Fairfax Financial Holdings Ltd 6-K, filed May 20, 2025
Fairfax Financial Holdings Ltd (FRFHF)
About this 6-K
Fairfax Financial Holdings Ltd filed this 6-K on May 20, 2025.
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 of
the Securities Exchange Act of 1934
| For the month of: May 2025 | Commission File Number: 001-31556 |
FAIRFAX FINANCIAL
HOLDINGS LIMITED
(Name of Registrant)
95 Wellington Street West
Suite 800
Toronto, Ontario
Canada M5J 2N7
(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 x |
EXHIBIT INDEX
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| FAIRFAX FINANCIAL HOLDINGS LIMITED | |||
| Date: May 20, 2025 | By: | /s/ Derek Bulas | |
| Name: | Derek Bulas | ||
| Title: | Vice President, Chief Legal Officer and Corporate Secretary | ||
Exhibit 99.1
FAIRFAX News Release
TSX Stock Symbol: FFH and FFH.U
TORONTO, May 20, 2025
FAIRFAX COMPLETES US$900,000,000 SENIOR NOTES OFFERING
Fairfax Financial Holdings Limited (“Fairfax”) (TSX: FFH and FFH.U) has completed its previously announced private offering of US$500,000,000 in aggregate principal amount of 5.750% senior notes due 2035 and US$400,000,000 in aggregate principal amount 6.500% senior notes due 2055 (collectively, the “Notes”).
Fairfax intends to use the net proceeds of this offering to refinance, repay or redeem outstanding debt, equity or other corporate obligations of Fairfax and its subsidiaries, to pursue potential acquisition or investment opportunities (which may include acquisitions of minority interests in its subsidiaries), and for general corporate purposes. This may include the redemption or repurchase of certain of Fairfax’s previously issued debt or equity securities. As of the date of this press release, Fairfax has not made any determination as to the specific debt, equity or other corporate obligations to be repaid or redeemed, nor the amount, timing or method of such repurchase or redemption. Similarly, as of the date hereof, Fairfax has not made any determination as to the specific acquisitions or investment opportunities to be pursued, nor the cost, timing or method of such acquisitions or investments. Any such repurchase, redemption, acquisition or investment will be subject to market conditions. Any proceeds not used to refinance, repay or redeem outstanding debt, equity or other corporate obligations or to pursue potential acquisition or investment opportunities will be used for general corporate purposes, which may include to augment Fairfax’s cash position or to increase short-term investments and marketable securities held at the holding company level.
The offering was made solely by means of a private placement either to qualified institutional buyers pursuant to Rule 144A under the U.S. Securities Act of 1933, as amended (the “Securities Act”), or to certain non-U.S. persons in offshore transactions pursuant to Regulation S under the Securities Act. The Notes have not been registered under the Securities Act and the Notes may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act. The Notes have not been and will not be qualified for sale under the securities laws of any province or territory of Canada and may not be offered or sold directly or indirectly in Canada or to or for the benefit of any resident of Canada, except pursuant to applicable prospectus exemptions.
In connection with the closing of the offering, Fairfax entered into a customary registration rights agreement.
This press release shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of the Notes in any jurisdiction in which such offer, or solicitation or sale would be unlawful. Any offers of the Notes have been made only by means of a private offering memorandum.
FAIRFAX
FINANCIAL HOLDINGS LIMITED
95 Wellington Street West, Suite 800, Toronto, Ontario, M5J 2N7 Telephone: 416-367-4941 Facsimile: 416-367-4946
Fairfax is a holding company which, through its subsidiaries, is primarily engaged in property and casualty insurance and reinsurance and the associated investment management.
| For further information contact: | John Varnell, Vice President, Corporate Development at (416) 367-4941 |
Forward-looking information
Certain statements contained herein may constitute “forward-looking statements” and are made pursuant to the “safe harbour” provisions of the United States Private Securities Litigation Reform Act of 1995 and any applicable Canadian securities regulations. Such forward-looking statements may include, among other things, the intended use of net proceeds from the offering of the Notes. Such forward-looking statements are subject to known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements of Fairfax to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. Such factors include, but are not limited to: our ability to complete acquisitions and other strategic transactions on the terms and timeframes contemplated, and to achieve the anticipated benefits therefrom; a reduction in net earnings if our loss reserves are insufficient; underwriting losses on the risks we insure that are higher than expected; the occurrence of catastrophic events with a frequency or severity exceeding our estimates; changes in market variables, including unfavourable changes in interest rates, foreign exchange rates, equity prices and credit spreads, which could negatively affect our operating results and investment portfolio; the cycles of the insurance market and general economic conditions, which can substantially influence our and our competitors’ premium rates and capacity to write new business; insufficient reserves for asbestos, environmental and other latent claims; exposure to credit risk in the event our reinsurers fail to make payments to us under our reinsurance arrangements; exposure to credit risk in the event our insureds, insurance producers or reinsurance intermediaries fail to remit premiums that are owed to us or failure by our insureds to reimburse us for deductibles that are paid by us on their behalf; our inability to maintain our long term debt ratings, the inability of our subsidiaries to maintain financial or claims paying ability ratings and the impact of a downgrade of such ratings on derivative transactions that we or our subsidiaries have entered into; risks associated with implementing our business strategies; the timing of claims payments being sooner or the receipt of reinsurance recoverables being later than anticipated by us; risks associated with any use we may make of derivative instruments; the failure of any hedging methods we may employ to achieve their desired risk management objective; a decrease in the level of demand for insurance or reinsurance products, or increased competition in the insurance industry; the impact of emerging claim and coverage issues or the failure of any of the loss limitation methods we employ; our inability to access cash of our subsidiaries; an increase in the amount of capital that we and our subsidiaries are required to maintain and our inability to obtain required levels of capital on favourable terms, if at all; the loss of key employees; our inability to obtain reinsurance coverage in sufficient amounts, at reasonable prices or on terms that adequately protect us; the passage of legislation subjecting our businesses to additional adverse requirements, supervision or regulation, including additional tax regulation, in the United States, Bermuda, Canada or other jurisdictions in which we operate; risks associated with applicable laws and regulations relating to sanctions and corrupt practices in foreign jurisdictions in which we operate; risks associated with government investigations of, and litigation and negative publicity related to, insurance industry practice or any other conduct; risks associated with political and other developments in foreign jurisdictions in which we operate; risks associated with legal or regulatory proceedings or significant litigation; failures or security breaches of our computer and data processing systems; the influence exercisable by our significant shareholder; adverse fluctuations in foreign currency exchange rates; our dependence on independent brokers over whom we exercise little control; financial reporting risks associated with IFRS 17– Insurance Contracts; financial reporting risks relating to deferred taxes associated with amendments to IAS 12– Income Taxes; impairment of the carrying value of our goodwill, indefinite-lived intangible assets or investments in associates; our failure to realize deferred income tax assets; technological or other change that adversely impacts demand, or the premiums payable, for the insurance coverages we offer; risks associated with Canadian or foreign tax laws, or the interpretation thereof; disruptions of our information technology systems; assessments and shared market mechanisms that may adversely affect our insurance subsidiaries; risks associated with the conflicts in Ukraine and Israel and the development of other geopolitical events and economic disruptions worldwide; and risks associated with tariffs, trade restrictions, or other regulatory measures imposed by domestic or foreign governments that may, directly or indirectly, affect our business. Additional risks and uncertainties are described in our most recently issued Annual Report, which is available at www.fairfax.ca, on SEDAR+ at www.sedarplus.ca and on EDGAR at www.sec.gov, and in our Base Shelf Prospectus (under “Risk Factors”) filed with the securities regulatory authorities in Canada, which is available on SEDAR+ at www.sedarplus.ca. Fairfax disclaims any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by applicable securities law.
Exhibit 99.2
FAIRFAX FINANCIAL HOLDINGS LIMITED
US$900,000,000
US$500,000,000 Aggregate Principal Amount of 5.750% Senior Notes due 2035
US$400,000,000 Aggregate Principal Amount of 6.500% Senior Notes due 2055
REGISTRATION RIGHTS AGREEMENT
May 20, 2025
BofA Securities, Inc.
One Bryant Park
New York, New York 10036
Citigroup
Global Markets Inc.
388 Greenwich Street
New York, New York 10013
J.P. Morgan
Securities LLC
383 Madison Avenue
New York, New York 10179
Mizuho
Securities USA LLC
1271 Avenue of the Americas
New York, New York 10020
Dear Ladies and Gentlemen:
Fairfax Financial Holdings Limited, a Canadian corporation (the “Company”), proposes to issue and sell, upon the terms set forth in a purchase agreement, dated as of May 15, 2025 (the “Purchase Agreement”), (i) US$500,000,000 in aggregate principal amount of the Company’s 5.750% Senior Notes due 2035 (the “2035 Notes”) and (ii) US$400,000,000 in aggregate principal amount of the Company’s 6.500% Senior Notes due 2055 (the “2055 Notes” and, together with the 2035 Notes, the “Initial Securities” and, each, individually, a “series of Initial Securities”) to BofA Securities, Inc., Citigroup Global Markets Inc., J.P. Morgan Securities LLC, Mizuho Securities USA LLC and the other several initial purchasers named in Schedule A thereto (collectively, the “Initial Purchasers”).
The Initial Securities will be issued pursuant to an Indenture, dated as of December 1, 1993, as supplemented and amended by the first supplemental indenture, dated as of May 9, 2011, by the third supplemental indenture, dated as of February 26, 2021 and by the sixth supplemental indenture, dated as of May 20, 2025 (as amended, the “Indenture”), by and among the Company, The Bank of New York Mellon, as successor U.S. trustee (the “United States Trustee”), and Computershare Advantage Trust of Canada (formerly BNY Trust Company of Canada) (as successor trustee to CIBC Mellon Trust Company), as successor Canadian trustee (the “Canadian Trustee” and, together with the United States Trustee, the “Trustees”). As an inducement to the Initial Purchasers, the Company agrees with the Initial Purchasers, for the benefit of the holders of the Initial Securities (including, without limitation, the Initial Purchasers), the Exchange Securities (as defined below) and the Private Exchange Securities (as defined below) (collectively, the “Holders”), as follows:
1. Registered Exchange Offer.
(a) Unless not permitted by applicable law or policy of the United States Securities and Exchange Commission (the “Commission”), the Company, at its own cost, shall prepare and file with the Commission one or more registration statements (each, a “Exchange Offer Registration Statement”) on an appropriate form under the United States Securities Act of 1933, as amended (the “Securities Act”), with respect to one or more proposed offers (each, a “Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6(d) hereof), who are not prohibited by any law or policy of the Commission from participating in the applicable Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the applicable series of Initial Securities, a like aggregate principal amount of debt securities of the same series of Initial Securities (the “Exchange Securities”) of the Company, issued under the Indenture and identical in all material respects to the applicable series of Initial Securities (except for the transfer restrictions relating to such series of Initial Securities and the provisions relating to the matters described in Section 6 hereof) that are registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause each such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the applicable Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the series of Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the applicable Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the applicable Registered Exchange Offer. The Company shall keep each Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the applicable Registered Exchange Offer (each such period being called the applicable “Exchange Offer Registration Period”).
(b) Promptly after the applicable Exchange Offer Registration Period, the Company shall accept all the applicable Initial Securities of such series validly tendered and not withdrawn in accordance with the terms of the applicable Registered Exchange Offer.
(c) Following the declaration of the effectiveness of the applicable Exchange Offer Registration Statement, the Company shall promptly commence the applicable Registered Exchange Offer, it being the objective of each such Registered Exchange Offer to enable each Holder of applicable Transfer Restricted Securities (as defined in Section 6(d) hereof) electing to exchange the applicable Initial Securities of such series for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the applicable Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States.
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(d) The Company acknowledges that, pursuant to current interpretations by the Commission’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange the applicable series of Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information required under the Securities Act in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the applicable Registered Exchange Offer, and (ii) an Initial Purchaser that elects to sell Exchange Securities acquired in exchange for the applicable series of Initial Securities constituting any portion of an unsold allotment is required to deliver a prospectus containing the information required by Item 507 or Item 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale.
(e) The Company shall use its commercially reasonable efforts to keep each Exchange Offer Registration Statement effective, and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, however, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the period ending on the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) hereof), and (ii) the Company shall make such prospectus, and any amendment or supplement thereto, available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the applicable Registered Exchange Offer.
(f) If, upon consummation of the applicable Registered Exchange Offer, any Initial Purchaser holds Initial Securities of the applicable series acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the applicable Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the “Private Exchange”) for such Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company, issued under the Indenture and identical in all material respects (including the existence of restrictions on transfer under the Securities Act and the securities laws of the several states of the United States, but excluding provisions relating to the matters described in Section 6 hereof) to such Initial Securities (the “Private Exchange Securities”). The Initial Securities of any series, the corresponding Exchange Securities and the corresponding Private Exchange Securities are herein collectively called the “Securities.”
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(g) In connection with each Registered Exchange Offer, the Company shall:
(i) mail or otherwise furnish to each Holder a copy of the prospectus forming part of the applicable Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the applicable Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the applicable Registered Exchange Offer;
(iii) utilize the services of a depositary for the applicable Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the applicable Registered Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(h) As soon as practicable after the close of each Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all of the applicable Initial Securities validly tendered and not withdrawn pursuant to the applicable Registered Exchange Offer and the applicable Private Exchange;
(ii) deliver to the Trustees for cancellation all of the applicable Initial Securities so accepted for exchange; and
(iii) cause the Trustees to authenticate and deliver promptly to each Holder of the applicable series of Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the applicable Initial Securities of such Holder so accepted for exchange.
(i) The terms of the applicable series of Initial Securities provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the applicable Securities of the same series will vote and consent together on all matters as one class.
(j) Interest on each Exchange Security and Private Exchange Security issued pursuant to the applicable Registered Exchange Offer and in the applicable Private Exchange will accrue from the last interest payment date on which interest was paid on the applicable series of Initial Securities surrendered in exchange therefor or, if no interest has been paid on such series of Initial Securities, from the date of original issue of such series of Initial Securities.
(k) Each Holder participating in the applicable Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the applicable Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under the Securities Act, of the Company, or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for applicable Initial Securities of the series that were acquired as a result of market-making activities or other trading activities and that it will comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof).
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(l) Notwithstanding any other provisions hereof, the Company will ensure that (i) each Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) each Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (iii) any prospectus forming part of each such Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an 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 under which they were made, not misleading.
(m) In addition, the Company may, but is not required to, file each Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (“MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures, to the extent the Company is permitted to file an Exchange Offer Registration Statement under MJDS. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files such Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities.
2. Shelf Registration. If, (i) the Company is not permitted to file an Exchange Offer Registration Statement (and has not completed a Registered Exchange Offer prior to the Consummation Deadline), (ii) because of any change in law or in applicable interpretations thereof by the staff of the Commission, the Company is not permitted to effect a Registered Exchange Offer, as contemplated by Section 1 hereof (and has not completed a Registered Exchange Offer prior to the Consummation Deadline), (iii) the applicable Registered Exchange Offer is not consummated on or prior to the Consummation Deadline, (iv) any Initial Purchaser so requests with respect to (x) applicable series of Initial Securities that are not eligible to be exchanged for Exchange Securities in the applicable Registered Exchange Offer, or (y) applicable Private Exchange Securities, and that in either case are held by it following consummation of the applicable Registered Exchange Offer, or (v) prior to the 20th day following the consummation of the applicable Registered Exchange Offer, any Holder of applicable Transfer Restricted Securities notifies the Company that (A) it is prohibited by law or the Commission from participating in the applicable Registered Exchange Offer, (B) it may not resell the Exchange Securities acquired by it in the applicable Registered Exchange Offer to the public without delivering a prospectus and the prospectus contained in the applicable Exchange Offer Registration Statement is not appropriate or available for such resales, or (C) it is a broker-dealer and owns Securities acquired directly from the Company or an affiliate of the Company, the Company shall take the following actions:
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(a) The Company shall prepare and, at its cost, shall use its commercially reasonable efforts to file as promptly as practicable (but in no event more than 90 days after so required or requested pursuant to this Section 2) with the Commission, and thereafter shall use its commercially reasonable efforts to cause to be declared effective (unless it becomes effective automatically upon filing) within 180 days after so required or requested pursuant to this Section 2, one or more registration statements (each, a “Shelf Registration Statement” and, together with each Exchange Offer Registration Statement, each a “Registration Statement”) on an appropriate form under the Securities Act relating to the offer and sale of the Transfer Restricted Securities (as defined in Section 6(d) hereof) by the Holders thereof from time to time in accordance with the methods of distribution set forth in the applicable Shelf Registration Statement and Rule 415 under the Securities Act (hereinafter, the “Shelf Registration”); provided, however, that no Holder (other than an Initial Purchaser) shall be entitled to have the Securities held by it covered by such Shelf Registration Statement unless such Holder agrees in writing to be bound by all the provisions of this Agreement applicable to such Holder (including the indemnification obligations set forth in Section 5 hereof) and provided further that, with respect to the applicable Private Exchange Securities received by an Initial Purchaser in exchange for applicable series of Initial Securities constituting any portion of an unsold allotment, the Company may, if permitted by current interpretations by the Commission’s staff, file a post-effective amendment to the applicable Exchange Offer Registration Statement containing the information required by Item 507 or Item 508 of Regulation S-K, as applicable, in satisfaction of its obligations under this Section 2(a) with respect thereto, and any such Exchange Offer Registration Statement, as so amended, shall be referred to herein as, and governed by the provisions herein applicable to, a Shelf Registration Statement.
(b) The Company shall use its commercially reasonable efforts to keep each Shelf Registration Statement continuously effective in order to permit the prospectus included therein to be lawfully delivered by the Holders of the relevant Securities, for a period of two (2) years (or for such longer period if extended pursuant to Section 3(j) hereof) from the Issue Date or such shorter period that will terminate when all the Securities covered by the applicable Shelf Registration Statement (i) have been sold pursuant thereto or (ii) are no longer restricted securities (as defined in Rule 144 under the Securities Act, or any successor rule thereof) (in any such case, each such period being called the “Shelf Registration Period”). The Company shall be deemed not to have used its commercially reasonable efforts to keep the applicable Shelf Registration Statement effective during the applicable Shelf Registration Period if it voluntarily takes any action that would result in Holders of Securities covered thereby not being able to offer and sell such Securities during that period, unless such action is required by applicable law or such action is taken by the Company in good faith and for valid business reasons (not including the avoidance of the Company’s obligations hereunder), including the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 3(j) hereof, if applicable.
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(c) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall cause each Shelf Registration Statement and the related prospectus and any amendment or supplement thereto, as of the effective date of the applicable Shelf Registration Statement, amendment or supplement, (i) to comply in all material respects with the applicable requirements of the Securities Act and the rules and regulations of the Commission, and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) For greater certainty, the parties hereto acknowledge that, notwithstanding any filing of a Shelf Registration Statement by the Company in accordance with this Agreement, the Company will not be required to concurrently qualify the distribution of Transfer Restricted Securities to make such Securities freely tradable in Canada.
(e) In addition, the Company may, but is not required to, file the applicable Shelf Registration Statement pursuant to MJDS, to the extent the Company is permitted to file a Shelf Registration Statement under MJDS. Under MJDS, the Company may file a prospectus to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file such registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files such Shelf Registration Statement under MJDS, the prospectus contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities.
3. Registration Procedures. In connection with any applicable Shelf Registration contemplated by Section 2 hereof and, to the extent applicable, any applicable Registered Exchange Offer contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to the filing thereof with the Commission, a copy of the applicable Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and, in the event that an Initial Purchaser (with respect to any portion of an unsold allotment from the original offering) is participating in the applicable Registered Exchange Offer or the applicable Shelf Registration Statement, the Company shall use its commercially reasonable efforts to reflect in each such document, when so filed with the Commission, such comments as such Initial Purchaser reasonably may propose; (ii) if requested by an Initial Purchaser, include the information required by Item 507 or Item 508 of Regulation S-K under the Securities Act, as applicable, in the prospectus forming a part of the applicable Exchange Offer Registration Statement; (iii) include within the prospectus contained in the applicable Exchange Offer Registration Statement a section entitled “Plan of Distribution,” reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the Commission with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of Exchange Securities received by such broker-dealer in the applicable Registered Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the Commission or such positions or policies, in the reasonable judgment of the Initial Purchasers based upon advice of counsel (which may be in-house counsel), represent the prevailing views of the staff of the Commission; and (iv) in the case of a Shelf Registration Statement, include in the prospectus included in such Shelf Registration Statement (or, if permitted by Commission Rule 430B(b), in a prospectus supplement that becomes a part thereof pursuant to Commission Rule 430B(f)) that is delivered to any Holder pursuant to Section 3(d) and Section 3(f), the names of the Holders who propose to sell Securities pursuant to the applicable Shelf Registration Statement as selling securityholders; provided that such Holders have provided the Company with such information at least two (2) business days prior to the filing of such Shelf Registration Statement or prospectus supplement, as applicable.
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(b) The Company shall give written notice to the Initial Purchasers, the Holders and any Participating Broker-Dealer from whom the Company has received prior written notice that it will be a Participating Broker-Dealer in the applicable Registered Exchange Offer (which notice pursuant to clauses (ii) through (v) hereof shall be accompanied by an instruction to suspend the use of the prospectus until the requisite changes (if any) have been made):
(i) when any Registration Statement or any amendment thereto has been filed with the Commission and when any Registration Statement or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to any Registration Statement or the prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for that purpose, and of the issuance by the Commission of a notification of objection to the use of the form on which any Registration Statement has been filed;
(iv) of the receipt by the Company or its legal counsel of any notification with respect to (x) the suspension of the qualification of the Securities for sale in any jurisdiction, or (y) the initiation or the threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make changes in any Registration Statement or the related prospectus so that such Registration Statement or prospectus does not contain an untrue statement of a material fact nor omits to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading (provided, however, that no notice by the Company shall be required pursuant to this clause (v) in the event that the Company files a report on Form 6-K or other appropriate Exchange Act report that is incorporated by reference into such Registration Statement, which, in either case, contains the requisite information with respect to such event that results in such Registration Statement no longer containing any untrue statement of material fact or omitting to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading).
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(c) The Company shall use its commercially reasonable efforts to obtain the withdrawal at the earliest possible time, of any order suspending the effectiveness of any Registration Statement.
(d) If not otherwise available on the Commission’s Electronic Data Gathering Analysis and Retrieval System (“EDGAR System”) or similar system, upon the written request of a Holder of Securities included within the coverage of any Shelf Registration, the Company shall furnish to such Holder, without charge, at least one copy of the applicable Shelf Registration Statement and any post-effective amendment or supplement thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits thereto (including those, if any, incorporated by reference). The Company shall not, without the prior written consent of the Representative, make any offer relating to the Securities utilizing a communication that would constitute a “free writing prospectus,” as defined in Commission Rule 405. No Initial Purchaser, Holder or Participating Broker-Dealer shall, without the prior consent of the Company, make any offer utilizing a communication that would constitute a “free writing prospectus,” as defined in Commission Rule 405.
(e) If not otherwise available on the Commission’s EDGAR System or similar system, upon the written request of an Initial Purchaser, Exchanging Dealer or Holder, the Company shall deliver to each such Exchanging Dealer and each Initial Purchaser, and to any other Holder who so requests, without charge, at least one copy of the applicable Exchange Offer Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if any Initial Purchaser or any such Holder requests, all exhibits thereto (including those incorporated by reference).
(f) The Company shall, during each Shelf Registration Period, deliver to any Holder of Securities covered by each Shelf Registration, without charge, as many copies of the prospectus (including each preliminary prospectus) included in the applicable Shelf Registration Statement and any amendment or supplement thereto as such person may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by each of the selling Holders of the Securities in connection with the offering and sale of the Securities covered by the prospectus, or any amendment or supplement thereto, included in the applicable Shelf Registration Statement.
(g) The Company shall deliver to each Initial Purchaser, any Exchanging Dealer, any Participating Broker-Dealer and such other persons required to deliver a prospectus following the applicable Registered Exchange Offer, without charge, as many copies of the final prospectus included in the applicable Exchange Offer Registration Statement and any amendment or supplement thereto as such persons may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by any Initial Purchaser, any Participating Broker-Dealer and such other persons required to deliver a prospectus following the applicable Registered Exchange Offer in connection with the offering and sale of the Exchange Securities covered by the prospectus, or any amendment or supplement thereto, included in such Exchange Offer Registration Statement.
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(h) Prior to any public offering of the Securities pursuant to any Registration Statement, the Company shall use its commercially reasonable efforts to register or qualify, or cooperate with the Holders included therein and their respective counsel in connection with the registration or qualification of, the Securities for offer and sale under the securities or “blue sky” laws of such states of the United States as any such Holder reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Registration Statement; provided, however, that the Company shall not be required to (i) qualify as a foreign corporation, trust or partnership, as the case may be, or as dealers in securities in any jurisdiction where they would not otherwise be required to qualify but for this Section 3(h), (ii) make any changes to its certificate of incorporation or by-laws, (iii) take any action which would subject it to general service of process or to taxation in any jurisdiction where it is not then so subject, or (iv) qualify a prospectus in any province or territory of Canada to make the Securities freely tradable in Canada.
(i) Unless the Securities are in book-entry form, the Company shall cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing the Securities to be sold pursuant to any Registration Statement free of any restrictive legends and in such denominations and registered in such names as the Holders may request a reasonable period of time prior to sales of the Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by clauses (ii) through (v) of Section 3(b) hereof during the period for which the Company is required to maintain an effective Registration Statement, the Company shall promptly prepare and file a post-effective amendment to such Registration Statement or a supplement to the related prospectus and any other required document so that, as thereafter delivered to Holders of the Securities or purchasers of Securities, the prospectus (i) in the case of clauses (ii) through (iv) of Section 3(b) hereof, includes such additional information as may be requested by the Commission or as otherwise may be necessary to obtain the withdrawal of any stop order, notification of objection or suspension of qualification of the Securities for sale in any jurisdiction, as applicable, or (ii) in the case of clause (v) of Section 3(b) hereof, will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Initial Purchasers, the Holders and any known Participating Broker-Dealer in accordance with clauses (ii) through (v) of Section 3(b) hereof to suspend the use of the prospectus until the requisite changes (if any) to the prospectus have been made (such notice, a “Suspension Notice”), then the Initial Purchasers, the Holders and any such Participating Broker-Dealers shall suspend use of such prospectus (and shall keep confidential the cause of such notice for so long as such cause is not otherwise publicly known), and the period of effectiveness of the applicable Shelf Registration Statement provided for in Section 2(b) hereof and the applicable Exchange Offer Registration Statement provided for in Section 1 hereof shall each be extended by the number of days from and including the date of the giving of such notice to and including the date when the Initial Purchasers, the Holders and any known Participating Broker-Dealer shall have received such amended or supplemented prospectus pursuant to this Section 3(j). Each Holder receiving a Suspension Notice hereby agrees that (unless prohibited by applicable law or internal policy of such Holder) it will destroy all prospectuses for the relevant Registration Statement, other than permanent file copies, then in such Holder’s possession which have been replaced by the Company with the amended and supplemented prospectus for such Registration Statement as provided for in this Section 3(j). During the period in which the Company is required to maintain an effective Shelf Registration Statement pursuant to this Agreement, the Company shall file prior to the expiration of such Shelf Registration Statement, and shall use its commercially reasonable efforts to cause to be declared effective (unless it becomes effective automatically upon filing) within a period that avoids any interruption in the ability of Holders of Securities covered by any expiring Shelf Registration Statement to make registered dispositions, a new registration statement relating to the unsold Securities, which shall be deemed the applicable “Shelf Registration Statement” for purposes of this Agreement; provided, however, in no event shall the Company be obligated to keep any Shelf Registration Statement effective beyond any applicable Shelf Registration Period as extended by the number of days required by the second sentence of this Section 3(j).
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(k) To the extent not already obtained, not later than the effective date of the applicable Registration Statement, the Company will provide a CUSIP number for the applicable series of Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, and provide the applicable trustee with printed certificates for such series of Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, in a form eligible for deposit with The Depository Trust Company. The Company shall use its commercially reasonable efforts to cause any series of Initial Securities or Private Exchange Securities sold pursuant to a Shelf Registration Statement to bear the same CUSIP number as the CUSIP number of such series.
(l) The Company will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to any Registered Exchange Offer or any Shelf Registration and will make generally available to its security holders (or otherwise provide in accordance with Section 11(a) of the Securities Act) an earnings statement satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of a 12-month period (or 90 days, if such period is a fiscal year) beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the applicable Registration Statement, which statement shall cover such 12-month period.
(m) To the extent not already qualified, the Company shall cause the Indenture to be qualified under the United States Trust Indenture Act of 1939, as amended, in a timely manner and containing such changes, if any, as shall be necessary for such qualification in connection with the filing of a Registration Statement. In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.
(n) The Company may require each Holder of Securities to be sold pursuant to any Shelf Registration Statement to furnish to the Company such information regarding the Holder and the distribution of the Securities as the Company may from time to time reasonably require for inclusion in such Shelf Registration Statement, and the Company may exclude from such registration the Securities of any Holder that fails to furnish such information within a reasonable time after receiving such request.
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(o) The Company shall enter into such customary agreements (including, if requested, an underwriting agreement in customary form) and take all such other action, if any, as any Holder of the Securities shall reasonably request in order to facilitate the disposition of the Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company shall (i) make reasonably available for inspection by the Holders, any underwriter participating in any disposition pursuant to the applicable Shelf Registration Statement and any attorney, accountant or other agent retained by the Holders or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company, and (ii) cause the Company’s officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by the Holders or any such underwriter, attorney, accountant or agent in connection with such Shelf Registration Statement, in each case, as shall be reasonably necessary to enable such persons, to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that the foregoing inspection and information gathering shall be coordinated on behalf of the applicable Initial Purchasers and on behalf of the other parties, by one counsel designated by and on behalf of such other parties as described in Section 4 hereof, provided further, that if the Company designates in writing any such information, reasonably and in good faith, as confidential, at the time of delivery of such information, each such person will be required to agree or acknowledge that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis of any market transactions in the Securities of the Company or otherwise unless and until such information is made generally available to the public through no fault or action of such person.
(q) In the case of any Shelf Registration, the Company, if requested by any Holder of Securities covered thereby, shall cause (i) its counsel (who may be an employee of the Company) to deliver an opinion and updates thereof relating to the Securities in customary form addressed to such Holders and the Managing Underwriters (defined in Section 8 hereof), if any, thereof and dated, in the case of the initial opinion, the effective date of such Shelf Registration Statement (it being agreed that the matters to be covered by such opinion shall include such matters as are customarily covered in opinions requested in underwritten offerings and such matters as may be reasonably requested by such Holders and Managing Underwriters), (ii) its officers to execute and deliver all customary documents and certificates and updates thereof reasonably requested by any Managing Underwriters of the applicable Securities, and (iii) its independent registered public accounting firm (and the independent registered public accounting firm with respect to any other entity for which financial information is provided in such Shelf Registration Statement) to provide to the selling Holders of the applicable Securities and any underwriter therefor a comfort letter in customary form and covering matters of the type customarily covered in comfort letters in connection with primary underwritten offerings, subject to receipt of appropriate documentation as contemplated, and only if permitted, under applicable Canadian accounting standards.
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(r) If a Registered Exchange Offer or a Private Exchange is to be consummated, upon delivery of the applicable series of Initial Securities by Holders to the Company (or to such other person as directed by the Company) in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be, the Company shall cause such series of Initial Securities so exchanged to be cancelled in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be.
(s) In the event that any broker-dealer registered under the Exchange Act shall underwrite any Securities or participate as a member of an underwriting syndicate or selling group or “assist in the distribution” (within the meaning of the Conduct Rules of the Financial Industry Regulatory Authority, Inc. (the “FINRA Rules”)) thereof, whether as a Holder of such Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company will assist such broker-dealer in complying with the requirements of such FINRA Rules, including, without limitation, by (i) if such FINRA Rules, including FINRA Rule 5121, shall so require, engaging a “qualified independent underwriter” (as defined in FINRA Rule 5121) to participate in the preparation of any Registration Statement relating to such Securities, to exercise usual standards of due diligence in respect thereto and, if any portion of the offering contemplated by such Registration Statement is an underwritten offering or is made through a placement or sales agent, to recommend the yield of such Securities, (ii) indemnifying any such qualified independent underwriter to the extent of the indemnification of underwriters provided in Section 5 hereof, and (iii) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the FINRA Rules.
(t) The Company shall use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Securities covered by a Registration Statement contemplated hereby.
(u) Each Holder and each Participating Broker-Dealer agrees by acquisition of any series of Initial Securities or Exchange Securities that, upon the Company providing notice to such Holder or Participating Broker-Dealer, as the case may be, that the Board of Directors of the Company has made a good faith determination that the Company has a bona fide business purpose for doing so (other than with respect to the occurrence of any event of the kind described in clauses (ii) through (v) of Section 3(b) hereof), then, upon providing such notice (which shall refer to this Section 3(u)), the Company may delay the filing or the effectiveness of the applicable Exchange Offer Registration Statement or the applicable Shelf Registration Statement (if not then filed or effective, as applicable) and shall not be required to maintain the effectiveness thereof or amend or supplement such Exchange Offer Registration Statement or such Shelf Registration Statement, in all cases, for a period (a “Delay Period”) expiring upon the date which is the earlier of (A) the date on which the Board of Directors of the Company has determined in good faith (with such determination to occur as soon as practicable) that such business purpose ceases to interfere with the Company’s obligations to file or maintain the effectiveness of any such Registration Statement pursuant to this Agreement, or (B) 60 days after the Company notifies the Holders of such good faith determination. There shall not be more than 60 days of Delay Periods during any 12-month period. The period of effectiveness of the applicable Shelf Registration Statement provided for in Section 2(b) hereof and the applicable Exchange Offer Registration Statement provided for in Section 1 hereof shall each be extended by a number of days equal to the number of days during any Delay Period. Any Delay Period will not alter the obligations of the Company to pay Additional Interest under the circumstances set forth in Section 6 hereof.
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4. Registration Expenses. The Company shall bear all fees and expenses incurred by it in connection with the performance of its obligations under Section 1 through Section 3 hereof, whether or not an Exchange Offer Registration Statement or a Shelf Registration Statement is filed or becomes effective, and, in the event of a Shelf Registration, shall bear or reimburse the Holders of the Securities covered thereby for the reasonable fees and disbursements of one firm of counsel designated by the Holders of a majority in principal amount of the applicable series of Initial Securities covered thereby to act as counsel for the Holders of the applicable series of Initial Securities in connection therewith.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless (i) each Holder, (ii) any Participating Broker-Dealer, (iii) each person, if any, who controls such Holder or such Participating Broker-Dealer within the meaning of the Securities Act, and (iv) the respective officers, directors, partners, employees, representatives and agents of any of the foregoing (each of the persons referred to in clauses (i) through (iv) are referred to collectively as the “Indemnified Parties”) against any losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or “issuer free writing prospectus,” as defined in Rule 433 under the Securities Act (an “Issuer FWP”), relating to a Shelf Registration, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration in reliance upon and in conformity with written information furnished to the Company by the Indemnified Party expressly for use therein.
(b) Each Holder and Participating Broker-Dealer, severally and not jointly, will indemnify and hold harmless (i) the Company, (ii) each person who controls the Company within the meaning of the Securities Act, and (iii) the respective officers, directors, partners, employees, representatives and agents of any of the foregoing (each of the persons referred to in clauses (i) through (iii), a “Company Indemnified Person”) against any losses, claims, damages or liabilities to which the Company may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration, in reliance upon and in conformity with written information furnished to the Company by such Holder or Participating Broker-Dealer expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
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(c) Promptly after receipt by an indemnified party under subsection (a) or subsection (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than under subsection (a) or subsection (b) above. In case any such action shall be brought against any indemnified party, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party, acting reasonably, and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation unless such indemnified party shall have reasonably concluded that there may be defenses available to it which are different from, additional to or in conflict with those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party), in which event such legal and other expenses shall be borne by the indemnifying party and paid as incurred (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel) in any one action or series of related actions in the same jurisdiction representing the indemnified parties who are parties to such action). No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim, and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 5 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or subsection (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other from the issuance and sale by the Company of the applicable series of Initial Securities to the Initial Purchasers pursuant to the Purchase Agreement (each, an “Initial Placement”) (which in the case of the Company shall be deemed to be equal to the total gross proceeds to the Company from the applicable Initial Placement), the amount of Additional Interest (as defined in Section 6 hereof) which did not become payable as a result of the filing of the applicable Registration Statement resulting in such losses, claims, damages, liabilities, judgments actions or expenses, and such Registration Statement. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the indemnifying party or parties on the one hand and the indemnified party or parties on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and the Holder or Participating Broker-Dealer, 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 Company on the one hand or such Holder or Participating Broker-Dealer on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Holder shall be required to contribute any amount in excess of the amount by which the net proceeds received by such Holders from the sale of the Securities pursuant to a Registration Statement exceeds the amount of damages which such Holder 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.
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(e) The obligations of the Company under this Section 5 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Holder or Participating Broker-Dealer within the meaning of the Securities Act; and the obligations of any Holder and Participating Broker-Dealer shall be in addition to any liability which the respective Initial Purchasers may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Securities Act.
(f) The agreements contained in this Section 5 shall survive the sale of the Securities pursuant to a Registration Statement and shall remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any indemnified party.
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6. Additional Interest Under Certain Circumstances.
(a) Additional interest (the “Additional Interest”) with respect to the Transfer Restricted Securities shall be assessed as follows if any of the following events occur (each such event in clauses (i) through (iv) below a “Registration Default”):
(i) if the applicable Registered Exchange Offer is not consummated on or prior to the Consummation Deadline;
(ii) if obligated to file a Shelf Registration Statement and the Company fails to file such Shelf Registration Statement with the Commission on or prior to the 90th day after such filing obligation arises;
(iii) if obligated to file a Shelf Registration Statement and such Shelf Registration Statement is not declared effective by the Commission on or prior to the 180th day after the obligation to file a Shelf Registration Statement arises; or
(iv) if after either the applicable Exchange Offer Registration Statement or the applicable Shelf Registration Statement is declared (or becomes automatically) effective (A) such Registration Statement thereafter ceases to be effective, or (B) such Registration Statement or the related prospectus ceases to be usable (except as permitted in Section 6(b) hereof) in connection with resales of Transfer Restricted Securities, in either case during the periods specified herein for any reason, including, but not limited to the following: (1) any event occurs as a result of which the related prospectus forming part of such Registration Statement would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, (2) it shall be necessary to amend such Registration Statement or supplement the related prospectus, to comply with the Securities Act or the Exchange Act or the respective rules thereunder, or (3) such Registration Statement is a Shelf Registration Statement that has expired before a replacement Shelf Registration Statement has become effective causing an interruption in the ability of Holders of Transfer Restricted Securities covered by an expiring Shelf Registration Statement to make registered dispositions.
Additional Interest shall accrue on the Transfer Restricted Securities over and above the interest rate otherwise payable on such Securities from and including the date on which any such Registration Default shall occur to but excluding the date on which all such Registration Defaults have been cured, at a rate of 0.25 percent per annum for the first 90-day period immediately following the occurrence of such Registration Default (the “Additional Interest Rate”). The Additional Interest Rate shall increase by an additional 0.25 percent per annum with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum Additional Interest Rate of 0.50 percent per annum. The Company will not be required to pay Additional Interest for more than one Registration Default at any given time.
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(b) A Registration Default referred to in Section 6(a)(iv)(B) hereof shall be deemed not to have occurred and be continuing in relation to a Shelf Registration Statement or the related prospectus if (i) such Registration Default has occurred solely as a result of (x) the filing of a post-effective amendment to such Shelf Registration Statement to incorporate annual audited financial statements or any other information with respect to the Company required to be filed by the Company pursuant to applicable securities laws, where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related prospectus, or (y) other material events or developments with respect to the Company that would need to be described in such Shelf Registration Statement or the related prospectus, and (ii) in the case of clause (y), the Company is proceeding promptly and in good faith to amend or supplement such Shelf Registration Statement and related prospectus to describe such events; provided, however, that in any case if such Registration Default occurs for a continuous period in excess of 45 days, Additional Interest shall be payable in accordance with Section 6(a) from the day such Registration Default occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due will be payable in cash on the regular interest payment dates with respect to the Transfer Restricted Securities.
(d) “Transfer Restricted Securities” means each Initial Security until (i) the date on which such Initial Security has been exchanged by a person other than a broker-dealer for a freely transferable Exchange Security in the applicable Registered Exchange Offer, (ii) following the exchange by a broker-dealer in the applicable Registered Exchange Offer of an Initial Security for an Exchange Security, the date on which such Exchange Security is sold to a purchaser who receives from such broker-dealer on or prior to the date of such sale a copy of the prospectus contained in the applicable Exchange Offer Registration Statement, (iii) the date on which such Initial Security has been effectively registered under the Securities Act and disposed of in accordance with the applicable Shelf Registration Statement, (iv) the date on which such Initial Security is distributed to the public pursuant to Rule 144 under the Securities Act, or (v) such Initial Security ceases to be outstanding.
7. Rule 144 and Rule 144A.
(a) The Company shall use its best efforts to file the reports required to be filed by it under the Securities Act and the Exchange Act in a timely manner and, if at any time the Company is not required to file such reports, it will, upon the request of any Holder of any series of Initial Securities that are “restricted securities” within the meaning of Rule 144 and are not saleable pursuant to Rule 144(d), make publicly available other information so long as necessary to permit sales of their Securities pursuant to Rule 144 and Rule 144A under the Securities Act.
(b) The Company covenants that it will take such further action as any Holder of any series of Initial Securities may reasonably request, all to the extent required from time to time to enable such Holder to sell such Initial Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 and Rule 144A (including the requirements of Rule 144A(d)(4)).
(c) The Company will provide a copy of this Agreement to prospective purchasers of any series of Initial Securities identified to the Company by the Initial Purchasers upon request.
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(d) If the Company is not at any time a reporting company under the Exchange Act, upon the request of any Holder of any series of Initial Securities, the Company shall deliver to such Holder a written statement as to whether it has complied with the requirements on its part to be complied with Rule 144A under the Securities Act, as applicable.
(e) Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to require the Company to register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations.
(a) If any of the Transfer Restricted Securities covered by any Shelf Registration Statement are to be sold in an underwritten offering, the investment banker or investment bankers and manager or managers that will administer the offering (“Managing Underwriters”) will be selected by the Holders of a majority in aggregate principal amount of such Transfer Restricted Securities to be included in such offering, with the Company’s approval, not to be unreasonably withheld.
(b) No person may participate in any underwritten registration hereunder unless such person (i) agrees to sell such person’s Transfer Restricted Securities on the basis reasonably provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements, and (ii) completes and executes all questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, except by the Company and the written consent of the Holders of a majority in principal amount of the Securities affected by such amendment, modification, supplement, waiver or consents; provided that the Company and the Initial Purchasers may amend, modify or supplement this Agreement, or provide for the waiver or consent to departures from the provisions hereof, without the consent of Holders if such amendment, modification or supplement, or waiver or consent, is not adverse to Holders.
(b) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand delivery, first-class mail, facsimile transmission, or courier:
| (A) | if to a Holder, at the most current address given by such Holder to the Company. |
| (B) | if to the Initial Purchasers: |
BofA Securities, Inc.
114 West 47th Street
NY8-114-07-01
New York, New York 10036
Facsimile: [REDACTED]
Attention: High Grade Debt Capital Markets Transaction Management/Legal
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Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Facsimile: [REDACTED]
Attention: General Counsel
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Telephone: [REDACTED]
Attention: Investment Grade Syndicate Desk – 3rd floor
Mizuho Securities USA LLC
1271 Avenue of the Americas
New York, New York 10020
Telephone: [REDACTED]
Attention: Debt Capital Markets
with a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Facsimile: [REDACTED]
Attention: Andrew L. Fabens
| (C) | if to the Company, at its address as follows: |
Fairfax Financial Holdings Limited
95 Wellington Street West
Suite 800
Toronto, Ontario M5J 2N7
Canada
Facsimile: [REDACTED]
Telephone: [REDACTED]
Attention: Chief Legal Officer
with a copy to:
Torys LLP
1114 Avenue of the Americas, 23rd Floor
New York, New York 10036
Facsimile: [REDACTED]
Attention: Christopher Bornhorst
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All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; three (3) business days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged by recipient’s facsimile machine operator, if sent by facsimile transmission; and on the day delivered, if sent by overnight air courier guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Company has not, as of the date hereof, entered into, nor shall it, on or after the date hereof, enter into, any agreement with respect to its securities that is inconsistent with the rights granted to the Holders herein or otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon the Company and its successors and assigns.
(e) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(g) 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 WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. THE PARTIES HEREBY SUBMIT TO THE PERSONAL JURISDICTION OF AND EACH AGREES THAT ALL PROCEEDINGS RELATING HERETO SHALL BE BROUGHT IN THE FEDERAL AND STATE COURTS LOCATED WITHIN THE STATE OF NEW YORK AND TO THE SERVICE OF PROCESS BY REGISTERED MAIL, RETURN RECEIPT REQUESTED, OR BY ANY OTHER MANNER PROVIDED BY THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES TO THIS AGREEMENT WAIVES THE RIGHT TO TRIAL BY JURY.
(h) Severability. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
(i) Securities Held by the Company. Whenever the consent or approval of Holders of a specified percentage of principal amount of Securities is required hereunder, Securities held by the Company or its affiliates (other than subsequent Holders of Securities if such subsequent Holders are deemed to be affiliates solely by reason of their holdings of such Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage.
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(j) Agent for Service; Submission to Jurisdiction; Waiver of Immunities. The Company agrees that any legal suit, action or proceeding brought by the Initial Purchasers or any person controlling an Initial Purchaser arising out of or based upon this Agreement may be instituted in any state or federal court in the Borough of Manhattan, The City of New York, State of New York, waives to the fullest extent permitted by law any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, and submits to the non-exclusive jurisdiction of any such court in any such suit, action or proceeding. The Company hereby irrevocably designates and appoints CT Corporation System (or any successor entity) as the Company’s authorized agent upon which process may be served in any such suit, action or proceeding in any such court and agrees that service of process upon CT Corporation System (or such successor entity) at its office at 28 Liberty Street, New York, New York 10005 (or such other address in the Borough of Manhattan, The City of New York, State of New York, as the Company may designate by written notice to the Initial Purchasers), and written notice of said service to the Company mailed or delivered to 95 Wellington Street West, Suite 800, Toronto, Ontario M5J 2N7, Attention: General Counsel, shall be deemed in every respect effective service of process upon the Company in any such suit, action or proceeding and shall be taken and held to be valid personal service upon the Company. Said designation and appointment shall be irrevocable for a period of ten (10) years from the date of this Agreement. The Company agrees to take all action as may be necessary to continue the designation and appointment of CT Corporation System or any successor entity in full force and effect so that the Company shall at all times during such period have an agent for service of process for the above purposes in the Borough of Manhattan, The City of New York, State of New York. Nothing herein shall affect the right of the Initial Purchasers or any person controlling an Initial Purchaser to serve process in any manner permitted by law or limit the right of the Initial Purchasers or any person controlling an Initial Purchaser to bring proceedings against the Company in the courts of any jurisdiction or jurisdictions. To the extent that the Company 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 this Agreement, to the fullest extent permitted by law.
(k) Judgment Currency. The obligation of the Company in respect of any sum due to any Holder shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day, following receipt by such Holder of any sum adjudged to be so due in such other currency, on which (and only to the extent that) such Holder may in accordance with normal banking procedures purchase United States dollars with such other currency; if the United States dollars so purchased are less than the sum originally due to such Holder hereunder, the Company agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Holder against such loss. If the United States dollars so purchased are greater than the sum originally due to such Holder hereunder, such Holder agrees to pay to the Company an amount equal to the excess of the dollars so purchased over the sum originally due to such Holder hereunder.
[Signature pages follow.]
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the several Initial Purchasers and the Company in accordance with its terms.
| Very truly yours, | |||
| FAIRFAX FINANCIAL HOLDINGS LIMITED | |||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | President and Chief Operating Officer | ||
The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date first above written.
| BofA Securities, Inc. | |||
| Acting on behalf of itself | |||
| and as a Representative of | |||
| the several Initial Purchasers | |||
| By: | BofA Securities, Inc. | ||
| By: | /s/ Randolph B. Randolph | ||
| Name: | Randolph B. Randolph | ||
| Title: | Managing Director | ||
| Citigroup Global Markets Inc. | |||
| Acting on behalf of itself and as a Representative of the several Initial Purchasers |
|||
| By: | Citigroup Global Markets Inc. | ||
| By: | /s/ Adam D. Bordner | ||
| Name: | Adam D. Bordner | ||
| Title: | Managing Director | ||
| J.P. Morgan Securities LLC | |||
| Acting on behalf of itself and as a Representative of the several Initial Purchasers |
|||
| By: | J.P. Morgan Securities LLC | ||
| By: | /s/ Robert Bottamedi | ||
| Name: | Robert Bottamedi | ||
| Title: | Executive Director | ||
| Mizuho Securities USA LLC | |||
| Acting on behalf of itself and as a Representative of the several Initial Purchasers |
|||
| By: | Mizuho Securities USA LLC | ||
| By: | /s/ Robert Fahrbach | ||
| Name: | Robert Fahrbach | ||
| Title: | Managing Director | ||
Exhibit 99.3
FAIRFAX FINANCIAL HOLDINGS LIMITED
AND
THE BANK OF NEW YORK MELLON
AND
COMPUTERSHARE ADVANTAGE TRUST OF CANADA
Sixth Supplemental Indenture
Dated as of May 20, 2025
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THIS SIXTH SUPPLEMENTAL INDENTURE (the “Sixth Supplemental Indenture”) dated as of May 20, 2025, is among FAIRFAX FINANCIAL HOLDINGS LIMITED, a corporation duly organized and existing under the laws of Canada (the “Corporation”), THE BANK OF NEW YORK MELLON, as the successor U.S. trustee (the “U.S. Trustee”), and COMPUTERSHARE ADVANTAGE TRUST OF CANADA (formerly, BNY TRUST COMPANY OF CANADA), as the successor Canadian trustee (the “Canadian Trustee”, and together with the U.S. Trustee, the “Trustees” and each, a “Trustee”).
WITNESSETH:
WHEREAS, the Corporation has heretofore executed and delivered to the Trustees an indenture dated as of December 1, 1993 (the “Base Indenture”), as supplemented by the First Supplemental Indenture dated as of May 9, 2011 and the Third Supplemental Indenture dated as of February 26, 2021 (collectively, the “Supplemental Indentures” and, together with the Base Indenture, the “Indenture”), providing for the issuance from time to time of one or more series of Securities;
WHEREAS, the Corporation has duly authorized, as a separate series of Securities under the Indenture, its 5.750% Senior Notes due 2035 (the “2035 Notes”) and its 6.500% Senior Notes due 2055 (the “2055 Notes” and, together with the 2035 Notes, the “Notes”);
WHEREAS, subsection 901(7) of the Indenture provides that, without the consent of any Holders, the Corporation, when authorized by or pursuant to a Board Resolution, and the Trustees, at any time and from time to time, may enter into one or more indentures supplemental to the Indenture, to establish the form or terms of Securities of any series as permitted by Sections 201 and 301 of the Indenture;
WHEREAS, pursuant to subsection 901(7) of the Indenture, the Corporation desires to establish the form and terms of each respective series of Notes as new series of Securities under the Indenture;
WHEREAS, the Corporation has duly authorized, executed and delivered this Sixth Supplemental Indenture to establish the Notes as a separate series of Securities under the Indenture and to provide for, among other things, the form and terms of the Notes;
WHEREAS, the entry into this Sixth Supplemental Indenture by the parties hereto is in all respects permitted by the provisions of the Indenture; and
WHEREAS, all the conditions and requirements necessary to make this Sixth Supplemental Indenture, when duly executed and delivered, a valid and binding agreement in accordance with its terms and for the purposes herein expressed, have been performed and fulfilled;
NOW THEREFORE, THIS SIXTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, the Corporation and the Trustees mutually covenant and agree for the equal and proportionate benefit of the Holders of the Securities as follows:
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Article 1
Definitions AND OTHER PROVISIONS OF GENERAL APPLICATION
| 1.1 | Definitions |
Except as otherwise expressly provided or unless the context otherwise requires, capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture. In the event of any inconsistency between the terms of the Indenture and this Sixth Supplemental Indenture, the terms of this Sixth Supplemental Indenture shall prevail.
“2035 Notes Par Call Date” has the meaning specified in Section 2.5.1 of this Sixth Supplemental Indenture.
“2055 Notes Par Call Date” has the meaning specified in Section 2.5.2 of this Sixth Supplemental Indenture.
“Additional Amounts” has the meaning specified in Section 2.6 of this Sixth Supplemental Indenture.
“Authorized Officers” has the meaning specified in Section 3.4 of this Sixth Supplemental Indenture.
“Canadian Tax Act” has the meaning specified in Section 2.6 of this Sixth Supplemental Indenture.
“Co-Obligor” has the meaning specified in Section 2.9 of this Sixth Supplemental Indenture.
“Code” has the meaning specified in Section 2.6 of this Sixth Supplemental Indenture.
“Electronic Means” shall mean the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by either Trustee, or another method or system specified by a Trustee as available for use in connection with its services hereunder.
“Excluded Taxes” has the meaning specified in Section 2.6 of this Sixth Supplemental Indenture.
“FATCA” has the meaning specified in Section 2.6 of this Sixth Supplemental Indenture.
“H.15” has the meaning specified in Section 2.5.3 of this Sixth Supplemental Indenture.
“H.15 TCM” has the meaning specified in Section 2.5.3 of this Sixth Supplemental Indenture.
“Instructions” has the meaning specified in Section 3.4 of this Sixth Supplemental Indenture.
“Interest Payment Date” has the meaning specified in Section 2.3 of this Sixth Supplemental Indenture
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“Non-U.S. Co-Obligor” has the meaning specified in Section 2.6 of this Sixth Supplemental Indenture.
“Par Call Dates” has the meaning specified in Section 2.5.2 of this Sixth Supplemental Indenture.
“Regular Record Date” has the meaning specified in Section 2.3 of this Sixth Supplemental Indenture
“Remaining Life” has the meaning specified in Section 2.5.3 of this Sixth Supplemental Indenture.
“Taxes” has the meaning specified in Section 2.6 of this Sixth Supplemental Indenture.
“Treasury Rate” has the meaning specified in Section 2.5.3 of this Sixth Supplemental Indenture.
“Trust Indenture Act” has the meaning specified in Section 3.5 of this Sixth Supplemental Indenture.
| 1.2 | To Be Read with Indenture |
This Sixth Supplemental Indenture is a supplemental indenture within the meaning of the Indenture, and the Indenture and this Sixth Supplemental Indenture shall be read together and shall have effect, so far as practicable, as though all the provisions of the Indenture and this Sixth Supplemental Indenture were contained in one instrument.
Article 2
THE NOTES
| 2.1 | Designation |
There is hereby authorized to be issued under the Indenture: (i) a separate series of Securities designated as “5.750% Senior Notes due 2035” (i.e. the 2035 Notes) and (ii) a separate series of Securities designated as “6.500% Senior Notes due 2055” (i.e. the 2055 Notes).
| 2.2 | Limit to Aggregate Principal Amount and Further Issuance |
The 2035 Notes shall initially be limited to an aggregate principal amount of US$500,000,000. The 2055 Notes shall initially be limited to an aggregate principal amount of US$400,000,000.
The Corporation may from time to time, without notice to or the consent of the Holders of any series of Securities issued under the Indenture, create and issue further Securities of the same series as each of the Notes, in each case ranking pari passu with the Notes of such series in all respects and having the same terms as the Notes of such series (except in each case, for the issue date, issue price and initial Interest Payment Date following the issue date of such further notes) and so that such further notes shall be consolidated and form a single series with, and shall have the same terms as to status, redemption or otherwise as, the Notes of the relevant series; provided that such further notes shall not be issued with the same CUSIP and/or ISIN numbers as the Notes of such series unless such further notes are fungible with the Notes of such series for U.S. federal income tax purposes. Any such further Notes shall rank equally and ratably with the Notes of such series then Outstanding and shall be treated as a single series of such Notes for all purposes hereunder and under the Indenture.
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| 2.3 | Paying Agent; Place of Payment |
The Corporation hereby appoints the U.S. Trustee to act as the initial paying agent for the Notes. The place of payment for the Notes shall be at the address of the U.S. Trustee, currently located at 240 Greenwich Street, Floor 7E, New York, New York 10286 (the “Place of Payment”).
| 2.4 | Interest and Maturity |
The 2035 Notes shall bear interest from the date of issuance at the rate of 5.750% per annum and shall mature on May 20, 2035. The 2055 Notes shall bear interest from the date of issuance at the rate of 6.500% per annum and shall mature on May 20, 2055.
Interest on the Notes will be payable in semi-annual installments in arrears on May 20 and November 20 each year (each, an “Interest Payment Date”), commencing November 20, 2025 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, to the persons in whose names the Notes are registered at the close of business on the preceding May 5 and November 5, respectively (whether or not a Business Day) (the “Regular Record Date”).
Interest shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. For the purposes only of the disclosure required by the Interest Act (Canada), and without affecting the amount of interest payable to any holder of a Note or the calculation of interest on any Note, the yearly rate of interest to which any rate of interest payable under a Note, which is to be calculated on any basis other than a full calendar year, is equivalent may be determined by multiplying the rate by a fraction, the numerator of which is the number of days in the calendar year in which the period for which interest at such rate is payable and the denominator of which is the number of days comprising such other basis.
Principal of and interest on the Notes shall be payable in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
If any Interest Payment Date, maturity date or redemption date of a Note falls on a day that is not a Business Day, the required payment of principal, premium, if any, and interest shall be made on the next succeeding Business Day as if made on the date that the payment was due and no interest shall accrue on that payment for such period from and after that Interest Payment Date, maturity date or redemption date, as the case may be, to the date of that payment on the next succeeding Business Day. The term “Business Day” means any day, other than a Saturday or Sunday, which is not a day on which banking institutions in the City of New York are authorized or required by law or executive order to close.
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| 2.5 | Optional Redemption |
2.5.1 Prior to February 20, 2035 (the “2035 Notes Par Call Date”), the Corporation may redeem the 2035 Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
| (1) | (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the date fixed for redemption of the 2035 Notes (assuming the 2035 Notes matured on the 2035 Notes Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30 day months) at the Treasury Rate plus 25 basis points less (b) interest accrued to the date of redemption, and |
| (2) | 100% of the principal amount of the 2035 Notes to be redeemed, |
plus, in either case, accrued and unpaid interest to, but excluding, the redemption date. The Corporation shall pay any interest due on an Interest Payment Date that occurs on or prior to a redemption date to the registered Holders of the 2035 Notes as of the close of business on the Regular Record Date immediately preceding that Interest Payment Date.
On or after the 2035 Notes Par Call Date, the Corporation may redeem the 2035 Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of such series of Notes being redeemed, plus accrued and unpaid interest thereon to, but excluding, the redemption date.
2.5.2 Prior to November 20, 2054 (the “2055 Notes Par Call Date” and together with the 2035 Notes Par Call Date, the “Par Call Dates” and each, a “Par Call Date”), the Corporation may redeem the 2055 Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
| (1) | (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the date fixed for redemption of the 2055 Notes (assuming the 2055 Notes matured on the 2055 Notes Par Call Date) on a semi- annual basis (assuming a 360-day year consisting of twelve 30 day months) at the Treasury Rate plus 25 basis points less (b) interest accrued to the date of redemption, and |
| (2) | 100% of the principal amount of the 2055 Notes to be redeemed, |
plus, in either case, accrued and unpaid interest to, but excluding, the redemption date. The Corporation shall pay any interest due on an Interest Payment Date that occurs on or prior to a redemption date to the registered Holders of the 2055 Notes as of the close of business on the Regular Record Date immediately preceding that Interest Payment Date.
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On or after the 2055 Notes Par Call Date, the Corporation may redeem the 2055 Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of such series of Notes being redeemed, plus accrued and unpaid interest thereon to, but excluding, the redemption date.
2.5.3 “Treasury Rate” means, with respect to any redemption date, the yield determined by the Corporation in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Corporation after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) – H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Corporation shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the applicable Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the applicable Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third Business Day preceding the redemption date H.15 TCM is no longer published, the Corporation shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the applicable Par Call Date, as applicable. If there is no United States Treasury security maturing on the applicable Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the applicable Par Call Date, one with a maturity date preceding such Par Call Date and one with a maturity date following such Par Call Date, the Corporation shall select the United States Treasury security with a maturity date preceding the applicable Par Call Date. If there are two or more United States Treasury securities maturing on the applicable Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Corporation shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
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The Corporation’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error.
| 2.6 | Payment of Additional Amounts |
All payments made by the Corporation under or with respect to the Notes of each series shall 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 of any province or territory thereof or by any authority or agency therein or thereof having power to tax (hereinafter “Taxes”), unless the Corporation is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Corporation is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes of a series, the Corporation shall pay as interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder of such Notes of such series or the beneficial owner thereof (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder or beneficial owner would have received if such Taxes had not been withheld or deducted; provided that no Additional Amounts shall be payable with respect to: (a) any payment made to a Holder of the Notes of such series or beneficial owner who is liable for such Taxes in respect of the Notes of such series (i) by reason of such Holder or beneficial owner, or any other person entitled to payments on the Notes of such series, being a person with which the Corporation does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the “Canadian Tax Act”)), (ii) by reason of such Holder or beneficial owner being a “specified shareholder” of the Corporation or not dealing at arm’s length with a “specified shareholder” of the Corporation (as defined in subsection 18(5) of the Canadian Tax Act), (iii) by reason of such Holder or beneficial owner being an entity in respect of which the Corporation is a “specified entity” for the purposes of the “hybrid mismatch rules” in subsection 18.4(1) of the Canadian Tax Act, (iv) by reason of the existence of any present or former connection between such Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership, limited liability company or corporation) and Canada or any province or territory thereof or therein or agency thereof or therein other than the mere acquisition, holding, use or ownership or deemed holding, use or ownership, or receiving payments or enforcing any rights in respect of the Notes of such series as a non resident or deemed non resident of Canada or any province or territory thereof or therein or agency thereof or therein, or (v) by reason of such Holder or beneficial owner’s failure 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 pre condition to exemption from, or a reduction in the rate of deduction or withholding of, such Taxes, in each case, to the extent such Holder or beneficial Holder is legally entitled to such exemption or reduction; (b) any estate, inheritance, gift, sales, transfer, excise or personal property tax or any similar Taxes; (c) any Notes of such series presented for payment more than 15 days after the date on which such payment or the Notes of such series became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the Holder would have been entitled to such Additional Amounts had the Notes of such series been presented on the last day of such 15 day period); (d) any withholding or deduction imposed on a payment to a Holder or beneficial owner pursuant to Sections 1471 to 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any agreements entered into pursuant to current Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or official guidance, adopted pursuant to any intergovernmental agreement among governmental authorities entered into in connection with the implementation of the foregoing, and including for greater certainty, Part XVIII and Part XIX of the Canadian Tax Act (“FATCA”), or any Taxes or penalties that arise from the Holder or beneficial owner’s failure to properly comply with its obligations with respect to FATCA or the Canada United States Enhanced Tax Information Exchange Agreement Implementation Act; (e) any Taxes which are payable otherwise than by withholding or deduction from any payment made under or with respect to the Notes of such series or (f) any combination of the foregoing clauses (a) to (e); nor shall such Additional Amounts be paid with respect to any payment on any Note of such series to a Holder or beneficial owner who is a fiduciary or partnership or, other than the sole beneficial owner of such Note, to the extent that a beneficiary or settlor with respect to such fiduciary, or a member of such partnership or a beneficial owner thereof would not have been entitled to receive a payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner received directly its beneficial or distributive share of such payment (collectively, “Excluded Taxes”). The Corporation shall also (a) make such withholding or deduction and (b) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. Upon the written request of the Trustee or a Holder of Notes of a series, the Corporation shall furnish, as soon as reasonably practicable, to the Trustee or such Holder of Notes of such series, as applicable, certified copies of tax receipts evidencing such payment by the Corporation. The Corporation shall indemnify and hold harmless each Holder of Notes of a series and any beneficial owner thereof and, upon written request of any such Holder or beneficial owner, reimburse such Holder or beneficial owner for the amount of (i) any such Taxes (other than Excluded Taxes) so levied or imposed and paid by such Holder or beneficial owner as a result of any failure of the Corporation to withhold, deduct or remit to the relevant tax authority, on a timely basis, the full amounts required under applicable law; and (ii) any such Taxes (other than Excluded Taxes) so levied or imposed with respect to any reimbursement under the foregoing clause (i), so that the net amount received by such Holder or beneficial owner after such reimbursement would not be less than the net amount such Holder or beneficial owner would have received if such Taxes (other than Excluded Taxes) on such reimbursement had not been imposed.
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Whenever in the Indenture there is mentioned, in any context, the payment of principal (and premium, if any), redemption price, interest or any other amount payable under or with respect to the Notes, 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.
| 2.7 | Redemption for Tax Reasons |
In the event that the Corporation has become or would become obligated to pay, on the next date on which any amount would be payable under or with respect to the Notes of a series, any Additional Amounts as a result of a change in the laws (including any regulations promulgated thereunder) or treaties of Canada (or any political subdivision or taxing authority thereof or therein), or any change in any official position regarding the application or interpretation of such laws, regulations or treaties, which change is announced and becomes effective on or after the date of issuance of the Notes, then the Corporation may at any time at the Corporation’s option redeem the Notes of such series, in whole, but not in part, at a redemption price equal to 100% of their principal amount, plus any interest accrued but not paid to but excluding, the redemption date and any Additional Amounts due and payable on the Notes of such series up to, but excluding, the redemption date.
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If the Corporation exercises its option to redeem the Notes of either or both series pursuant to the preceding paragraph, the Corporation shall deliver to the Trustee an Officers’ Certificate certifying that the Corporation is entitled to redeem the Notes of such series to the effect that the circumstances described above exist.
| 2.8 | Selection and Notice of Redemption |
In the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the Trustees deem appropriate.
No Notes of either series of a principal amount of US$2,000 or less shall be redeemed in part. If any Notes of this series is to be redeemed in part only, the notice of redemption that relates to such Note shall state the portion of the principal amount thereof to be redeemed. A new Note of such series in a principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon surrender for cancellation of the original Note. For so long as the Notes are held by DTC (or another depositary) the selection of partially redeemed Notes and the redemption of the Notes shall be conducted in accordance with the policies and procedures of the depositary.
Notice of redemption of the Notes held in the form of definitive certificates will be mailed by first class mail at least 10 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed at its registered address. Notice of redemption of the Notes held in the form of global certificates will be given to DTC in accordance with its applicable procedures (or the procedures of any successor depositary) at least 10 days but not more than 60 days before the respective redemption date. The notice of redemption may be subject to one or more conditions precedent as set forth in such notice. If any Note of either series is to be redeemed in part only, the notice of redemption that relates to such Note shall state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Note.
Unless the Corporation defaults in payment of the redemption price, on and after the applicable redemption date, interest will cease to accrue on such Note or portions thereof called for redemption.
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| 2.9 | Co-Obligors and/or Guarantors |
When authorized by a Board Resolution of the Corporation and without the consent of any Holders of the applicable series of Notes, the Corporation and the Trustees may enter into a supplemental indenture to the Indenture in respect of such Notes (but not with respect to any other series of outstanding securities), in accordance with the terms of the Indenture, for the purpose of adding one or more subsidiaries of the Corporation as a co-obligor (whether as an additional issuer or a guarantor) (each, in respect of the applicable series of Notes, a “Co-Obligor”) of such Notes and the Indenture with respect to such Notes; provided that any such Co-Obligor shall be organized or formed under the laws of (1) any state of the United States or the District of Columbia, (2) Canada or any province or territory thereof, (3) the United Kingdom, (4) Bermuda, (5) Barbados or (6) any country that is a member of the European Union. Any such supplemental indenture entered into for the purpose of adding a Co-Obligor formed under any jurisdiction other than one of the permitted United States jurisdictions for the applicable series of Notes (each, a “Non-U.S. Co-Obligor”) shall include a provision for (i) the payment of Additional Amounts in the form substantially similar to that described in this Sixth Supplemental Indenture above, with such modifications as the Corporation and such Non-U.S. Co-Obligor reasonably determine are customary and appropriate for U.S. and Canadian bondholders to address then-applicable (or potentially applicable future) taxes, duties, levies, imposts, assessments or other governmental charges imposed or levied by or on behalf of the applicable governmental authority in respect of payments made by such Non-U.S. Co-Obligor under or with respect to the Notes, including any exceptions thereto as the Corporation and such Non-U.S. Co-Obligor shall reasonably determine would be customary and appropriate for U.S. and Canadian noteholders and (ii) the right of the Corporation or the Co-Obligor to redeem such Notes at 100% of the aggregate principal amount thereof plus accrued interest thereon in the event that additional amounts become payable by a Non-U.S. Co-Obligor in respect of such Notes as a result of any change in law or official position regarding the application or interpretation of any law that is announced or becomes effective after the date of such supplemental indenture. Any such Co-Obligor shall be jointly and severally liable with the Corporation to pay the principal, premium, if any, and interest on the Notes of the applicable series and all other amounts payable by the Corporation under the Indenture in respect of the Notes of such series. The Corporation shall only add a Co-Obligor of such Notes of such series if the Corporation determines that adding a Co-Obligor would (i) not result in a deemed sale or exchange of the Notes of such series by any Holder for U.S. federal income tax purposes under applicable then existing Treasury Regulations promulgated under the Code or a disposition of the Notes of such series by any Holder for Canadian federal income tax purposes and (ii) not adversely affect the interests of the Holders of any outstanding series of securities under the Indenture in any material respect.
| 2.10 | Mergers, Consolidations, Etc. |
With respect to each series
of Notes, Section 801 of the Base Indenture is hereby amended and restated as follows (additions marked in bold italics;
deletions in strikethrough italics):
“SECTION 801. Corporation May Consolidate, etc., Only on Certain Terms. The Corporation and/or any Co-Obligor shall not amalgamate or consolidate with or merge into any other corporation or convey, transfer or lease its properties and assets substantially as an entirety to any other Person, unless:
| (1) | the corporation formed by such amalgamation or consolidation or into which the Corporation and/or any Co-Obligor is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Corporation and/or any Co-Obligor substantially as an entirety (if other than the Corporation and/or any Co-Obligor) (A) shall be a corporation, partnership, company or trust organized and validly existing under (i) in the case of the Corporation, the laws of Canada or any province thereof or the United States of America, any state thereof or the District of Columbia, or (ii) in the case of a Co-Obligor, the laws of Canada or any province thereof or the United States of America, any state thereof or the District of Columbia or the laws of the jurisdiction of organization of such Co-Obligor (prior to giving effect to such transaction), and (B) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustees, in form satisfactory to the Trustees, the Corporation’s and/or such Co-Obligor’s (as applicable) obligation for the due and punctual payment of the principal of (and premium, if any, on) and interest on all the Outstanding Securities, all other amounts payable by the Corporation or a Co-Obligor (as applicable) pursuant to the Indenture and the performance and observance of every covenant of this Indenture on the part of the Corporation or the Co-Obligor (as applicable) to be performed or observed; |
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| (2) | immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred or be continuing; and |
| (3) | the Corporation or the Co-Obligor (as applicable) has delivered to the Trustees an Officers’ Certificate and an Opinion of Counsel, each stating that such amalgamation, consolidation, 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. |
This Section shall only apply to a merger or consolidation in which the Corporation or the Co-Obligor (as applicable) is not the surviving corporation and to conveyances, leases and transfers by the Corporation or the Co-Obligor (as applicable) as transferor or lessor.”
| 2.11 | Successors upon Mergers, Consolidations, Etc. |
With respect to each series
of Notes, Section 802 of the Base Indenture is hereby amended and restated as follows (additions marked in bold italics;
deletions in strikethrough italics):
“SECTION 802. Successor Person Substituted. Upon any amalgamation or consolidation by the Corporation and/or any Co-Obligor with or merger by the Corporation and/or any Co-Obligor into any other corporation or any conveyance, transfer or lease of the properties and assets of the Corporation and/or any Co-Obligor substantially as an entirety in accordance with Section 801, the successor Person formed by such amalgamation or consolidation or into which the Corporation and/or any Co-Obligor (as applicable) is merged or the successor Person 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 Corporation and/or any Co-Obligor (as applicable) under this Indenture with the same effect as if such successor Person had been named as the Corporation herein, and in the event of any such conveyance or transfer, the Corporation and/or any Co-Obligor (as applicable) (which term, in either case, shall for this purpose mean the Person named as the “Corporation” in the first paragraph of this Indenture or any successor Person which shall theretofore become such in the manner described in Section 801), except in the case of a lease, shall be discharged of all obligations and covenants under this Indenture and the Securities and may be dissolved and liquidated.”
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| 2.12 | Events of Default |
The Event of Default in respect of each series of Notes are as set forth in Section 501 of the Base Indenture, except as modified below.
With respect to each series
of Notes, Section 501(5) of the Base Indenture is hereby amended and restated as follows (additions marked in bold italics;
deletions in strikethrough italics):
“(5) (A) there shall have occurred
a default by the Corporation in the payment, at the stated maturity, of any Debt (including a default with respect to Securities of any
series other than that series) in an amount in excess of US$100,000,000 10,000,000 outstanding under
or evidenced by any single indenture or instrument (including this Indenture), whether such Debt now exists or shall hereafter be created,
and such default shall have continued after any applicable grace period and shall not have been cured or waived or (B) Debt of the
Corporation in an amount in excess of US$100,000,000 10,000,000 outstanding under or evidenced by
any single indenture or instrument (including this Indenture), whether such Debt now exists or shall hereafter be created, shall have
been accelerated or otherwise declared due and payable prior to the stated maturity thereof, and such Debt shall not have been discharged,
or such acceleration shall not have been rescinded or annulled, within 10 days after notice thereof shall have been given, by registered
or certified mail, to the Corporation by the U.S. Trustee, or to the Corporation and the Trustees by the Holders of at least
25% in aggregate principal amount of all of the Securities of the series to which this Section 501(5) applies and are
at the time Outstanding; or”
| 2.13 | Form |
The Notes of each series shall be issuable and transferable in fully registered form, without coupons. The Notes of each series and the certificate of the Trustee endorsed thereon shall each be issuable initially as one or more global Securities of such series in minimum denominations of US$2,000 and integral multiples of US$1,000 in excess thereof and shall be substantially in the form set forth in Annex A or Annex B, as applicable, hereto. The depositary for the Notes in the form of global Securities shall be The Depository Trust Company.
| 2.14 | Holder Redemption; Sinking Funds |
The Notes shall not be redeemable at the option of the Holder prior to maturity and shall not be subject to any sinking fund.
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Article 3
MISCELLANEOUS
| 3.1 | Effectiveness. |
This Sixth Supplemental Indenture shall become effective as of the date first written above, and the Indenture shall be amended and supplemented in accordance herewith, and this Sixth Supplemental Indenture shall form a part of the Indenture for all purposes with respect to each series of Notes.
| 3.2 | Indenture and Securities Remain in Full Force and Effect. |
Except as amended and supplemented by this Sixth Supplemental Indenture, all provisions in the Indenture and the Securities shall remain in full force and effect.
| 3.3 | Conflict with Trust Indenture Act. |
If any provision of this Sixth Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), that is required under the Trust Indenture Act to be part of and govern any provision of this Sixth Supplemental Indenture, the provision of the Trust Indenture Act shall control. If any provision of this Sixth Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the provision of the Trust Indenture Act shall be deemed to apply to the Indenture as so modified or to be excluded by this Sixth Supplemental Indenture, as the case may be.
| 3.4 | Electronic Means |
The Trustees shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to the Indenture and any related financing documents and delivered using Electronic Means; provided, however, that the Corporation, shall provide to the Trustees an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Corporation whenever a person is to be added or deleted from the listing. If the Corporation elects to give the Trustees Instructions using Electronic Means and a Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Corporation understands and agrees that the Trustees cannot determine the identity of the actual sender of such Instructions and that the Trustees shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustees have been sent by such Authorized Officer. The Corporation shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustees and that the Corporation and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Corporation. The Trustees shall not be liable for any losses, costs or expenses arising directly or indirectly from either Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Corporation agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustees, including without limitation the risk of a Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustees and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Corporation; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustees immediately upon learning of any compromise or unauthorized use of the security procedures.
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| 3.5 | Severability. |
In case any provision in this Sixth Supplemental Indenture 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.
| 3.6 | Headings. |
The Article and Section headings of this Sixth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Sixth Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
| 3.7 | Benefits of Sixth Supplemental Indenture, etc. |
Nothing in this Sixth Supplemental Indenture or in any Security, express or implied, shall give to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder and the Holders of the Securities (including the Holders of the Notes), any benefit of any legal or equitable right, remedy or claim under the Indenture, this Sixth Supplemental Indenture or any Security.
| 3.8 | Successors. |
All agreements of the Corporation and the Trustees in this Sixth Supplemental Indenture shall bind their successors and permitted assigns.
| 3.9 | Trustees Not Responsible for Recitals. |
The recitals contained herein shall be taken as the statements of Corporation and the Trustees assume no responsibility for their correctness. The Trustees shall not be liable or responsible for the validity or sufficiency of this Sixth Supplemental Indenture.
| 3.10 | Rights of the Trustees. |
In entering into this Sixth Supplemental Indenture, the Trustees shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustees, whether or not elsewhere herein so provided.
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| 3.11 | Governing Law; Waiver of Jury Trial. |
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS SIXTH SUPPLEMENTAL INDENTURE. This Sixth Supplemental Indenture is subject to the provisions of Trust Indenture Legislation and shall, to the extent applicable, be governed by such provisions.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS SIXTH SUPPLEMENTAL INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
| 3.12 | Counterpart Originals. |
The parties may sign any number of copies of this Sixth Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery of an executed counterpart signature page by e-mail (PDF) or other electronic signature means shall be effective as delivery of a manually executed counterpart of this Sixth Supplemental Indenture.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Sixth Supplemental Indenture to be duly executed, all as of the date first above written.
| FAIRFAX FINANCIAL HOLDINGS LIMITED | |||
| By: | /s/ Amy Sherk | ||
| Name: | Amy Sherk | ||
| Title: | Vice President and Chief Financial Officer | ||
| By: | /s/ Derek Bulas | ||
| Name: | Derek Bulas | ||
| Title: | Vice President, Chief Legal Officer & Corporate Secretary | ||
| THE BANK OF NEW YORK MELLON, as the U.S. Trustee | |||
| By: | /s/ Glenn Kunak | ||
| Name: | Glenn Kunak | ||
| Title: | Vice President | ||
| COMPUTERSHARE ADVANTAGE TRUST OF CANADA, as the Canadian Trustee | |||
| By: | /s/ Bhawna Dhayal | ||
| Name: | Bhawna Dhayal | ||
| Title: | Vice-President | ||
| By: | /s/ Farhan Mir | ||
| Name: | Farhan Mir | ||
| Title: | Senior Vice President | ||
Annex A
Form of 2035 Note
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY, UNLESS AND UNTIL THIS SECURITY IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM.
[Rule 144 Global Notes: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER: (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THIS SECURITY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE CORPORATION OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER) OR (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFEREE IS A PURCHASER WHO IS NOT A QUALIFIED INSTITUTIONAL BUYER, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF NEW YORK MELLON, AS U.S. TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE CORPORATION MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE 2(D) ABOVE OR UPON ANY TRANSFER OF THIS SECURITY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS USED IN THIS SECURITY, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.]
[Regulation S Global Notes: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR OTHER SECURITIES LAWS. THE HOLDER HEREOF, BY ACQUISITION OF THIS SECURITY, AGREES THAT, PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S (“REGULATION S”) UNDER THE SECURITIES ACT), NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES (AS DEFINED IN REGULATION S) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S), EXCEPT TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF THE INDENTURE REFERRED TO HEREIN.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY AFTER 40 DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE DATE ON WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) AND (B) THE ORIGINAL ISSUE DATE OF THE SECURITIES.
WITH RESPECT TO ANY SECURITY THAT IS SOLD PURSUANT TO THE ORIGINAL DISTRIBUTION IN CANADA, UNLESS PERMITTED UNDER APPLICABLE SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE THE DATE THAT IS FOUR MONTHS AND A DAY AFTER THE DATE ON WHICH THIS SECURITY IS ISSUED.]
FAIRFAX
FINANCIAL HOLDINGS LIMITED
(Organized under the laws of Canada)
5.750% SENIOR NOTES DUE 2035
US$ ●
| No. [R-] [S-]● | CUSIP: [303901 BV3] [C33461 AN1] | |
| ISIN: [US303901BV34] [USC33461AN15] |
Fairfax Financial Holdings Limited, a corporation duly organized and existing under the laws of Canada (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., as nominee for The Depository Trust Company (“DTC”), or its registered assigns, the principal sum of ● UNITED STATES DOLLARS (US$●) (as may be modified by the Schedule of Increases and Decreases of Global Securities attached hereto) on May 20, 2035 at the office or agency of the Corporation maintained for such purpose in The City of New York, and to pay interest semi-annually in arrears, on May 20 and November 20 in each year (each, an “Interest Payment Date”), commencing November 20, 2025, from the issue date of this Security or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 5.750% per annum, until the principal hereof is paid or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be May 5 or November 5 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and such Defaulted Interest may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustees (as defined below), notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, all as more fully provided in said Indenture.
Interest on this Security will be computed on the basis of a 360-day year of twelve 30-day months. Interest on this Security is subject to any Additional Amounts (as defined in the Sixth Supplemental Indenture (as defined below)) and any Additional Interest (as defined below) that may be payable thereon.
This Security is one of the duly authorized Securities of the Corporation (herein called the “Securities”), issued and to be issued in one or more series under an indenture dated as of December 1, 1993 (the “Base Indenture”), among the Corporation, The Bank of New York Mellon, a corporation duly organized and existing under the laws of the State of New York, as the successor U.S. trustee (herein called the “U.S. Trustee”, which term includes any successor U.S. trustee under the Indenture with respect to the Securities in this series), and Computershare Advantage Trust of Canada, a trust company duly incorporated and existing under the laws of Canada, as the successor Canadian trustee (herein called the “Canadian Trustee”, which term includes any successor Canadian trustee under the Indenture with respect to the Securities of this series, and, collectively with the U.S. Trustee, the “Trustees”) as amended by the first supplemental indenture dated as of May 9, 2011 (the “First Supplemental Indenture”), the third supplemental indenture dated as of February 26, 2021 (the “Third Supplemental Indenture”) and the sixth supplemental indenture dated May 20, 2025 (the “Sixth Supplemental Indenture” and together with the Base Indenture, the First Supplemental Indenture and the Third Supplemental Indenture, the “Indenture”) to which is hereby made for a statement of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Corporation, the Trustees and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the Securities of the series designated as 5.750% Senior Notes due 2035, initially limited to an aggregate principal amount of US$500,000,000. Additional Securities of this series may be issued by the Corporation from time to time.
The Securities of this series are issuable only in registered form without coupons in initial denominations of $2,000.00 and multiples of $1,000.00 in excess thereof.
The Securities of this series will be direct, unsecured obligations of the Corporation and will rank equally and ratably with all of the Corporation’s other unsecured and unsubordinated indebtedness. The Securities of this series will rank among themselves equally and ratably without preference or priority.
The Corporation is subject to certain covenants as described in the Indenture. If an Event of Default with respect to the Securities of this series (as described in Section 2.12 of the Sixth Supplemental Indenture) shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Securities of this series are redeemable at the redemption prices as described in Sections 2.5 and 2.7 of the Sixth Supplemental Indenture and in any applicable supplemental indenture as contemplated in Section 2.9 of the Sixth Supplemental Indenture and as described in such applicable supplemental indenture.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the Place of Payment, the Corporation shall execute, and one of the Trustees shall authenticate and deliver, in the name of the designated transferee, one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.
Modifications and Amendments
The Indenture permits, with certain exceptions as therein provided, the Corporation and the Trustees to enter into supplemental indentures to the Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of modifying in any manner the rights of the Holders of the Securities under the Indenture with the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities to be affected. The Indenture also permits the Holders of not less than a majority in principal amount of all Outstanding Securities affected, on behalf of the Holders of all such Securities, to waive compliance by the Corporation with certain provisions of the Indenture. In addition, the Holders of not less than a majority in principal amount of the Outstanding Securities of any series, on behalf of the Holders of all of the Securities of such series (or, in some cases, the Holders of not less than a majority in principal amount of all Outstanding Securities, on behalf of the Holders of all such Securities) may waive certain past defaults under the Indenture and their consequences. Any such consent or waiver shall be conclusive and binding upon the Holder of this Security and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security or any such other Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest on this Security as herein provided and at the place, rate and respective times, and in the coin or currency, herein and in the Indenture prescribed.
Registration Rights
Holders of the Securities of this series shall have the benefits of a registration rights agreement, dated as of the issue date of such Securities, among the Corporation and BofA Securities, Inc., Citigroup Global Markets Inc., J.P. Morgan Securities LLC, and Mizuho Securities USA LLC as representatives of the initial purchasers (the “Registration Rights Agreement”), pursuant to which the Corporation has agreed to file a registration statement for an exchange offer (an “Exchange Offer”) of the Securities of this series for new Securities (the “Exchange Securities”), identical in all material respects to this Security, except that the Exchange Securities will be registered under the Securities Act, and the transfer restrictions and registration rights relating to this Security will not apply to the Exchange Securities, or in certain circumstances, a shelf registration statement for the resale of the Securities of this series. In the event of a Registration Default (as defined in the Registration Rights Agreement), additional interest (“Additional Interest”) will accrue on this Security at a rate of 0.25% per annum for the first 90-day period of such Registration Default, increasing by an additional 0.25% per annum for each successive 90-day period of such Registration Default, for maximum Additional Interest of 0.50% per annum.
Upon the completion of the Exchange Offer in accordance with the Registration Rights Agreement, the Corporation shall issue and, upon receipt of a written order of the Corporation in accordance with Section 303 of the Indenture, one of the Trustees shall authenticate (i) one or more Exchange Securities in an aggregate principal amount equal to the principal amount of the beneficial interests in the Regulation S Global Security and/or Restricted Global Securities representing Securities of this series accepted for exchange by the Corporation, all as set forth in the written instructions of the Corporation. Concurrently with the issuance of such Exchange Securities, the applicable Trustee shall cause the aggregate principal amount of the Regulation S Global Security and/or Restricted Global Securities representing Securities of this series accepted for exchange by the Corporation to be reduced in accordance with the beneficial interests tendered in the Exchange Offer in accordance with the procedures of DTC (or the procedures of any successor depositary). The Exchange Securities shall not be deemed “Exempted Securities” within the meaning of the Indenture and shall not bear the Securities Act legends provided for in Section 204 of the Indenture, and the paragraph above (including any Additional Interest) shall not apply to such Exchange Securities.
In the event the Corporation is required to pay Additional Interest pursuant to any Registration Rights Agreement, the Corporation will provide written notice to the Trustees of the Corporation’s obligation to pay Additional Interest no later than 15 days prior to the next Interest Payment Date, which notice shall set forth the amount of Additional Interest to be paid by the Corporation. Neither of the Trustees shall at any time be under any duty or responsibility to the Corporation, any Holders or any other Person to determine whether such Additional Interest is payable or the amount thereof.
Defined Terms
Unless otherwise defined herein, all terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture. To the extent that any term of this Security conflicts with any term of the Indenture, the term of this Security shall supersede and replace the applicable term of the Indenture with respect to the Securities of this series (but not the Securities of any other series). Each Holder of this Security, by accepting the same, agrees to and shall be bound by the provisions of the Indenture.
Governing Law
This Security shall be governed by and construed in accordance with the laws of the State of New York.
Authentication
Unless the certificate of authentication hereon has been manually executed by or on behalf of either the U.S. Trustee or the Canadian Trustee, this Security shall not be entitled to any benefits under the Indenture or be valid or obligatory for any purpose.
[Signature page follows.]
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed under its corporate seal.
Dated: ___________, 2025
| FAIRFAX FINANCIAL HOLDINGS LIMITED | |||
| By: | |||
| Name: | Amy Sherk | ||
| Title: | Vice President and Chief Financial Officer | ||
| Attest: | ||
| Peter Clarke | ||
| President and Chief Operating Officer |
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
(Certificate of Authentication may be
executed by either Trustee)
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON, as U.S. Trustee | ||
| By: | ||
| Authorized Signature | ||
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL SECURITY
Initial Principal Amount of Global Security: US$●
| Date | Amount of Increase in Principal Amount of Global Security |
Amount of Decrease in Principal Amount of Global Security |
Principal Amount of Global Security After Increase or Decrease |
Notation by Registrar or Security Custodian |
Annex B
Form of 2055 Note
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY, UNLESS AND UNTIL THIS SECURITY IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM.
[Rule 144 Global Notes: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER: (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THIS SECURITY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE CORPORATION OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER) OR (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFEREE IS A PURCHASER WHO IS NOT A QUALIFIED INSTITUTIONAL BUYER, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF NEW YORK MELLON, AS U.S. TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE CORPORATION MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE 2(D) ABOVE OR UPON ANY TRANSFER OF THIS SECURITY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS USED IN THIS SECURITY, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.]
[Regulation S Global Notes: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR OTHER SECURITIES LAWS. THE HOLDER HEREOF, BY ACQUISITION OF THIS SECURITY, AGREES THAT, PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S (“REGULATION S”) UNDER THE SECURITIES ACT), NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES (AS DEFINED IN REGULATION S) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S), EXCEPT TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF THE INDENTURE REFERRED TO HEREIN.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY AFTER 40 DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE DATE ON WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) AND (B) THE ORIGINAL ISSUE DATE OF THE SECURITIES.
WITH RESPECT TO ANY SECURITY THAT IS SOLD PURSUANT TO THE ORIGINAL DISTRIBUTION IN CANADA, UNLESS PERMITTED UNDER APPLICABLE SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE THE DATE THAT IS FOUR MONTHS AND A DAY AFTER THE DATE ON WHICH THIS SECURITY IS ISSUED.]
FAIRFAX
FINANCIAL HOLDINGS LIMITED
(Organized under the laws of Canada)
6.500% SENIOR NOTES DUE 2055
US$ ●
| No. [R-] [S-]● | CUSIP: [303901 BW1] [C33461 AP6] | |
| ISIN: [US303901BW17] [USC33461AP62] |
Fairfax Financial Holdings Limited, a corporation duly organized and existing under the laws of Canada (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., as nominee for The Depository Trust Company (“DTC”), or its registered assigns, the principal sum of ● UNITED STATES DOLLARS (US$●) (as may be modified by the Schedule of Increases and Decreases of Global Securities attached hereto) on May 20, 2055 at the office or agency of the Corporation maintained for such purpose in The City of New York, and to pay interest semi-annually in arrears, on May 20 and November 20 in each year (each, an “Interest Payment Date”), commencing November 20, 2025, from the issue date of this Security or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 6.500% per annum, until the principal hereof is paid or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be May 5 or November 5 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and such Defaulted Interest may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustees (as defined below), notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, all as more fully provided in said Indenture.
Interest on this Security will be computed on the basis of a 360-day year of twelve 30-day months. Interest on this Security is subject to any Additional Amounts (as defined in the Sixth Supplemental Indenture (as defined below)) and any Additional Interest (as defined below) that may be payable thereon.
This Security is one of the duly authorized Securities of the Corporation (herein called the “Securities”), issued and to be issued in one or more series under an indenture dated as of December 1, 1993 (the “Base Indenture”), among the Corporation, The Bank of New York Mellon, a corporation duly organized and existing under the laws of the State of New York, as the successor U.S. trustee (herein called the “U.S. Trustee”, which term includes any successor U.S. trustee under the Indenture with respect to the Securities in this series), and Computershare Advantage Trust of Canada, a trust company duly incorporated and existing under the laws of Canada, as the successor Canadian trustee (herein called the “Canadian Trustee”, which term includes any successor Canadian trustee under the Indenture with respect to the Securities of this series, and, collectively with the U.S. Trustee, the “Trustees”) as amended by the first supplemental indenture dated as of May 9, 2011 (the “First Supplemental Indenture”), the third supplemental indenture dated as of February 26, 2021 (the “Third Supplemental Indenture”) and the sixth supplemental indenture dated May 20, 2025 (the “Sixth Supplemental Indenture” and together with the Base Indenture, the First Supplemental Indenture and the Third Supplemental Indenture, the “Indenture”) to which is hereby made for a statement of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Corporation, the Trustees and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the Securities of the series designated as 6.500% Senior Notes due 2055, initially limited to an aggregate principal amount of US$400,000,000. Additional Securities of this series may be issued by the Corporation from time to time.
The Securities of this series are issuable only in registered form without coupons in initial denominations of $2,000.00 and multiples of $1,000.00 in excess thereof.
The Securities of this series will be direct, unsecured obligations of the Corporation and will rank equally and ratably with all of the Corporation’s other unsecured and unsubordinated indebtedness. The Securities of this series will rank among themselves equally and ratably without preference or priority.
The Corporation is subject to certain covenants as described in the Indenture. If an Event of Default with respect to the Securities of this series (as described in Section 2.12 of the Sixth Supplemental Indenture) shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Securities of this series are redeemable at the redemption prices as described in Sections 2.5 and 2.7 of the Sixth Supplemental Indenture and in any applicable supplemental indenture as contemplated in Section 2.9 of the Sixth Supplemental Indenture and as described in such applicable supplemental indenture.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the Place of Payment, the Corporation shall execute, and one of the Trustees shall authenticate and deliver, in the name of the designated transferee, one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.
Modifications and Amendments
The Indenture permits, with certain exceptions as therein provided, the Corporation and the Trustees to enter into supplemental indentures to the Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of modifying in any manner the rights of the Holders of the Securities under the Indenture with the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities to be affected. The Indenture also permits the Holders of not less than a majority in principal amount of all Outstanding Securities affected, on behalf of the Holders of all such Securities, to waive compliance by the Corporation with certain provisions of the Indenture. In addition, the Holders of not less than a majority in principal amount of the Outstanding Securities of any series, on behalf of the Holders of all of the Securities of such series (or, in some cases, the Holders of not less than a majority in principal amount of all Outstanding Securities, on behalf of the Holders of all such Securities) may waive certain past defaults under the Indenture and their consequences. Any such consent or waiver shall be conclusive and binding upon the Holder of this Security and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security or any such other Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest on this Security as herein provided and at the place, rate and respective times, and in the coin or currency, herein and in the Indenture prescribed.
Registration Rights
Holders of the Securities of this series shall have the benefits of a registration rights agreement, dated as of the issue date of such Securities, among the Corporation and BofA Securities, Inc., Citigroup Global Markets Inc., J.P. Morgan Securities LLC, and Mizuho Securities USA LLC as representatives of the initial purchasers (the “Registration Rights Agreement”), pursuant to which the Corporation has agreed to file a registration statement for an exchange offer (an “Exchange Offer”) of the Securities of this series for new Securities (the “Exchange Securities”), identical in all material respects to this Security, except that the Exchange Securities will be registered under the Securities Act, and the transfer restrictions and registration rights relating to this Security will not apply to the Exchange Securities, or in certain circumstances, a shelf registration statement for the resale of the Securities of this series. In the event of a Registration Default (as defined in the Registration Rights Agreement), additional interest (“Additional Interest”) will accrue on this Security at a rate of 0.25% per annum for the first 90-day period of such Registration Default, increasing by an additional 0.25% per annum for each successive 90-day period of such Registration Default, for maximum Additional Interest of 0.50% per annum.
Upon the completion of the Exchange Offer in accordance with the Registration Rights Agreement, the Corporation shall issue and, upon receipt of a written order of the Corporation in accordance with Section 303 of the Indenture, one of the Trustees shall authenticate (i) one or more Exchange Securities in an aggregate principal amount equal to the principal amount of the beneficial interests in the Regulation S Global Security and/or Restricted Global Securities representing Securities of this series accepted for exchange by the Corporation, all as set forth in the written instructions of the Corporation. Concurrently with the issuance of such Exchange Securities, the applicable Trustee shall cause the aggregate principal amount of the Regulation S Global Security and/or Restricted Global Securities representing Securities of this series accepted for exchange by the Corporation to be reduced in accordance with the beneficial interests tendered in the Exchange Offer in accordance with the procedures of DTC (or the procedures of any successor depositary). The Exchange Securities shall not be deemed “Exempted Securities” within the meaning of the Indenture and shall not bear the Securities Act legends provided for in Section 204 of the Indenture, and the paragraph above (including any Additional Interest) shall not apply to such Exchange Securities.
In the event the Corporation is required to pay Additional Interest pursuant to any Registration Rights Agreement, the Corporation will provide written notice to the Trustees of the Corporation’s obligation to pay Additional Interest no later than 15 days prior to the next Interest Payment Date, which notice shall set forth the amount of Additional Interest to be paid by the Corporation. Neither of the Trustees shall at any time be under any duty or responsibility to the Corporation, any Holders or any other Person to determine whether such Additional Interest is payable or the amount thereof.
Defined Terms
Unless otherwise defined herein, all terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture. To the extent that any term of this Security conflicts with any term of the Indenture, the term of this Security shall supersede and replace the applicable term of the Indenture with respect to the Securities of this series (but not the Securities of any other series). Each Holder of this Security, by accepting the same, agrees to and shall be bound by the provisions of the Indenture.
Governing Law
This Security shall be governed by and construed in accordance with the laws of the State of New York.
Authentication
Unless the certificate of authentication hereon has been manually executed by or on behalf of either the U.S. Trustee or the Canadian Trustee, this Security shall not be entitled to any benefits under the Indenture or be valid or obligatory for any purpose.
[Signature page follows.]
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed under its corporate seal.
Dated: ___________, 2025
| FAIRFAX FINANCIAL HOLDINGS LIMITED | |||
| By: | |||
| Name: | Amy Sherk | ||
| Title: | Vice President and Chief Financial Officer | ||
| Attest: | ||
| Peter Clarke | ||
| President and Chief Operating Officer |
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
(Certificate of Authentication may be
executed by either Trustee)
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON, as U.S. Trustee | ||
| By: | ||
| Authorized Signature | ||
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL SECURITY
Initial Principal Amount of Global Security: US$●
| Date | Amount of Increase in Principal Amount of Global Security |
Amount of Decrease in Principal Amount of Global Security |
Principal Amount of Global Security After Increase or Decrease |
Notation by Registrar or Security Custodian |