assignment in bankruptcy or the appointment of or taking possession by a Custodian; or
(6) a court of competent jurisdiction in any involuntary case or proceeding makes a Bankruptcy Order against the Issuer or the Guarantors, and such Bankruptcy Order remains unstayed and in effect for 90 consecutive days; or
(7) a Custodian shall be appointed out of court with respect to the Issuer or the Guarantors, or with respect to all or any substantial part of the property of the Issuer or the Guarantors and such appointment shall not have been vacated, discharged, or stayed or bonded pending appeal within 90 days, or any encumbrancer shall take possession of all or any substantial part of the property of the Issuer or the Guarantors and such possession shall not have reverted to the Issuer or the Guarantors, as applicable, within 90 days; or
(8) a Guarantee by a Guarantor of the Securities of such series ceases to be in full force and effect (other than in accordance with the terms of such Guarantee) or a Guarantor denies or disaffirms its obligations under such Guarantee; or
(9) any other Event of Default provided with respect to Securities of that series.
“Bankruptcy Law” means Title 11, U.S. Code, the Federal Bankruptcy Code, Bankruptcy and Insolvency Act (Canada), Companies’ Creditors Arrangement Act (Canada), or any similar U.S., Canadian provincial law or state law, in each case, as amended, or any similar foreign law for the relief from, or otherwise affecting, creditors. “Custodian” means any receiver, interim receiver, receiver and manager, trustee, assignee, liquidator, sequestrator, monitor, custodian or similar official or agent or any other Person with like powers. “Bankruptcy Order” means any court order made in a proceeding pursuant to or within the meaning of any Bankruptcy Law, containing an adjudication of bankruptcy or insolvency, or providing for liquidation, winding-up, dissolution or reorganization, or appointing a Custodian of a debtor or of all or any substantial part of a debtor’s property, or providing for the staying, arrangement, adjustment or compromise of indebtedness or other relief of a debtor.
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in clause (5), (6) or (7) of Section 5.01) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount (or, if the Securities of that series are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount as may be specified in the terms of such series), premium, if any, of all of the Outstanding Securities of that series and any accrued but unpaid interest thereon to be due and payable immediately, by a notice in writing to the Issuer and the Guarantors (and to the Trustee if given by Holders or other act on the part of the Trustee or any Holder), and upon any such declaration such principal amount (or specified portion thereof), premium, if any, and any accrued but unpaid interest thereon shall become immediately due and payable. If an Event of Default described in clause
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(5), (6) or (7) of Section 5.01 occurs, then the principal amount (or, if any such Securities are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Outstanding Securities, premium, if any, and any accrued but unpaid interest thereon shall ipso facto become and be immediately due and payable without any declaration, notice or other act on the part of the Trustee or any Holder.
If an Event of Default specified in clause (4) in Section 5.01 above with respect to Securities of any series at the time Outstanding occurs and is continuing, neither the Trustee nor Holders of the Outstanding Securities of that series will be entitled to declare payment on the principal amount of the Outstanding Securities of such series and any accrued interest thereon immediately due and payable. Notwithstanding the above, the Trustee and Holders may exercise other rights and remedies available under this Indenture upon the occurrence of an Event of Default.
At any time after a declaration of acceleration with respect to Securities of one or more series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities of such one or more series (voting as a single class), by written notice to the Issuer, the Guarantors and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Issuer has or the Guarantors have paid or deposited with the Trustee a sum sufficient to pay in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)),
(A) all overdue interest, if any, on all Outstanding Securities of that series (or of all series, as the case may be),
(B) all unpaid principal of (and premium, if any, on) all Outstanding Securities of that series (or of all series, as the case may be) which has become due otherwise than by such declaration of acceleration, and interest on such unpaid principal at the rate or rates prescribed therefor in such Securities,
(C) to the extent lawful, interest on overdue interest, if any, at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series (or of all series, as the case may be), other than the non-payment of amounts of principal of, premium, if any, or interest on Securities of that series (or of all series, as the case may be) which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
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No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Issuer covenants that if:
(1) default is made in the payment of any installment of interest on any Security issued by the Issuer when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security issued by the Issuer at the Maturity thereof,
then the Issuer will, upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal (and premium, if any) and interest, if any, and interest on any overdue principal (and premium, if any) and to the extent lawful on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Issuer, the Guarantors or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Issuer, the Guarantors or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series (or of all series, as the case may be) occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series (or of all series, as the case may be) by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Issuer, the Guarantors or the property of the Issuer, or the Guarantors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Issuer or the Guarantors for the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
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(i) to file and prove a claim for the whole amount of principal (and premium, if any), or such portion of the principal amount of any series of Original Issue Discount Securities or Indexed Securities as may be specified in the terms of such series, and interest, if any, owing and unpaid in respect of the Securities or the Guarantee and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the Guarantee or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.05 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture, the Securities or the Guarantee may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, as well as its agent and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 5.06 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Securities, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 6.07;
Second: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest, if any, on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, if any, respectively; and
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Third: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.07 Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Securities or the Guarantee, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of all series affected by such Event of Default (determined as provided in Section 5.02 and, if more than one series of Securities, as one class), shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority or more in principal amount of the Outstanding Securities of all series affected by such Event of Default (determined as provided in Section 5.02 and, if more than one series of Securities, as one class);
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Outstanding Securities of such affected series, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all Holders of Outstanding Securities of such affected series. For purposes of clarity, it is hereby understood and agreed that an Event of Default described in clause (1), (2) or (3) of Section 5.01 with respect to the Securities of any series shall, for purposes of this Section 5.07, be deemed to affect only such series of Securities.
SECTION 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment, as provided herein (including Article 14) and in such Security (and the Guarantee endorsed thereon) of the principal of (and premium, if any) and (subject to Section 3.07) interest, if any, on, such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
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SECTION 5.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, the Guarantors, the Trustee and the Holders of Securities shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or any acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12 Control by Holders.
The Holders of not less than a majority in principal amount of the Outstanding Securities of all series affected by an Event of Default (determined as provided in Section 5.02 and, if more than one series of Securities, as one class) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Outstanding Securities of such affected series, the Guarantee in respect thereof, provided in each case
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
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(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might expose the Trustee to personal liability or be unduly prejudicial to the Holders of Outstanding Securities of such affected series not joining therein.
For purposes of clarity, it is hereby understood and agreed that an Event of Default described in clause (1), (2) or (3) of Section 5.01 with respect to the Securities of any series shall, for purposes of this Section 5.12 be deemed to affect only such series of Securities.
SECTION 5.13 Waiver of Past Defaults.
Subject to Section 5.02, the Holders of not less than a majority in principal amount of the Outstanding Securities of all series with respect to which a Default shall have occurred and be continuing (as one class if more than one series) may on behalf of the Holders of all the Outstanding Securities of such affected series waive any such past Default, and its consequences, except a Default
(1) in respect of the payment of the principal of (or premium, if any) or interest, if any, on any Security, or
(2) in respect of a covenant or provision which under Article 9 cannot be modified or amended without the consent of the Holder of each Outstanding Security of such affected series.
Upon any such waiver, any such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. For purposes of clarity, it is hereby understood and agreed that an Event of Default described in clause (1), (2) or (3) of Section 5.01 with respect to the Securities of any series shall, for purposes of this Section 5.13, be deemed to affect only such series of Securities.
SECTION 5.14 Waiver of Stay or Extension Laws.
The Issuer and the Guarantors covenant (to the extent that they may lawfully do so) that they will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Issuer and the Guarantors (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
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SECTION 5.15 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of any undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Issuer, to any suit instituted by the Guarantors, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security (or under the Guarantee) on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
ARTICLE 6
THE TRUSTEE
SECTION 6.01 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to the Securities of any series, (1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture, but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein.
(b) In case an Event of Default with respect to Securities of any series has occurred and is continuing, the Trustee shall, with respect to the Securities of such series, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. Notwithstanding the foregoing, the Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that (1) this subsection shall not be construed to limit the effect of subsection (a) of this Section; (2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and (3) the Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any series in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of such series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
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(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.02 Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder with respect to the Securities of any series, the Trustee shall transmit in the manner and to the extent provided in TIA Section 313(c), notice of such default hereunder known to the Trustee, unless such Default shall have been cured or waived; provided, however, that, except in the case of a Default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of such series; and provided further that in the case of any Default of the character specified in Section 5.01(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof.
SECTION 6.03 Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by an Issuer Request or Issuer Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;
(4) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
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(5) subject to the provisions of the Indenture relating to the duties of the Trustee in case an Event of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer and the Guarantor, personally or by agent or attorney;
(7) in no event shall the Trustee be responsible or liable for special, indirect, consequential or punitive loss or damage of any kind whatsoever (including, but not limited to, loss of profit), irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(8) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, custodian or attorney appointed with due care by it hereunder;
(9) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(10) prior to the occurrence of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge, and after the curing of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee;
(11) the Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee, shall have received written notice or obtained actual knowledge thereof. In the absence of receipt of such notice or actual knowledge, the Trustee may conclusively assume that there is no Default or Event of Default;
(12) the right of the Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty; and
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(13) when acting in the capacity of the Security Registrar, Authenticating Agent or the Paying Agent hereunder, the rights, protections, immunities and indemnities afforded to the Trustee hereunder shall also be afforded to it in such capacities as if they were set forth herein as such.
In light of Federal law requiring all financial institutions to obtain, verify, and record information that identifies each person who opens an account, when any account is opened, the Trustee will ask for information that will allow the Trustee to identify relevant parties in order to comply with such laws. The parties hereto hereby acknowledge such information disclosure requirements and agree to comply with all such information disclosure requests from time to time from the Trustee.
The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
SECTION 6.04 Trustee Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except for the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer and the Guarantors, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Issuer are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Issuer of Securities or the proceeds thereof.
SECTION 6.05 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Issuer or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Issuer with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.06 Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any Paying Agent shall be under any liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Issuer.
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SECTION 6.07 Compensation and Reimbursement.
Each of the Issuer and the Guarantors agree, jointly and severally:
(1) to pay to the Trustee from time to time such reasonable compensation as the Issuer and the Trustee shall from time to time agree in writing, for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold each harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Issuer under this Section to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless the Trustee shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. As security for the performance of such obligations of the Issuer and the Trustee shall each have a claim prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (or premium, if any) or interest, if any, on particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(5), (6) or (7), the expenses (including reasonable charges and expense of its counsel) of and the compensation for such services are intended to constitute expenses of administration under any applicable bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this Indenture.
SECTION 6.08 Corporate Trustee Required; Eligibility; Conflicting Interests.
The Trustee shall comply with the terms of Section 310(b) of the TIA. There shall be at all times a Trustee hereunder which shall in the case of the Trustee, be eligible to act as Trustee under TIA Section 310(a)(1) and shall in the case both of the Trustee, have a combined capital and surplus (together with that of its parent, if applicable) of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of Federal, State, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
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SECTION 6.09 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee, in accordance with the applicable requirements of Section 6.10.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Issuer. If the instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series and a successor Trustee appointed by the Issuer or by Act of the Holders of not less than a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Issuer in the case of an Act of the Holders. If the instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to the Trustee within 30 days after removal, the removed Trustee may, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Issuer or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.08 and shall fail to resign after written request therefor by the Issuer or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer, by a Board Resolution, may remove the Trustee with respect to all Securities or the Securities of such series, or (ii) subject to TIA Section 315(e), any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee, as with respect to all Securities of such series and the appointment of a successor Trustee or Trustees.
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(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Issuer, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees, with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series). If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Issuer and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Issuer. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Issuer or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The Issuer shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to the Holders of Securities of such series in the manner provided for in Section 1.06. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
SECTION 6.10 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Issuer, to the Guarantors and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Issuer, the Guarantors or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Issuer, the Guarantors, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein the successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts
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hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Issuer, the Guarantors or any successor Trustee or, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. Whenever there is a successor Trustee with respect to one or more (but less than all) series of securities issued pursuant to this Indenture, the terms “Indenture” and “Securities” shall have the meanings specified in the provisos to the respective definitions of those terms in Section 1.01 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Issuer and the Guarantors shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business.
Any business entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any entity succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. In case any of the Securities shall not have been authenticated by such predecessor Trustee, any successor Trustee may authenticate and deliver such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee or the Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
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SECTION 6.12 Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, Trustee shall be an Authentication Agent and the Trustee may appoint one or more additional Authenticating Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series and the Trustee shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 1.06. Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, and a copy of such instrument shall be promptly furnished to the Issuer. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the certificate of authentication of the Trustee, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Issuer and shall at all times be a corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee, the Trustee and to the Issuer. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Issuer. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Issuer and shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 1.06. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 6.07.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
Dated:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| EQUINITI TRUST COMPANY, LLC,
As Trustee | ||
| By |
| |
| As Authenticating Agent | ||
| By |
| |
| Authorized Officer | ||
ARTICLE 7
HOLDERS’ LISTS AND REPORTS BY TRUSTEE, ISSUER AND GUARANTORS
SECTION 7.01 Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same, agrees with the Issuer, the Guarantors, the Trustee and the Security Registrar that none of the Issuer, the Guarantors, the Trustee or the Security Registrar, or any agent of any of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with TIA Section 312, regardless of the source from which such information was derived, and that none of the Trustee or the Security Registrar shall be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).
SECTION 7.02 Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first May 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit a brief report by mail to the Holders of Securities, in accordance with and solely to the extent required by Section 313 of the TIA.
(b) A copy of each such report at the time of its mailing to Holders shall be filed with the Commission and each stock exchange on which Securities of any series are listed.
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SECTION 7.03 Reports by the Company.
(a) The Company covenants and agrees to provide to the Trustee:
(i) within 140 days after the end of the fiscal year, the information required to be contained in reports on Form 40-F or Form 20-F, as applicable, or any successor form, provided, however, that neither management’s report on internal control over financial reporting required by Section 13a-15(c) of the Exchange Act nor the annual disclosure of changes in internal control over financial reporting required by Section 13a-15(d) of the Exchange Act for foreign private issuers (which, for the avoidance of doubt, shall include the associated certifications of the principal executive and financial officers required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002) shall be required to be included until the Company’s second annual report on Form 40-F or Form 20-F, as applicable, filed with the Commission; and
(ii) within 65 days after the end of each of the first three fiscal quarters of each fiscal year, the information required to be contained in reports on Form 6-K (or any successor form), containing the information which, regardless of applicable requirements shall, at a minimum, contain such information required to be provided in quarterly reports under the laws of Nova Scotia, including applicable securities laws and the rules of the Toronto Stock Exchange or any province thereof to security holders of a corporation with securities listed on the Toronto Stock Exchange, whether or not the Company has any of its securities listed on such exchange.
(b) For the avoidance of doubt, none of the above reporting requirements shall be construed to require such statements or reports that would not otherwise be required to be filed by foreign private issuers subject to the Multi-Jurisdictional Disclosure System. Each such report, to the extent permitted by the rules and regulations of the Commission, will be prepared in accordance with Canadian disclosure requirements, provided, however, that the Company shall not be obligated to file such reports with the Commission if the Commission does not permit such filings.
(c) Nothing herein shall be construed to require the registered public accounting firm that prepares or issues the audit report for the Company to attest to, and report on, the assessment made by the management of the Company pursuant to the requirements of Section 404(b) of the Sarbanes-Oxley Act of 2002, unless otherwise required by the Exchange Act.
(d) For so long as any Securities of any series remain outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Issuer and the Guarantors will, at any time when they are not subject to Section 13 or 15(d) of the Exchange Act nor exempt from reporting under Rule 12g3-2(b), upon the request of a Holder of such Securities, promptly furnish or cause to be furnished the information specified under Rule 144A(d)(4) of the Securities Act to such holder, or to a prospective purchaser of such Security designed by such Holder, in order to permit compliance with Rule 144A under the Securities Act.
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SECTION 7.04 The Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not later than 15 days after the Regular Record Date for interest for each series of Securities, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Registered Securities of such series as of such Regular Record Date, or if there is no Regular Record Date for interest for such series of Securities, semi-annually, upon such dates as are set forth in the Board Resolution, Officers’ Certificate or indenture supplemental hereto authorizing such series, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar, no such list shall be required to be furnished. If the Trustee shall no longer be the Security Registrar, the Trustee and the Trustee shall be entitled to rely on the most recent such list provided or available to it without liability therefor.
ARTICLE 8
CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01 Issuer and Guarantors May Amalgamate or Consolidate, etc., Only on Certain Terms.
Neither the Issuer nor the Guarantors shall amalgamate or consolidate with or merge into any other Person or convey, transfer or lease all or substantially all of its assets or properties to any other Person, unless:
(1) in a transaction in which the Issuer or EUSHI, as the case may be, does not survive or continue in existence or in which the Issuer or EUSHI, as the case may be, transfers or leases its properties and assets substantially as an entirety to any other Person, the Person formed by such amalgamation or consolidation or into which the Issuer or EUSHI, as the case may be, is merged or the Person which acquires by conveyance or transfer or otherwise, or which leases, the properties and assets of the Issuer or EUSHI, as the case may be, substantially as an entirety (A) shall be a corporation, partnership or trust organized under the laws of (i) Canada or any province or territory of Canada, (ii) the United States of America, any state thereof or the District of Columbia, (iii) Bermuda, (iv) or The Cayman Islands; provided, however, that if such successor entity is organized under the laws of a jurisdiction other than the United States of America, any state thereof or the District of Columbia, or the laws of Canada or any province or territory thereof, the successor entity shall, pursuant to the supplemental indenture referred to in clause (2) below, expressly become obligated to pay Additional Amounts, substituting the name of such successor jurisdiction (if other than Canada) in each place that Canada appears in Section 10.05 of this Indenture and adding references to the provinces, territories, states or other applicable political subdivisions of such successor jurisdiction (if other than Canada) in addition to references to the provinces and territories of Canada appearing in Section 10.05 of this Indenture;
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(2) Such Person shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the obligations of the Issuer or the Guarantors in respect of the applicable series of Securities and, in the case of a Guarantor, its Guarantee and the performance and observance of every covenant of the Indenture to be performed or observed by the Issuer or a Guarantor, as the case may be;
(3) immediately after giving effect to such transaction, no Event of Default or event that after notice or passage of time or both would be an Event of Default shall have occurred and be continuing; and
(4) the Issuer, the Guarantors or such Person, as the case may be, shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
In the event that the Company shall enter into any amalgamation, consolidation, merger, conveyance, transfer or lease of the nature contemplated by the first paragraph of this Section 8.01, then the supplemental indenture contemplated by clause (2) of such paragraph shall be entered into by the Company in its capacity as a Guarantor.
SECTION 8.02 Successor Person Substituted.
Upon any consolidation or amalgamation by the Issuer or a Guarantor with or merger by the Issuer or a Guarantor into any other Person or any conveyance, transfer or lease of the properties and assets of the Issuer or a Guarantor substantially as an entirety to any other Person in accordance with Section 8.01, the successor Person formed by such consolidation or amalgamation or into which the Issuer or Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Issuer or Guarantor, as the case may be, herein, and in the event of any such transaction, the Issuer or Guarantor (which term shall for this purpose mean the applicable Person named as the “Guarantor” in the first paragraph of this Indenture or any successor Person which shall theretofore become such in the manner described in this Section 8.02), as the case may be, except in the case of a lease, shall be discharged of all obligations and covenants under this Indenture and the Securities, and the Guarantee, as the case may be, and may be dissolved and liquidated.
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ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, each of the Issuer and the Guarantors, when authorized by or pursuant to a Board Resolution, the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(i) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities of such series any property or assets;
(ii) to evidence the succession of another Person to the Issuer or any Guarantor, or successive successions, and the assumption by the successor Person of the covenants, agreements and obligations of the Issuer or any Guarantor pursuant to Section 8.01 or 8.02;
(iii) to add to the covenants of the Issuer or the Guarantors such further covenants, restrictions, conditions or provisions as the Issuer or the Guarantors and the Trustee shall consider to be for the protection of the Holders of Securities of such series, to surrender any right or power herein conferred upon the Issuer or the Guarantors, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default with respect to such series of Securities permitting the enforcement of all or any of the several remedies provided in this Indenture, provided that in respect of any such additional covenant, restriction, condition or provision such amendment or supplement may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default;
(iv) to cure any ambiguity or omission or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make any other provisions as the Issuer or the Guarantors deem necessary or desirable, provided that no such action shall adversely affect the interests of the Holders of the Securities of such series;
(v) to provide for uncertificated Securities of such series in addition to or in place of certificated Securities of such series;
(vi) to provide for the issuance of Exchange Securities of such series and related Guarantees or additional Securities and related Guarantees in accordance with this Indenture;
(vii) to effect or maintain, or otherwise comply with the requirements of the SEC in connection with, the qualification of this Indenture under the Trust Indenture Act;
(viii) [Reserved];
(ix) to effect any provision of this Indenture;
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(x) to establish the form or terms of securities of any series and related Guarantee as permitted by Sections 2.01 and 3.01;
(xi) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.10; or
(xii) to make any other change that does not adversely affect the rights of any Holder.
Upon the request of the Issuer and the Guarantors and upon receipt by the Trustee of the documents described in Section 9.02, the Trustee shall join with the Issuer and the Guarantors in the execution of any supplemental indenture entered into effect any such amendment, supplement or waiver.
SECTION 9.02 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities of all series affected by such supplemental indenture (voting as a single class), by Act of said Holders delivered to the Issuer, the Guarantors and the Trustee, the Issuer and the Guarantors, when authorized by or pursuant to a Board Resolution, the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture which affect such series of Securities or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of such series affected thereby,
(1) extend the Stated Maturity of the principal of any of the Securities of such series;
(2) reduce the principal amount of any of the Securities of such series;
(3) reduce the rate or extend the time of payment of interest, including default interest, on any of the Securities of such series;
(4) reduce any amount payable on redemption of any of the Securities of such series;
(5) change the currency in which the principal of or premium, if any, or interest on any of the Securities of such series is payable;
(6) impair the right to institute suit for the enforcement of any payment of principal of or premium, if any, or interest on any Security of such series pursuant to Sections 5.08 and 5.10;
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(7) make any change in the percentage of principal amount of the Securities of such series necessary to waive compliance with or to modify certain provisions of this Indenture pursuant to Section 5.13 or 5.08 or this clause of this Section 9.02; or
(8) waive a continuing Default or Event of Default in the payment of principal of or premium, if any, or interest on the Securities of such series.
Any such supplemental indenture adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or modifying in any manner the rights of the Holders of Securities of such series, shall not affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03 Execution of Supplemental Indentures; Effect of Supplemental Indentures.
(a) In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
(b) Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.04 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.05 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall bear a notation as to any matter provided for in such supplemental indenture. If the Issuer or the Guarantors shall so determine, new Securities of any series and the Guarantees endorsed thereon so modified as to conform, in the opinion of the Issuer and the Guarantors, to any such supplemental indenture may be prepared and executed by the Issuer and the Guarantors and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
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SECTION 9.06 Notice of Supplemental Indentures.
Promptly after the execution by the Issuer, the Guarantors and the Trustee of any supplemental indenture pursuant to the provisions of Section 9.02, the Issuer shall give notice thereof to the Holders of each Outstanding Security affected, in the manner provided for in Section 1.06, setting forth in general terms the substance of such supplemental indenture.
SECTION 9.07 Subordination Unimpaired.
No supplemental indenture entered into under this Article Nine shall modify, directly or indirectly, the provisions of Article Twelve or the definition of Senior Indebtedness in Section 1.01 in any manner that might alter or impair the subordination of the Securities with respect to Senior Indebtedness then outstanding unless each holder of such Senior Indebtedness has consented thereto in writing.
ARTICLE 10
COVENANTS
SECTION 10.01 Payment of Principal, Premium, if any, and Interest.
The Issuer covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and punctually pay the principal of (and premium, if any) and interest, if any, on the Securities of that series in accordance with the terms of the Securities and this Indenture.
SECTION 10.02 Maintenance of Office or Agency.
The Issuer will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange, where Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable and where notices and demands to or upon the Issuer in respect of the Securities of that series and this Indenture may be served. The Company, in its capacity as a Guarantor, will maintain an office or agency in The City of New York where notices and demands to or upon the Guarantors in respect of the Securities of that series and this Indenture may be served.
The Issuer and the Guarantors will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the Issuer or the Guarantors shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office, and each of the Issuer and the Guarantors hereby appoints the same as its agents to receive such respective presentations, surrenders, notices and demands.
The Issuer may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided, however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any
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series for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. Unless otherwise specified with respect to any Securities as contemplated by Section 3.01 with respect to a series of Securities, the Issuer hereby designates as a Place of Payment for each series of Securities the office or agency of the Trustee in the State of New York, City of New York, Borough of Brooklyn, and initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such cities and as its agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 3.01, if and so long as the Securities of any series (i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision of the Indenture, then the Issuer will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent.
SECTION 10.03 Money for Securities Payments to Be Held in Trust.
If either the Issuer or a Guarantor shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (or premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the Currency in which the Securities of such series are payable (except as may otherwise be specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) sufficient to pay the principal of (or premium, if any) or interest, if any, on Securities of such series so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for any series of Securities, it will, prior to or on each due date of the principal of (or premium, if any) or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum (in the Currency described in the preceding paragraph) sufficient to pay the principal (or premium, if any) or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of its action or failure so to act.
The Issuer will cause the bank through which payment of funds to the Paying Agent will be made to deliver to the Paying Agent by 10:00 a.m. (New York Time) two Business Days prior to the due date of such payment an irrevocable confirmation (by tested telex or authenticated Swift MT 100 Message) of its intention to make such payment.
The Issuer will cause each Paying Agent (other than the Trustee) for any series of Securities to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and premium, if any) and interest, if any, on Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
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(2) give the Trustee notice of any default by the Issuer (or any other obligor upon the Securities of such series) in the making of any payment of principal of (or premium, if any) or interest, if any, on the Securities of such series; and
(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Issuer or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which sums were held by the Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
Except as provided in the Securities of any series, any money deposited with the Trustee or any other Paying Agent, or then held by the Issuer or the Guarantors, in trust for the payment of the principal of (or premium, if any) or interest, if any, on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Issuer or the Guarantors, or (if then held by the Issuer or Guarantors) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Issuer or the Guarantors, as the case may be, for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer or the Guarantors, as the case may be, as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the written direction and at the expense of the Issuer cause to be published once, in an Authorized Newspaper, or cause to be mailed to such Holder or both, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed balance of such money then remaining will be repaid to the Issuer or Guarantor, as the case may be.
SECTION 10.04 Statement as to Compliance.
The Issuer and the Guarantors will deliver to the Trustee, within 120 days after the end of each fiscal year (which as of the date hereof ends on the 31st day of December), a brief certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Issuer’s or Guarantor’s compliance with all conditions and covenants under this Indenture and as to any default in such performance. For purposes of this Section 10.04, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.
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SECTION 10.05 Additional Amounts.
Unless otherwise specified pursuant to Section 3.01 with respect to the Securities of any series, all payments made by or on behalf of the Issuer under or with respect to the Securities or any of the Guarantors under or with respect to the Guarantees 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 imposed or levied by or on behalf of the Government of Canada or any province or territory thereof or by any authority or agency therein or thereof having power to tax (hereinafter “Canadian Taxes”), unless the Issuer or any Guarantor, as the case may be, is required to withhold or deduct Canadian Taxes by law or by the interpretation or administration thereof.
If the Issuer or a Guarantor, as the case may be, is so required to withhold or deduct any amount for or on account of Canadian Taxes from any payment made under or with respect to the Securities or the Guarantee, the Issuer or the Guarantor, as the case may be, will pay to each Holder of such Securities as additional interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each such Holder after such withholding or deduction (and after deducting any Canadian Taxes on such Additional Amounts) will not be less than the amount such Holder would have received if such Canadian Taxes had not been withheld or deducted, except as described in this Section 10.05. However, no Additional Amounts will be payable with respect to a payment made to a recipient or beneficial owner of such payment:
(1) with which the Issuer or a Guarantor, as the case may be, does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the “Tax Act”)) at the time of making such payment;
(2) which is subject to such Canadian Taxes by reason of the recipient or beneficial owner being a “specified non-resident shareholder” of the Company for purposes of the Tax Act or a non-resident person not dealing at arm’s length with a “specified shareholder” (within the meaning of subsection 18(5) of the Tax Act) of the Company;
(3) which is subject to such Canadian Taxes by reason of the recipient or beneficial owner being an entity in respect of which the Company is a “specified entity” as defined in subsection 18.4(1) of the Tax Act;
(4) which is subject to such Canadian taxes by reason of the recipient or beneficial owner being a “reverse hybrid entity” (within the meaning of subsection 18.4(1) of the Tax Act, as proposed to be amended by the draft legislative proposals released on January 29, 2026, as may be further proposed to be amended);
(5) which is liable to such Canadian Taxes by reason of the recipient or beneficial owner being a resident, domicile or national of, or engaged in business or maintaining a permanent establishment or other physical presence in or otherwise having some connection with Canada or any province or territory thereof otherwise than by the mere holding of Securities or the receipt of payments thereunder;
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(6) which is subject to such Canadian Taxes by reason of the failure of the recipient or beneficial owner to comply with any certification, identification, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the rate of deduction or withholding of, such Canadian Taxes;
(7) which is subject to such Canadian Taxes by reason of the legal nature of the recipient or beneficial owner disentitling such recipient or beneficial owner to the benefit of an applicable treaty if and to the extent that the application of such treaty would have resulted in the reduction or elimination of any Canadian Taxes as to which Additional Amounts would have otherwise been payable to a Holder on behalf of such beneficial owner;
(8) which failed to duly and timely comply with a timely request by the Issuer or a Guarantor, as the case may be, to provide information, documents, certification or other evidence concerning such recipient or beneficial owner’s nationality, residence, entitlement to treaty benefits, identity or connection with Canada or any political subdivision or authority thereof, if and to the extent that due and timely compliance with such request would have resulted in the reduction or elimination of any Canadian Taxes as to which Additional Amounts would have otherwise been payable to a recipient or beneficial owner but for this clause;
(9) which is a fiduciary, limited liability company, partnership or any person other than the sole beneficial owner, to the extent that, any beneficiary or settlor of such fiduciary, any member of such limited liability company, any partner in such partnership or the beneficial owner of such payment (as the case may be) would not have been entitled to receive Additional Amounts with respect to such payment if such beneficiary, settlor, member, partner or beneficial owner had been the recipient of such payment; or
(10) which is subject to such Canadian Taxes by reason of any combination of the above.
In addition, no Additional Amounts will be payable on account of:
(1) any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Issuer or a Guarantor or a paying agent from the payment;
(2) any tax, assessment or other governmental charge that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(3) any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(4) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on the Securities of any Series, if such payment can be made without such withholding by at least one other paying agent;
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(5) any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the Holder, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(6) any tax, assessment or other governmental charge imposed under any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986; or
(7) any combination of any of the foregoing exceptions.
Notwithstanding the foregoing, the Issuer or a Guarantor, as the case may be, will indemnify and hold harmless the recipient of any payment made under the Securities or any Guarantee for the amount of any taxes under Regulation 803 of the Tax Act or any similar or successor provision (other than taxes in respect of which no Additional Amounts would be payable or taxes arising by reason of a transfer of a Security to a person resident in Canada with whom the transferor does not deal at arm’s length for the purposes of the Tax Act except where such non-arm’s length relationship arises as a result of the exercise or enforcement of rights under any Securities or any Guarantee) levied or imposed on and paid by such recipient as a result of such payment.
The Issuer or a Guarantor, as applicable, will also:
(i) make such withholding or deduction; and
(ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
The Issuer or a Guarantor, as applicable, will furnish to the Holders of the affected series of Securities, within 60 days after the date the payment of any Canadian Taxes is due pursuant to applicable law, certified copies of tax receipts or other documents evidencing such payment by the Issuer.
In the event the Issuer or a Guarantor, as applicable, fails to remit any Canadian Taxes in respect of which Additional Amounts are payable, the Issuer or the Guarantor, as applicable, will indemnify and hold harmless each Holder of the affected series of Securities (other than, for certainty, a recipient not entitled to receive Additional Amounts) and upon written request reimburse each such Holder for the amount, excluding any payment of Additional Amounts by the Issuer or a Guarantor, of:
(1) any Canadian Taxes levied or imposed and paid by such Holder as a result of payments made under or with respect to the affected series of Securities;
(2) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto; and
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(3) any Canadian Taxes imposed with respect to any reimbursement under clause (1) or (2) in this paragraph, but excluding any such Canadian Taxes on such Holder’s net income.
At least five (5) days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Issuer or a Guarantor, as the case may be, will be obligated to pay Additional Amounts with respect to such payment, the Issuer or the Guarantor, as the case may be, will deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts will be payable and specifying the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts (upon receipt by the Trustee from the Issuer or a Guarantor, as the case may be, of such Additional Amounts) to Holders on the date on which such payment is due and payable.
Wherever in this Indenture, the Securities or the Guarantee there is mentioned, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to a Security or Guarantee, 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.
The provisions of this Section 10.05 shall survive any termination, defeasance, covenant defeasance or discharge of this Indenture or of any Securities and the repayment, redemption or other retirement of the Securities.
SECTION 10.06 Reserved.
SECTION 10.07 Reserved.
SECTION 10.08 Company Existence.
Subject to Article 8, the Issuer and the Guarantors will do or cause to be done all things necessary to preserve and keep in full force and effect its existence (corporate or other) and the rights (charter and statutory) and franchises of the Issuer or the Guarantors, as the case may be; provided, however, that such Issuer or Guarantor, as the case may be, shall not be required to preserve any such right or franchise if such Issuer or Guarantor, as the case may be, shall determine that the preservation thereof is no longer desirable in the conduct of the business of such Issuer or Guarantor and its Subsidiaries as a whole, as the case may be.
SECTION 10.09 Reserved.
SECTION 10.10 Waiver of Certain Covenants.
The Issuer and the Guarantors may, with respect to any series of Securities, omit in any particular instance to comply with any term, provision or condition which affects such series set forth in Section 10.08, inclusive, or, as specified pursuant to Section 3.01(19) for Securities of such series, in any covenants added to Article 10 pursuant to Section 3.01(19) in connection with Securities of such series, if before the time for such compliance the Holders of at least a majority in principal amount of all Outstanding Securities of such series, by Act of such Holders, waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Issuer and the Guarantors and the duties of the Trustee to Holders of Securities of such series in respect of any such term, provision or condition shall remain in full force and effect.
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ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.01 Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 3.01 for Securities of any series) in accordance with this Article.
SECTION 11.02 Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem any Securities shall be evidenced by or pursuant to a Board Resolution or in another manner specified as contemplated by Section 3.01 for such Securities. In case of any redemption at the election of the Issuer, the Issuer shall, at least 30 days prior to the Redemption Date fixed by such Issuer (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed and shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Securities to be redeemed pursuant to Section 11.03. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Issuer shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Issuer which is subject to a condition, the Issuer shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction or condition.
SECTION 11.03 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 30 days prior to the Redemption Date from the Outstanding Securities of such series not previously called for redemption (i) in the case of Global Securities, by DTC, and (ii) in the case of Securities in definitive form, by the Trustee pro rata, by lot or in such manner as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions of the principal amount of Securities of such series; provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Security not redeemed to less than the minimum authorized denomination for Securities of such series established pursuant to Section 3.01.
The Trustee shall promptly notify the Issuer and the Guarantors in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
SECTION 11.04 Notice of Redemption.
Except as otherwise specified as contemplated by Section 3.01, notice of redemption shall be given in the manner provided for in Section 1.06 not less than 10 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed. Notices of redemption may be conditioned upon the occurrence of one or more subsequent events specified in the notice and established in a Board Resolution and/or supplemental indenture relating to the issuance of the Securities of each series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the Redemption Date payable as provided in Section 11.06, if any,
(3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued interest, if any, to the Redemption Date payable as provided in Section 11.06 will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, if any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and accrued interest, if any,
(7) any condition to such redemption, and as described below, if the redemption is subject to the satisfaction of one or more conditions precedent, each such condition, and that such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Company in its sole discretion) by the Redemption Date, and
(8) the CUSIP number, if any, relating to such Securities.
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Notice of redemption of Securities to be redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name of, and at the expense of the Issuer (and such notice shall be prepared by the Issuer).
Notice of any redemption of Securities may, at the Company’s discretion, be given subject to one or more conditions precedent, including, but not limited to, completion of a corporate transaction that is pending (such as an equity or equity-linked offering, an incurrence of indebtedness or an acquisition or other strategic transaction involving a change of control in the Company or another entity). If such redemption is so subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied or otherwise waived by the relevant Redemption Date.
Notice of redemption of Securities to be redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name of, and at the expense of the Issuer (and such notice shall be prepared by the Issuer).
SECTION 11.05 Deposit of Redemption Price.
Prior to any Redemption Date, the Issuer shall deposit or cause to be deposited with the Trustee or another Paying Agent (or, if the Issuer is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money in the Currency in which the Securities of such series are payable (except, if applicable, as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d), and 3.12(e)) sufficient to pay the Redemption Price of, and accrued interest, if any, on, all the Securities which are to be redeemed on that date.
SECTION 11.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall (provided any conditions specified in such notice of redemption shall have been satisfied or waived), on the Redemption Date, become due and payable at the Redemption Price therein specified in the Currency in which the Securities of such series are payable (except, if applicable, as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d), and 3.12(e)) (together with accrued interest, if any, to the Redemption Date), and from and after such date (unless the Issuer shall default in the payment of the Redemption Price and accrued interest, if any) such Securities shall, if the same were interest-bearing, cease to bear interest, except to the extent provided below, and shall be void. Upon surrender of any such Security for redemption in accordance with said notice maturing after the Redemption Date, such Security shall be paid by the Issuer at the Redemption Price, together with accrued interest, if any, to the Redemption Date (provided any conditions specified in such notice of redemption shall have been satisfied or waived); provided, however, that unless otherwise specified as contemplated by Section 3.01, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms and the provisions of Section 3.07.
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If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.
SECTION 11.07 Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the provisions of this Article) shall be surrendered at a Place of Payment therefor (with, if the Issuer or Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Issuer shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, each, having endorsed thereon a Guarantee executed by the Guarantors, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE 12
SUBORDINATION OF SECURITIES
SECTION 12.01 Subordination Terms.
The payment by the Issuer or the Guarantors, as applicable, of the principal of (and premium, if any), interest, on any Securities issued hereunder or the Guarantees, shall be subordinated to the extent set forth in an indenture supplemental hereto relating to such Securities or Guarantees, as applicable.
SECTION 12.02 Notice to Trustee of Facts Prohibiting Payments.
Notwithstanding any of the provisions of this Article 12 or any other provision of this Indenture, the Trustee shall not at any time be charged with knowledge of the existence of any facts that would prohibit the making of any payment of funds to or by the Trustee unless and until a Responsible Officer of the Trustee shall have received at the Corporate Trust Office written notice thereof from the Issuer or from one or more holders of Senior Indebtedness or from any trustee therefor who shall have been certified by the Issuer or otherwise established to the reasonable satisfaction of the Trustee to be such a holder or trustee; and, prior to the receipt of such written notice, the Trustee, subject to the provisions of Section 6.01, shall be entitled in all respects to assume that no such facts exist; provided that if prior to the fifth business day preceding the date upon which by the terms hereof any such funds may become payable, or if prior to the third business day preceding the date of the execution of instruments pursuant to Article 4 acknowledging satisfaction and discharge of this Indenture, the Trustee shall not have received with respect to such funds the notice provided for in this Section 12.02, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys and/or apply the same to the purpose for which they were received and shall not be affected by any notice to the contrary that may be received by it on or after such date; provided no such application shall affect the obligations under this Article 12 of the Persons receiving such moneys from the Trustee.
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SECTION 12.03 Application by Trustee of Moneys Deposited With It.
Anything in this Indenture to the contrary notwithstanding, any deposit of a sum by the Issuer or the Guarantors, as applicable, with the Trustee or any agent (whether or not in trust) for any payment of the principal of (and premium, if any), interest or Guarantees on any Securities shall, except as provided in Section 12.02, be subject to the provisions of Section 12.01.
SECTION 12.04 Subrogation.
Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities shall be subrogated to the rights of the holders of such Senior Indebtedness to receive payments or distributions of assets of the Issuer or the Guarantors applicable to such Senior Indebtedness until the Securities shall be paid in full, and none of the payments or distributions to the holders of such Senior Indebtedness to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article 12 or of payments over, pursuant to the provisions of this Article 12, to the holders of such Senior Indebtedness by the Holders of such Securities or the Trustee shall, as among the Issuer and the Guarantors and their respective creditors other than the holders of such Senior Indebtedness and the Holders of such Securities, be deemed to be a payment by the Company to or on account of such Senior Indebtedness; it being understood that the provisions of this Article 12 are and are intended solely for the purpose of defining the relative rights of the Holders of such Securities, on the one hand, and the holders of Senior Indebtedness, on the other hand.
SECTION 12.05 Right of Trustees to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this Article 12 in respect of any Senior Indebtedness at any time held by it in its individual capacity to the same extent as any other holder of such Senior Indebtedness, and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder.
SECTION 12.06 Not to Prevent Events of Default.
The failure to make a payment pursuant to the terms of the Securities by reason of any provision in this Article 12 shall not be construed as preventing the occurrence of an Event of Default, if any.
SECTION 12.07 Trustee’s Rights to Compensation, Reimbursement of Expenses and Indemnification.
Notwithstanding anything to the contrary herein, the Trustee’s rights to compensation, reimbursement of expenses and indemnification under Section 6.07 are not subordinated to the payment of Senior Indebtedness.
SECTION 12.08 Article Applicable to Paying Agents.
The term “Trustee” as used in this Article 12 shall (unless the context shall otherwise require) be construed as extending to and including each Paying Agent, Authenticating Agent and Security Registrar appointed by the Issuer or the Trustee, as the case may be, and acting hereunder within its meaning as fully for all intents and purposes as if such Paying Agent or Security Registrar were named in this Article 12 in addition to the Trustee; provided that Section 12.02 and Section 12.05 shall not apply to the Issuer or any Affiliate of the Issuer if the Issuer or such Affiliate acts as Paying Agent or Security Registrar.
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SECTION 12.09 Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if the Trustee shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Issuer or to any other Person cash, property or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Article 12 or otherwise. With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this Article 12, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read into this Indenture against the Trustee.
ARTICLE 13
RESERVED
ARTICLE 14
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.01 Option to Effect Defeasance or Covenant Defeasance.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, the provisions of this Article 14 shall apply to each series of Securities, and the Issuer the Guarantors may, at their option, effect defeasance of the Securities of a series under Section 14.02, or covenant defeasance of a series under Section 14.03 in accordance with the terms of such Securities and in accordance with this Article; provided, however, that, unless otherwise specified pursuant to Section 3.01 with respect to the Securities of any series, the Issuer and the Guarantors may effect defeasance or covenant defeasance only with respect to all of the Securities of such series.
SECTION 14.02 Defeasance and Discharge.
Upon the exercise by the Issuer and the Guarantors of the above option applicable to this Section with respect to any Securities of a series, the Issuer and the Guarantors shall each be deemed to have been discharged from their obligations with respect to such Outstanding Securities on the date the conditions set forth in Section 14.04 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Issuer and the Guarantors shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities and Guarantees, respectively, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 14.05 and the other provisions of this Indenture referred to in (A), (B), (C) and (D) below, and to have satisfied all their other obligations under such Securities and Guarantees, respectively, and this Indenture insofar as such Securities and Guarantees are concerned (and the Trustee, at the expense of the Issuer, shall execute proper instruments prepared by the Issuer acknowledging the same), except for the following which shall survive
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until otherwise terminated or discharged hereunder: (A) the rights of Holders of such Outstanding Securities to receive, solely from the trust fund described in Section 14.04 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities when such payments are due, (B) the Issuer’s, the Trustee’s, and, if applicable, the Guarantors’ obligations with respect to such Securities under Sections 1.13, 1.14, 3.05, 3.06, 10.02, 10.03, 10.05 and any other applicable provisions of Article 11, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article 14. Subject to compliance with this Article 14, the Issuer and the Guarantors may exercise its option under this Section 14.02 notwithstanding the prior exercise of the option under Section 14.03 with respect to such Securities and any related Guarantees.
SECTION 14.03 Covenant Defeasance.
Upon the exercise by the Issuer and the Guarantors of the above option applicable to this Section with respect to any Securities of a series, Issuer and the Guarantors shall be released from their obligations under Article 8 and Sections 10.06 through 10.09, and, if specified pursuant to Section 3.01, their obligations under any other covenant, in each case with respect to such Outstanding Securities and the related Guarantees, respectively, on and after the date the conditions set forth in Section 14.04 are satisfied (hereinafter, “covenant defeasance”), and such Securities and the related Guarantees shall thereafter be deemed not to be “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities and related Guarantees, the Issuer and, the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 5.01(4) or Section 5.01(7) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities and related Guarantees shall be unaffected thereby.
SECTION 14.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 14.02 or Section 14.03 to any Outstanding Securities of or within a series:
(1) The Issuer has irrevocably deposited with the Trustee (or a trustee satisfying the requirements of Section 6.08 who shall agree to comply with the provisions of this Article 14 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) cash (in such Currency in which such Securities are then specified as payable at Stated Maturity), or (B) U.S. Government Obligations applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of or premium, if any, or interest, if any,
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or any other sums due under such Securities, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) and interest, if any, and any other sums due under such Outstanding Securities on the Stated Maturity (or Redemption Date, if applicable) of such principal (and premium, if any) or installment of interest, if any, or any other sums and (ii) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Obligations to said payments with respect to such Securities. Before such a deposit, the Issuer may give to the Trustee, in accordance with Section 11.02 hereof, a notice of its election to redeem all or any portion of such Outstanding Securities at a future date in accordance with the terms of the Securities of such series and Article 11 hereof, which notice shall be irrevocable. Such irrevocable redemption notice, if given, shall be given effect in applying the foregoing.
(2) In the case of an election under Section 14.02, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States stating that (x) the Issuer or Guarantors, as the case may be, has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of execution of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the beneficial owners of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such legal defeasance or covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.
(3) In the case of an election under Section 14.03, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States to the effect that the beneficial owners of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(4) The Guarantors are not an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada) and the Issuer is not an “insolvent person” under the relevant legislation in the jurisdiction of the Issuer, in each case, on the date of such deposit or at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(5) No Event of Default or event that, with the passing of time or the giving of notice, or both, shall constitute an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit or, insofar as paragraphs (5), (6) or (7) of Section 5.01 are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
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(6) Such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Issuer or any Guarantor is a party or by which it is bound.
(7) Notwithstanding any other provisions of this Section, such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations in connection therewith pursuant to Section 3.01.
(8) The Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 14.02 or the covenant defeasance under Section 14.03 (as the case may be) have been complied with.
SECTION 14.05 Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all money and Government Obligations (or other property as may be provided pursuant to Section 3.01) (including the proceeds thereof) deposited with the Trustee pursuant to Section 14.04 in respect of such Outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine (other than, with respect only to defeasance pursuant to Section 14.02, Issuer or any of its Affiliates), to the Holders of such Securities of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section 3.01, if, after a deposit referred to in Section 14.04(1) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.12(b) or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 14.04(1) has been made in respect of such Security, or (b) a Conversion Event occurs as contemplated in Section 3.12(d) or 3.12(e) or by the terms of any Security in respect of which the deposit pursuant to Section 14.04(1) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any) and interest, if any, on such Security as they become due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on the applicable Market Exchange Rate for such Currency in effect on the third Business Day prior to each payment date, except, with respect to a Conversion Event, for such Currency in effect (as nearly as feasible) at the time of the Conversion Event.
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The Issuer and the Guarantors shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 14.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities.
Anything in this Article 14 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer or a Guarantor, as the case may be, from time to time upon request of the Issuer or Guarantor any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section 14.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance, as applicable, in accordance with this Article.
SECTION 14.06 Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in accordance with Section 14.05 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Issuer and the Guarantors under this Indenture and such Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 14.02 or 14.03, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 14.05; provided, however, that if Issuer makes any payment of principal of (or premium, if any) or interest, if any, on any such Security following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 15
GUARANTEE OF GUARANTEED SECURITIES
SECTION 15.01 Unconditional Guarantees.
(a) Subject to this Article 15, for value received, the Guarantors hereby, jointly and severally, fully, irrevocably, unconditionally and absolutely guarantee to the Holders and to the Trustee the due and punctual payment of the principal of and premium, if any, and interest on the Securities, the due and punctual payment of any Additional Amounts that may be payable with respect to the Securities and all other amounts due and payable under this Indenture and the Securities by the Issuer (including, without limitation, all costs and expenses (including reasonable legal fees and disbursements) incurred by the Trustee or the Holders in connection with the enforcement of this Indenture, the Securities and the Guarantees) (collectively, the “Indenture Obligations”), when and as such principal, premium, if any, and interest and any Additional Amounts and such other amounts shall become due and payable, whether at the Stated Maturity, upon redemption or by declaration of acceleration or otherwise, according to the terms of the Securities and this Indenture. The guarantees by the Guarantors set forth in this Article 15 are referred to herein as the “Guarantees.” Without limiting the generality of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part of the Indenture Obligations and would be owed by the Issuer under this Indenture and the Securities but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Issuer. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
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(b) Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, the Guarantors will be, jointly and severally, obligated to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise), except as would otherwise be available to the Issuer. The Guarantees are intended to be general, unsecured, senior obligations of each Guarantor and to rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantees of such Guarantor. Each Guarantor hereby agrees that its obligations hereunder shall be full, irrevocable, unconditional and absolute, irrespective of the validity, regularity or enforceability of the obligations and liabilities of any other obligor with respect to the Securities, the Guarantees or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof with respect to the same, the recovery of any judgment against the Issuer, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor.
Each Guarantor hereby agrees that in the event of a default in payment of the principal of or premium, if any, or interest on the Securities of any series or any Additional Amounts or any other amounts payable under this Indenture and such Securities by the Issuer, whether at the Stated Maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 5.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against any Guarantor to enforce the Guarantees of such series without first proceeding against the Issuer.
(c) To the fullest extent permitted by applicable law, the obligations of a Guarantor under this Article 15 shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of any other obligor with respect to the Securities contained in any of the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Issuer or any of its estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, or other statute or from the decision of any court, (iii) the assertion or exercise by the Issuer, the Guarantors or the Trustee of any rights or remedies under any of the Securities or this Indenture or its delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for any of the Securities, including all or any part of the rights of the Company or the Guarantors under this Indenture, (v) the extension of the time for payment by the Issuer or the Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Securities or this Indenture or of the time for performance by the Issuer or the Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty,
89
agreement or obligation set forth in this Indenture of any other obligor with respect to the Securities, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Issuer or any of its assets, or the disaffirmance of any of the Securities, the Guarantees or this Indenture in any such proceeding, (viii) the release or discharge of the Issuer or the Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of any of the obligations of any of the other obligors under the Securities, the Guarantees or this Indenture, (x) any change in the name, business, capital structure, corporate or comparable existence, or ownership of the Issuer or the Guarantors, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or the Guarantors.
(d) Each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Issuer and all demands and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its Guarantees will not be discharged except by complete performance of the Guarantees or of the obligations guaranteed thereby. Each Guarantor further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantees is, or must be, rescinded or returned for any reason whatsoever, including, without limitation, the reorganization of such Guarantor, the Guarantees shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(e) (i) Each Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Issuer in respect of any amounts paid by such Guarantor pursuant to the provisions of this Indenture; provided, however, that such Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Securities until all of the Securities and the Guarantees thereof shall have been paid in full or discharged.
(ii) Each Guarantor and, by its acceptance of Securities of any series, each Holder of such series of Securities hereby confirm that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, Canadian, provincial or state law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Trustee, the Holders of such series and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount which, after giving effect to all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to its
90
contribution obligations under this Article 15, will result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal, Canadian, provincial or state law. Until such time as the Securities of such series are paid in full, each Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under applicable Bankruptcy Law) or otherwise by reason of any payment by it pursuant to the provisions of this Article 15. Each Guarantor that makes a payment or distribution under its Guarantee will be entitled to seek contribution from each other Guarantor in a pro rata amount based on the net assets of each Guarantor determined in accordance with GAAP at the time of such payment or distribution, or as otherwise agreed to between the Guarantors, so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
(f) No failure to exercise and no delay in exercising, on the part of the Trustee or the Holders, any right, power, privilege or remedy under this Article 15 and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Article 15 shall limit the right of the Trustee or the Holders to take any action to accelerate the Maturity of the Securities of either series pursuant to Article 5 or to pursue any rights or remedies hereunder or under applicable law.
(g) Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits.
SECTION 15.02 Execution and Delivery of Notation of Guarantees.
To further evidence the Guarantees, each Guarantor hereby agrees that a notation of such Guarantee may be endorsed on each Security authenticated and delivered by the Trustee and that such notation shall be executed by either manual or facsimile signature of an Officer of such Guarantor. Each Guarantor hereby agrees that its Guarantees shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation of the Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a Security no longer holds that office at the time the Trustee authenticates such Security or at any time thereafter, such Guarantor’s guarantee of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantees set forth in this Indenture on behalf of the Guarantors.
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ARTICLE 16
MISCELLANEOUS PROVISIONS
SECTION 16.01 Certain Provisions Concerning the Payment of Interest.
In the event that any provision of this Indenture would oblige the Issuer or any Guarantor to make any payment of interest or any other payment which is construed by a court of competent jurisdiction to be interest in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by the Trustee or the Holders, of interest at a criminal rate (as such terms are construed under the Criminal Code (Canada) or any other applicable statute), then notwithstanding such provision, such amount or rate shall be deemed to have been adjusted to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in a receipt by the Trustee or the Holders, or any of them, of interest at a criminal rate.
Whenever interest is calculated, pursuant to any provision of this Indenture, on the basis of a period other than a calendar year, the annual rate of interest to which such rate of interest as determined by such calculation is equivalent, for purposes of the Interest Act (Canada), is such rate as so calculated multiplied by a fraction, the numerator of which is the actual number of days in the particular calendar year in respect of which the calculation is made, and the denominator of which is the number of days used in the calculation.
SECTION 16.02 Execution in 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. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be their original signatures for all purposes.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.
| EMERA US FINANCE, LLC, as Issuer | ||
| By: | /s/ Brian C. Curry | |
| Name: Brian C. Curry | ||
| Title: Secretary | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer & Manager | ||
| EMERA INCORPORATED, as Guarantor | ||
| By: | /s/ Brian C. Curry | |
| Name: Brian C. Curry | ||
| Title: Corporate Secretary | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer | ||
| EMERA US HOLDINGS INC., as Guarantor | ||
| By: | /s/ Brian C. Curry | |
| Name: Brian C. Curry | ||
| Title: Secretary | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer | ||
| EQUINITI TRUST COMPANY, LLC, as Trustee | ||
| By: | /s/ Paul H. Kim | |
| Name: Paul H. Kim | ||
| Title: Assistant General Counsel | ||
[JSN Base Indenture Signature Page]
EXHIBIT A
RESERVED
A-1
EXHIBIT B
FORMS OF CERTIFICATION
B-1
EXHIBIT B-1
FORM OF CERTIFICATE TO BE DELIVERED IN
CONNECTION WITH TRANSFERS FROM RESTRICTED
GLOBAL SECURITY TO REGULATION S GLOBAL SECURITY
[date]
EQUINITI TRUST COMPANY, LLC
[ADDRESS]
Attention: Emera Incorporated
| Re: | EMERA US FINANCE, LLC |
(the “Issuer”) —% Fixed-to-Fixed Reset Rate Junior Subordinated Notes
due — (the “Securities”)
Ladies and Gentlemen:
This letter relates to $ principal amount of Securities which are evidenced by the Restricted Global Security (CUSIP No. [ ]) and held with the Depositary in the name of Cede & Co. and held for the benefit of (the beneficial owner) (the “Transferor”). The Transferor has requested a transfer of such beneficial interest in the Securities to a Person who will take delivery thereof in the form of an equal principal amount of Securities evidenced by the Regulation S Global Security (CUSIP No. [ ]).
In connection with such request and in respect of such Securities, we hereby certify that such transfer has been effected in compliance with the transfer restrictions applicable to the Global Securities and pursuant to and in accordance with Rule 903, Rule 904 or Rule 144 under the United States Securities Act of 1933, as amended (the “Securities Act”), and accordingly we hereby further certify that:
(A) If the transfer has been effected pursuant to Rule 903 or Rule 904:
| (1) | the offer of the Securities was not made to a person in the United States; |
| (2) | either (a) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States; |
| (3) | no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; and |
| (4) | the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act. |
B-1-1
(B) If the transfer has been effected pursuant to Rule 144:
| (1) | a period of at least one year has elapsed since [ , ]; |
| (2) | the Transferor during the 90 days preceding the date of such transfer was not an “affiliate” (as defined in Rule 144 under the Securities Act) of the Issuer, and it is not acting on behalf of such affiliate; and |
| (3) | such Person to whom such transfer is being made is not an “affiliate” of the Issuer. |
Upon giving effect to this request to exchange a beneficial interest in such Restricted Global Security for a beneficial interest in a Regulation S Global Security, the resulting beneficial interest shall be subject to the restrictions on transfer, if any, applicable to a Regulation S Global Security pursuant to the Indenture and the Securities.
You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
| Very truly yours, | ||
| [Name of Transferor] | ||
| By: |
| |
| Authorized Signature | ||
B-1-2
EXHIBIT B-2
FORM OF CERTIFICATE TO BE DELIVERED IN
CONNECTION WITH TRANSFERS FROM REGULATION S
GLOBAL SECURITY TO RESTRICTED GLOBAL SECURITY PRIOR TO ONE YEAR
[date]
EQUINITI TRUST COMPANY, LLC
[ADDRESS]
Attention: Emera Incorporated
| Re: | EMERA US FINANCE, LLC |
(the “Issuer”) —% Fixed-to-Fixed Reset Rate Junior Subordinated Notes
due — (the “Securities”)
Ladies and Gentlemen:
This letter relates to $ principal amount of Securities which are evidenced by the Regulation S Global Security (CUSIP No. [ ]) and held with the Depositary in the name of Cede & Co. and held for the benefit of (the beneficial owner) (the “Transferor”). The Transferor has requested a transfer of such beneficial interest in the Securities to a Person who will take delivery thereof in the form of an equal principal amount of Securities evidenced by the Restricted Global Security (CUSIP No. [ ]).
In connection with such request and in respect of such Securities, we hereby certify that such transfer has been effected in compliance with the transfer restrictions applicable to Global Securities and pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities Act”), and accordingly we hereby further certify that the Securities are being transferred to a Person (a) who the Transferor reasonably believes to be a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act purchasing for its own account or the account of a qualified institutional buyer in a transaction meeting the requirements of Rule 144A under the Securities Act; and (b) in accordance with applicable securities laws of the United States and other applicable jurisdictions.
Upon giving effect to this request to exchange a beneficial interest in such Regulation S Global Security for a beneficial interest in a Restricted Global Security, the resulting beneficial interest shall be subject to the restrictions on transfer applicable to a Restricted Global Security pursuant to the Indenture and the Securities.
You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in the Indenture, dated as of [●], 20[●], under which the Securities were issued.
B-2-1
| Very truly yours, | ||
| [Name of Transferor] | ||
| By: |
| |
| Authorized Signature | ||
B-2-2
EXHIBIT B-3
FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE AFTER ONE YEAR
[date]
EQUINITI TRUST COMPANY, LLC
[ADDRESS]
Attention: Emera Incorporated
| Re: | EMERA US FINANCE, LLC |
(the “Issuer”) —% Fixed-to-Fixed Reset Rate Junior Subordinated Notes
due — (the “Securities”)
Ladies and Gentlemen:
[For transfers: This letter relates to $ principal amount of Securities which are evidenced by a Regulation S Global Security (CUSIP No. [ ]) and held with the Depositary in the name of Cede & Co. [and held for the benefit of ] (the “Beneficial Owner”). The Beneficial Owner has requested that its beneficial interest in such Securities be transferred to a Person that will take delivery thereof in the form of an equal principal amount of Securities evidenced by the Restricted Global Security (CUSIP No.[ ])
In connection with such request and in respect of such Securities, the Beneficial Owner does hereby certify that upon such transfer, (a) a period of at least one year will have elapsed since [ ], [ ], (b) the Beneficial Owner during the three months preceding the date of such transfer was not an “affiliate” of the Issuer (as defined in Rule 144 under the Securities Act of 1933, as amended), and it was not acting on behalf of such an affiliate and (c) such Person to whom such transfer is being made is not an “affiliate” of the Issuer.]
[For exchanges: This letter relates to $ principal amount of Securities that are evidenced by a [Regulation S Global Security (CUSIP No. [ ]) and held with the Depositary in the name of Cede & Co. [and held for the benefit of]] (the “Beneficial Owner”).
The Beneficial Owner has requested that its beneficial interest in such Securities be exchanged for a beneficial interest in an equal principal amount of Securities evidenced by the Restricted Global Security (CUSIP No. [ ]).
In connection with such request and in respect of such Securities, the Beneficial Owner does hereby certify that, upon such exchange, (a) it will be the beneficial owner of such Securities, (b) a period of at least one year will have elapsed since [ ], [ ] and (c) the Beneficial Owner will not be, and during the three months preceding the date of such exchange will not have been, an “affiliate” of the Issuer (as defined in Rule 144 under the Securities Act of 1933, as amended), and it is not acting on behalf of such an affiliate.]
B-3-1
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
| Very truly yours, | ||
| [Name of Transferor] | ||
| By: |
| |
| Name: | ||
| Title: | ||
B-3-2
Exhibit 4.2
EMERA US FINANCE, LLC
as Issuer
EMERA INCORPORATED
EMERA US HOLDINGS INC.
as Guarantors
EQUINITI TRUST COMPANY, LLC
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 23, 2026
to
Indenture
Dated as of March 23, 2026
Creating one series of Securities designated as
6.650% Series A Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056
TABLE OF CONTENTS
| ARTICLE ONE | ||||||
| INTERPRETATIONS AND AMENDMENTS | ||||||
| Section 101. |
First Supplemental Indenture | 1 | ||||
| Section 102. |
Definitions in First Supplemental Indenture | 2 | ||||
| Section 103. |
Interpretation not Affected by Headings | 2 | ||||
| ARTICLE TWO | ||||||
| DEFINITIONS | ||||||
| Section 201. |
Certain Definitions | 2 | ||||
| ARTICLE THREE | ||||||
| 6.650% SERIES A FIXED-TO-FIXED RESET RATE JUNIOR SUBORDINATED NOTES DUE 2056 | ||||||
| Section 301. |
Form and Terms of the Notes | 4 | ||||
| Section 302. |
Issuance of the Notes | 7 | ||||
| ARTICLE FOUR | ||||||
| SUBORDINATION | ||||||
| Section 401. |
Notes Subordinated to Senior Indebtedness | 8 | ||||
| Section 402. |
Disputes with Holders of Certain Senior Indebtedness | 9 | ||||
| Section 403. |
Subrogation | 9 | ||||
| Section 404. |
Obligation of the Issuer and the Guarantors Unconditional | 10 | ||||
| Section 405. |
Payments on the Notes Permitted | 10 | ||||
| Section 406. |
Effectuation of Subordination by Trustee | 10 | ||||
| Section 407. |
Rights of Holders of Senior Indebtedness Not Impaired | 10 | ||||
| ARTICLE FIVE | ||||||
| OPTION TO DEFER INTEREST AND COVENANTS | ||||||
| Section 501. |
Option to Defer Interest Payments | 11 | ||||
| Section 502. |
Covenants | 11 | ||||
| Section 503. |
Notice | 12 | ||||
| ARTICLE SIX | ||||||
| OPTIONAL REDEMPTION | ||||||
| Section 601. |
Optional Redemption | 12 | ||||
| Section 602. |
Redemption Following a Tax Event | 12 | ||||
| Section 603. |
Redemption Following a Rating Agency Event | 12 | ||||
| Section 604. |
Payments of Interest | 13 | ||||
| Section 605. |
Securities Called for Redemption | 13 | ||||
| Section 606. |
Notice of Redemption | 13 | ||||
| Section 607. |
Deposit of Redemption Price | 13 | ||||
i
ARTICLE SEVEN
GENERAL
| Section 701. |
Effectiveness | 14 | ||||
| Section 702. |
Ratification of Original Indenture | 14 | ||||
| Section 703. |
Governing Law | 14 | ||||
| Section 704. |
Severability | 14 | ||||
| Section 705. |
Acceptance of Trust | 14 | ||||
| Section 706. |
Benefits of First Supplemental Indenture | 14 | ||||
| Section 707. |
Multiple Originals | 14 | ||||
| Section 708. |
Agent for Service | 14 |
Schedule A - Form of 6.650% Series A Fixed-to-Fixed Reset Rate Junior Subordinated Note due 2056
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THIS FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”) dated as of March 23, 2026, by and among EMERA US FINANCE, LLC, a limited liability company duly organized and existing under the laws of the State of Delaware (the “Issuer”), EMERA INCORPORATED, a company duly organized and existing under the laws of the Province of Nova Scotia (the “Company”), EMERA US HOLDINGS INC., a corporation organized and existing under the laws of the State of Delaware (“EUSHI” and, together with the Company in their capacity as guarantors of the Securities, the “Guarantors” and each a “Guarantor”) and EQUINITI TRUST COMPANY, LLC, as Trustee (the “Trustee”).
RECITALS
WHEREAS, each of the Issuer and the Guarantors has heretofore executed and delivered to the Trustee an Indenture, dated as of March 23, 2026, (the “Original Indenture”), providing for the issuance from time to time of its debentures, notes or other evidences of indebtedness (the “Securities”) in one or more series;
WHEREAS, the Original Indenture is incorporated herein by reference and the Original Indenture, as supplemented by this First Supplemental Indenture, is herein called the “Indenture”;
WHEREAS, Sections 2.01, 3.01 and 9.01(x) of the Original Indenture provide that the Issuer and the Trustee may from time to time enter into one or more indentures supplemental thereto to establish the form or terms of Securities of a new series issued pursuant to the Indenture;
WHEREAS, the Issuer desires to issue one series of Securities under the Indenture to be designated as 6.650% Series A Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 (the “Notes”) ;
WHEREAS, in accordance with Sections 2.04 and Article Nine of the Original Indenture, each Guarantor shall fully and unconditionally guarantee the Notes (the “Guarantee”);
WHEREAS, Section 9.01(xiii) of the Original Indenture permits execution of supplemental indentures without the consent of any Holders to make any change that does not adversely affect the rights of any Holder;
WHEREAS, the Issuer has requested that the Trustee execute and deliver this First Supplemental Indenture. The Issuer has delivered to the Trustee an Issuer’s Certificate and an Opinion of Counsel pursuant to Sections 1.02 and 9.03 of the Original Indenture to the effect, among other things, that all conditions precedent provided for in the Original Indenture to the Trustee’s execution and delivery of this First Supplemental Indenture have been complied with. All acts and things necessary have been done and performed to make this First Supplemental Indenture enforceable in accordance with its terms, and the execution and delivery of this First Supplemental Indenture has been duly authorized in all respects;
WHEREAS, all things necessary on the part of the Issuer to make this First Supplemental Indenture, when executed by the Issuer, the legal, valid and binding obligation of the Issuer in accordance with the terms hereof, have been done; and
WHEREAS, all things necessary on the part of the Issuer to make the Notes, when executed by the Issuer, and authenticated and delivered hereunder and duly issued by the Issuer, the legal, valid and binding obligations of the Issuer in accordance with the terms of the Notes and this First Supplemental Indenture, have been done.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
INTERPRETATIONS AND AMENDMENTS
Section 101. First Supplemental Indenture. As used herein “First Supplemental Indenture”, “hereto”, “herein”, “hereof”, “hereby”, “hereunder” and similar expressions refer to this First Supplemental Indenture and not to any particular Article, Section or other portion hereof and include any and every instrument supplemental or ancillary hereto or in implementation hereof, and further include the terms of the Notes set forth in the forms of Notes annexed as Schedules hereto.
Section 102. Definitions in First Supplemental Indenture. All terms contained in this First Supplemental Indenture which are defined in the Original Indenture and not defined herein shall, for all purposes hereof, have the meanings given to such terms in the Original Indenture, unless the context otherwise specifies or requires.
Section 103. Interpretation not Affected by Headings. The division of this First Supplemental Indenture into Articles and Sections, the provision of the table of contents hereto and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this First Supplemental Indenture.
ARTICLE TWO
DEFINITIONS
Section 201. Certain Definitions. The following additional terms are hereby established for the purposes of this First Supplemental Indenture and shall have the meanings set forth in this First Supplemental Indenture solely for the purposes of this First Supplemental Indenture:
“Business Day” means, unless otherwise expressly stated, any day other than (i) a Saturday or Sunday or (ii) a day on which banks and trust companies in The City of New York are authorized or obligated by law, regulation or executive order to remain closed.
“compound interest” has the meaning set forth in Section 501.
“calculation agent” means, at any time, the entity appointed by the Issuer and serving as such agent with respect to the Notes at such time. Unless the Issuer has validly called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date, the Issuer will appoint a calculation agent for the Notes prior to the Reset Interest Determination Date immediately preceding the First Reset Date; provided that, if the Issuer has called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date but the Issuer does not redeem all of the outstanding Notes on such redemption date, the Issuer will appoint a calculation agent for the Notes as promptly as practicable after such proposed redemption date. The Issuer may terminate any such appointment and may appoint a successor calculation agent at any time and from time to time (so long as there shall always be a calculation agent in respect of the Notes when so required). The Issuer may appoint the Company or an affiliate of the Company as calculation agent.
“Capital Stock” means (i) in the case of a corporation or a company, corporate stock or shares; (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (iv) any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing person.
“Five-year U.S. Treasury Rate” means, as of any Reset Interest Determination Date, (i) an interest rate (expressed as a decimal) determined to be the per annum rate equal to the arithmetic mean of the yields to maturity for U.S. Treasury securities adjusted to constant maturity with a maturity of five years from the next Reset Date and trading in the public securities markets, for the five consecutive business days immediately prior to the respective Reset Interest Determination Date as published (or, if fewer than five consecutive business days are so published on the applicable Reset Interest Determination Date, for such number of business days published) in the most recent H.15, or (ii) if there is no such published U.S. Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be determined by interpolation between the arithmetic mean of the yields to maturity for each of the two series of U.S. Treasury securities adjusted to constant maturity trading in the public securities markets, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Interest Determination Date, and (B) the other maturing as close as
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possible to, but later than, the Reset Date following the next succeeding Reset Interest Determination Date, in each case for the five consecutive business days immediately prior to the respective Reset Interest Determination Date as published in the most recent H.15. If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clause (i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same interest rate determined for the prior Reset Interest Determination Date or, if the Five-year U.S. Treasury Rate cannot be so determined as of the Reset Interest Determination Date preceding the First Reset Date, then the interest rate applicable for the Reset Period beginning on and including the First Reset Date will be deemed to be 6.650% per annum, which is the same interest rate as in effect from and including the Original Issue Date to but excluding the First Reset Date.
“First Reset Date” has the meaning set forth in Section 301.
“H.15” means the statistical release designated as such, or any successor publication, published by the Board of Governors of the U.S. Federal Reserve System (or any successor thereto).
“interest payment date” has the meaning set forth in Section 301.
“Interest Payment Period” means the semi-annual period from and including an interest payment date to but excluding the next succeeding interest payment date, except for the first Interest Payment Period which shall be the period from and including the Original Issue Date to but excluding October 1, 2026.
“most recent H.15” means the H.15 published closest in time but prior to the close of business on the second business day prior to the applicable Reset Date.
“Optional Deferral Period” has the meaning set forth in Section 501.
“Original Issue Date” means March 23, 2026.
“Rating Agency Event” means, as of any date, a change, clarification or amendment in the methodology published by any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (or any successor provision thereto), that then publishes a rating for the Issuer (together with any successor thereto, a “rating agency”) in assigning equity credit to securities such as the Notes, (a) as such methodology was in effect on March 17, 2026, in the case of any rating agency that published a rating for the Issuer as of March 17, 2026, or (b) as such methodology was in effect on the date such rating agency first published a rating for the Issuer, in the case of any rating agency that first publishes a rating for the Issuer after March 17, 2026 (in the case of either clause (a) or (b), the “current methodology”), that results in (i) any shortening of the length of time for which a particular level of equity credit pertaining to the Notes by such rating agency would have been in effect had the current methodology not been changed or (ii) a lower equity credit (including up to a lesser amount) being assigned by such rating agency to the Notes as of the date of such change, clarification or amendment than the equity credit that would have been assigned to the Notes by such rating agency had the current methodology not been changed.
“record date” has the meaning set for the in Section 301.
“redemption date” when used with respect to any Notes to be redeemed, means the date fixed for such redemption pursuant to this First Supplemental Indenture.
“Reset Date” means the First Reset Date and October 1 of every fifth year after 2031.
“Reset Interest Determination Date” means, in respect of any Reset Period, the day falling two business days prior to the first day of such Reset Period.
“Reset Period” means the period from and including the First Reset Date to but excluding the next following Reset Date and thereafter each period from and including a Reset Date to but excluding the next following Reset Date, or the maturity date or date of redemption or repayment, as the case may be.
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“Rights Plan” has the meaning set forth in Section 502.
“Tax Event” means that the Issuer has received an opinion of counsel experienced in such matters to the effect that, as a result of:
(i) any amendment to, clarification of, or change, including any announced prospective change, in the laws or treaties of the United States, Canada or any of their political subdivisions or taxing authorities, or any regulations under those laws or treaties, including an announced prospective change becoming effective (for certainty, including the proposed amendments to the Income Tax Act (Canada) released by the Department of Finance (Canada) on January 29, 2026);
(ii) an administrative action, which means any judicial decision or any official administrative pronouncement, ruling, regulatory procedure, notice or announcement, including any notice or announcement of intent to issue or adopt any administrative pronouncement, ruling, regulatory procedure or regulation;
(iii) any amendment to, clarification of, or change in the official position or the interpretation of any administrative action or judicial decision or any interpretation or pronouncement that provides for a position with respect to an administrative action or judicial decision that differs from the previously generally accepted position, in each case by any legislative body, court, governmental authority or regulatory body, regardless of the time or manner in which that amendment, clarification or change is introduced or made known; or
(iv) a threatened challenge asserted in writing in connection with a tax audit of the Issuer or any of its affiliates or subsidiaries, or a publicly-known threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Notes,
which amendment, clarification or change is effective or the administrative action is taken or judicial decision, interpretation or pronouncement is issued or threatened challenge is asserted or becomes publicly-known after March 17, 2026, there is more than an insubstantial risk that (i) interest payable by the Issuer on the Notes is not deductible, or within 90 days would not be deductible, in whole or in part, by the Issuer or the Issuer’s regarded parent for U.S. federal income tax purposes (or a member of the U.S. consolidated group of which the Issuer (or the Issuer’s regarded parent) is a member) for U.S. federal income tax purposes, or (ii) that the Issuer, EUSHI or the Company, as the case may be, becoming obligated to pay, on the next succeeding date on which interest is due, Additional Amounts with respect to the Notes and, in any such case, in the business judgment of the Issuer, EUSHI or the Company, as the case may be, determines that such obligation cannot be avoided by the use of reasonable measures available to the Issuer, EUSHI or the Company, as the case may be.
ARTICLE THREE
6.650% SERIES A FIXED-TO-FIXED RESET RATE JUNIOR SUBORDINATED NOTES DUE 2056
Section 301. Form and Terms of the Notes.
(a) There shall be and there is hereby created for issuance under the Original Indenture, as supplemented by this First Supplemental Indenture, a series of Securities which shall be designated the “6.650% Series A Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056” and shall consist of an aggregate principal amount of US$375,000,000; provided, however, that if the Issuer shall, at any time after the date hereof, increase the principal amount of the Notes which may be issued and issue such increased principal amount (or any portion thereof), then any such additional Notes so issued shall have the same form and terms (other than the issue price, the date of issuance and, under certain circumstances, the date from which interest thereon shall begin to accrue and the first interest payment date), and shall carry the same right to receive accrued and unpaid interest, as the Notes theretofore issued; provided further that, if the additional Notes are not fungible with the then outstanding Notes for U.S. federal income tax purposes, the additional Notes shall have a separate CUSIP and/or ISIN number.
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(b) The Notes will mature, and the principal of the Notes and accrued and unpaid interest thereon shall be due and payable, on October 1, 2056 (the “2056 Stated Maturity”), or such earlier date as the principal of any of the Notes may become due and payable in accordance with the provisions of the Original Indenture and this First Supplemental Indenture.
(c) The Notes will bear interest (i) from and including the Original Issue Date to but excluding October 1, 2031 (the “First Reset Date”), at the rate of 6.650% per annum and (ii) from and including the First Reset Date, during each Reset Period at a rate per annum equal to the Five-year U.S. Treasury Rate as of the most recent Reset Interest Determination Date plus a spread of 2.866%, to be reset on each Reset Date; provided, that the interest rate during any Reset Period will not reset below 6.650%. Interest on the Notes will accrue from the Original Issue Date and will be payable semi-annually in arrears on April 1 and October 1 (each, an “interest payment date”) of each year until maturity or earlier redemption, beginning on October 1, 2026, to Holders at the close of business on the record date for the applicable interest payment date, which will be (i) the business day immediately preceding such interest payment date so long as all of the Notes remain in book-entry only form or (ii) the 15th calendar day preceding such interest payment date (whether or not a business day) if any of the Notes do not remain in book-entry only form (each, a “record date”), subject to the Issuer’s right to defer interest payments as described in Article Five below. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
The applicable interest rate for each Reset Period will be determined by the calculation agent, as of the applicable Reset Interest Determination Date. Promptly upon such determination, the calculation agent will notify the Issuer of the interest rate for the Reset Period and the Issuer will promptly notify, or cause the calculation agent to promptly notify, in writing, the Trustee and each paying agent of such interest rate. The calculation agent’s determination of any interest rate, and its calculation of the amount of interest for any Interest Payment Period beginning on or after the First Reset Date, will be on file at the Issuer’s principal offices, will be made available to any Holder or beneficial owner of the Notes upon request and will be final and binding in the absence of manifest error.
If an interest payment date, redemption date, or maturity date falls on a day that is not a business day, payment will be made on the next succeeding business day with the same force and effect as if made on such payment date.
Any such interest on the Notes not so punctually paid or provided for on any Interest Payment Date shall be payable, as applicable, as provided in the form of Note annexed hereto as Schedule A to this First Supplemental Indenture.
(d) Wherever in this First Supplemental Indenture there is mentioned, in any context, the payment of principal (and premium, if any), interest or any other amount payable under or with respect to the Notes, such mention will 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 of the Notes.
(e) All payments of principal of, premium, if any, and interest on the Notes will be made 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 debts, and all references herein to “United States dollars”, “US$” or “U.S. dollars” shall be deemed to refer to such coin or currency of the United States of America.
(f) The principal of, premium, if any, and interest on the Notes shall be payable, and the Notes may be surrendered for exchange, registration, transfer or discharge from registration, at the Corporate Trust Office of the Trustee in The City of New York, New York, and in such other places as the Issuer may from time to time designate in accordance with the Original Indenture. The Trustee is hereby appointed as the initial Paying Agent and Security Registrar for the Notes in The City of New York, New York.
(g) The Notes shall be issued only as registered Global Securities, without coupons, in denominations of US$2,000 and any integral multiples of US$1,000 in excess thereof. The Notes initially will be represented by one or more Global Notes (the “Global Notes”) registered in the name of The Depository Trust Company, as Depositary or its nominee, or a successor depositary or its nominee.
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(h) All Global Notes shall also bear the legends set forth in Section 3.14(f)(ii) of the Original Indenture.
(i) The Notes and the certificate of authentication of the Trustee endorsed thereon shall be in the form set out in Schedule A to this First Supplemental Indenture with such appropriate insertions, omissions, substitutions and variations as the Trustee may approve and shall be numbered in such manner as the Trustee may approve, such approvals of the Trustee concerning any Note to be conclusively evidenced by its authentication of such Note.
(j) The Security Register referred to in Section 3.05 of the Original Indenture shall, with respect to the Notes, be kept at the office or agency in The City of New York, New York that the Issuer may from time to time designate for such purpose (which shall initially be the Corporate Trust Office of the Trustee in The City of New York, New York), and at such other place or places as the Issuer, with the approval of the Trustee may hereafter designate.
(k) The Notes shall be subject to redemption as provided in Article Six of this First Supplemental Indenture and Article Eleven of the Original Indenture. The Issuer shall not otherwise be required to redeem, purchase or repay the Notes pursuant to any mandatory redemption, sinking fund or analogous provision or at the option of the Holders thereof. The Notes will not be convertible into or exchangeable for securities of any Person.
(l) Sections 14.02 and 14.03 of the Original Indenture shall be applicable to the Notes.
(m) For all purposes of the Indenture, the Notes shall act as a single series (including, but not limited to, for voting, waiver and providing direction and requests), and shall not be subject to class voting provisions, including, but not limited to, in respect of Sections 5.01, 5.02, 5.03, 5.07, 5.12, 5.13, 6.02, 9.02 and 10.10 of the Original Indenture.
(n) Section 10.05 of the Original Indenture shall be applicable to the Notes, except the second paragraph thereof, which shall be replaced in its entirety as follows:
“If the Issuer or a Guarantor, as the case may be, is so required to withhold or deduct any amount for or on account of Canadian Taxes from any payment made under or with respect to the Notes or the Guarantee, the Issuer or the Guarantor, as the case may be, will pay to each Holder of such Notes as additional interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each such Holder after such withholding or deduction (and after deducting any Canadian Taxes on such Additional Amounts) will not be less than the amount such Holder would have received if such Canadian Taxes had not been withheld or deducted, except as described in this Section 10.05. However, no Additional Amounts will be payable with respect to a payment made to a recipient or beneficial owner of such payment:
(1) with which the Issuer or a Guarantor, as the case may be, does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) and the regulations thereunder (the “Tax Act”)) at the time of making such payment;
(2) which is subject to such Canadian Taxes by reason of the recipient or beneficial owner being a “specified non-resident shareholder” of the Company for purposes of the Tax Act or a non-resident person not dealing at arm’s length with a “specified shareholder” (within the meaning of subsection 18(5) of the Tax Act) of the Company;
(3) which is subject to such Canadian Taxes by reason of the recipient or beneficial owner being an entity in respect of which the Company is a “specified entity” as defined in subsection 18.4(1) of the Tax Act;
(4) which is subject to such Canadian Taxes by reason of the recipient or beneficial owner being a “reverse hybrid entity” (within the meaning of subsection 18.4(1) of the Tax Act, as proposed to be amended by the draft legislative proposals released on January 29, 2026, as may be further proposed to be amended);
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(5) which is subject to such Canadian Taxes by reason of the recipient or beneficial owner being a resident, domicile or national of, or engaged in business or maintaining a permanent establishment or other physical presence in or otherwise having some connection with Canada or any province or territory thereof otherwise than by the mere holding of Notes or the receipt of payments thereunder;
(6) which is subject to such Canadian Taxes by reason of the failure of the recipient or beneficial owner to comply with any certification, identification, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the rate of deduction or withholding of, such Canadian Taxes;
(7) which is subject to such Canadian Taxes by reason of the legal nature of the recipient or beneficial owner disentitling such recipient or beneficial owner to the benefit of an applicable treaty if and to the extent that the application of such treaty would have resulted in the reduction or elimination of any Canadian Taxes as to which Additional Amounts would have otherwise been payable to a Holder on behalf of such beneficial owner;
(8) which failed to duly and timely comply with a timely request by the Issuer or a Guarantor, as the case may be, to provide information, documents, certification or other evidence concerning such recipient or beneficial owner’s nationality, residence, entitlement to treaty benefits, identity or connection with Canada or any political subdivision or authority thereof, if and to the extent that due and timely compliance with such request would have resulted in the reduction or elimination of any Canadian Taxes as to which Additional Amounts would have otherwise been payable to a recipient or beneficial owner but for this clause;
(9) which is a fiduciary, limited liability company, partnership or any person other than the sole beneficial owner, to the extent that, any beneficiary or settlor of such fiduciary, any member of such limited liability company, any partner in such partnership or the beneficial owner of such payment (as the case may be) would not have been entitled to receive Additional Amounts with respect to such payment if such beneficiary, settlor, member, partner or beneficial owner had been the recipient of such payment; or
(10) which is subject to such Canadian Taxes by reason of any combination of the above.”
(o) The Notes shall have the other terms and provisions set forth in the form of Note attached hereto as Schedule A to this First Supplemental Indenture with the same force and effect as if such terms and provisions were set forth in full herein.
Section 302. Issuance of the Notes. The Notes in the aggregate principal amount of US$375,000,000 shall be executed by the requisite authorized officers of the Issuer and delivered by the Issuer to the Trustee on the date of issue for authentication and delivery pursuant to and in accordance with the provisions of Section 3.03 of the Original Indenture and, upon the requirements of such provisions being complied with, the Notes shall be authenticated by or on behalf of the Trustee and delivered by it to or upon the Issuer Order of the Issuer without any further act or formality on the part of the Issuer. The Trustee shall not have any duty or responsibility with respect to the use or application of any of the Notes so certified and delivered or the proceeds thereof.
ARTICLE FOUR
SUBORDINATION
The following subordination provisions for the Notes are established pursuant to Section 12.01 of the Original Indenture and are in addition to the provision of Article Twelve of the Original Indenture, which shall apply to the Notes, except that Section 403 of this First Supplemental Indenture replaces in its entirety Section 12.04 of the Original Indenture.
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Section 401. Notes Subordinated to Senior Indebtedness. Each of the Issuer and the Guarantors covenants and agrees, and each Holder of the Notes and the Guarantees, by his acceptance thereof, likewise covenants and agrees, that (a) the indebtedness represented by the Notes and the payment of the principal of and any premium or interest on each and all of the Notes of such series is subordinate, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all Senior Indebtedness; and (b) Senior Indebtedness shall continue to be Senior Indebtedness with respect to the Notes irrespective of any amendment, modification or waiver of any term of the Notes or extension or renewal of the Notes (other than any such amendment, modification or waiver that makes the Notes subordinated or equal in right of payment to the Notes).
With respect to the Notes, in the event (a) of any payment by, or distribution of assets of, the Issuer or the Guarantors of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the Issuer or the Guarantors, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other similar proceedings, or (b) subject to the provisions of Section 402, that (i) a default shall have occurred and be continuing with respect to the payment of principal, interest or any other monetary amounts due and payable on any Senior Indebtedness and such default shall have continued beyond the period of grace, if any, specified in the instrument evidencing such Senior Indebtedness (and the Trustee shall have received written notice thereof from the Issuer or the Guarantors or one or more holders of such Senior Indebtedness or their representative or representatives or the trustee or trustees under any indenture pursuant to which any such Senior Indebtedness may have been issued), or (ii) the maturity of any such Senior Indebtedness shall have been accelerated because of a default in respect of such Senior Indebtedness (and the Trustee shall have received written notice thereof from the Issuer or the Guarantors or one or more holders of such Senior Indebtedness or their representative or representatives or the trustee or trustees under any indenture pursuant to which any such Senior Indebtedness may have been issued), then:
(i) the holders of all such Senior Indebtedness shall first be entitled to receive, in the case of clause (a) above, payment of all amounts due or to become due upon all such Senior Indebtedness or, in the case of subclauses (i) and (ii) of clause (b) above, payment of all amounts due upon all such Senior Indebtedness, or provision shall be made for such payment in money or money’s worth, before the Holders of any of the Notes are entitled to receive any payment on account of the principal of or any premium or interest on the indebtedness evidenced by the Notes, including, without limitation, any payments made pursuant to Article Eleven or Article Fourteen of the Original Indenture;
(ii) so long as any of the events in clause (a) or subclauses (i) or (ii) of clause (b) above has occurred and is continuing, any payment by, or distribution of assets of, the Issuer or the Guarantors of any kind or character, whether in cash, property or securities, to which the Holders of any of the Notes would be entitled except for the provisions of this Article Four, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Issuer or the Guarantors being subordinated to the payment of the Notes, shall be paid or distributed, as the case may be, by the Person making such payment or distribution, whether a trustee in bankruptcy, receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any such Senior Indebtedness may have been issued, ratably according to aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment, in the case of clause (a) above, of all amounts due and to become due upon all such Senior Indebtedness, or, in the case of subclauses (i) and (ii) of clause (b) above, of all amounts due upon all such Senior Indebtedness, in each case remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the indebtedness evidenced by the Notes; and
(iii) so long as any of the events in clause (a) or subclauses (i) or (ii) of clause (b) above has occurred and is continuing, in the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Issuer or the Guarantors of any kind or character, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Issuer or the Guarantors being subordinated to the payment of the Notes, in respect of principal of or any premium or interest on any of the Notes or in connection with the repurchase by the Issuer or the Guarantors of any of the Notes, shall be received by the Trustee or the Holders of any of the Notes before, in the case of clause (a) above, all amounts due or to become due upon all such Senior Indebtedness or, in the case of subclauses (i) or (ii) of clause (b) above, all amounts due upon all such
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Senior Indebtedness is paid in full (or provision is made for such payment), then such payment or distribution shall be paid over to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any such Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of, in the case of clause (a) above, all amounts due and to become due upon all such Senior Indebtedness or, in the case of subclauses (i) or (ii) of clause (b) above, all amounts due upon all such Senior Indebtedness, in each case until all such amounts shall have been paid in full, after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness.
For purposes of this Article Four, the words “cash, property or securities” shall not be deemed to include shares of stock of the Issuer or the Guarantors as reorganized or readjusted, or securities of the Issuer or the Guarantors or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article Four with respect to the Notes to the payment of all Senior Indebtedness which may at the time be outstanding; provided that (i) all such Senior Indebtedness is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of such Senior Indebtedness are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment. The consolidation of the Issuer with, or the merger of the Issuer into, another Person or the liquidation or dissolution of the Issuer following the conveyance or transfer of its properties and assets as an entirety, or substantially as an entirety, to any winding-up, liquidation or reorganization for the purposes of this Section if such other Person shall, as part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Eight of the Original Indenture. Nothing in this Section 401 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.07 of the Original Indenture.
Section 402. Disputes with Holders of Certain Senior Indebtedness. Any failure of the Issuer or the Guarantors to make any payment of or on or perform any other obligation under any Senior Indebtedness, other than any Senior Indebtedness incurred by the Issuer or the Guarantors or assumed or guaranteed, directly or indirectly, by the Issuer or the Guarantors for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of this Section shall have been waived by the Issuer or the Guarantors in the instrument or instruments by which the Issuer or the Guarantors incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default with respect to such Senior Indebtedness under clause (b) of the second paragraph of Section 401 if (i) the Issuer or the Guarantors shall be disputing its obligation to make such payment or perform such obligation and (ii) either (A) no final judgment relating to such dispute shall have been issued against the Issuer or the Guarantors which is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may seek further appeal or review, or (B) in the event of a judgment that is subject to further review or appeal has been issued, the Issuer or the Guarantors shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review.
Section 403. Subrogation. Subject to the payment in full, in the case of clause (a) of the second paragraph of Section 401, of all amounts due and to become due on all Senior Indebtedness or, in the case of subclauses (i) or (ii) of clause (b) of the second paragraph of Section 401, of all amounts due on all such Senior Indebtedness, as the case may be, the Holders of the Notes shall be subrogated (equally and ratably with the holders of all obligations of the Issuer or the Guarantors which are subordinated in right of payment to Senior Indebtedness of the Issuer or the Guarantors to the same extent as the Notes are subordinated, or which by their express terms rank equally in right of payment with the Notes with regard to Senior Indebtedness, and which in each case are entitled to like rights of subrogation) to the rights of the holders of such Senior Indebtedness to receive payments or distributions of cash, property or securities of the Issuer or the Guarantors applicable to such Senior Indebtedness. Such subrogation shall continue until all amounts owing on the Notes shall be paid in full, and as between the Issuer or the Guarantors, and their respective creditors other than holders of such Senior Indebtedness and the Holders of the Notes, no such payment or distribution made to the holders of such Senior Indebtedness by virtue of this Article Four that otherwise would have been made to the Holders of the Notes shall be deemed to be a payment by the Issuer or the Guarantors on account of such Senior Indebtedness. The provisions of this Article Four are and are intended solely for the purpose of defining the relative rights of the Holders of the Notes, on the one hand, and the holders of Senior Indebtedness, on the other hand.
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Section 404. Obligation of the Issuer and the Guarantors Unconditional. Nothing contained in this Article Four or elsewhere in this First Supplemental Indenture, in the Notes or in the Guarantees is intended to or shall impair, as among the Issuer or the Guarantors, or their respective creditors other than the holders of Senior Indebtedness and the Holders of the Notes, the obligation of the Issuer or the Guarantors, which is absolute and unconditional, to pay to such Holders the principal of and any premium and interest on the Notes as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of such Holders and the creditors of the Issuer or the Guarantors other than the holders of such Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or any Holder of the Notes from exercising all remedies otherwise permitted by the Indenture or applicable law upon default under this First Supplemental Indenture, subject to the rights, if any, under this Article Four of the holders of such Senior Indebtedness in respect of cash, property or securities of the Issuer or the Guarantors received by the Trustee or the holders of the Notes upon the exercise of any such remedy and the rights of the holders of such Senior Indebtedness to enforce the provisions of subparagraph (iii) of the second paragraph of Section 401 against the Trustee and the Holders of the Notes.
Upon payment or distribution of assets of the Issuer or the Guarantors referred to in this Article Four, the Trustee and the Holders of the Notes shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding-up, liquidation or reorganization proceeding affecting the affairs of the Issuer or the Guarantors is pending or upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee or agent or other person making any payment or distribution, delivered to the Trustee or to the Holders of the Notes, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other indebtedness of the Issuer or the Guarantors, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Four.
The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing itself to be a holder of Senior Indebtedness (or a trustee or representative on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness or a trustee or representative on behalf of any such holder or holders. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article Four, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article Four, and, if such evidence is not furnished, the Trustee may defer payment to such Person pending judicial determination as to the right of such Person to receive such payment.
Section 405. Payments on the Notes Permitted. Nothing contained in this Article Four or elsewhere in this First Supplemental Indenture, in the Notes or in the Guarantees shall affect the obligations of the Issuer or the Guarantors to make, or prevent the Issuer or the Guarantors from making, payment of the principal of or any premium or interest on the Notes in accordance with the provisions hereof and thereof, except as otherwise provided in this Article Four.
Section 406. Effectuation of Subordination by Trustee. Each Holder of the Notes, by his acceptance thereof, authorizes and directs the Trustee in his, her or its behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article Four and appoints the Trustee his, her or its attorney-in-fact, as the case maybe, for any and all such purposes.
Section 407. Rights of Holders of Senior Indebtedness Not Impaired. No right of any present or future holder of any Senior Indebtedness shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Issuer or the Guarantors or by any noncompliance by the Issuer or the Guarantors with the terms, provisions and covenants of the Indenture, regardless of any knowledge thereof which any such holder may have or be otherwise charged with.
With respect to the holders of Senior Indebtedness, (i) the duties and obligations of the Trustee shall be determined solely by the express provisions of the Indenture; (ii) the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Indenture; (iii) no implied covenants or obligations shall be read into the Indenture against the Trustee; and (iv) the Trustee shall not be deemed to be a fiduciary as to such holders of Senior Indebtedness.
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ARTICLE FIVE
OPTION TO DEFER INTEREST AND COVENANTS
Section 501. Option to Defer Interest Payments. So long as no Event of Default with respect to the Notes has occurred and is continuing, the Issuer may, at its option, defer interest payments on the Notes, from time to time, for one or more deferral periods of up to 20 consecutive semi-annual Interest Payment Periods (each period, commencing on the date that the first such interest payment would otherwise have been made, an “Optional Deferral Period”), except that no such Optional Deferral Period may extend beyond the final maturity date of the Notes or end on a day other than the day immediately preceding an interest payment date. During any Optional Deferral Period, interest on the Notes will continue to accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes). In addition, during any Optional Deferral Period, interest on the deferred interest (“compound interest”) will accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes), compounded semi-annually, to the extent permitted by applicable law. No interest will be due or payable on the Notes during an Optional Deferral Period, except upon a redemption of any Notes on any redemption date during such Optional Deferral Period (in which case all accrued and unpaid interest (including, to the extent permitted by applicable law, any compound interest) on the Notes to be redeemed to but excluding such redemption date will be due and payable on such redemption date), or unless the principal of and interest on the Notes shall have been declared due and payable as the result of an Event of Default with respect to the Notes (in which case all accrued and unpaid interest, including, to the extent permitted by applicable law, any compound interest, on the Notes shall become due and payable). All references in the Notes and, insofar as it relates to the Notes, the Indenture, to “interest” on the Notes shall be deemed to include any such deferred interest and, to the extent permitted by applicable law, any compound interest, unless otherwise expressly stated or the context otherwise requires.
Before the end of any Optional Deferral Period that is shorter than 20 consecutive semi-annual Interest Payment Periods, the Issuer may elect, at its option, to extend such Optional Deferral Period, so long as the entire Optional Deferral Period does not exceed 20 consecutive semi-annual Interest Payment Periods or extend beyond the final maturity date of the Notes. The Issuer may also elect, at its option, to shorten the length of any Optional Deferral Period. No Optional Deferral Period (including as extended or shortened) may end on a day other than the day immediately preceding an interest payment date. At the end of any Optional Deferral Period, if all amounts then due on the Notes, including all accrued and unpaid interest thereon (including, without limitation and to the extent permitted by applicable law, any compound interest), are paid, the Issuer may elect to begin a new Optional Deferral Period; provided, however, that, without limitation of the foregoing, the Issuer may not begin a new Optional Deferral Period unless the Issuer has paid all accrued and unpaid interest on the Notes (including, without limitation and to the extent permitted by applicable law, any compound interest) from any previous Optional Deferral Periods.
For the avoidance of doubt, deferral of interest payments on the Notes pursuant to this Section 501 shall not constitute an Event of Default under Section 5.01(1) of the Original Indenture.
Section 502. Covenants. During any Optional Deferral Period, the Issuer will not do any of the following:
(i) declare or pay any dividends or distributions on any Capital Stock of the Issuer or the Company;
(ii) redeem, purchase, acquire or make a liquidation payment with respect to any Capital Stock of the Issuer or the Company;
(iii) pay any principal, interest or premium on, or repay, repurchase or redeem, any indebtedness of the Issuer or the Guarantors that ranks equally with or junior to the Notes or the Guarantees in right of payment; or
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(iv) make any payments with respect to any guarantees by the Issuer or the Guarantors of any indebtedness if such guarantees rank equally with or junior to the Notes or the Guarantees in right of payment;
provided; however, during an Optional Deferral Period, the Issuer and the Guarantors may (a) declare and pay dividends or distributions payable solely in shares of the Company’s or the Issuer’s Capital Stock (together, for the avoidance of doubt, with cash in lieu of any fractional share) or options, warrants or rights to subscribe for or purchase shares of the Company’s or the Issuer’s Capital Stock, (b) declare and pay any dividend in connection with the implementation of a plan (a “Rights Plan”) providing for the issuance by the Company or the Issuer to all holders of the Company’s or the Issuer’s Capital Stock of rights entitling them to subscribe for or purchase Capital Stock or any class or series of the Company’s or the Issuer’s preferred stock, which rights (1) are deemed to be transferred with such Capital Stock, (2) are not exercisable until the occurrence of a specified event or events and (3) are also issued in respect of future issuances of the Company’s or the Issuer’s Capital Stock, (c) issue any of shares of the Company’s or the Issuer’s Capital Stock under any Rights Plan or redeem or repurchase any rights distributed pursuant to a Rights Plan, (d) reclassify the Company’s or the Issuer’s Capital Stock or exchange or convert one class or series of the Company’s or the Issuer’s Capital Stock for another class or series of the Company’s or the Issuer’s Capital Stock, (e) purchase fractional interests in shares of the Company’s or the Issuer’s Capital Stock pursuant to the conversion or exchange provisions of such Capital Stock or the security being converted or exchanged, (f) purchase, acquire or withhold shares of the Company’s or the Issuer’s Capital Stock related to the issuance of the Company’s or the Issuer’s Capital Stock or rights under any dividend reinvestment plan or related to any of the Company’s or the Issuer’s benefit plans for the Company’s and the Issuer’s directors, officers, employees, consultants or advisors, including any employment contract, and (g) for the avoidance of doubt, convert convertible Capital Stock of the Company or the Issuer into other Capital Stock of the Company or the Issuer in accordance with the terms of such convertible Capital Stock (together, for the avoidance of doubt, with cash in lieu of any fractional share).
Section 503. Notice. The Issuer will give the Holders of the Notes and the Trustee written notice of its election of, or any shortening or extension of, an Optional Deferral Period at least 10 business days prior to the earlier of (1) the next succeeding interest payment date or (2) the date upon which the Issuer is required to give notice to any applicable self-regulatory organization or to Holders of the Notes of the next succeeding interest payment date or the record date therefor. The record date for the payment of deferred interest and, to the extent permitted by applicable law, any compound interest payable on the interest payment date immediately following the last day of an Optional Deferral Period will be the regular record date with respect to such interest payment date.
ARTICLE SIX
OPTIONAL REDEMPTION
Section 601. Optional Redemption. The Issuer may redeem some or all of the Notes, at its option, in whole or in part (i) on any day in the period commencing on the date falling 90 days prior to the First Reset Date and ending on and including the First Reset Date and (ii) after the First Reset Date, on any interest payment date, at a redemption price in cash equal to 100% of the principal amount of the Notes being redeemed, plus, (subject to the provisions set forth in Section 604 regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a Redemption Date), accrued and unpaid interest on the Notes to be redeemed to but excluding the redemption date.
Section 602. Redemption Following a Tax Event. The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Tax Event at a redemption price in cash equal to 100% of the principal amount of the Notes, plus, (subject to the provisions set forth in Section 604 regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a Redemption Date), accrued and unpaid interest on the Notes to but excluding the redemption date.
Section 603. Redemption Following a Rating Agency Event. The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Rating Agency Event at a redemption price in cash equal to 102% of the principal amount of the Notes, plus, (subject to the provisions set forth in Section 604 regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a Redemption Date), accrued and unpaid interest on the Notes to but excluding the redemption date.
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Section 604. Payments of Interest. Notwithstanding any statement in Article Six to the contrary, installments of interest on the Notes that are due and payable on any interest payment date falling on or prior to a redemption date for the Notes will be payable on that interest payment date to the Holders thereof as of the close of business on the relevant record date according to the terms of the Notes and the Indenture, except that, if the redemption date for any Notes falls on any day during an Optional Deferral Period, accrued and unpaid interest (including, to the extent permitted by applicable law, any compound interest) on such Notes will be paid on such redemption date to the persons entitled to receive the redemption price of such Notes. For the avoidance of doubt, the interest payment date falling immediately after the last day of an Optional Deferral Period shall not be deemed to fall on a day during such Optional Deferral Period.
Section 605. Securities Called for Redemption. Section 11.06 of the Original Indenture is replaced in its entirety as follows:
“Once notice of redemption is mailed, the Notes called for redemption will become due and payable on the redemption date at the applicable redemption price, plus, subject to the terms described in Section 604 of this First Supplemental Indenture, accrued and unpaid interest to but excluding the redemption date, and will be paid upon surrender thereof for redemption, unless (a) the notice of redemption provides that such redemption shall be subject to the condition described in Section 606 of this First Supplemental Indenture and (b) such redemption shall have been canceled in accordance with the provisions of Section 606 of this First Supplemental Indenture because such condition shall not have been satisfied. If only part of a note is redeemed, the Trustee will issue in the name of the registered holder of the note and deliver to such holder a new note in a principal amount equal to the unredeemed portion of the principal of the note surrendered for redemption. If the Issuer elects to redeem all or a portion of the Notes, then, unless otherwise provided in such notice of redemption as described in the next succeeding paragraph, the redemption will not be conditional upon receipt by the paying agent or the Trustee of monies sufficient to pay the redemption price.”
Section 606. Notice of Redemption. The following paragraph is appended as the last paragraph of Section 11.04 of the Original Indenture:
“If, at the time a notice of redemption is given, (i) the Issuer has not effected satisfaction and discharge of the Notes pursuant to Article Four of the Indenture and (ii) such notice of redemption is not being given in connection with or in order to effect satisfaction and discharge of the Notes, then, if the notice of redemption so provides and at the Issuer’s option, the redemption may be subject to the condition that the Trustee shall have received, on or before the applicable redemption date, monies in an amount sufficient to pay the redemption price and accrued and unpaid interest on the Notes called for redemption to but excluding the redemption date. If monies in such amount are not received by the Trustee on or before such redemption date, such notice of redemption shall be automatically canceled and of no force or effect, such proposed redemption shall be automatically canceled and the Issuer shall not be required to redeem the Notes called for redemption on such redemption date. In the event that a redemption is canceled, the Issuer will, not later than the business day immediately following the proposed redemption date, deliver, or cause to be delivered, notice of such cancellation to the Holders of the Notes called for redemption (which notice will also indicate that any Notes or portions thereof surrendered for redemption shall be returned to the applicable Holders), and the Issuer will direct the Trustee to, and the Trustee will, promptly return any Notes or portions thereof that have been surrendered for redemption to the applicable Holders.”
Section 607. Deposit of Redemption Price. Section 11.05 of the Original Indenture is deleted in its entirety and does not apply to the Notes.
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ARTICLE SEVEN
GENERAL
Section 701. Effectiveness. This First Supplemental Indenture shall become effective upon its execution and delivery.
Section 702. Ratification of Original Indenture. The Original Indenture as supplemented by the First Supplemental Indenture is in all respects ratified and confirmed, and this First Supplemental Indenture shall be deemed part of the Original Indenture in the manner and to the extent herein and therein provided.
Section 703. Governing Law. This First Supplemental Indenture, the Original Indenture as supplemented hereby and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
Section 704. Severability. In case any provision in this First Supplemental Indenture, the Original Indenture as supplemented hereby or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 705. Acceptance of Trust. The Trustee hereby accepts the trusts in this First Supplemental Indenture declared and provided for and agrees to perform the same upon the terms and conditions herein before set forth in trust for the various Persons who shall from time to time be Holders subject to all the terms and conditions herein set forth.
Section 706. Benefits of Seccond Supplemental Indenture. Nothing in this First Supplemental Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto, and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this First Supplemental Indenture.
Section 707. Multiple Originals. The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this First Supplemental Indenture. Delivery of an executed counterpart of a signature page to this First Supplemental Indenture by telecopier, facsimile or other electronic transmission (i.e., a “pdf” or “tif”), Docusign or otherwise, shall be effective as delivery as a manually executed counterpart thereof and may be used in lieu of the original First Supplemental Indenture for all purposes. The words “execution,” “signed,” “signature,” and words of like import in this First Supplemental Indenture or in any other certificate, agreement or document related to this First Supplemental Indenture or the Notes shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and electronic signatures provided by DocuSign, AdobeSign or such other digital signature provider as specified in writing to the Trustee by an authorized representative of the Issuer. For the avoidance of doubt, any written communication to the Trustee hereunder may be signed manually and transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) or signed by way of an electronic signature provided by DocuSign, AdobeSign or such other digital signature provider as specified in writing to the Trustee by an authorized representative of the Company. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
Section 708. Agent for Service. By the execution and delivery of this First Supplemental Indenture, the Company (i) irrevocably designates and appoints, and acknowledges that it has irrevocably designated and appointed, the Issuer as its authorized agent upon which process may be served in any suit, action or proceeding arising out of or relating to the Notes or this First Supplemental Indenture that may be instituted in any United States federal or New York state court in The City of New York or brought under federal or state securities laws or brought
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by the Trustee (whether in its individual capacities or in its capacity as Trustee) or, subject to Section 5.07 of the Original Indenture, any Holder of Notes in any United States federal or New York state court in The City of New York, (ii) submits to the nonexclusive jurisdiction of any such court in any such suit, action or proceeding, and (iii) agrees that service of process upon the Issuer and written notice of said service to the Issuer at its principal office and in the manner specified in the Original Indenture, shall be deemed in every respect effective service of process upon the Issuer in any such suit, action or proceeding. The Issuer further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of the Issuer in full force and effect so long as any of the Notes shall be Outstanding or any amounts shall be payable in respect of any Notes.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereof have caused this First Supplemental Indenture to be duly executed by their respective officers, directors or signatories duly authorized thereto, all as of the day and year first above written.
| EMERA US FINANCE, LLC, as Issuer | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer & Manager | ||
| By: | /s/ Brian C. Curry | |
| Name: Brian C. Curry | ||
| Title: Secretary | ||
| EMERA INCORPORATED, as Guarantor | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer | ||
| By: | /s/ Brian C. Curry | |
| Name: Brian C. Curry | ||
| Title: Corporate Secretary | ||
| EMERA US HOLDINGS INC., as Guarantor | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer | ||
| By: | /s/ Brian C. Curry | |
| Name: Brian C. Curry | ||
| Title: Secretary | ||
[First Supplemental Indenture Signature Page]
IN WITNESS WHEREOF, the parties hereof have caused this First Supplemental Indenture to be duly executed by their respective officers, directors or signatories duly authorized thereto, all as of the day and year first above written.
| EQUINITI TRUST COMPANY, LLC, as Trustee | ||
| By: | /s/ Paul H. Kim | |
| Name: Paul H. Kim | ||
| Title: Assistant General Counsel | ||
[First Supplemental Indenture Signature Page]
Schedule A
FORM OF 6.650% SERIES A FIXED-TO-FIXED RESET RATE JUNIOR SUBORDINATED NOTE DUE 2056
FACE OF NOTE
[Depository Legend, if applicable]
EMERA US FINANCE, LLC
6.650% Series A Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056
No. [•] $[•]
CUSIP No.: 29103HAA5
ISIN No.: US29103HAA59
EMERA US FINANCE, LLC, a corporation duly organized and existing under the laws of the State of Delaware (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Issuer”), promises to pay to Cede & Co., or registered assigns, the principal sum of [•] Million Dollars ($[•]) on October 1, 2056 (the “Maturity Date”), and to pay interest thereon (i) from and including March 23, 2026 (the “Original Issue Date”) to but excluding October 1, 2031 (the “First Reset Date”) at the rate of 6.650% per annum and (ii) from and including the First Reset Date, during each Reset Period (as defined on the reverse hereof) at a rate per annum equal to the Five-year U.S. Treasury Rate (as defined on the reverse hereof) as of the most recent Reset Interest Determination Date (as defined on the reverse hereof) plus a spread of 2.866%, to be reset on each Reset Date (as defined on the reverse hereof); provided, that the interest rate during any Reset Period will not reset below 6.650%.
Interest Payment Dates: April 1 and October 1, beginning October 1, 2026, subject to the Issuer’s right to defer interest payments pursuant to the provisions set forth below.
Record Dates: (i) if all of the Notes are in book-entry form represented by one or more Global Securities, the Business Day immediately preceding the applicable Interest Payment Date and (ii) if any of the Notes are not in book-entry form represented by one or more Global Securities, the 15th calendar day preceding such Interest Payment Date (whether or not a Business Day) (each such date in clauses (i) and (ii), a “Regular Record Date”).
Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
A-1
IN WITNESS WHEREOF, the Issuer has caused this Security to be signed manually or by facsimile by one of its duly authorized officers.
Dated: March 23, 2026
| EMERA US FINANCE, LLC | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer & Manager | ||
| By: | /s/ Brian C. Curry | |
| Name: Brian C. Curry | ||
| Title: Secretary | ||
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| EQUINITI TRUST COMPANY, LLC, as Trustee | ||
| By: | /s/ Paul H. Kim | |
| Authorized Signatory | ||
A-2
REVERSE SIDE OF NOTE
This Security is one of a duly authorized issue of securities of the Issuer designated as its 6.650% Series A Fixed-to-Fixed Reset Rate Notes due 2056 (the “Securities”), initially in aggregate principal amount of $[•], which may be issued under the Indenture dated as of March 23, 2026 (the “Original Indenture”) and the First Supplemental Indenture dated as of March 23, 2026 (the “First Supplemental Indenture” and, the Original Indenture as supplemented by the First Supplemental Indenture, the “Indenture”), by and among the Issuer, Emera Incorporated (the “Company”), Emera US Holdings Inc. (“EUSHI” and together with the Company, the “Guarantors”), and Equiniti Trust Company, LLC, as trustee (the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations 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 a global Security initially representing $[•] aggregate principal amount of the Securities of this series.
Interest on the Notes will accrue from the Original Issue Date and will be payable semi-annually in arrears on April 1 and October 1 (each, an “Interest Payment Date”) of each year, beginning on October 1, 2026, to Holders at the close of business on the Regular Record Date for the applicable Interest Payment Date, subject to the Company’s right to defer interest payments pursuant to the provisions set forth below.
Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. The applicable interest rate for each Reset Period will be determined by the Calculation Agent (as defined below), as of the applicable Reset Interest Determination Date, in accordance with following provisions:
As provided above, the applicable interest rate for each Reset Period will be determined by the Calculation Agent, as of the applicable Reset Interest Determination Date. Promptly upon such determination, the Calculation Agent will notify the Company of the interest rate for the Reset Period and the Company will promptly notify, or cause the Calculation Agent to promptly notify, in writing, the Trustee and each Paying Agent of such interest rate. The Calculation Agent’s determination of any interest rate, and its calculation of the amount of interest for any Interest Payment Period beginning on or after the First Reset Date, will be on file at the Company’s principal offices, will be made available to any Holder or beneficial owner of the Notes upon request and will be final and binding in the absence of manifest error.
If an Interest Payment Date, redemption date, or maturity date falls on a day that is not a Business Day, payment will be made on the next succeeding Business Day with the same force and effect as if made on such payment date.
“Business Day” means, unless otherwise expressly stated, any day other than (i) a Saturday or Sunday or (ii) a day on which banks and trust companies in The City of New York are authorized or obligated by law, regulation or executive order to remain closed.
“Calculation Agent” means, at any time, the entity appointed by the Issuer and serving as such agent with respect to the Notes at such time. Unless the Issuer has validly called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date, the Issuer will appoint a Calculation Agent for the Notes prior to the Reset Interest Determination Date immediately preceding the First Reset Date; provided that, if the Issuer has called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date but the Issuer does not redeem all of the outstanding Notes on such redemption date, the Issuer will appoint a Calculation Agent for the Notes as promptly as practicable after such proposed redemption date. The Issuer may terminate any such appointment and may appoint a successor Calculation Agent at any time and from time to time (so long as there shall always be a Calculation Agent in respect of the Notes when so required). The Issuer may appoint the Company or an affiliate of the Company as calculation agent.
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“Five-year U.S. Treasury Rate” means, as of any Reset Interest Determination Date, (i) an interest rate (expressed as a decimal) determined to be the per annum rate equal to the arithmetic mean of the yields to maturity for U.S. Treasury securities adjusted to constant maturity with a maturity of five years from the next Reset Date and trading in the public securities markets, for the five consecutive Business Days immediately prior to the respective Reset Interest Determination Date as published (or, if fewer than five consecutive Business Days are so published on the applicable Reset Interest Determination Date, for such number of Business Days published) in the most recent H.15, or (ii) if there is no such published U.S. Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be determined by interpolation between the arithmetic mean of the yields to maturity for each of the two series of U.S. Treasury securities adjusted to constant maturity trading in the public securities markets, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Interest Determination Date, and (B) the other maturing as close as possible to, but later than, the Reset Date following the next succeeding Reset Interest Determination Date, in each case for the five consecutive Business Days immediately prior to the respective Reset Interest Determination Date as published in the most recent H.15. If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clause (i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same interest rate determined for the prior Reset Interest Determination Date or, if the Five-year U.S. Treasury Rate cannot be so determined as of the Reset Interest Determination Date preceding the First Reset Date, then the interest rate applicable for the Reset Period beginning on and including the First Reset Date will be deemed to be 6.650% per annum, which is the same interest rate as in effect from and including the Original Issue Date to but excluding the First Reset Date.
“H.15” means the statistical release designated as such, or any successor publication, published by the Board of Governors of the U.S. Federal Reserve System (or any successor thereto).
“Interest Payment Period” means the semi-annual period from and including an Interest Payment Date to but excluding the next succeeding Interest Payment Date, except for the first Interest Payment Period which shall be the period from and including the Original Issue Date to but excluding October 1, 2026.
“most recent H.15” means the H.15 published closest in time but prior to the close of business on the second Business Day prior to the applicable Reset Date.
“redemption date” when used with respect to any Notes to be redeemed, means the date fixed for such redemption pursuant to the First Supplemental Indenture.
“Reset Date” means the First Reset Date and October of every fifth year after 2031.
“Reset Interest Determination Date” means, in respect of any Reset Period, the day falling two Business Days prior to the first day of such Reset Period.
“Reset Period” means the period from and including the First Reset Date to but excluding the next following Reset Date and thereafter each period from and including a Reset Date to but excluding the next following Reset Date, or the maturity date or date of redemption or repayment, as the case may be.
Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York, 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 debts; provided, however, that payment of interest may be made at the option of the Issuer (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register or (ii) by wire transfer to an account maintained in the United States or Canada by the payee. Notwithstanding the foregoing, payments of principal, premium, if any, and interest on a global Security registered in the name of a Depositary or its nominee will be made by wire transfer of immediately available funds. Principal paid in relation to any Security of this series at Stated Maturity shall be paid to the Holder of such Security only upon presentation and surrender of such Security to such office or agency referred to above.
As provided for in the Indenture, the Issuer may from time to time without notice to, or the consent of, the Holders of the Securities, create and issue additional Securities of this series under the Indenture, equal in rank to the Outstanding Securities of this series in all respects (or in all respects except for the payment of interest accruing prior to the issue date of the new Securities of this series or except for the first payment of interest following the issue date of the new Securities of this series) so that the new Securities of this series shall be consolidated and form
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a single series with the Outstanding Securities of this series and have the same terms as to status, redemption or otherwise as the Outstanding Securities of this series; provided that, if the additional Securities of this series are not fungible with the Outstanding Securities of this series for U.S. federal income tax purposes, the additional Securities shall have a separate CUSIP and/or ISIN number.
The Issuer shall pay to the Holder of this Security such Additional Amounts and other amounts as may be payable under Section 10.05 of the Original Indenture. Whenever in this Security there is mentioned, in any context, the payment of principal (or premium, if any), interest or any other amount payable under or with respect to this Security, 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.
Optional Interest Deferral. So long as no Event of Default with respect to the Notes has occurred and is continuing, the Issuer may, at its option, defer interest payments on the Notes, from time to time, for one or more deferral periods of up to 20 consecutive semi-annual Interest Payment Periods (each period, commencing on the date that the first such interest payment would otherwise have been made, an “Optional Deferral Period”), except that no such Optional Deferral Period may extend beyond the final maturity date of the Notes or end on a day other than the day immediately preceding an Interest Payment Date. During any Optional Deferral Period, interest on the Notes will continue to accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes). In addition, during any Optional Deferral Period, interest on the deferred interest (“compound interest”) will accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes), compounded semi-annually, to the extent permitted by applicable law. No interest will be due or payable on the Notes during an Optional Deferral Period, except upon a redemption of any Notes on any redemption date during such Optional Deferral Period (in which case all accrued and unpaid interest (including, to the extent permitted by applicable law, any compound interest) on the Notes to be redeemed to but excluding such redemption date will be due and payable on such redemption date), or unless the principal of and interest on the Notes shall have been declared due and payable as the result of an Event of Default with respect to the Notes (in which case all accrued and unpaid interest, including, to the extent permitted by applicable law, any compound interest, on the Notes shall become due and payable). All references in the Notes and, insofar as it relates to the Notes, the Indenture, to “interest” on the Notes shall be deemed to include any such deferred interest and, to the extent permitted by applicable law, any compound interest, unless otherwise expressly stated or the context otherwise requires.
Before the end of any Optional Deferral Period that is shorter than 20 consecutive semi-annual Interest Payment Periods, the Issuer may elect, at its option, to extend such Optional Deferral Period, so long as the entire Optional Deferral Period does not exceed 20 consecutive semi-annual Interest Payment Periods or extend beyond the final maturity date of the Notes. The Company may also elect, at its option, to shorten the length of any Optional Deferral Period. No Optional Deferral Period (including as extended or shortened) may end on a day other than the day immediately preceding an Interest Payment Date. At the end of any Optional Deferral Period, if all amounts then due on the Notes, including all accrued and unpaid interest thereon (including, without limitation and to the extent permitted by applicable law, any compound interest), are paid, the Issuer may elect to begin a new Optional Deferral Period; provided, however, that, without limitation of the foregoing, the Issuer may not begin a new Optional Deferral Period unless the Issuer has paid all accrued and unpaid interest on the Notes (including, without limitation and to the extent permitted by applicable law, any compound interest) from any previous Optional Deferral Periods. During any Optional Deferral Period, the Issuer will not do any of the following:
(i) declare or pay any dividends or distributions on any Capital Stock of the Issuer or the Company;
(ii) redeem, purchase, acquire or make a liquidation payment with respect to any Capital Stock of the Issuer or the Company;
(iii) pay any principal, interest or premium on, or repay, repurchase or redeem, any indebtedness of the Issuer or the Guarantors that ranks equally with or junior to the Notes or the Guarantees in right of payment; or
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(iv) make any payments with respect to any guarantees by the Issuer or the Guarantors of any indebtedness if such guarantees rank equally with or junior to the Notes or the Guarantees in right of payment;
provided; however, during an Optional Deferral Period, the Issuer and the Guarantors may (a) declare and pay dividends or distributions payable solely in shares of the Company’s or the Issuer’s Capital Stock (together, for the avoidance of doubt, with cash in lieu of any fractional share) or options, warrants or rights to subscribe for or purchase shares of the Company’s or the Issuer’s Capital Stock, (b) declare and pay any dividend in connection with the implementation of a plan (a “Rights Plan”) providing for the issuance by the Company or the Issuer to all holders of the Company’s or the Issuer’s Capital Stock of rights entitling them to subscribe for or purchase Capital Stock or any class or series of the Company’s or the Issuer’s preferred stock, which rights (1) are deemed to be transferred with such Capital Stock, (2) are not exercisable until the occurrence of a specified event or events and (3) are also issued in respect of future issuances of the Company’s or the Issuer’s Capital Stock, (c) issue any of shares of the Company’s or the Issuer’s Capital Stock under any Rights Plan or redeem or repurchase any rights distributed pursuant to a Rights Plan, (d) reclassify the Company’s or the Issuer’s Capital Stock or exchange or convert one class or series of the Company’s or the Issuer’s Capital Stock for another class or series of the Company’s or the Issuer’s Capital Stock, (e) purchase fractional interests in shares of the Company’s or the Issuer’s Capital Stock pursuant to the conversion or exchange provisions of such Capital Stock or the security being converted or exchanged, (f) purchase, acquire or withhold shares of the Company’s or the Issuer’s Capital Stock related to the issuance of the Company’s or the Issuer’s Capital Stock or rights under any dividend reinvestment plan or related to any of the Company’s or the Issuer’s benefit plans for the Company’s or the Issuer’s directors, officers, employees, consultants or advisors, including any employment contract, and (g) for the avoidance of doubt, convert convertible Capital Stock of the Company or the Issuer into other Capital Stock of the Company or the Issuer in accordance with the terms of such convertible Capital Stock (together, for the avoidance of doubt, with cash in lieu of any fractional share).
The Issuer will give the Holders of the Notes and the Trustee notice of its election of, or any shortening or extension of, an Optional Deferral Period at least 10 Business Days prior to the earlier of (1) the next succeeding Interest Payment Date or (2) the date upon which the Issuer is required to give notice to any applicable self-regulatory organization or to Holders of the Notes of the next succeeding Interest Payment Date or the record date therefor. The record date for the payment of deferred interest and, to the extent permitted by applicable law, any compound interest payable on the Interest Payment Date immediately following the last day of an Optional Deferral Period will be the Regular Record Date with respect to such Interest Payment Date.
“Capital Stock” means (i) in the case of a corporation or a company, corporate stock or shares; (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (iv) any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing person.
The indebtedness represented by the Notes and the Guarantees and the payment of the principal of and any premium or interest on each and all of the Notes of such series is subordinate in right of payment to the prior payment in full of all Senior Indebtedness (as defined below), to the extent set forth in the Indenture. Senior Indebtedness shall continue to be Senior Indebtedness with respect to the Notes irrespective of any amendment, modification or waiver of any term of the Notes or extension or renewal of the Notes (other than any such amendment, modification or waiver that makes the Notes subordinated or equal in right of payment to the Notes).
“Senior Indebtedness” means, with respect to the Notes and the Guarantees, (i) indebtedness of the Issuer or the Guarantors, whether outstanding at the date of the indenture or incurred, created or assumed after such date, (a) in respect of money borrowed by the Issuer or the Guarantors (including any financial derivative, hedging or futures contract or similar instrument, to the extent any such item is primarily a financing transaction) and (b) evidenced by debentures, bonds, notes, credit or loan agreements or other similar instruments or agreements issued or entered into by the Issuer or the Guarantors; (ii) all finance lease obligations of the Issuer or the Guarantors; (iii) all obligations of the Issuer or the Guarantors issued or assumed as the deferred purchase price of property, all conditional sale obligations of the Issuer or the Guarantors and all obligations of the Issuer or the Guarantors under any title retention agreement (but excluding, for the avoidance of doubt, trade accounts payable arising in the ordinary course of
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business and long-term purchase obligations); (iv) all obligations of the Issuer or the Guarantors for the reimbursement of any letter of credit, banker’s acceptance, security purchase facility or similar credit transaction; and (v) all obligations of the type referred to in clauses (i) through (iv) above of other persons for the payment of which the Issuer or the Guarantors are responsible or liable as obligor, guarantor or otherwise, except for any obligations, instruments or agreements of the type referred to in any of clauses (i) through (v) above that, by the terms of the instruments or agreements creating or evidencing the same or pursuant to which the same is outstanding, are subordinated or equal in right of payment to each of the Notes and the Guarantees.
The Issuer may redeem some or all of the Notes, at its option, in whole or in part (i) on any day in the period commencing on the date falling 90 days prior to the First Reset Date and ending on and including the First Reset Date and (ii) after the First Reset Date, on any interest payment date, at a redemption price in cash equal to 100% of the principal amount of the Notes being redeemed, plus, (subject to the provisions set forth in the Indenture regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a redemption date), accrued and unpaid interest on the Notes to be redeemed to but excluding the redemption date.
The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Tax Event (as defined below) at a redemption price in cash equal to 100% of the principal amount of the Notes, plus, (subject to the provisions set forth in the Indenture regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a redemption date), accrued and unpaid interest on the Notes to but excluding the redemption date.
“Tax Event” means that the Issuer has received an opinion of counsel experienced in such matters to the effect that, as a result of:
| (i) | any amendment to, clarification of, or change, including any announced prospective change, in the laws or treaties of the United States, Canada or any of their political subdivisions or taxing authorities, or any regulations under those laws or treaties, including an announced prospective change becoming effective (for certainty, including the proposed amendments to the Income Tax Act (Canada) released by the Department of Finance (Canada) on January 29, 2026); |
| (ii) | an administrative action, which means any judicial decision or any official administrative pronouncement, ruling, regulatory procedure, notice or announcement, including any notice or announcement of intent to issue or adopt any administrative pronouncement, ruling, regulatory procedure or regulation; |
| (iii) | any amendment to, clarification of, or change in the official position or the interpretation of any administrative action or judicial decision or any interpretation or pronouncement that provides for a position with respect to an administrative action or judicial decision that differs from the previously generally accepted position, in each case by any legislative body, court, governmental authority or regulatory body, regardless of the time or manner in which that amendment, clarification or change is introduced or made known; or |
| (iv) | a threatened challenge asserted in writing in connection with a tax audit of the Issuer or any of its affiliates or subsidiaries, or a publicly-known threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Notes, |
which amendment, clarification or change is effective or the administrative action is taken or judicial decision, interpretation or pronouncement is issued or threatened challenge is asserted or becomes publicly-known after March 17, 2026, there is more than an insubstantial risk that (i) interest payable by the Issuer on the Notes is not deductible, or within 90 days would not be deductible, in whole or in part, by the Issuer or the Issuer’s regarded parent for U.S. federal income tax purposes (or a member of the U.S. consolidated group of which the Issuer (or the Issuer’s regarded parent) is a member) for U.S. federal income tax purposes, or (ii) that the Issuer, EUSHI or the Company, as the case may be, becoming obligated to pay, on the next succeeding date on which interest is due, Additional Amounts with respect to the Notes and, in any such case, in the business judgment of the Issuer, EUSHI
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or the Company, as the case may be, determines that such obligation cannot be avoided by the use of reasonable measures available to the Issuer, EUSHI or the Company, as the case may be.The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Rating Agency Event (as defined below) at a redemption price in cash equal to 102% of the principal amount of the Notes, plus, (subject to the provisions set forth in the Indenture regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a redemption date), accrued and unpaid interest on the Notes to but excluding the redemption date.
“Rating Agency Event” means, as of any date, a change, clarification or amendment in the methodology published by any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (or any successor provision thereto), that then publishes a rating for the Issuer (together with any successor thereto, a “rating agency”) in assigning equity credit to securities such as the Notes, (a) as such methodology was in effect on March 17, 2026, in the case of any rating agency that published a rating for the Issuer as of March 17, 2026, or (b) as such methodology was in effect on the date such rating agency first published a rating for the Issuer, in the case of any rating agency that first publishes a rating for the Issuer after March 17, 2026 (in the case of either clause (a) or (b), the “current methodology”), that results in (i) any shortening of the length of time for which a particular level of equity credit pertaining to the Notes by such rating agency would have been in effect had the current methodology not been changed or (ii) a lower equity credit (including up to a lesser amount) being assigned by such rating agency to the Notes as of the date of such change, clarification or amendment than the equity credit that would have been assigned to the Notes by such rating agency had the current methodology not been changed.
Notice of Redemption. Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the Depositary’s procedures) at least 10 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 1.06 of the Indenture. In the case of a partial redemption, selection of the Notes for redemption will be made by lot or by such other customary method prescribed by the Depositary. No Notes of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to such Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the original Note will be issued in the name of the Holder of the original Note upon surrender for cancellation of the original Note. For so long as the Notes are held by the Depositary (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the Depositary, which may be on a pro rata pass-through distribution of principal basis. Unless the Issuer defaults in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Notes or portions thereof called for redemption.
If, at the time a notice of redemption is given, (i) the Issuer has not effected satisfaction and discharge of the Notes pursuant to Article Four of the Indenture and (ii) such notice of redemption is not being given in connection with or in order to effect satisfaction and discharge of the Notes, then, if the notice of redemption so provides and at the Issuer’s option, the redemption may be subject to the condition that the Trustee shall have received, on or before the applicable redemption date, monies in an amount sufficient to pay the redemption price and accrued and unpaid interest on the Notes called for redemption to but excluding the redemption date. If monies in such amount are not received by the Trustee on or before such redemption date, such notice of redemption shall be automatically canceled and of no force or effect, such proposed redemption shall be automatically canceled and the Issuer shall not be required to redeem the Notes called for redemption on such redemption date. In the event that a redemption is canceled, the Issuer will, not later than the business day immediately following the proposed redemption date, deliver, or cause to be delivered, notice of such cancellation to the Holders of the Notes called for redemption (which notice will also indicate that any Notes or portions thereof surrendered for redemption shall be returned to the applicable Holders), and the Issuer will direct the Trustee to, and the Trustee will, promptly return any Notes or portions thereof that have been surrendered for redemption to the applicable Holders
If an Event of Default shall occur and be continuing, the principal of all the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Securities do not have the benefit of sinking fund obligations.
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Sections 14.02 and 14.03 of the Original Indenture shall be applicable to the Securities of this series, upon compliance by the Original Indenture with certain conditions set forth therein, which provisions apply to this Security.
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 under the Indenture at any time by the Issuer and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding affected by such amendment or modification. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities, to waive compliance by the Issuer with certain provisions of the Indenture and also contains provisions permitting the Holders of a majority in aggregate principal amount of the Outstanding Securities with respect to which a Default shall have occurred and shall be continuing, on behalf of the Holders of all Outstanding Securities, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of 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 herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.
Initially, the Trustee will act as Paying Agent and Security Registrar. The Issuer may appoint and change any Paying Agent or Security Registrar without notice to the Holders. The Issuer or any of the Issuer’s subsidiaries may act as Paying Agent or Security Registrar.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable on the Security Register of the Issuer, upon surrender of this Security for registration of transfer at the office or agency of the Issuer maintained for such purpose in the Borough of Manhattan, The City of New York 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 his attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and any integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or exchange of Securities of this series, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to the time of due presentment of this Security for registration of transfer, the Issuer, the Trustee, 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 is overdue, and neither the Issuer, the Trustee, the Securities Administrator nor any agent shall be affected by notice to the contrary.
If at any time, (i) the Depositary for the Securities of this series notifies the Issuer that it is unwilling or unable or no longer qualified to continue as Depositary for the Securities of this series or if at any time the Depositary for the Securities of this series shall no longer be a clearing agency registered or in good standing under the Exchange Act, and a successor Depositary is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such condition, as the case may be, (ii) the Issuer determines that the Securities of this series shall no longer be represented by a global Security or Securities or (iii) any Event of Default shall have occurred and be continuing with respect to the Securities of this series, then in such event the Issuer will execute and Trustee will authenticate and deliver Securities of this series in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such
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Securities of this series in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depository, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities of this series to the Persons in whose names such Securities of this series are so registered.
The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.
All references herein to “dollars” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time should be legal tender for the payment of public and private debts, and all terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
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GUARANTEE
OF
EMERA INCORPORATED
and
EMERA US HOLDINGS INC.
The obligations of each Guarantor to the Holders of the Securities of this series and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Fifteen of the Original Indenture, and reference is hereby made to such Article and Indenture for the precise terms of the Guarantee.
This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such Security of this series, upon which this notation of the Guarantee is endorsed, shall have been manually executed by the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture.
This Guarantee shall be governed by and construed in accordance with the laws of the State of New York.
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Executed and dated the date on the face hereof.
| EMERA INCORPORATED | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer | ||
| By: | /s/ Brian C. Curry | |
| Name: Brian C. Curry | ||
| Title: Corporate Secretary | ||
| EMERA US HOLDINGS INC. | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer | ||
| By: | /s/ Brian C. Curry | |
| Name: Brian C. Curry | ||
| Title: Secretary | ||
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY**
The following increases or decreases in the principal amount of this Global Security have been made:
| Date of Transaction |
Amount of Decrease in Principal Amount of Global Security |
Amount of Increase in Principal Amount of Global Security |
Principal Amount |
Signature of Authorized | ||||
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| ** | This Schedule should be included only if the Security is a Global Security. |
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Exhibit 4.4
EMERA US FINANCE, LLC
as Issuer
EMERA INCORPORATED
EMERA US HOLDINGS INC.
as Guarantors
EQUINITI TRUST COMPANY, LLC
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of March 23, 2026
to
Indenture
Dated as of March 23, 2026
Creating one series of Securities designated as
6.850% Series B Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056
TABLE OF CONTENTS
| ARTICLE ONE INTERPRETATIONS AND AMENDMENTS |
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| Section 101. |
Second Supplemental Indenture | 2 | ||||
| Section 102. |
Definitions in Second Supplemental Indenture | 2 | ||||
| Section 103. |
Interpretation not Affected by Headings | 2 | ||||
| ARTICLE TWO DEFINITIONS |
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| Section 201. |
Certain Definitions | 2 | ||||
| ARTICLE THREE 6.850% SERIES B FIXED-TO-FIXED RESET RATE JUNIOR SUBORDINATED NOTES DUE 2056 |
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| Section 301. |
Form and Terms of the Notes | 4 | ||||
| Section 302. |
Issuance of the Notes | 7 | ||||
| ARTICLE FOUR SUBORDINATION |
| |||||
| Section 401. |
Notes Subordinated to Senior Indebtedness | 8 | ||||
| Section 402. |
Disputes with Holders of Certain Senior Indebtedness | 9 | ||||
| Section 403. |
Subrogation | 9 | ||||
| Section 404. |
Obligation of the Issuer and the Guarantors Unconditional | 10 | ||||
| Section 405. |
Payments on the Notes Permitted | 10 | ||||
| Section 406. |
Effectuation of Subordination by Trustee | 11 | ||||
| Section 407. |
Rights of Holders of Senior Indebtedness Not Impaired | 11 | ||||
| ARTICLE FIVE OPTION TO DEFER INTEREST AND COVENANTS |
| |||||
| Section 501. |
Option to Defer Interest Payments | 11 | ||||
| Section 502. |
Covenants | 12 | ||||
| Section 503. |
Notice | 12 | ||||
| ARTICLE SIX OPTIONAL REDEMPTION |
| |||||
| Section 601. |
Optional Redemption | 12 | ||||
| Section 602. |
Redemption Following a Tax Event | 13 | ||||
| Section 603. |
Redemption Following a Rating Agency Event | 13 | ||||
| Section 604. |
Payments of Interest | 13 | ||||
| Section 605. |
Securities Called for Redemption | 13 | ||||
| Section 606. |
Notice of Redemption | 13 | ||||
| Section 607. |
Deposit of Redemption Price | 14 | ||||
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| ARTICLE SEVEN GENERAL |
| |||||
| Section 701. |
Effectiveness | 14 | ||||
| Section 702. |
Ratification of Original Indenture | 14 | ||||
| Section 703. |
Governing Law | 14 | ||||
| Section 704. |
Severability | 14 | ||||
| Section 705. |
Acceptance of Trust | 14 | ||||
| Section 706. |
Benefits of Second Supplemental Indenture | 14 | ||||
| Section 707. |
Multiple Originals | 14 | ||||
| Section 708. |
Agent for Service | 15 | ||||
Schedule A - Form of 6.850% Series B Fixed-to-Fixed Reset Rate Junior Subordinated Note due 2056
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THIS SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”) dated as of March 23, 2026, by and among EMERA US FINANCE, LLC, a limited liability company duly organized and existing under the laws of the State of Delaware (the “Issuer”), EMERA INCORPORATED, a company duly organized and existing under the laws of the Province of Nova Scotia (the “Company”), EMERA US HOLDINGS INC., a corporation organized and existing under the laws of the State of Delaware (“EUSHI” and, together with the Company in their capacity as guarantors of the Securities, the “Guarantors” and each a “Guarantor”) and EQUINITI TRUST COMPANY, LLC, as Trustee (the “Trustee”).
RECITALS
WHEREAS, each of the Issuer and the Guarantors has heretofore executed and delivered to the Trustee an Indenture, dated as of March 23, 2026, (the “Original Indenture”), providing for the issuance from time to time of its debentures, notes or other evidences of indebtedness (the “Securities”) in one or more series as supplemented by a first supplemental indenture dated March 23, 2026 (the “First Supplemental Indenture”);
WHEREAS, the Original Indenture is incorporated herein by reference and the Original Indenture, as supplemented by the First Supplemental Indenture and this Second Supplemental Indenture, is herein called the “Indenture”;
WHEREAS, Sections 2.01, 3.01 and 9.01(x) of the Original Indenture provide that the Issuer and the Trustee may from time to time enter into one or more indentures supplemental thereto to establish the form or terms of Securities of a new series issued pursuant to the Indenture;
WHEREAS, the Issuer desires to issue one series of Securities under the Indenture to be designated as 6.850% Series B Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056 (the “Notes”) ;
WHEREAS, in accordance with Sections 2.04 and Article Nine of the Original Indenture, each Guarantor shall fully and unconditionally guarantee the Notes (the “Guarantee”);
WHEREAS, Section 9.01(xiii) of the Original Indenture permits execution of supplemental indentures without the consent of any Holders to make any change that does not adversely affect the rights of any Holder;
WHEREAS, the Issuer has requested that the Trustee execute and deliver this Second Supplemental Indenture. The Issuer has delivered to the Trustee an Issuer’s Certificate and an Opinion of Counsel pursuant to Sections 1.02 and 9.03 of the Original Indenture to the effect, among other things, that all conditions precedent provided for in the Original Indenture to the Trustee’s execution and delivery of this Second Supplemental Indenture have been complied with. All acts and things necessary have been done and performed to make this Second Supplemental Indenture enforceable in accordance with its terms, and the execution and delivery of this Second Supplemental Indenture has been duly authorized in all respects;
WHEREAS, all things necessary on the part of the Issuer to make this Second Supplemental Indenture, when executed by the Issuer, the legal, valid and binding obligation of the Issuer in accordance with the terms hereof, have been done; and
WHEREAS, all things necessary on the part of the Issuer to make the Notes, when executed by the Issuer, and authenticated and delivered hereunder and duly issued by the Issuer, the legal, valid and binding obligations of the Issuer in accordance with the terms of the Notes and this Second Supplemental Indenture, have been done.
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 covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
INTERPRETATIONS AND AMENDMENTS
Section 101. Second Supplemental Indenture. As used herein “Second Supplemental Indenture”, “hereto”, “herein”, “hereof”, “hereby”, “hereunder” and similar expressions refer to this Second Supplemental Indenture and not to any particular Article, Section or other portion hereof and include any and every instrument supplemental or ancillary hereto or in implementation hereof, and further include the terms of the Notes set forth in the forms of Notes annexed as Schedules hereto.
Section 102. Definitions in Second Supplemental Indenture. All terms contained in this Second Supplemental Indenture which are defined in the Original Indenture and not defined herein shall, for all purposes hereof, have the meanings given to such terms in the Original Indenture, unless the context otherwise specifies or requires.
Section 103. Interpretation not Affected by Headings. The division of this Second Supplemental Indenture into Articles and Sections, the provision of the table of contents hereto and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Second Supplemental Indenture.
ARTICLE TWO
DEFINITIONS
Section 201. Certain Definitions. The following additional terms are hereby established for the purposes of this Second Supplemental Indenture and shall have the meanings set forth in this Second Supplemental Indenture solely for the purposes of this Second Supplemental Indenture:
“Business Day” means, unless otherwise expressly stated, any day other than (i) a Saturday or Sunday or (ii) a day on which banks and trust companies in The City of New York are authorized or obligated by law, regulation or executive order to remain closed.
“compound interest” has the meaning set forth in Section 501.
“calculation agent” means, at any time, the entity appointed by the Issuer and serving as such agent with respect to the Notes at such time. Unless the Issuer has validly called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date, the Issuer will appoint a calculation agent for the Notes prior to the Reset Interest Determination Date immediately preceding the First Reset Date; provided that, if the Issuer has called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date but the Issuer does not redeem all of the outstanding Notes on such redemption date, the Issuer will appoint a calculation agent for the Notes as promptly as practicable after such proposed redemption date. The Issuer may terminate any such appointment and may appoint a successor calculation agent at any time and from time to time (so long as there shall always be a calculation agent in respect of the Notes when so required). The Issuer may appoint the Company or an affiliate of the Company as calculation agent.
“Capital Stock” means (i) in the case of a corporation or a company, corporate stock or shares; (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (iv) any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing person.
“Five-year U.S. Treasury Rate” means, as of any Reset Interest Determination Date, (i) an interest rate (expressed as a decimal) determined to be the per annum rate equal to the arithmetic mean of the yields to maturity for U.S. Treasury securities adjusted to constant maturity with a maturity of five years from the next Reset Date and trading in the public securities markets, for the five consecutive business days immediately prior to the respective Reset Interest Determination Date as published (or, if fewer than five consecutive business days are so published on the applicable Reset Interest Determination Date, for such number of business days published) in the most recent
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H.15, or (ii) if there is no such published U.S. Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be determined by interpolation between the arithmetic mean of the yields to maturity for each of the two series of U.S. Treasury securities adjusted to constant maturity trading in the public securities markets, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Interest Determination Date, and (B) the other maturing as close as possible to, but later than, the Reset Date following the next succeeding Reset Interest Determination Date, in each case for the five consecutive business days immediately prior to the respective Reset Interest Determination Date as published in the most recent H.15. If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clause (i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same interest rate determined for the prior Reset Interest Determination Date or, if the Five-year U.S. Treasury Rate cannot be so determined as of the Reset Interest Determination Date preceding the First Reset Date, then the interest rate applicable for the Reset Period beginning on and including the First Reset Date will be deemed to be 6.850% per annum, which is the same interest rate as in effect from and including the Original Issue Date to but excluding the First Reset Date.
“First Reset Date” has the meaning set forth in Section 301.
“H.15” means the statistical release designated as such, or any successor publication, published by the Board of Governors of the U.S. Federal Reserve System (or any successor thereto).
“interest payment date” has the meaning set forth in Section 301.
“Interest Payment Period” means the semi-annual period from and including an interest payment date to but excluding the next succeeding interest payment date, except for the first Interest Payment Period which shall be the period from and including the Original Issue Date to but excluding October 1, 2026.
“most recent H.15” means the H.15 published closest in time but prior to the close of business on the second business day prior to the applicable Reset Date.
“Optional Deferral Period” has the meaning set forth in Section 501.
“Original Issue Date” means March 23, 2026.
“Rating Agency Event” means, as of any date, a change, clarification or amendment in the methodology published by any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (or any successor provision thereto), that then publishes a rating for the Issuer (together with any successor thereto, a “rating agency”) in assigning equity credit to securities such as the Notes, (a) as such methodology was in effect on March 17, 2026, in the case of any rating agency that published a rating for the Issuer as of March 17, 2026, or (b) as such methodology was in effect on the date such rating agency first published a rating for the Issuer, in the case of any rating agency that first publishes a rating for the Issuer after March 17, 2026 (in the case of either clause (a) or (b), the “current methodology”), that results in (i) any shortening of the length of time for which a particular level of equity credit pertaining to the Notes by such rating agency would have been in effect had the current methodology not been changed or (ii) a lower equity credit (including up to a lesser amount) being assigned by such rating agency to the Notes as of the date of such change, clarification or amendment than the equity credit that would have been assigned to the Notes by such rating agency had the current methodology not been changed.
“record date” has the meaning set for the in Section 301.
“redemption date” when used with respect to any Notes to be redeemed, means the date fixed for such redemption pursuant to this Second Supplemental Indenture.
“Reset Date” means the First Reset Date and October 1 of every fifth year after 2031.
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“Reset Interest Determination Date” means, in respect of any Reset Period, the day falling two business days prior to the first day of such Reset Period.
“Reset Period” means the period from and including the First Reset Date to but excluding the next following Reset Date and thereafter each period from and including a Reset Date to but excluding the next following Reset Date, or the maturity date or date of redemption or repayment, as the case may be.
“Rights Plan” has the meaning set forth in Section 502.
“Tax Event” means that the Issuer has received an opinion of counsel experienced in such matters to the effect that, as a result of:
(i) any amendment to, clarification of, or change, including any announced prospective change, in the laws or treaties of the United States, Canada or any of their political subdivisions or taxing authorities, or any regulations under those laws or treaties, including an announced prospective change becoming effective (for certainty, including the proposed amendments to the Income Tax Act (Canada) released by the Department of Finance (Canada) on January 29, 2026);
(ii) an administrative action, which means any judicial decision or any official administrative pronouncement, ruling, regulatory procedure, notice or announcement, including any notice or announcement of intent to issue or adopt any administrative pronouncement, ruling, regulatory procedure or regulation;
(iii) any amendment to, clarification of, or change in the official position or the interpretation of any administrative action or judicial decision or any interpretation or pronouncement that provides for a position with respect to an administrative action or judicial decision that differs from the previously generally accepted position, in each case by any legislative body, court, governmental authority or regulatory body, regardless of the time or manner in which that amendment, clarification or change is introduced or made known; or
(iv) a threatened challenge asserted in writing in connection with a tax audit of the Issuer or any of its affiliates or subsidiaries, or a publicly-known threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Notes,
which amendment, clarification or change is effective or the administrative action is taken or judicial decision, interpretation or pronouncement is issued or threatened challenge is asserted or becomes publicly-known after March 17, 2026, there is more than an insubstantial risk that (i) interest payable by the Issuer on the Notes is not deductible, or within 90 days would not be deductible, in whole or in part, by the Issuer or the Issuer’s regarded parent for U.S. federal income tax purposes (or a member of the U.S. consolidated group of which the Issuer (or the Issuer’s regarded parent) is a member) for U.S. federal income tax purposes, or (ii) that the Issuer, EUSHI or the Company, as the case may be, becoming obligated to pay, on the next succeeding date on which interest is due, Additional Amounts with respect to the Notes and, in any such case, in the business judgment of the Issuer, EUSHI or the Company, as the case may be, determines that such obligation cannot be avoided by the use of reasonable measures available to the Issuer, EUSHI or the Company, as the case may be.
ARTICLE THREE
6.850% SERIES B FIXED-TO-FIXED RESET RATE JUNIOR SUBORDINATED NOTES DUE 2056
Section 301. Form and Terms of the Notes.
(a) There shall be and there is hereby created for issuance under the Original Indenture, as supplemented by this Second Supplemental Indenture, a series of Securities which shall be designated the “6.850% Series B Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056” and shall consist of an aggregate principal amount of US$375,000,000; provided, however, that if the Issuer shall, at any time after the date hereof, increase the
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principal amount of the Notes which may be issued and issue such increased principal amount (or any portion thereof), then any such additional Notes so issued shall have the same form and terms (other than the issue price, the date of issuance and, under certain circumstances, the date from which interest thereon shall begin to accrue and the first interest payment date), and shall carry the same right to receive accrued and unpaid interest, as the Notes theretofore issued; provided further that, if the additional Notes are not fungible with the then outstanding Notes for U.S. federal income tax purposes, the additional Notes shall have a separate CUSIP and/or ISIN number.
(b) The Notes will mature, and the principal of the Notes and accrued and unpaid interest thereon shall be due and payable, on October 1, 2056 (the “2056 Stated Maturity”), or such earlier date as the principal of any of the Notes may become due and payable in accordance with the provisions of the Original Indenture and this Second Supplemental Indenture.
(c) The Notes will bear interest (i) from and including the Original Issue Date to but excluding October 1, 2031 (the “First Reset Date”), at the rate of 6.850% per annum and (ii) from and including the First Reset Date, during each Reset Period at a rate per annum equal to the Five-year U.S. Treasury Rate as of the most recent Reset Interest Determination Date plus a spread of 2.648%, to be reset on each Reset Date; provided, that the interest rate during any Reset Period will not reset below 6.850%. Interest on the Notes will accrue from the Original Issue Date and will be payable semi-annually in arrears on April 1 and October 1 (each, an “interest payment date”) of each year until maturity or earlier redemption, beginning on October 1, 2026, to Holders at the close of business on the record date for the applicable interest payment date, which will be (i) the business day immediately preceding such interest payment date so long as all of the Notes remain in book-entry only form or (ii) the 15th calendar day preceding such interest payment date (whether or not a business day) if any of the Notes do not remain in book-entry only form (each, a “record date”), subject to the Issuer’s right to defer interest payments as described in Article Five below. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
The applicable interest rate for each Reset Period will be determined by the calculation agent, as of the applicable Reset Interest Determination Date. Promptly upon such determination, the calculation agent will notify the Issuer of the interest rate for the Reset Period and the Issuer will promptly notify, or cause the calculation agent to promptly notify, in writing, the Trustee and each paying agent of such interest rate. The calculation agent’s determination of any interest rate, and its calculation of the amount of interest for any Interest Payment Period beginning on or after the First Reset Date, will be on file at the Issuer’s principal offices, will be made available to any Holder or beneficial owner of the Notes upon request and will be final and binding in the absence of manifest error.
If an interest payment date, redemption date, or maturity date falls on a day that is not a business day, payment will be made on the next succeeding business day with the same force and effect as if made on such payment date.
Any such interest on the Notes not so punctually paid or provided for on any Interest Payment Date shall be payable, as applicable, as provided in the form of Note annexed hereto as Schedule A to this Second Supplemental Indenture.
(d) Wherever in this Second Supplemental Indenture there is mentioned, in any context, the payment of principal (and premium, if any), interest or any other amount payable under or with respect to the Notes, such mention will 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 of the Notes.
(e) All payments of principal of, premium, if any, and interest on the Notes will be made 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 debts, and all references herein to “United States dollars”, “US$” or “U.S. dollars” shall be deemed to refer to such coin or currency of the United States of America.
(f) The principal of, premium, if any, and interest on the Notes shall be payable, and the Notes may be surrendered for exchange, registration, transfer or discharge from registration, at the Corporate Trust Office of the Trustee in The City of New York, New York, and in such other places as the Issuer may from time to time designate in accordance with the Original Indenture. The Trustee is hereby appointed as the initial Paying Agent and Security Registrar for the Notes in The City of New York, New York.
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(g) The Notes shall be issued only as registered Global Securities, without coupons, in denominations of US$2,000 and any integral multiples of US$1,000 in excess thereof. The Notes initially will be represented by one or more Global Notes (the “Global Notes”) registered in the name of The Depository Trust Company, as Depositary or its nominee, or a successor depositary or its nominee.
(h) All Global Notes shall also bear the legends set forth in Section 3.14(f)(ii) of the Original Indenture.
(i) The Notes and the certificate of authentication of the Trustee endorsed thereon shall be in the form set out in Schedule A to this Second Supplemental Indenture with such appropriate insertions, omissions, substitutions and variations as the Trustee may approve and shall be numbered in such manner as the Trustee may approve, such approvals of the Trustee concerning any Note to be conclusively evidenced by its authentication of such Note.
(j) The Security Register referred to in Section 3.05 of the Original Indenture shall, with respect to the Notes, be kept at the office or agency in The City of New York, New York that the Issuer may from time to time designate for such purpose (which shall initially be the Corporate Trust Office of the Trustee in The City of New York, New York), and at such other place or places as the Issuer, with the approval of the Trustee may hereafter designate.
(k) The Notes shall be subject to redemption as provided in Article Six of this Second Supplemental Indenture and Article Eleven of the Original Indenture. The Issuer shall not otherwise be required to redeem, purchase or repay the Notes pursuant to any mandatory redemption, sinking fund or analogous provision or at the option of the Holders thereof. The Notes will not be convertible into or exchangeable for securities of any Person.
(l) Sections 14.02 and 14.03 of the Original Indenture shall be applicable to the Notes.
(m) For all purposes of the Indenture, the Notes shall act as a single series (including, but not limited to, for voting, waiver and providing direction and requests), and shall not be subject to class voting provisions, including, but not limited to, in respect of Sections 5.01, 5.02, 5.03, 5.07, 5.12, 5.13, 6.02, 9.02 and 10.10 of the Original Indenture.
(n) Section 10.05 of the Original Indenture shall be applicable to the Notes, except the second paragraph thereof, which shall be replaced in its entirety as follows:
“If the Issuer or a Guarantor, as the case may be, is so required to withhold or deduct any amount for or on account of Canadian Taxes from any payment made under or with respect to the Notes or the Guarantee, the Issuer or the Guarantor, as the case may be, will pay to each Holder of such Notes as additional interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each such Holder after such withholding or deduction (and after deducting any Canadian Taxes on such Additional Amounts) will not be less than the amount such Holder would have received if such Canadian Taxes had not been withheld or deducted, except as described in this Section 10.05. However, no Additional Amounts will be payable with respect to a payment made to a recipient or beneficial owner of such payment:
(1) with which the Issuer or a Guarantor, as the case may be, does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) and the regulations thereunder (the “Tax Act”)) at the time of making such payment;
(2) which is subject to such Canadian Taxes by reason of the recipient or beneficial owner being a “specified non-resident shareholder” of the Company for purposes of the Tax Act or a non-resident person not dealing at arm’s length with a “specified shareholder” (within the meaning of subsection 18(5) of the Tax Act) of the Company;
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(3) which is subject to such Canadian Taxes by reason of the recipient or beneficial owner being an entity in respect of which the Company is a “specified entity” as defined in subsection 18.4(1) of the Tax Act;
(4) which is subject to such Canadian Taxes by reason of the recipient or beneficial owner being a “reverse hybrid entity” (within the meaning of subsection 18.4(1) of the Tax Act, as proposed to be amended by the draft legislative proposals released on January 29, 2026, as may be further proposed to be amended);
(5) which is subject to such Canadian Taxes by reason of the recipient or beneficial owner being a resident, domicile or national of, or engaged in business or maintaining a permanent establishment or other physical presence in or otherwise having some connection with Canada or any province or territory thereof otherwise than by the mere holding of Notes or the receipt of payments thereunder;
(6) which is subject to such Canadian Taxes by reason of the failure of the recipient or beneficial owner to comply with any certification, identification, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the rate of deduction or withholding of, such Canadian Taxes;
(7) which is subject to such Canadian Taxes by reason of the legal nature of the recipient or beneficial owner disentitling such recipient or beneficial owner to the benefit of an applicable treaty if and to the extent that the application of such treaty would have resulted in the reduction or elimination of any Canadian Taxes as to which Additional Amounts would have otherwise been payable to a Holder on behalf of such beneficial owner;
(8) which failed to duly and timely comply with a timely request by the Issuer or a Guarantor, as the case may be, to provide information, documents, certification or other evidence concerning such recipient or beneficial owner’s nationality, residence, entitlement to treaty benefits, identity or connection with Canada or any political subdivision or authority thereof, if and to the extent that due and timely compliance with such request would have resulted in the reduction or elimination of any Canadian Taxes as to which Additional Amounts would have otherwise been payable to a recipient or beneficial owner but for this clause;
(9) which is a fiduciary, limited liability company, partnership or any person other than the sole beneficial owner, to the extent that, any beneficiary or settlor of such fiduciary, any member of such limited liability company, any partner in such partnership or the beneficial owner of such payment (as the case may be) would not have been entitled to receive Additional Amounts with respect to such payment if such beneficiary, settlor, member, partner or beneficial owner had been the recipient of such payment; or
(10) which is subject to such Canadian Taxes by reason of any combination of the above.”
(o) The Notes shall have the other terms and provisions set forth in the form of Note attached hereto as Schedule A to this Second Supplemental Indenture with the same force and effect as if such terms and provisions were set forth in full herein.
Section 302. Issuance of the Notes. The Notes in the aggregate principal amount of US$375,000,000 shall be executed by the requisite authorized officers of the Issuer and delivered by the Issuer to the Trustee on the date of issue for authentication and delivery pursuant to and in accordance with the provisions of Section 3.03 of the Original Indenture and, upon the requirements of such provisions being complied with, the Notes shall be authenticated by or on behalf of the Trustee and delivered by it to or upon the Issuer Order of the Issuer without any further act or formality on the part of the Issuer. The Trustee shall not have any duty or responsibility with respect to the use or application of any of the Notes so certified and delivered or the proceeds thereof.
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ARTICLE FOUR
SUBORDINATION
The following subordination provisions for the Notes are established pursuant to Section 12.01 of the Original Indenture and are in addition to the provision of Article Twelve of the Original Indenture, which shall apply to the Notes, except that Section 403 of this Second Supplemental Indenture replaces in its entirety Section 12.04 of the Original Indenture.
Section 401. Notes Subordinated to Senior Indebtedness. Each of the Issuer and the Guarantors covenants and agrees, and each Holder of the Notes and the Guarantees, by his acceptance thereof, likewise covenants and agrees, that (a) the indebtedness represented by the Notes and the payment of the principal of and any premium or interest on each and all of the Notes of such series is subordinate, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all Senior Indebtedness; and (b) Senior Indebtedness shall continue to be Senior Indebtedness with respect to the Notes irrespective of any amendment, modification or waiver of any term of the Notes or extension or renewal of the Notes (other than any such amendment, modification or waiver that makes the Notes subordinated or equal in right of payment to the Notes).
With respect to the Notes, in the event (a) of any payment by, or distribution of assets of, the Issuer or the Guarantors of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the Issuer or the Guarantors, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other similar proceedings, or (b) subject to the provisions of Section 402, that (i) a default shall have occurred and be continuing with respect to the payment of principal, interest or any other monetary amounts due and payable on any Senior Indebtedness and such default shall have continued beyond the period of grace, if any, specified in the instrument evidencing such Senior Indebtedness (and the Trustee shall have received written notice thereof from the Issuer or the Guarantors or one or more holders of such Senior Indebtedness or their representative or representatives or the trustee or trustees under any indenture pursuant to which any such Senior Indebtedness may have been issued), or (ii) the maturity of any such Senior Indebtedness shall have been accelerated because of a default in respect of such Senior Indebtedness (and the Trustee shall have received written notice thereof from the Issuer or the Guarantors or one or more holders of such Senior Indebtedness or their representative or representatives or the trustee or trustees under any indenture pursuant to which any such Senior Indebtedness may have been issued), then:
(i) the holders of all such Senior Indebtedness shall first be entitled to receive, in the case of clause (a) above, payment of all amounts due or to become due upon all such Senior Indebtedness or, in the case of subclauses (i) and (ii) of clause (b) above, payment of all amounts due upon all such Senior Indebtedness, or provision shall be made for such payment in money or money’s worth, before the Holders of any of the Notes are entitled to receive any payment on account of the principal of or any premium or interest on the indebtedness evidenced by the Notes, including, without limitation, any payments made pursuant to Article Eleven or Article Fourteen of the Original Indenture;
(ii) so long as any of the events in clause (a) or subclauses (i) or (ii) of clause (b) above has occurred and is continuing, any payment by, or distribution of assets of, the Issuer or the Guarantors of any kind or character, whether in cash, property or securities, to which the Holders of any of the Notes would be entitled except for the provisions of this Article Four, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Issuer or the Guarantors being subordinated to the payment of the Notes, shall be paid or distributed, as the case may be, by the Person making such payment or distribution, whether a trustee in bankruptcy, receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any such Senior Indebtedness may have been issued, ratably according to aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment, in the case of clause (a) above, of all amounts due and to become due upon all such Senior Indebtedness, or, in the case of subclauses (i) and (ii) of clause (b) above, of all amounts due upon all such Senior Indebtedness, in each case remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the indebtedness evidenced by the Notes; and
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(iii) so long as any of the events in clause (a) or subclauses (i) or (ii) of clause (b) above has occurred and is continuing, in the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Issuer or the Guarantors of any kind or character, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Issuer or the Guarantors being subordinated to the payment of the Notes, in respect of principal of or any premium or interest on any of the Notes or in connection with the repurchase by the Issuer or the Guarantors of any of the Notes, shall be received by the Trustee or the Holders of any of the Notes before, in the case of clause (a) above, all amounts due or to become due upon all such Senior Indebtedness or, in the case of subclauses (i) or (ii) of clause (b) above, all amounts due upon all such Senior Indebtedness is paid in full (or provision is made for such payment), then such payment or distribution shall be paid over to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any such Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of, in the case of clause (a) above, all amounts due and to become due upon all such Senior Indebtedness or, in the case of subclauses (i) or (ii) of clause (b) above, all amounts due upon all such Senior Indebtedness, in each case until all such amounts shall have been paid in full, after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness.
For purposes of this Article Four, the words “cash, property or securities” shall not be deemed to include shares of stock of the Issuer or the Guarantors as reorganized or readjusted, or securities of the Issuer or the Guarantors or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article Four with respect to the Notes to the payment of all Senior Indebtedness which may at the time be outstanding; provided that (i) all such Senior Indebtedness is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of such Senior Indebtedness are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment. The consolidation of the Issuer with, or the merger of the Issuer into, another Person or the liquidation or dissolution of the Issuer following the conveyance or transfer of its properties and assets as an entirety, or substantially as an entirety, to any winding-up, liquidation or reorganization for the purposes of this Section if such other Person shall, as part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Eight of the Original Indenture. Nothing in this Section 401 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.07 of the Original Indenture.
Section 402. Disputes with Holders of Certain Senior Indebtedness. Any failure of the Issuer or the Guarantors to make any payment of or on or perform any other obligation under any Senior Indebtedness, other than any Senior Indebtedness incurred by the Issuer or the Guarantors or assumed or guaranteed, directly or indirectly, by the Issuer or the Guarantors for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of this Section shall have been waived by the Issuer or the Guarantors in the instrument or instruments by which the Issuer or the Guarantors incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default with respect to such Senior Indebtedness under clause (b) of the second paragraph of Section 401 if (i) the Issuer or the Guarantors shall be disputing its obligation to make such payment or perform such obligation and (ii) either (A) no final judgment relating to such dispute shall have been issued against the Issuer or the Guarantors which is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may seek further appeal or review, or (B) in the event of a judgment that is subject to further review or appeal has been issued, the Issuer or the Guarantors shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review.
Section 403. Subrogation. Subject to the payment in full, in the case of clause (a) of the second paragraph of Section 401, of all amounts due and to become due on all Senior Indebtedness or, in the case of subclauses (i) or (ii) of clause (b) of the second paragraph of Section 401, of all amounts due on all such Senior Indebtedness, as the case may be, the Holders of the Notes shall be subrogated (equally and ratably with the holders of all obligations of the Issuer or the Guarantors which are subordinated in right of payment to Senior Indebtedness
9
of the Issuer or the Guarantors to the same extent as the Notes are subordinated, or which by their express terms rank equally in right of payment with the Notes with regard to Senior Indebtedness, and which in each case are entitled to like rights of subrogation) to the rights of the holders of such Senior Indebtedness to receive payments or distributions of cash, property or securities of the Issuer or the Guarantors applicable to such Senior Indebtedness. Such subrogation shall continue until all amounts owing on the Notes shall be paid in full, and as between the Issuer or the Guarantors, and their respective creditors other than holders of such Senior Indebtedness and the Holders of the Notes, no such payment or distribution made to the holders of such Senior Indebtedness by virtue of this Article Four that otherwise would have been made to the Holders of the Notes shall be deemed to be a payment by the Issuer or the Guarantors on account of such Senior Indebtedness. The provisions of this Article Four are and are intended solely for the purpose of defining the relative rights of the Holders of the Notes, on the one hand, and the holders of Senior Indebtedness, on the other hand.
Section 404. Obligation of the Issuer and the Guarantors Unconditional. Nothing contained in this Article Four or elsewhere in this Second Supplemental Indenture, in the Notes or in the Guarantees is intended to or shall impair, as among the Issuer or the Guarantors, or their respective creditors other than the holders of Senior Indebtedness and the Holders of the Notes, the obligation of the Issuer or the Guarantors, which is absolute and unconditional, to pay to such Holders the principal of and any premium and interest on the Notes as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of such Holders and the creditors of the Issuer or the Guarantors other than the holders of such Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or any Holder of the Notes from exercising all remedies otherwise permitted by the Indenture or applicable law upon default under this Second Supplemental Indenture, subject to the rights, if any, under this Article Four of the holders of such Senior Indebtedness in respect of cash, property or securities of the Issuer or the Guarantors received by the Trustee or the holders of the Notes upon the exercise of any such remedy and the rights of the holders of such Senior Indebtedness to enforce the provisions of subparagraph (iii) of the second paragraph of Section 401 against the Trustee and the Holders of the Notes.
Upon payment or distribution of assets of the Issuer or the Guarantors referred to in this Article Four, the Trustee and the Holders of the Notes shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding-up, liquidation or reorganization proceeding affecting the affairs of the Issuer or the Guarantors is pending or upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee or agent or other person making any payment or distribution, delivered to the Trustee or to the Holders of the Notes, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other indebtedness of the Issuer or the Guarantors, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Four.
The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing itself to be a holder of Senior Indebtedness (or a trustee or representative on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness or a trustee or representative on behalf of any such holder or holders. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article Four, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article Four, and, if such evidence is not furnished, the Trustee may defer payment to such Person pending judicial determination as to the right of such Person to receive such payment.
Section 405. Payments on the Notes Permitted. Nothing contained in this Article Four or elsewhere in this Second Supplemental Indenture, in the Notes or in the Guarantees shall affect the obligations of the Issuer or the Guarantors to make, or prevent the Issuer or the Guarantors from making, payment of the principal of or any premium or interest on the Notes in accordance with the provisions hereof and thereof, except as otherwise provided in this Article Four.
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Section 406. Effectuation of Subordination by Trustee. Each Holder of the Notes, by his acceptance thereof, authorizes and directs the Trustee in his, her or its behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article Four and appoints the Trustee his, her or its attorney-in-fact, as the case maybe, for any and all such purposes.
Section 407. Rights of Holders of Senior Indebtedness Not Impaired. No right of any present or future holder of any Senior Indebtedness shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Issuer or the Guarantors or by any noncompliance by the Issuer or the Guarantors with the terms, provisions and covenants of the Indenture, regardless of any knowledge thereof which any such holder may have or be otherwise charged with.
With respect to the holders of Senior Indebtedness, (i) the duties and obligations of the Trustee shall be determined solely by the express provisions of the Indenture; (ii) the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Indenture; (iii) no implied covenants or obligations shall be read into the Indenture against the Trustee; and (iv) the Trustee shall not be deemed to be a fiduciary as to such holders of Senior Indebtedness.
ARTICLE FIVE
OPTION TO DEFER INTEREST AND COVENANTS
Section 501. Option to Defer Interest Payments. So long as no Event of Default with respect to the Notes has occurred and is continuing, the Issuer may, at its option, defer interest payments on the Notes, from time to time, for one or more deferral periods of up to 20 consecutive semi-annual Interest Payment Periods (each period, commencing on the date that the first such interest payment would otherwise have been made, an “Optional Deferral Period”), except that no such Optional Deferral Period may extend beyond the final maturity date of the Notes or end on a day other than the day immediately preceding an interest payment date. During any Optional Deferral Period, interest on the Notes will continue to accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes). In addition, during any Optional Deferral Period, interest on the deferred interest (“compound interest”) will accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes), compounded semi-annually, to the extent permitted by applicable law. No interest will be due or payable on the Notes during an Optional Deferral Period, except upon a redemption of any Notes on any redemption date during such Optional Deferral Period (in which case all accrued and unpaid interest (including, to the extent permitted by applicable law, any compound interest) on the Notes to be redeemed to but excluding such redemption date will be due and payable on such redemption date), or unless the principal of and interest on the Notes shall have been declared due and payable as the result of an Event of Default with respect to the Notes (in which case all accrued and unpaid interest, including, to the extent permitted by applicable law, any compound interest, on the Notes shall become due and payable). All references in the Notes and, insofar as it relates to the Notes, the Indenture, to “interest” on the Notes shall be deemed to include any such deferred interest and, to the extent permitted by applicable law, any compound interest, unless otherwise expressly stated or the context otherwise requires.
Before the end of any Optional Deferral Period that is shorter than 20 consecutive semi-annual Interest Payment Periods, the Issuer may elect, at its option, to extend such Optional Deferral Period, so long as the entire Optional Deferral Period does not exceed 20 consecutive semi-annual Interest Payment Periods or extend beyond the final maturity date of the Notes. The Issuer may also elect, at its option, to shorten the length of any Optional Deferral Period. No Optional Deferral Period (including as extended or shortened) may end on a day other than the day immediately preceding an interest payment date. At the end of any Optional Deferral Period, if all amounts then due on the Notes, including all accrued and unpaid interest thereon (including, without limitation and to the extent permitted by applicable law, any compound interest), are paid, the Issuer may elect to begin a new Optional Deferral Period; provided, however, that, without limitation of the foregoing, the Issuer may not begin a new Optional Deferral Period unless the Issuer has paid all accrued and unpaid interest on the Notes (including, without limitation and to the extent permitted by applicable law, any compound interest) from any previous Optional Deferral Periods.
For the avoidance of doubt, deferral of interest payments on the Notes pursuant to this Section 501 shall not constitute an Event of Default under Section 5.01(1) of the Original Indenture.
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Section 502. Covenants. During any Optional Deferral Period, the Issuer will not do any of the following:
(i) declare or pay any dividends or distributions on any Capital Stock of the Issuer or the Company;
(ii) redeem, purchase, acquire or make a liquidation payment with respect to any Capital Stock of the Issuer or the Company;
(iii) pay any principal, interest or premium on, or repay, repurchase or redeem, any indebtedness of the Issuer or the Guarantors that ranks equally with or junior to the Notes or the Guarantees in right of payment; or
(iv) make any payments with respect to any guarantees by the Issuer or the Guarantors of any indebtedness if such guarantees rank equally with or junior to the Notes or the Guarantees in right of payment;
provided; however, during an Optional Deferral Period, the Issuer and the Guarantors may (a) declare and pay dividends or distributions payable solely in shares of the Company’s or the Issuer’s Capital Stock (together, for the avoidance of doubt, with cash in lieu of any fractional share) or options, warrants or rights to subscribe for or purchase shares of the Company’s or the Issuer’s Capital Stock, (b) declare and pay any dividend in connection with the implementation of a plan (a “Rights Plan”) providing for the issuance by the Company or the Issuer to all holders of the Company’s or the Issuer’s Capital Stock of rights entitling them to subscribe for or purchase Capital Stock or any class or series of the Company’s or the Issuer’s preferred stock, which rights (1) are deemed to be transferred with such Capital Stock, (2) are not exercisable until the occurrence of a specified event or events and (3) are also issued in respect of future issuances of the Company’s or the Issuer’s Capital Stock, (c) issue any of shares of the Company’s or the Issuer’s Capital Stock under any Rights Plan or redeem or repurchase any rights distributed pursuant to a Rights Plan, (d) reclassify the Company’s or the Issuer’s Capital Stock or exchange or convert one class or series of the Company’s or the Issuer’s Capital Stock for another class or series of the Company’s or the Issuer’s Capital Stock, (e) purchase fractional interests in shares of the Company’s or the Issuer’s Capital Stock pursuant to the conversion or exchange provisions of such Capital Stock or the security being converted or exchanged, (f) purchase, acquire or withhold shares of the Company’s or the Issuer’s Capital Stock related to the issuance of the Company’s or the Issuer’s Capital Stock or rights under any dividend reinvestment plan or related to any of the Company’s or the Issuer’s benefit plans for the Company’s and the Issuer’s directors, officers, employees, consultants or advisors, including any employment contract, and (g) for the avoidance of doubt, convert convertible Capital Stock of the Company or the Issuer into other Capital Stock of the Company or the Issuer in accordance with the terms of such convertible Capital Stock (together, for the avoidance of doubt, with cash in lieu of any fractional share).
Section 503. Notice. The Issuer will give the Holders of the Notes and the Trustee written notice of its election of, or any shortening or extension of, an Optional Deferral Period at least 10 business days prior to the earlier of (1) the next succeeding interest payment date or (2) the date upon which the Issuer is required to give notice to any applicable self-regulatory organization or to Holders of the Notes of the next succeeding interest payment date or the record date therefor. The record date for the payment of deferred interest and, to the extent permitted by applicable law, any compound interest payable on the interest payment date immediately following the last day of an Optional Deferral Period will be the regular record date with respect to such interest payment date.
ARTICLE SIX
OPTIONAL REDEMPTION
Section 601. Optional Redemption. The Issuer may redeem some or all of the Notes, at its option, in whole or in part (i) on any day in the period commencing on the date falling 90 days prior to the First Reset Date and ending on and including the First Reset Date and (ii) after the First Reset Date, on any interest payment date, at a redemption price in cash equal to 100% of the principal amount of the Notes being redeemed, plus, (subject to the provisions set forth in Section 604 regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a Redemption Date), accrued and unpaid interest on the Notes to be redeemed to but excluding the redemption date.
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Section 602. Redemption Following a Tax Event. The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Tax Event at a redemption price in cash equal to 100% of the principal amount of the Notes, plus, (subject to the provisions set forth in Section 604 regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a Redemption Date), accrued and unpaid interest on the Notes to but excluding the redemption date.
Section 603. Redemption Following a Rating Agency Event. The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Rating Agency Event at a redemption price in cash equal to 102% of the principal amount of the Notes, plus, (subject to the provisions set forth in Section 604 regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a Redemption Date), accrued and unpaid interest on the Notes to but excluding the redemption date.
Section 604. Payments of Interest. Notwithstanding any statement in Article Six to the contrary, installments of interest on the Notes that are due and payable on any interest payment date falling on or prior to a redemption date for the Notes will be payable on that interest payment date to the Holders thereof as of the close of business on the relevant record date according to the terms of the Notes and the Indenture, except that, if the redemption date for any Notes falls on any day during an Optional Deferral Period, accrued and unpaid interest (including, to the extent permitted by applicable law, any compound interest) on such Notes will be paid on such redemption date to the persons entitled to receive the redemption price of such Notes. For the avoidance of doubt, the interest payment date falling immediately after the last day of an Optional Deferral Period shall not be deemed to fall on a day during such Optional Deferral Period.
Section 605. Securities Called for Redemption. Section 11.06 of the Original Indenture is replaced in its entirety as follows:
“Once notice of redemption is mailed, the Notes called for redemption will become due and payable on the redemption date at the applicable redemption price, plus, subject to the terms described in Section 604 of this Second Supplemental Indenture, accrued and unpaid interest to but excluding the redemption date, and will be paid upon surrender thereof for redemption, unless (a) the notice of redemption provides that such redemption shall be subject to the condition described in Section 606 of this Second Supplemental Indenture and (b) such redemption shall have been canceled in accordance with the provisions of Section 606 of this Second Supplemental Indenture because such condition shall not have been satisfied. If only part of a note is redeemed, the Trustee will issue in the name of the registered holder of the note and deliver to such holder a new note in a principal amount equal to the unredeemed portion of the principal of the note surrendered for redemption. If the Issuer elects to redeem all or a portion of the Notes, then, unless otherwise provided in such notice of redemption as described in the next succeeding paragraph, the redemption will not be conditional upon receipt by the paying agent or the Trustee of monies sufficient to pay the redemption price.”
Section 606. Notice of Redemption. The following paragraph is appended as the last paragraph of Section 11.04 of the Original Indenture:
“If, at the time a notice of redemption is given, (i) the Issuer has not effected satisfaction and discharge of the Notes pursuant to Article Four of the Indenture and (ii) such notice of redemption is not being given in connection with or in order to effect satisfaction and discharge of the Notes, then, if the notice of redemption so provides and at the Issuer’s option, the redemption may be subject to the condition that the Trustee shall have received, on or before the applicable redemption date, monies in an amount sufficient to pay the redemption price and accrued and unpaid interest on the Notes called for redemption to but excluding the redemption date. If monies in such amount are not received by the Trustee on or before such redemption date, such notice of redemption shall be automatically canceled and of no force or effect, such proposed redemption shall be automatically canceled and the Issuer shall not be required to redeem the Notes called for redemption on such redemption date. In the event that a redemption is canceled, the Issuer will, not later than the business day immediately following the proposed redemption date, deliver, or cause to be delivered, notice of such cancellation to the Holders of the Notes called for redemption (which notice will also indicate that any Notes or portions thereof surrendered for redemption shall be returned to the applicable Holders), and the Issuer will direct the Trustee to, and the Trustee will, promptly return any Notes or portions thereof that have been surrendered for redemption to the applicable Holders.”
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Section 607. Deposit of Redemption Price. Section 11.05 of the Original Indenture is deleted in its entirety and does not apply to the Notes.
ARTICLE SEVEN
GENERAL
Section 701. Effectiveness. This Second Supplemental Indenture shall become effective upon its execution and delivery.
Section 702. Ratification of Original Indenture. The Original Indenture as supplemented by the Second Supplemental Indenture is in all respects ratified and confirmed, and this Second Supplemental Indenture shall be deemed part of the Original Indenture in the manner and to the extent herein and therein provided.
Section 703. Governing Law. This Second Supplemental Indenture, the Original Indenture as supplemented hereby and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
Section 704. Severability. In case any provision in this Second Supplemental Indenture, the Original Indenture as supplemented hereby or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 705. Acceptance of Trust. The Trustee hereby accepts the trusts in this Second Supplemental Indenture declared and provided for and agrees to perform the same upon the terms and conditions herein before set forth in trust for the various Persons who shall from time to time be Holders subject to all the terms and conditions herein set forth.
Section 706. Benefits of Seccond Supplemental Indenture. Nothing in this Second Supplemental Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto, and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Second Supplemental Indenture.
Section 707. Multiple Originals. The parties may sign any number of copies of this Second Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Second Supplemental Indenture. Delivery of an executed counterpart of a signature page to this Second Supplemental Indenture by telecopier, facsimile or other electronic transmission (i.e., a “pdf” or “tif”), Docusign or otherwise, shall be effective as delivery as a manually executed counterpart thereof and may be used in lieu of the original Second Supplemental Indenture for all purposes. The words “execution,” “signed,” “signature,” and words of like import in this Second Supplemental Indenture or in any other certificate, agreement or document related to this Second Supplemental Indenture or the Notes shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and electronic signatures provided by DocuSign, AdobeSign or such other digital signature provider as specified in writing to the Trustee by an authorized representative of the Issuer. For the avoidance of doubt, any written communication to the Trustee hereunder may be signed manually and transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) or signed by way of an electronic signature provided by DocuSign, AdobeSign or such other digital signature provider as specified in writing to the Trustee by an authorized representative of the Company. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
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Section 708. Agent for Service. By the execution and delivery of this Second Supplemental Indenture, the Company (i) irrevocably designates and appoints, and acknowledges that it has irrevocably designated and appointed, the Issuer as its authorized agent upon which process may be served in any suit, action or proceeding arising out of or relating to the Notes or this Second Supplemental Indenture that may be instituted in any United States federal or New York state court in The City of New York or brought under federal or state securities laws or brought by the Trustee (whether in its individual capacities or in its capacity as Trustee) or, subject to Section 5.07 of the Original Indenture, any Holder of Notes in any United States federal or New York state court in The City of New York, (ii) submits to the nonexclusive jurisdiction of any such court in any such suit, action or proceeding, and (iii) agrees that service of process upon the Issuer and written notice of said service to the Issuer at its principal office and in the manner specified in the Original Indenture, shall be deemed in every respect effective service of process upon the Issuer in any such suit, action or proceeding. The Issuer further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of the Issuer in full force and effect so long as any of the Notes shall be Outstanding or any amounts shall be payable in respect of any Notes.
[Signature Page to Follow]
15
IN WITNESS WHEREOF, the parties hereof have caused this Second Supplemental Indenture to be duly executed by their respective officers, directors or signatories duly authorized thereto, all as of the day and year first above written.
| EMERA US FINANCE, LLC, as Issuer | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer & Manager | ||
| By: | /s/ Brian C. Curry | |
| Name: Brian C. Curry | ||
| Title: Secretary | ||
| EMERA INCORPORATED, as Guarantor | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer | ||
| By: | /s/ Brian C. Curry | |
| Name: Brian C. Curry | ||
| Title: Corporate Secretary | ||
| EMERA US HOLDINGS INC., as Guarantor | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer | ||
| By: | /s/ Brian C. Curry | |
| Name: Brian C. Curry | ||
| Title: Secretary | ||
[First Supplemental Indenture Signature Page]
IN WITNESS WHEREOF, the parties hereof have caused this Second Supplemental Indenture to be duly executed by their respective officers, directors or signatories duly authorized thereto, all as of the day and year first above written.
| EQUINITI TRUST COMPANY, LLC, as Trustee | ||
| By: | /s/ Paul H. Kim | |
| Name: Paul H. Kim | ||
| Title: Assistant General Counsel | ||
[First Supplemental Indenture Signature Page]
Schedule A
FORM OF 6.850% SERIES B FIXED-TO-FIXED RESET RATE JUNIOR SUBORDINATED NOTE DUE 2056
FACE OF NOTE
[Depository Legend, if applicable]
EMERA US FINANCE, LLC
6.850% Series B Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2056s
No. [•] $[•]
CUSIP No.: 29103HAB3
ISIN No.: US29103HAB33
EMERA US FINANCE, LLC, a corporation duly organized and existing under the laws of the State of Delaware (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Issuer”), promises to pay to Cede & Co., or registered assigns, the principal sum of [•] Million Dollars ($[•]) on October 1, 2056 (the “Maturity Date”), and to pay interest thereon (i) from and including March 23, 2026 (the “Original Issue Date”) to but excluding October 1, 2031 (the “First Reset Date”) at the rate of 6.850% per annum and (ii) from and including the First Reset Date, during each Reset Period (as defined on the reverse hereof) at a rate per annum equal to the Five-year U.S. Treasury Rate (as defined on the reverse hereof) as of the most recent Reset Interest Determination Date (as defined on the reverse hereof) plus a spread of 2.648%, to be reset on each Reset Date (as defined on the reverse hereof); provided, that the interest rate during any Reset Period will not reset below 6.850%.
Interest Payment Dates: April 1 and October 1, beginning October 1, 2026, subject to the Issuer’s right to defer interest payments pursuant to the provisions set forth below.
Record Dates: (i) if all of the Notes are in book-entry form represented by one or more Global Securities, the Business Day immediately preceding the applicable Interest Payment Date and (ii) if any of the Notes are not in book-entry form represented by one or more Global Securities, the 15th calendar day preceding such Interest Payment Date (whether or not a Business Day) (each such date in clauses (i) and (ii), a “Regular Record Date”).
Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
A-1
IN WITNESS WHEREOF, the Issuer has caused this Security to be signed manually or by facsimile by one of its duly authorized officers.
Dated: March 23, 2026
| EMERA US FINANCE, LLC | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer & Manager | ||
| By: | /s/ Brian C. Curry | |
| Name: Brian C. Curry | ||
| Title: Secretary | ||
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| EQUINITI TRUST COMPANY, LLC, as Trustee | ||
| By: | /s/ Paul H. Kim | |
| Authorized Signatory | ||
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REVERSE SIDE OF NOTE
This Security is one of a duly authorized issue of securities of the Issuer designated as its 6.850% Series B Fixed-to-Fixed Reset Rate Notes due 2056 (the “Securities”), initially in aggregate principal amount of $[•], which may be issued under the Indenture dated as of March 23, 2026 (the “Original Indenture”), as supplemented by the First Supplemental Indenture dated as of March 23, 2026 (the “First Supplemental Indenture”) and the Second Supplemental Indenture dated as of March 23, 2026 (the “Second Supplemental Indenture” and, the Original Indenture as supplemented by the First Supplemental Indenture and the Second Supplemental Indenture, the “Indenture”), by and among the Issuer, Emera Incorporated (the “Company”), Emera US Holdings Inc. (“EUSHI” and together with the Company, the “Guarantors”), and Equiniti Trust Company, LLC, as trustee (the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations 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 a global Security initially representing $[•] aggregate principal amount of the Securities of this series.
Interest on the Notes will accrue from the Original Issue Date and will be payable semi-annually in arrears on April 1 and October 1 (each, an “Interest Payment Date”) of each year, beginning on October 1, 2026, to Holders at the close of business on the Regular Record Date for the applicable Interest Payment Date, subject to the Company’s right to defer interest payments pursuant to the provisions set forth below.
Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. The applicable interest rate for each Reset Period will be determined by the Calculation Agent (as defined below), as of the applicable Reset Interest Determination Date, in accordance with following provisions:
As provided above, the applicable interest rate for each Reset Period will be determined by the Calculation Agent, as of the applicable Reset Interest Determination Date. Promptly upon such determination, the Calculation Agent will notify the Company of the interest rate for the Reset Period and the Company will promptly notify, or cause the Calculation Agent to promptly notify, in writing, the Trustee and each Paying Agent of such interest rate. The Calculation Agent’s determination of any interest rate, and its calculation of the amount of interest for any Interest Payment Period beginning on or after the First Reset Date, will be on file at the Company’s principal offices, will be made available to any Holder or beneficial owner of the Notes upon request and will be final and binding in the absence of manifest error.
If an Interest Payment Date, redemption date, or maturity date falls on a day that is not a Business Day, payment will be made on the next succeeding Business Day with the same force and effect as if made on such payment date.
“Business Day” means, unless otherwise expressly stated, any day other than (i) a Saturday or Sunday or (ii) a day on which banks and trust companies in The City of New York are authorized or obligated by law, regulation or executive order to remain closed.
“Calculation Agent” means, at any time, the entity appointed by the Issuer and serving as such agent with respect to the Notes at such time. Unless the Issuer has validly called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date, the Issuer will appoint a Calculation Agent for the Notes prior to the Reset Interest Determination Date immediately preceding the First Reset Date; provided that, if the Issuer has called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date but the Issuer does not redeem all of the outstanding Notes on such redemption date, the Issuer will appoint a Calculation Agent for the Notes as promptly as practicable after such proposed redemption date. The Issuer may terminate any such appointment and may appoint a successor Calculation Agent at any time and from time to time (so long as there shall always be a Calculation Agent in respect of the Notes when so required). The Issuer may appoint the Company or an affiliate of the Company as calculation agent.
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“Five-year U.S. Treasury Rate” means, as of any Reset Interest Determination Date, (i) an interest rate (expressed as a decimal) determined to be the per annum rate equal to the arithmetic mean of the yields to maturity for U.S. Treasury securities adjusted to constant maturity with a maturity of five years from the next Reset Date and trading in the public securities markets, for the five consecutive Business Days immediately prior to the respective Reset Interest Determination Date as published (or, if fewer than five consecutive Business Days are so published on the applicable Reset Interest Determination Date, for such number of Business Days published) in the most recent H.15, or (ii) if there is no such published U.S. Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be determined by interpolation between the arithmetic mean of the yields to maturity for each of the two series of U.S. Treasury securities adjusted to constant maturity trading in the public securities markets, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Interest Determination Date, and (B) the other maturing as close as possible to, but later than, the Reset Date following the next succeeding Reset Interest Determination Date, in each case for the five consecutive Business Days immediately prior to the respective Reset Interest Determination Date as published in the most recent H.15. If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clause (i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same interest rate determined for the prior Reset Interest Determination Date or, if the Five-year U.S. Treasury Rate cannot be so determined as of the Reset Interest Determination Date preceding the First Reset Date, then the interest rate applicable for the Reset Period beginning on and including the First Reset Date will be deemed to be 6.850% per annum, which is the same interest rate as in effect from and including the Original Issue Date to but excluding the First Reset Date.
“H.15” means the statistical release designated as such, or any successor publication, published by the Board of Governors of the U.S. Federal Reserve System (or any successor thereto).
“Interest Payment Period” means the semi-annual period from and including an Interest Payment Date to but excluding the next succeeding Interest Payment Date, except for the first Interest Payment Period which shall be the period from and including the Original Issue Date to but excluding October 1, 2026.
“most recent H.15” means the H.15 published closest in time but prior to the close of business on the second Business Day prior to the applicable Reset Date.
“redemption date” when used with respect to any Notes to be redeemed, means the date fixed for such redemption pursuant to the Second Supplemental Indenture.
“Reset Date” means the First Reset Date and October of every fifth year after 2031.
“Reset Interest Determination Date” means, in respect of any Reset Period, the day falling two Business Days prior to the first day of such Reset Period.
“Reset Period” means the period from and including the First Reset Date to but excluding the next following Reset Date and thereafter each period from and including a Reset Date to but excluding the next following Reset Date, or the maturity date or date of redemption or repayment, as the case may be.
Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York, 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 debts; provided, however, that payment of interest may be made at the option of the Issuer (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register or (ii) by wire transfer to an account maintained in the United States or Canada by the payee. Notwithstanding the foregoing, payments of principal, premium, if any, and interest on a global Security registered in the name of a Depositary or its nominee will be made by wire transfer of immediately available funds. Principal paid in relation to any Security of this series at Stated Maturity shall be paid to the Holder of such Security only upon presentation and surrender of such Security to such office or agency referred to above.
As provided for in the Indenture, the Issuer may from time to time without notice to, or the consent of, the Holders of the Securities, create and issue additional Securities of this series under the Indenture, equal in rank to the Outstanding Securities of this series in all respects (or in all respects except for the payment of interest accruing prior to the issue date of the new Securities of this series or except for the first payment of interest following the
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issue date of the new Securities of this series) so that the new Securities of this series shall be consolidated and form a single series with the Outstanding Securities of this series and have the same terms as to status, redemption or otherwise as the Outstanding Securities of this series; provided that, if the additional Securities of this series are not fungible with the Outstanding Securities of this series for U.S. federal income tax purposes, the additional Securities shall have a separate CUSIP and/or ISIN number.
The Issuer shall pay to the Holder of this Security such Additional Amounts and other amounts as may be payable under Section 10.05 of the Original Indenture. Whenever in this Security there is mentioned, in any context, the payment of principal (or premium, if any), interest or any other amount payable under or with respect to this Security, 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.
Optional Interest Deferral. So long as no Event of Default with respect to the Notes has occurred and is continuing, the Issuer may, at its option, defer interest payments on the Notes, from time to time, for one or more deferral periods of up to 20 consecutive semi-annual Interest Payment Periods (each period, commencing on the date that the first such interest payment would otherwise have been made, an “Optional Deferral Period”), except that no such Optional Deferral Period may extend beyond the final maturity date of the Notes or end on a day other than the day immediately preceding an Interest Payment Date. During any Optional Deferral Period, interest on the Notes will continue to accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes). In addition, during any Optional Deferral Period, interest on the deferred interest (“compound interest”) will accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes), compounded semi-annually, to the extent permitted by applicable law. No interest will be due or payable on the Notes during an Optional Deferral Period, except upon a redemption of any Notes on any redemption date during such Optional Deferral Period (in which case all accrued and unpaid interest (including, to the extent permitted by applicable law, any compound interest) on the Notes to be redeemed to but excluding such redemption date will be due and payable on such redemption date), or unless the principal of and interest on the Notes shall have been declared due and payable as the result of an Event of Default with respect to the Notes (in which case all accrued and unpaid interest, including, to the extent permitted by applicable law, any compound interest, on the Notes shall become due and payable). All references in the Notes and, insofar as it relates to the Notes, the Indenture, to “interest” on the Notes shall be deemed to include any such deferred interest and, to the extent permitted by applicable law, any compound interest, unless otherwise expressly stated or the context otherwise requires.
Before the end of any Optional Deferral Period that is shorter than 20 consecutive semi-annual Interest Payment Periods, the Issuer may elect, at its option, to extend such Optional Deferral Period, so long as the entire Optional Deferral Period does not exceed 20 consecutive semi-annual Interest Payment Periods or extend beyond the final maturity date of the Notes. The Company may also elect, at its option, to shorten the length of any Optional Deferral Period. No Optional Deferral Period (including as extended or shortened) may end on a day other than the day immediately preceding an Interest Payment Date. At the end of any Optional Deferral Period, if all amounts then due on the Notes, including all accrued and unpaid interest thereon (including, without limitation and to the extent permitted by applicable law, any compound interest), are paid, the Issuer may elect to begin a new Optional Deferral Period; provided, however, that, without limitation of the foregoing, the Issuer may not begin a new Optional Deferral Period unless the Issuer has paid all accrued and unpaid interest on the Notes (including, without limitation and to the extent permitted by applicable law, any compound interest) from any previous Optional Deferral Periods. During any Optional Deferral Period, the Issuer will not do any of the following:
(i) declare or pay any dividends or distributions on any Capital Stock of the Issuer or the Company;
(ii) redeem, purchase, acquire or make a liquidation payment with respect to any Capital Stock of the Issuer or the Company;
(iii) pay any principal, interest or premium on, or repay, repurchase or redeem, any indebtedness of the Issuer or the Guarantors that ranks equally with or junior to the Notes or the Guarantees in right of payment; or
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(iv) make any payments with respect to any guarantees by the Issuer or the Guarantors of any indebtedness if such guarantees rank equally with or junior to the Notes or the Guarantees in right of payment;
provided; however, during an Optional Deferral Period, the Issuer and the Guarantors may (a) declare and pay dividends or distributions payable solely in shares of the Company’s or the Issuer’s Capital Stock (together, for the avoidance of doubt, with cash in lieu of any fractional share) or options, warrants or rights to subscribe for or purchase shares of the Company’s or the Issuer’s Capital Stock, (b) declare and pay any dividend in connection with the implementation of a plan (a “Rights Plan”) providing for the issuance by the Company or the Issuer to all holders of the Company’s or the Issuer’s Capital Stock of rights entitling them to subscribe for or purchase Capital Stock or any class or series of the Company’s or the Issuer’s preferred stock, which rights (1) are deemed to be transferred with such Capital Stock, (2) are not exercisable until the occurrence of a specified event or events and (3) are also issued in respect of future issuances of the Company’s or the Issuer’s Capital Stock, (c) issue any of shares of the Company’s or the Issuer’s Capital Stock under any Rights Plan or redeem or repurchase any rights distributed pursuant to a Rights Plan, (d) reclassify the Company’s or the Issuer’s Capital Stock or exchange or convert one class or series of the Company’s or the Issuer’s Capital Stock for another class or series of the Company’s or the Issuer’s Capital Stock, (e) purchase fractional interests in shares of the Company’s or the Issuer’s Capital Stock pursuant to the conversion or exchange provisions of such Capital Stock or the security being converted or exchanged, (f) purchase, acquire or withhold shares of the Company’s or the Issuer’s Capital Stock related to the issuance of the Company’s or the Issuer’s Capital Stock or rights under any dividend reinvestment plan or related to any of the Company’s or the Issuer’s benefit plans for the Company’s or the Issuer’s directors, officers, employees, consultants or advisors, including any employment contract, and (g) for the avoidance of doubt, convert convertible Capital Stock of the Company or the Issuer into other Capital Stock of the Company or the Issuer in accordance with the terms of such convertible Capital Stock (together, for the avoidance of doubt, with cash in lieu of any fractional share).
The Issuer will give the Holders of the Notes and the Trustee notice of its election of, or any shortening or extension of, an Optional Deferral Period at least 10 Business Days prior to the earlier of (1) the next succeeding Interest Payment Date or (2) the date upon which the Issuer is required to give notice to any applicable self-regulatory organization or to Holders of the Notes of the next succeeding Interest Payment Date or the record date therefor. The record date for the payment of deferred interest and, to the extent permitted by applicable law, any compound interest payable on the Interest Payment Date immediately following the last day of an Optional Deferral Period will be the Regular Record Date with respect to such Interest Payment Date.
“Capital Stock” means (i) in the case of a corporation or a company, corporate stock or shares; (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (iv) any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing person.
The indebtedness represented by the Notes and the Guarantees and the payment of the principal of and any premium or interest on each and all of the Notes of such series is subordinate in right of payment to the prior payment in full of all Senior Indebtedness (as defined below), to the extent set forth in the Indenture. Senior Indebtedness shall continue to be Senior Indebtedness with respect to the Notes irrespective of any amendment, modification or waiver of any term of the Notes or extension or renewal of the Notes (other than any such amendment, modification or waiver that makes the Notes subordinated or equal in right of payment to the Notes).
“Senior Indebtedness” means, with respect to the Notes and the Guarantees, (i) indebtedness of the Issuer or the Guarantors, whether outstanding at the date of the indenture or incurred, created or assumed after such date, (a) in respect of money borrowed by the Issuer or the Guarantors (including any financial derivative, hedging or futures contract or similar instrument, to the extent any such item is primarily a financing transaction) and (b) evidenced by debentures, bonds, notes, credit or loan agreements or other similar instruments or agreements issued or entered into by the Issuer or the Guarantors; (ii) all finance lease obligations of the Issuer or the Guarantors; (iii) all obligations of the Issuer or the Guarantors issued or assumed as the deferred purchase price of property, all conditional sale obligations of the Issuer or the Guarantors and all obligations of the Issuer or the Guarantors under any title retention agreement (but excluding, for the avoidance of doubt, trade accounts payable arising in the ordinary course of
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business and long-term purchase obligations); (iv) all obligations of the Issuer or the Guarantors for the reimbursement of any letter of credit, banker’s acceptance, security purchase facility or similar credit transaction; and (v) all obligations of the type referred to in clauses (i) through (iv) above of other persons for the payment of which the Issuer or the Guarantors are responsible or liable as obligor, guarantor or otherwise, except for any obligations, instruments or agreements of the type referred to in any of clauses (i) through (v) above that, by the terms of the instruments or agreements creating or evidencing the same or pursuant to which the same is outstanding, are subordinated or equal in right of payment to each of the Notes and the Guarantees.
The Issuer may redeem some or all of the Notes, at its option, in whole or in part (i) on any day in the period commencing on the date falling 90 days prior to the First Reset Date and ending on and including the First Reset Date and (ii) after the First Reset Date, on any interest payment date, at a redemption price in cash equal to 100% of the principal amount of the Notes being redeemed, plus, (subject to the provisions set forth in the Indenture regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a redemption date), accrued and unpaid interest on the Notes to be redeemed to but excluding the redemption date.
The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Tax Event (as defined below) at a redemption price in cash equal to 100% of the principal amount of the Notes, plus, (subject to the provisions set forth in the Indenture regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a redemption date), accrued and unpaid interest on the Notes to but excluding the redemption date.
“Tax Event” means that the Issuer has received an opinion of counsel experienced in such matters to the effect that, as a result of:
| (i) | any amendment to, clarification of, or change, including any announced prospective change, in the laws or treaties of the United States, Canada or any of their political subdivisions or taxing authorities, or any regulations under those laws or treaties, including an announced prospective change becoming effective (for certainty, including the proposed amendments to the Income Tax Act (Canada) released by the Department of Finance (Canada) on January 29, 2026); |
| (ii) | an administrative action, which means any judicial decision or any official administrative pronouncement, ruling, regulatory procedure, notice or announcement, including any notice or announcement of intent to issue or adopt any administrative pronouncement, ruling, regulatory procedure or regulation; |
| (iii) | any amendment to, clarification of, or change in the official position or the interpretation of any administrative action or judicial decision or any interpretation or pronouncement that provides for a position with respect to an administrative action or judicial decision that differs from the previously generally accepted position, in each case by any legislative body, court, governmental authority or regulatory body, regardless of the time or manner in which that amendment, clarification or change is introduced or made known; or |
| (iv) | a threatened challenge asserted in writing in connection with a tax audit of the Issuer or any of its affiliates or subsidiaries, or a publicly-known threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Notes, |
which amendment, clarification or change is effective or the administrative action is taken or judicial decision, interpretation or pronouncement is issued or threatened challenge is asserted or becomes publicly-known after March 17, 2026, there is more than an insubstantial risk that (i) interest payable by the Issuer on the Notes is not deductible, or within 90 days would not be deductible, in whole or in part, by the Issuer or the Issuer’s regarded parent for U.S. federal income tax purposes (or a member of the U.S. consolidated group of which the Issuer (or the Issuer’s regarded parent) is a member) for U.S. federal income tax purposes, or (ii) that the Issuer, EUSHI or the Company, as the case may be, becoming obligated to pay, on the next succeeding date on which interest is due, Additional Amounts with respect to the Notes and, in any such case, in the business judgment of the Issuer, EUSHI
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or the Company, as the case may be, determines that such obligation cannot be avoided by the use of reasonable measures available to the Issuer, EUSHI or the Company, as the case may be.The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Rating Agency Event (as defined below) at a redemption price in cash equal to 102% of the principal amount of the Notes, plus, (subject to the provisions set forth in the Indenture regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a redemption date), accrued and unpaid interest on the Notes to but excluding the redemption date.
“Rating Agency Event” means, as of any date, a change, clarification or amendment in the methodology published by any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (or any successor provision thereto), that then publishes a rating for the Issuer (together with any successor thereto, a “rating agency”) in assigning equity credit to securities such as the Notes, (a) as such methodology was in effect on March 17, 2026, in the case of any rating agency that published a rating for the Issuer as of March 17, 2026, or (b) as such methodology was in effect on the date such rating agency first published a rating for the Issuer, in the case of any rating agency that first publishes a rating for the Issuer after March 17, 2026 (in the case of either clause (a) or (b), the “current methodology”), that results in (i) any shortening of the length of time for which a particular level of equity credit pertaining to the Notes by such rating agency would have been in effect had the current methodology not been changed or (ii) a lower equity credit (including up to a lesser amount) being assigned by such rating agency to the Notes as of the date of such change, clarification or amendment than the equity credit that would have been assigned to the Notes by such rating agency had the current methodology not been changed.
Notice of Redemption. Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the Depositary’s procedures) at least 10 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 1.06 of the Indenture. In the case of a partial redemption, selection of the Notes for redemption will be made by lot or by such other customary method prescribed by the Depositary. No Notes of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to such Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the original Note will be issued in the name of the Holder of the original Note upon surrender for cancellation of the original Note. For so long as the Notes are held by the Depositary (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the Depositary, which may be on a pro rata pass-through distribution of principal basis. Unless the Issuer defaults in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Notes or portions thereof called for redemption.
If, at the time a notice of redemption is given, (i) the Issuer has not effected satisfaction and discharge of the Notes pursuant to Article Four of the Indenture and (ii) such notice of redemption is not being given in connection with or in order to effect satisfaction and discharge of the Notes, then, if the notice of redemption so provides and at the Issuer’s option, the redemption may be subject to the condition that the Trustee shall have received, on or before the applicable redemption date, monies in an amount sufficient to pay the redemption price and accrued and unpaid interest on the Notes called for redemption to but excluding the redemption date. If monies in such amount are not received by the Trustee on or before such redemption date, such notice of redemption shall be automatically canceled and of no force or effect, such proposed redemption shall be automatically canceled and the Issuer shall not be required to redeem the Notes called for redemption on such redemption date. In the event that a redemption is canceled, the Issuer will, not later than the business day immediately following the proposed redemption date, deliver, or cause to be delivered, notice of such cancellation to the Holders of the Notes called for redemption (which notice will also indicate that any Notes or portions thereof surrendered for redemption shall be returned to the applicable Holders), and the Issuer will direct the Trustee to, and the Trustee will, promptly return any Notes or portions thereof that have been surrendered for redemption to the applicable Holders
If an Event of Default shall occur and be continuing, the principal of all the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Securities do not have the benefit of sinking fund obligations.
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Sections 14.02 and 14.03 of the Original Indenture shall be applicable to the Securities of this series, upon compliance by the Original Indenture with certain conditions set forth therein, which provisions apply to this Security.
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 under the Indenture at any time by the Issuer and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding affected by such amendment or modification. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities, to waive compliance by the Issuer with certain provisions of the Indenture and also contains provisions permitting the Holders of a majority in aggregate principal amount of the Outstanding Securities with respect to which a Default shall have occurred and shall be continuing, on behalf of the Holders of all Outstanding Securities, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of 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 herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.
Initially, the Trustee will act as Paying Agent and Security Registrar. The Issuer may appoint and change any Paying Agent or Security Registrar without notice to the Holders. The Issuer or any of the Issuer’s subsidiaries may act as Paying Agent or Security Registrar.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable on the Security Register of the Issuer, upon surrender of this Security for registration of transfer at the office or agency of the Issuer maintained for such purpose in the Borough of Manhattan, The City of New York 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 his attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and any integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or exchange of Securities of this series, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to the time of due presentment of this Security for registration of transfer, the Issuer, the Trustee, 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 is overdue, and neither the Issuer, the Trustee, the Securities Administrator nor any agent shall be affected by notice to the contrary.
If at any time, (i) the Depositary for the Securities of this series notifies the Issuer that it is unwilling or unable or no longer qualified to continue as Depositary for the Securities of this series or if at any time the Depositary for the Securities of this series shall no longer be a clearing agency registered or in good standing under the Exchange Act, and a successor Depositary is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such condition, as the case may be, (ii) the Issuer determines that the Securities of this series shall no longer be represented by a global Security or Securities or (iii) any Event of Default shall have occurred and be continuing with respect to the Securities of this series, then in such event the Issuer will execute and Trustee will authenticate and deliver Securities of this series in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities of this series in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depository, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities of this series to the Persons in whose names such Securities of this series are so registered.
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The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.
All references herein to “dollars” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time should be legal tender for the payment of public and private debts, and all terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
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GUARANTEE
OF
EMERA INCORPORATED
and
EMERA US HOLDINGS INC.
The obligations of each Guarantor to the Holders of the Securities of this series and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Fifteen of the Original Indenture, and reference is hereby made to such Article and Indenture for the precise terms of the Guarantee.
This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such Security of this series, upon which this notation of the Guarantee is endorsed, shall have been manually executed by the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture.
This Guarantee shall be governed by and construed in accordance with the laws of the State of New York.
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Executed and dated the date on the face hereof.
| EMERA INCORPORATED | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title:Chief Financial Officer | ||
| By: | /s/ Brian C. Curry | |
| Name: Brian C. Curry | ||
| Title: Corporate Secretary | ||
| EMERA US HOLDINGS INC. | ||
| By: | /s/ Jared B. Green | |
| Name: Jared B. Green | ||
| Title: Chief Financial Officer | ||
| By: | /s/ Brian C. Curry | |
| Name: Brian C. Curry | ||
| Title: Secretary | ||
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY**
The following increases or decreases in the principal amount of this Global Security have been made:
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Amount of Increase in Principal Amount of Global Security |
Principal Amount of Global Security Following Such Decrease (or Increase) |
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| ** | This Schedule should be included only if the Security is a Global Security. |
A-13
Exhibit 5.1
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Davis Polk & Wardwell LLP 450 Lexington Avenue New York, NY 10017 davispolk.com |
| March 23, 2026 |
| Emera US Finance, LLC
3600 Midtown Drive, Tampa, FL 33607 |
Ladies and Gentlemen:
Emera US Finance, LLC, a limited liability company (the “Company”), as issuer, and Emera Incorporated, a Nova Scotia company (“Emera”) and Emera US Holdings, Inc., a Delaware corporation (“EUSHI”), as guarantors (the “Guarantors”), have filed with the Securities and Exchange Commission Registration Statements on Forms F-3 (File Nos. 333-294017-01 and 333-294017-02) and F-10 (File No. 333-294020) (collectively, the “Registration Statement”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), certain securities, including $375,000,000 aggregate principal amount of the Company’s 6.650% Series A Fixed-to-Fixed Reset Rate Junior Subordinated Notes Due 2056 (the “Series A Notes”) and $375,000,000 aggregate principal amount of the Company’s 6.850% Series B Fixed-to-Fixed Reset Rate Junior Subordinated Notes Due 2056 (the “Series B Notes” and, together with the Series A Notes, “the Notes”). The Notes will be guaranteed by each of the Guarantors (the “Guarantees” and, together with the Notes, the “Securities”). The Securities are to be issued pursuant to the provisions of the Indenture dated as of March 23, 2026 (the “Base Indenture”) among the Company, the Guarantors and Equiniti Trust Company, LLC, as trustee (the “Trustee”), as supplemented by a first supplemental indenture establishing the terms of the Series A Notes and the related Guarantees, dated as of March 23, 2026, among the Company, the Guarantors and the Trustee (the “First Supplemental Indenture”), and a second supplemental indenture establishing the terms of the Series B Notes and the related Guarantees, dated as of March 23, 2026, among the Company, the Guarantors and the Trustee (the “Second Supplemental Indenture” and, together with the Base Indenture and the First Supplemental Indenture, the “Indenture”). The Securities are to be sold pursuant to the Underwriting Agreement dated March 17, 2026 (the “Underwriting Agreement”) among the Company, the Guarantors and the several underwriters named therein (the “Underwriters”).
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 officers of the Company and the Guarantors that we reviewed were and are accurate and (vi) all representations made by the Company and the Guarantors as to matters of fact in the documents that we reviewed were and are accurate.
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Emera Incorporated |
Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we advise you that, in our opinion:
| 1. | 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 the Company, 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, and may be subject to possible judicial or regulatory actions giving effect to governmental actions or foreign laws affecting creditors’ rights, provided that we express no opinion as to, (w) the enforceability of any waiver of rights under any usury or stay law, (x) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (y) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Notes to the extent determined to constitute unearned interest. |
| 2. | Assuming the due authorization of the Guarantee by Emera, the Guarantees, 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, will be valid and binding obligations of each Guarantor, 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, and may be subject to possible judicial or regulatory actions giving effect to governmental actions or foreign laws affecting creditors’ rights; provided that we express no opinion as to the (w) enforceability of any waiver of rights under any usury or stay law, (x) (i) effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (ii) any provision of the Guarantee that purports to avoid the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law or (y) validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Notes to the extent determined to constitute unearned interest. |
In connection with the opinions expressed above, we have assumed that Emera is validly existing as a corporation in good standing under the laws of the Province of Nova Scotia. In addition, we have assumed that the Indenture and the Securities (collectively, the “Documents”) are valid, binding and enforceable agreements of each party thereto (other than as expressly covered above in respect of the Company and the Guarantors). We have also assumed that the execution, delivery and performance by each party to each Document to which it is a party (a) are within its corporate or limited liability company powers, (b) do not contravene, or constitute a default under, the certificate of incorporation or bylaws or other constitutive documents of such party, (c) require no action by or in respect of, or filing with, any governmental body, agency or official and (d) do not contravene, or constitute a default under, any provision of applicable law or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party, provided that we make no such assumption to the extent that we have specifically opined as to such matters with respect to the Company and each Guarantor.
We are members of the Bar of the State of New York and the foregoing opinions are limited to the laws of the State of New York, the General Corporation Law of the State of Delaware and the Delaware Limited Liability Company Act except that we express no opinion as to (i) any law, rule or regulation that is applicable to the Company or the Guarantors, the Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due to the specific assets or business of such party or such affiliate or (ii) any law, rule or regulation relating to national security. Insofar as the foregoing opinion involves matters governed by the laws of the Province of Nova Scotia, we have relied, without inquiry or investigation, on the opinion of Brian C. Curry, Corporate Secretary of Emera, to be filed as an exhibit to a report on Form 6-K to be filed by Emera on the date hereof.
| March 23, 2026 | 2 |
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Emera Incorporated |
We hereby consent to the filing of this opinion as an exhibit to a report on Form 6-K to be filed by Emera on the date hereof and its incorporation by reference into the Registration Statement 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/ Davis Polk & Wardwell LLP
| March 23, 2026 | 3 |
Exhibit 99.1
Emera Incorporated announces the closing of the offering of US$750 million Aggregate Principal Amount of Fixed-to-Fixed Reset Rate Junior Subordinated Notes
March 23, 2026
Halifax, Nova Scotia Emera Incorporated (“Emera” or the “Company”) (TSX/NYSE: EMA) announced today that Emera US Finance, LLC (the “Issuer”) has completed the sale of US$750 million aggregate principal amount of United States dollar denominated junior subordinated notes, consisting of US$375 million aggregate principal amount of 6.650% Series A fixed-to-fixed reset rate junior subordinated notes due 2056 (the “Series A Notes”) and US$375 million aggregate principal amount of 6.850% Series B fixed-to-fixed reset rate junior subordinated notes due 2056 (the “Series B Notes” and, together with the Series A Notes, the “Notes”). The Notes are fully and unconditionally guaranteed by Emera and Emera US Holdings Inc. (“EUSHI, and together with Emera, the “Guarantors”). EUSHI is an indirect, wholly-owned subsidiary of Emera and the Issuer is an indirect, wholly-owned subsidiary of Emera. J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, MUFG Securities Americas Inc., RBC Capital Markets, LLC, Scotia Capital (USA) Inc. and Wells Fargo Securities, LLC acted as joint book-running managers in connection with the Notes offering.
This press release does not constitute an offer to sell or the solicitation of an offer to buy any of the Notes and shall not constitute an offer, solicitation or sale in any jurisdiction in which such an offer, solicitation or sale would be unlawful.
The Notes have not been qualified by prospectus for public distribution under the securities laws of any province or territory of Canada. The Notes are not being, and may not be offered or sold, directly or indirectly, in Canada or to any resident of Canada except under exemptions from prospectus requirements of those securities laws, and either by an appropriately registered dealer or in circumstances where a dealer registration is not required.
The Notes will not be listed on any securities exchange, and the Issuer and the Guarantors do not intend to arrange for the Notes to be included on any quotation system.
Use of Proceeds
Emera intends to use the net proceeds for general corporate purposes including, without limitation, to repay existing indebtedness.
Forward Looking Information
This news release contains “forward-looking information” or forward-looking statements” within the meaning of applicable securities laws (collectively, “forward-looking information”), including, without limitation, the intended use of the net proceeds from the sale of the Notes. By its nature, forward-looking information requires Emera to make assumptions and is subject to inherent risks and uncertainties. These statements reflect Emera management’s current beliefs and are based on information currently available to Emera management. There is a risk that predictions, forecasts, conclusions and projections that constitute forward-looking information will not prove to be accurate, that Emera’s assumptions may not be correct and that actual results may differ materially from those expressed or implied by such forward-looking information. Additional detailed information about these assumptions, risks and uncertainties is included in Emera’s securities regulatory filings, including under the heading “Enterprise Risk and Risk Management” in Emera’s annual Management’s Discussion and Analysis, and under the heading “Principal Financial Risks and Uncertainties” in the notes to Emera’s annual and interim financial statements, which can be found on SEDAR+ at www.sedarplus.ca and on EDGAR at www.sec.gov. The forward-looking information in this news release is made only as of the date hereof, and Emera disclaims any intention or obligation to update or revise any forward-looking information.
About Emera
Emera (TSX/NYSE: EMA) is a leading North American provider of energy services headquartered in Halifax, Nova Scotia, with investments in regulated electric and natural gas utilities, and related businesses and assets. The Emera family of companies delivers safe, reliable energy to approximately 2.7 million customers in Canada, the United States and the Caribbean. Our team of 7,800 employees is committed to our purpose of energizing modern life and delivering a cleaner energy future for all. Emera’s common and preferred shares are listed and trade on the Toronto Stock Exchange and its common shares are listed and trade on the New York Stock Exchange. Additional information can be accessed at www.emera.com, on SEDAR+ at www.sedarplus.ca and on EDGAR at www.sec.gov.
Investor Relations
Dave Bezanson, SVP, Capital Markets
902-233-2674
dave.bezanson@emera.com
Media
media@emera.com